ILLINOIS POLLUTION CONTROL BOARD

May 1, 1981

VILLAGE OF LEMONT,

Petitioner,

v.

)

PCB 80—48

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

JOHN ANTONOPOLOUS APPEARED ON BEHALF OF PETITIONER.

STEPHEN GUNNING APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Anderson):

This matter comes before the Board on the petition for

variance filed March 24, 1980 as amended March 4, 1981 by the

Village of Lemont (Village) pursuant to an interim order of the

Board dated February 19, 1981. The Village seeks variance from

the 15 pCi/i gross alpha particle activity limitation of Rule

304(C) of Chapter 6: Public Water Supply. The Illinois Environ-

mental Protection Agency (Agency), in its original Recommendation

of May 4, 1980 and in the amendments thereto of May 19, 1980 and

March 18, 1981, has supported grant of variance. As several

objections to the petition were filed with the Board, a public

hearing was held May 16, 1980 at which Village residents asked

questions and presented comments.

The Village of Lemont, Cook County, serves the water needs

of approximately 5,000 of its residents from three primary wells.

Well No. 2, which is about 250 feet deep, is seldom used because

of its comparatively high iron content. Wells No. 3 and 4 are

both deep (about 1650 feet) wells drawing water from the Galesville

aquifer. Well No. 3 was the Village’s primary production well

until late 1979 or early 1980, when Well No. 4 became operational;

the Village now uses the deep wells on an alternating basis (Am.

Pet. 2, R. 13).

The Agency has provided test results of four water samples

from the Village’s distribution system. The most recent sample,

analyzed after correction of the Agency’s radiological testing

methodology problem noted in City of Minonk, PCB 80—136 (October 2,

1980), shows gross alpha particle activity of 19.1 ±4.55 pCi/i.

Three “suspect” samplings done in 1979 show measurements in pCi/i

of 14.7 ±3.64, 25.1 ±4.87, and 14.3 ±5.49. As of May, 1980

only one of the wells had been

individually tested: a 1973 test

showed activity

of 9.1 ± 3.6 pCi/i for deep Well No. 3 (Rec. 1—2,

Am. Pet. 3).

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2

On the basis of the two 1979 tests whose results were then

on file, in December, 1979 the Agency notified the Village that

permits for water main extensions could not be granted until the

Village proved that it was not in violation of the gross alpha

standard.* The Village seeks variance to allow issuance of any

necessary permits.

At hearing, George William Feathering of Joseph Schudt and

Associates, the Village’s engineering consultant, explained that

his firm recommended one of three solutions, assuming that further

testing showed that the Village was actually in violation of the

gross alpha standard. The first, and most economical, would he

the blending of the water from deep wells 3 and 4 with water lower

in alpha particle activity either from shallow Well 2 or another

source (R. 18—19). Costs to the Village of this alternative were

not computed.

The second option would be a lime zeolite softening process.

While this process does reduce the radiological content of water,

manufacturers who produce this sort of system declined to guarantee

to the Village that their equipment would remove enough radiation

to comply with the Board’s rules, since radiation removal is only

a secondary by—product of the equipment’s guaranteed purpose of

water softening. Installation costs of treatment facilities at

each well were estimated to be $340,000 per well, for a total

cost in excess of $1 million for equipment alone. Use of the

softening equipment would, in addition, produce a residue, or

sludge, containing a low level of radiation whose disposal would

—

*Board notes the dissatisfaction expressed at hearing con-

cerning the Agency’s notification to the Village of its possible

violation of the Board’s rules. As the Agency explained, this

sort of notification is not punitive in nature, but is made in

compliance with the Agency’s interpretation of the requirements

of Section 39(a) of the Environmental Protection Act (Act).

Section 39(a) of the Act provides in pertinent part that when

application is made for a required permit, such as for a water

extension, that “it shall be the duty of the Agency to issue such

a permit upon proof by the applicant that the facility, 

.will not

cause a violation of the Act or of regulations hereunder.” If

the Agency denies a permit, it must then specify the “sections

of this Act” and “provision of the regulations, promulgated under

this Act, which may be violated if the permit were grantedv~

(emphasis added).

In the City of Rolling Meadows v, IEPA, PCB 80-70 (July 10,

1980), and the Village of Wheeling, PCB 80—59 (July 10, 1980),

both variance cases, the Board declined to decide the correctness

of the Agency’s interpretation of the Act in the context of a

variance petition, preferring instead to have the issue addressed

in a permit appeal. The Board did, however, determine to grant

variance on the basis of a single sample in each case.

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3

he costly. Since there are presently no landfills in Illinois

which are authorized to accept this sludge, it would be necessary

to locate an authorized out—of—state landfill and transport the

sludge there for disposal (R. 20—22). The Village has stated

that since its current assessed value is only $19 million, the

financing of the $1 million softening equipment would he beyond

its levy powers (Am. Pet, 4).

The Agency did not specifically address the problems of

softening waste disposal and the financing of softening equipment

at hearing. In its May 9, 1980 Recommendation, however, the Agency

addresses both issues. In something of a departure from past

practice, the Agency states that, disposal costs aside, due to the

fact that softening waste is acceptable at few if any landfills

since it bears low level radiation, “substantial questions are

raised as to whether softening can be regarded as an available

treatment technique.” The Agency then expresses its belief that

if softening equipment must be installed, that the Village could

issue general obligation or revenue bonds. It is however admitted

that the statutory limitation on interest for such bonds “may

severely limit their present attractiveness” (Rec. 3—4).

The third alternative would be substitution of Lake Michigan

water for the Village’s current well water, It was explained

that the Village was pursuing a Lake Michigan water allocation,

but that even if such an allocation were received, that the

substitution could not be made immediately, because of the need

to arrange for some transmission system to deliver water to the

Village (R. 22). The Village did not allege that it is part of

a regional waste system. The Board notes that it has been

reported that the Village has received an allocation but which

will not be available until 1985. See Pet, Ex. B in Village of

Arlington Heights v. IEPA, PCB 80—229 (April 16, 1981).~

An explanation of the source of the radioactivity in the

Village’s water, and effect of consumption of the water was then

presented by Dr. Robert E, Rowland, Director of the Radiological

and Environmental Research Division of Argonne National Laboratory,

as well as the Director of the Center for Human Radial Biology.

Radium is a natural element produced by the decay of the element

uranium. Both elements are a common constituent of “every shovel—

full of dirt that you take out of your lawn,” and a natural part

of the environment. However, it has been concluded that the

waters of the Galesville aquifer underlying most of Northern

Illinois, part of southern Wisconsin, and part of eastern Iowa,

“picks up” more than the usual amounts of both elements, and

therefore has a naturally elevated radium level (R. 31—32).

It has been established under the federal law and the Board’s

rules that drinking water may contain a total of only 5 pCi/i

radium—226 and radium—228 in combination. As the unstable element

uranium decays into radium, and that unstable element decays into

unstable radon, which itself further decays, alpha particles are

emitted. When alpha particles are ingested, the ions they producn

41-317

can induce harmful chemical reactions in tissues.

The standard

for gross alpha particle activity, exclusive of that produced by

the decay of uranium and radon is 15 pCi/i. In general, if gross

alpha activity exceeds 5 pCi/i, 

an analysis must then be

made to

determine the exact levels of radium—226 and 228 in a water sample.

Alpha activity then, is an indicator of the presence in water of

radium and other radioactive elements (Rules 304(C) (1), 309(C) (1),

Chapter 6).

Consumption of excessive levels of radium in food or drinking

water over a sufficient number of years is believed to lead to

hone cancer, as a fraction of the radium ingested acts like cal-

cium in the body and becomes part of the body’s bone structure.

In order to determine what amounts are “excessive” for workers in

the nuclear and x—ray industries, the International Commission on

Radiological Protection (ICRP) as well as the National Commission

on Radiological Protection and Measurement (NCRP) have for many

years conducted scientific monitoring and research activities.

Their guidelines for the nuclear industry, reduced by a factor of

30, served in 1974 as the basis for the radium standard under the

federal Safe Drinking Water

Act (SDWA) and the Board’s Chapter

6 standard (which can be no “looser” than the federal standards).

However, since then, research done by IRCP and Dr. Rowland

himself has shown that the level of the radium standard was set

too low by a factor of ten, since the human body disposes of more

of the radium it takes in than was originally thought. Based on

these studies and revised IRCP guidelines, Dr. Rowland has advo-

cated to Congress that the combined level for radium 226 and 228

be raised by a factor of 6 from 5 pCi/i to 30 pCi/l. He therefore

believes that the risk of drinking the Village’s water if, as he

opines, it contains 5 pCi/l radium is “vanishing small” (R. 36—50,

EPA Ex. A).

While Dr. Rowland has made no formal recommendation concerning

raising of the alpha activity

limit, he did address that issue on

cross—examination. It is his thought that, as to the Galesville

aquifer alone, rasing the gross alpha activity level by a factor

of 6 from 15 pCi/l to gross alpha activity level of 90 pCi/i would

not be inappropriate. However, as a general matter he believes

that setting of the level at 30 pCi/l would act as a more effec-

tive screening or “further tests necessary” method (R. 54—55).

Mr. Charles Bell, Manager of the Agency Field Operations Section

in which Lemont is located, concurred with Dr. Rowland’s recommen-

dation that the limits should be raised, as well as his estimation

that the risk to health in drinking Lemont’s water is low (R. 60).

Since this action was commenced, the radiological quality

standards have not been raised by USEPA, but the exemption date

of Section 1416 of the SDWA, 42 USC §300(g)—5, has been extended

until January 1, 1984 for all systems, and until January 1, 1986

for systems which have joined a regional waste supply. Under all

the circumstances here presented, the Board finds that denial of

variance would impose an arbitrary or unreasonable hardship on the

41—318

5

Village and its residents, and grants variance until January 1,

1984. The Board agrees with the Agency in that it also is per-

suaded by Dr. Rowland’s testimony that drinking water, over the

next three years, with gross alpha in the quantities present in

the Village’s water presents no immediate threat to public healt~-i

(Rec. May 9, 1980, ¶8, p. 4). To require immediate installation

of softening equipment would make no economic sense; instead, the

Village is ordered to continue testing the water in its wells and

distribution system for gross alpha activity, to initiate testing

for radium, and to explore the economic feasibility both of the

blending option and of replacement of its well water source with

Lake Michigan water. Finally, in response to the concerns about

notification expressed by citizens at hearing, and as required by

Rule 303(D)(1) of Chapter 6, the Village shall provide each water

user with quarterly written notice of the grant of this variance.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter,

ORDER

Petitioner, the Village of Lemont, is granted variance from

the 15 pCi/l gross alpha particle activity limitation of Rule

304(C)(1) of Chapter 6: Public Water Supplies, until January 1,

1984, subject to the following conditions:

1.  Petitioner shall, in consultation with the 7~gency,

continue its sampling program to determine as

accurately as possible the level of radioactivity

in its wells and finished water, Testing for

radium 226 and 

228

shall be commenced.

2.  Petitioner shall investigate the possibility and

economic feasibility

of a) developing additional

water sources to be used to replace its well water

supply, b) blending water from Well No. 2 with

that of its deep wells, and 

developing additional

water sources to blend with its current well sources,

to reduce the radiation level in its finished water.

3,  In the event that replacement or blending is

not feasible, petitioner shall communicate with

the Agency at least every six months to determine

whether landfill sites are available to accept

wastes generated by the lime softening process.

4.  As expeditiously after identification of a feasible

compliance method as is practicable, hut no later

than January 1, 1984, Petitioner shall submit to

the Agency a program (with increments of progress)

for bringing its system into compliance with radio-

logical quality standards.

4 1—3 19

5.  Pursuant to Rule 313(D)(1) of Chapter 6, on or

before June 1, 1981 and every three months there-

after, Petitioner will send to each user of its

public water supply a written notice t.o the effect

that Petitioner

has been granted a variance from

the radiological quality standards by the

Pollution

Control Board.

The notice shall state the average

content of gross

alpha particle activity and radium

in samples taken since the last notice period during

which samples were taken.

Within forty—five days of the date of this Order,

Petitioner shall execute and forward to the Illinois

Environmental Protection Agency, PWS Enforcement

Programs, 2200 Churchill Road, Springfield, Illinois

62706, a Certificate of Acceptance and Agreement

to be bound to all terms and conditions of this

variance. This forty—five day period shall he

held in abeyance for any period this matter is

being appealed.

The form of the certificate

shall be as follows:

CERT IF IC ATE

(We),

______________________________—

having read

the Order of the Illinois

Pollution Control Board in PCB 80—48,

dated ____________________________, understand and accept the said

Order, realizing that such acceptance renders all terms and

conditions thereto binding and enforceable.

Petitioner

By:

Authorized Agent

Title

Date

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Board, hereby certify that the above Opinion and Order were adopted

on the /~_ day of 

/)~__

1981 by a vote of ~1

•~

Christan L. Moffát~

Clerk

Illinois

Pollution Control Board

4 1—320