ILLINOIS POLLUTION CONTROL BOARD
May 5, 1988
COUNTY OF LAKE (VERNON HILLS
WATER SYSTEM),
Petitioner,
v.
)
PCB 87—198
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
and
TINA SANTOPOALO, LAKE COUNTY
DEFENDERS, VILLAGE OF VERNON
)
HILLS, NORTH SUBURBAN GROUP OF
THE GREAT LAKES CHAPTER OF THE
SIERRA CLUB, MARK D. BOORAS, AND
F.T. MIKE GRAHAM,
)
Intervenors.
MICHAEL J.. PHILLIPS APPEARED ON BEHALF OF PETITIONER;
SCOTT 0.. PHILLIPS APPEARED ON BEHALF OF RESPONDENT;
TINA SANTOPOALO APPEARED ON BEHALF OF HERSELF; MURRAY R.
CONZELMAN APPEARED ON BEHALF OF THE VILLAGE OF VERNON HILLS; A.
SIDNEY JOHNSTON APPEARED ON BEHALF OF THE SIERRA CLUB; LORENS
TRONET APPEARED ON BEHALF OF THE LAKE COUNTY DEFENDERS; MARK D..
BOORAS AND F.T. MIKE GRAHAM APPEARED ON BEHALF OF THEMSELVES.
OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board on a Petition for
Variance (“Petition”) filed on December 15, 1987 by the County of
Lake (“County”). The County seeks variance for the Vernon Hills
Public Water Supply System (“VHWS”) from 35 Ill. Adm. Code
602.105(a) “Standards For Issuance” and 602.106(b) “Restricted
Status” to the extent those rules relate to the exceedence in the
VHWS water supply of the 5 picocuries per liter (“pCi/l”)
combined radium—226 and radium—228 standard of 35 Iii. Adm. Code
604.301(a). The requested term of the variance is five years.
On January 21, 1988 the Illinois Environmental Protection
Agency (“Agency”) filed a Recommendation (“Agency Rec..”) in
support of grant of variance, subject to conditions.
89—69
—2—
~
At the outset, the Board is compelled to note that it is
greatly dismayed at the large number extraneous issues argued and
introduced into the record in this matter. The only issue which
this Board is statutorally allowed to decide in a variance matter
is the narrow issue of whether Petitioner would incur, if denied
the requested relief, an arbitrary or unreasonable hardship not
justified by the environmental and health impact. A variance
proceeding is therefore not a proper forum for challenging local
economic development decisions; it is not a proper forum for
debating local financing decisions; nor is it a proper forum for
indictment and prosecution of local or State officials.
PROCEDURAL MATTERS
Hearings were held on March 2, 14, 21, and 22, 1988 in the
Lake County Court House, Waukegan, Illinois. The hearings
generated 1,411 pages of transcript and 85 exhibits.. At the
onset of the hearings motions were granted for intervention on
the part of the parties captioned herein (R. at 16).. Witnesses
were presented by the County and Intervenors the Village of
Vernon Hills (“Vernon Hills”), the Lake County Defenders (“LCD”),
and the North Suburban Group of the Great Lakes Chapter of the
Sierra Club (“Sierra Club”). In addition narrative testimony was
given by Intervenors F.T. Mike Graham and Tina Santopoalo, and by
A. Sidney Johnston and Dr. Louis E. Marchi. The Illinois
Department of Commerce and Community Affairs also presented
testimony.
Post hearing briefs have been filed by the County and by
Intervenors Vernon Hills, Santopoalo, Sierra Club, and LCD. The
Sierra Club and the LCD filed motions for leave to file their
briefs late. These motions are hereby granted. Written comments
have also been submitted by Carol M. Cooper, Joan D’Argo on
behalf of Citizens for a Better Environment, Tina Santopoalo,
F.T. Mike Graham, the Prentiss—Copley Investment Group,
Continental Grain Company, Kimball Hill, Inc., Elyse M. Roberts,
the Lake County Farm Bureau, and Randall J.. Burt.
By filing of April 18, 1988 the County moved to strike
Intervenor Santopoalo’s written public comment on the grounds
that it argues from certain documents which had been denied
admission by the Hearing Officer on the grounds of hearsay (R. at
1051—2, 1086); Santopoalo responded by filing of April 19,
1988. The Board initially notes that public comments per se are
permissible in variance proceedings pursuant to the Illinois
Environmental Act, Ill. Rev. Stat. ch. 111 1/2, Sections 32 and
37(a). The County’s motion is therefore denied and the
Santopoalo comment remains on the record and will be given the
weight properly accorded it. On the matter of the documents in
question, specifically those marked as Santopoalo Exhibit 1A, 11,
89—70
—3—
12, 13, 14, and 15, the Board affirms the Hearing Officer’s
ruling of inadmissibility as exhibits.
On April 25, 1988 the County also filed a motion to strike
portions of the LCD brief.. The County requests that sections of
the brief which refer to and/or quote documents which had been
denied admission by the Hearing Officer be stricken on the
grounds that they present information outside the record. The
Board notes that the portions of the LCD brief cited by the
County do not quote exhibits and can best be characterized as
argument which therefore will not be stricken. The Board further
notes that it is able to determine and exclude from its
consideration material cited in briefs which is outside the
record and is not of the type which it can take judicial notice.
REGULATORY FRAMEWORK
In recognition of a variety of possible health effects
occasioned by exposure to radioactivity, the U.S.. Environmental
Protection Agency has promulgated maximum concentration limits
for drinking water of 5 pCi/l of combined radium—226 and radium—
228. Illinois subsequently adopted the same limit as the maximum
allowable concentration under Illinois law.
The action that the County requests here is not variance
from the maximum allowable concentration. Irrespective of the
action taken by the Board in the instant matter, the standard
will remain applicable to VHWS. Rather, the action the County
requests is the temporary lifting of prohibitions imposed
pursuant to 35 Ill. Adm. Code 602.105 and 602.106. In pertinent
part these sections read:
Section 602.105 Standards for Issuance
a) The Agency shall not grant any construction or
operating permit required by this Part unless the
applicant submits adequate proof that the public
water supply will be constructed, modified or
operated so as not to cause a violation of the
Environmental Protection Act (Ill. Rev. Stat.
1981, ch. lll~/2, pars. 1001 et seq.) (Act), or of
this Chapter.~
Section 602.106
Restricted Status
a) Restricted status shall be defined by the Agency
determination pursuant to Section 39(a) of the
Act and Section 602.105, that a public water
supply facility may no longer be issued a
construction permit without causing a violation
of the Act or this Chapter.
89—71
—4—
b) The Agency shall publish and make available to
the public, at intervals of not more than six
months, a comprehensive and up—to—date list of
supplies subject to restrictive status and the
reasons why..
c) The Agency shall notify the owners or official
custodians of supplies when the supply is
initially placed on restricted status by the
Agency..
Illinois regulations thus provide that water supply
facilities are prohibited from extending water service, by virtue
of not being able to obtain the requisite permits, if their water
fails to meet any of the several standards for finished water
supplies. This provision is a feature of Illinois regulations
not found in federal law.. It is this prohibition which the
County herein requests be lifted. The granting of the County’s
request, as the County properly notes (R. at 416), does not
preclude enforcement for violation of the radium drinking water
standards.
On the matter of proper scope of a variance proceeding,
Section 35 of the Illinois Environmental Protection Act provides,
in relevant part:
To the extent consistent with applicable provisions
of the
...
Federal Safe Drinking Water Act (P.L. 93—
523),
...
and regulations pursuant thereto,
a. The Board may grant individual variances
beyond the limitations prescribed in this
Act, whenever it is found, upon
-
presentations of adequate proof, that
compliance with any rule or regulation,
requirement or order of the Board would
impose an arbitrary or unreasonable
hardship.
An appellate court decision has held that:
The burden of proving arbitrary or unreasonable
hardship is on the party seeking the variance. (Ill.
Rev. Stat. 1983, ch. 111 1/2, par. 1037.) The
petitioner must establish that the hardship resulting
from a denial of the variance would outweigh the
injury of the public from a grant of the petition.
(Caterpillar Tractor Co. v. Pollution Control Board
(1977), 48 Ill. App. 3d 655, 363 N.E. 2d 419.) The
Board’s finding on such questions of fact are held to
be prima fade true and correct (Ill. Rev. Stat.
1983, ch. 110, par. 3—100) and may not be reversed
89—72
—5—
unless they are against the manifest weight of the
evidence. Philipsborn Equities, Inc. v. Pollution
Control Board (1981), 94 Ill. App. 3d 1055, 419 N.E.
2d 470.
Unity Ventures v. the Pollution Control
Board, the Environmental Protection Agency
and the County of Dupage. 132 Ill. App. 3d
421, 87 Ill. Dec. 376, 383, 476 N.E. 2d 1368
(Ill. App. 2 Dist. 1985).
PREVIOUS VARIANCE
On March 7, 1986 the County filed a previous variance
petition, which was docketed as PCB 86—35. In that proceeding
the County sought a five—year variance from the same regulations
as in the instant proceeding. On May 9, 1986 the Board entered
an Order granting the variance (Lake County Public Works
Department, Vernon Hills Water Supply System v. Illinois
Environmental Protection Agency, 69 PCB 452), but limiting its
term so that it would expire on January 1, 1988. In so doing,
the Board noted the absence of a specific compliance plan and
that the five years requested for variance would not provide for
appropriate Board oversight of the County’s movements towards
compliance (69 PCB 455).
The Board accordingly also conditioned the grant of variance
upon a specific program for identifying a compliance plan, the
principal elements of which were: (1) securing of professional
assistance, (2) investigation of compliance methods, and (3)
preparation and submission to the Agency of a report showing how
compliance shall be achieved within the shortest practicable time
(69 PCB 456). The County duly retained the services of Morris
Environmental Engineering, Inc., of Wheaton, Illinois, and a
report responsive to the variance conditions was prepared and
timely submitted to the Agency. That report, which is titled
“Radium Variance Compliance Report, Lake County Public Works
Department, Vernon Hills Water System” (“hereinafter “Morris
Report”) and dated March 1987, has been submitted into the record
of the instant matter as an attachment to the Petition and as
Petitioner’s Exhibit 2.
The County has also been Petitioner in three other
proceedings before this Board dealing with radiological
parameters. However, these three have been on behalf of the
Wildwood Subdivision Water Supply, a facility different from that
of the instant proceeding (R. at 405—6). The docket numbers of
the three Wildwood proceedings are PCB 82—29, PCB 86—75, and PCB
87—107, and all have reached final disposition.
89—73
-
—6—
BACKGROUND
The County solely owns and operates the VHWS for the Village
of Vernon Hills and surrounding unincorporated areas; the VHWS is
one of fourteen water systems owned by the County (R. at 326).
The County’s Public Works Department provides direct supervision
and operation of VHWS. Service is to approximately 5,000
residential, industrial, and commercial customers representing
some 12,500 residents and industries and businesses employing
“approximately tens of thousands of people” (Petition, par. 16).
VHWS currently has six wells, three deep wells and three
shallow wells (Petition, par. 18). However, the three shallow
wells are no longer in use due to limited capacity and the third
deep well is not yet complete (R. at 737). Thus, the system has
been essentially a deep—well system dependent upon two wells,
which are identified in the record as Wells #1 and #2. The
County contends that the third deep well has been drilled to a
depth (1300 feet.) believed to be relatively radium—free (R. at
407—8); nevertheless, preliminary analyses have shown combined
radium concentrations between 6.0 and 6.5 pCi/l (R. at 410).
The County was advised by the Agency of the high radium
content in the VHWS by letter dated December 9, 1985 (Pet. Exh.
9). The Agency based its determination on a composite sample
which showed a radium—226 content of 6.3 pCi/l and a radium—228
content of 3.1 pCi/l (Id.), for a combined value of 9.4 pCi/l;
the record does not indicate whether the samples were taken from
the distribution system or from the well head. Subsequent
analyses by Teledyne Isotopes Laboratory showed the following for
combined radium—226 and radium—228:
Combined Radium Concentration (pCi/l)
Distribution
Sample Date Well #1 Well #2 Composite. System
12/20/85
10.6
9.6
7.8
x
05/29/86
9.0
10.7
x
10.2
08/20/86
x
x
x
10.8
08/20/86
x
x
x
14.6
11/10/86
9.2
8.9
x
8.9
02/05/87
x
x
x
9.4
05/07/87
7.4
8.7
x
7.1
08/04/87
x
x
x
7.4
Agency Rec.. at par. 5.
Independent analyses conducted by Radiation Measurements,
Inc., for Vernon Hills and submitted to the Agency by letter of
January 18, 1988 showed the following results:
89—74
—7—
Radium Concentration (pCi/i)
Sample No.
Comment
Ra—226
Ra—228
Combined
11531157
SoftenedBottled
below1.31
3.0
3.4
4.7
1157
.
Softened
below 1 below 1
1159
Softened
1.5
5.1
6.6
1154
Not Softened
4.9
7.2
12.1
1155
Not Softened
6.5
10.1
16.6
1158
Not Softened
5.3
10.0
15.3
LCD Exh, 2 at 2.
COMPLIANCE PROGRAM
The County intends to achieve compliance by replacing the
current VHWS well—based water supply with Lake Michigan water.
VHWS has since 1981 had an allotment of Lake Michigan water
pursuant to Illinois Department of Conservation Lake Michigan
Allocation Permit No. 178. However, the County currently does
not have means of transmitting its allotment from Lake Michigan
to the VHWS service area. Nevertheless, Petitioner, along with
seven municipalities, is a charter member of a special district
of government, the Central Lake County Joint Action Water Agency
(“CLCJAWA”).. The purpose of CLCJAWA is to construct and operate
a new Lake Michigan water supply and distribution system for its
member communities (R. at 385).
CLCJAWA expects to deliver Lake Michigan water to central
Lake County by mid—1991 (R, at 386—7), a date which the Morris
Report also concludes to be feasible (R. at 235, 290). To this
end, CLCJAWA received approval in a public referendum on March
15, 1988 to issue $35 million in general obligation bonds (R. at
793—4), to which CLCJAWA intends to add a like amount of revenue
bonds (R. at 385). The design and planning phases of the CLCJAWA
project have been initiated (R. at 387, 393—4).
The County considers its compliance plan to be the “clearly
superior alternative” (R. at 125) for reasons beyond compliance
with the radium standard. The County cites, among other matters,
the lesser chance of running afoul of other Clean Water Act
parameters, constancy of water supply, and decrease in water
hardness relative to the current supply (R. at 124—6), plus
removing themselves from reliance on a groundwater supply which
is dwindling in quantity and deteriorating in quality (R. at 582—
3). Although the Lake Michigan alternative is not clearly
favored on a short—term cost comparison, the County believes that
it will be the most cost—effective in the long—run (R. at 126—7).
Although it is itself not involved in ownership or operation
of the VHWS, Vernon Hills has also concluded that a Lake Michigan
water supply constitutes the only feasible water supply
-
alternative (R. at 875).
89—75.
—8—
The Illinois Department of Commerce and Community Affairs
also endorses CLCJAWA’s Lake Michigan program, noting that it
constitutes “a giant step in addressing the problem of the
diminishing water table and the indicated radium problem” (R. at
960).
A substantial portion of the record in this matter is
directed toward the question of whether the VHWS might obtain
Lake Michigan water in some manner other than via participation
in the CLCJAWA program (e.g., R. at 417—510, 834—9, 880—7, 950—2,
1001—23). The County contends that there is insufficent water
available to serve adjacent communities, yet alone Vernon Hills
(R. at 413—4; 428). Vernon Hills contends that other local water
supply governments have either shown no desire to sell water to
the VHWS (R. at 870—2) or that transmission of purchased water to
Vernon Hills would be impractical (R. at 881).
Methods of compliance which the County has investigated as
alternatives to the CLCJAWA program are: (1) treatment at the
well—head; (2) treatment at the point of use; (3) treatment at
the point of entry to a building; (4) blending of water from the
deep—well system with shallow well water; and, (5) use of surface
waters other than Lake Michigan. Three well—head treatment
processes have been investigated: (a) ion exchange, (b) reverse
osmosis, and (c) lime softening. The Morris Report concludes
that all three of the processes would require construction of a
multi—million dollar water treatment plant (R. at 109, ill, 116;
Morris Report at 11, 15), which would take between 27 and 36
months (R. at 283) to complete and which would almost immediately
be obsolete due to arrival of Lake Michigan water (R. at 284;
County Brief at 4—5). For this reason and for other reasons such
as an increase in already—elevated total dissolved solids in
VHWS’s deep wells (R. at 113—4) and problems of disposal of
backwash water (R. at 114—5) and sludge (R. at 122, 1130), the
County rejects well—head treatment. The Agency further cautions
against using lime softening and ion exchange where viable
alternatives are available due to various problems of sludge
disposal and concentration of radioactivity in waste streams
(Agency Rec., par. 24—25).
Treatment at the point of use involves connection of a
zeolite resin or reverse osmosis unit to each faucet (R. at
98). Mr. Morris concluded that this is an infeasible method of
compliance based upon, among other matters, difficulty of control
and lack of acceptance by the USEPA (R. at 98—100). Treatment at
the point of entry is similar to treatment at point of use,
except that treatment occurs near the entry point of water into a
consumer’s facility; a household water softener is an example (R.
at 100). Mr. Morris likewise concluded that this treatment
method is infeasible due to such problems as cost, difficulty of
assuring use, maintenance problems, and elevated concentration of
radium in backwash water (R. at 101—4).
89—76
—9—
Blending of water is inhibited by absence of a sufficient
quantity of low—radium water. Shallow wells, which are the most
conventional source of low—radium water, have yields of less than
50 gal/mm in the Vernon Hills area (R. at 93). This is
inadequate to effectively blend the 900 to 1300 gal/mm needed by
VHWS unless the number of shallow wells were unrealistically
large (R. at 96; 105—6; 255, 407). The Morris Report concludes
that no source of water other than shallow well—water is
immediately available for blending (R. at 94). Although the
Morris Report does not consider the possibility of procuring a
supply of Lake Michigan water sufficient for blending from
existing distribution lines in neighboring Libertyville (R. at
166—7), the County contends that no water is available from this
source (R. at 414.).
The Morris Report also concludes that there are no other
water sources, other than Lake Michigan, which are sufficiently
close and of sufficient sustained flow to provide an alternative
surface water supply (R. at 106).
HARDSHIP
The County believes that a requirement to come into
immediate compliance would impose an arbitrary or unreasonable
hardship. The County and the Agency both note that by virtue of
VHWS’s inability to receive permits for water main extensions,
any economic growth dependent on those water main extensions
would not be allowed. As specific examples of the development
contemplated, Petitioner currently foresees the need to extend
water mains to serve totally or in part the following new users,
development of parts of which are in progress (R. at 399—403,
525—9; Petition, par. 19).
A. Continental Grain Development, consisting of 418
acres of business park and 32 acres of
residential use;
B. Corporate Woods Development, consisting of 300
acres of business park and a 200 room hotel;
C. Hamilton Partners Route 60 Office Development,
consisting of 250,000 square feet;
D. Cuneo Estates Development, consisting of a 75
acre business park and 50 acres of retail uses;
E. Tally Ho Residential Subdivision, consisting of
460 dwelling units;
F. Centrex Residential Subdivision, consisting of
826 dwelling units;
89—77
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C. Kimball Hill Residential Subdivision, consisting
of 215 dwelling units.
Vernon Hills characterizes these developments as coming “to a
screeching halt” absent grant of variance (R. at 875). In
addition to providing water service to the developments, the
County contends that it is necessary to extend water mains for
purposes of fire protection (R. at 548—52).
The County notes that its Public Works Department is not
financed in any part by real estate taxes, but relies exclusively
on revenue and connection fees generated by its waterworks system
(R. at 405). The County also notes that there are currently
hundreds of millions of dollars of residential, industrial, and
commercial development within Vernon Hills which require water
connections, and opines that denial of variance would deny the
County a significant revenue derived therefrom. The County
contends that it requires this revenue to support its portion of
the costs of delivering Lake Michigan water.
The County and Vernon Hills also contend that denial of
variance would have an adverse affect on other units of local
government, including the local school district, park district,
fire district, and village (R. at 865—8; 875—6). The. County
argues that these governmental units would be deprived of
substantial revenues or property taxes, income taxes, and sales
taxes totalling millions of dollars. Vernon Hills notes that Mr.
Thomas Oakson, Superintendent of Schools, appeared before the
Vernon Hills Village Board in February 1988 to urge non-
residential development:
we are a “bedroom community
...
the end result is
a school district that does not have an adequate tax
base.
...
I MUST STATE, as vehemently as possible
that the school district children and the district’s
residential tax payers desperately need the type of
conceptual development now under consideration.
(Vernon Hills Exh, 7, emphasis in original)
The Agency also concludes that denial of the requested
variance would constitute an arbitrary or unreasonable hardship
on the County (Agency Rec., par. 27).
HEALTH THREAT
There is no dispute on the part of any of the parties or
commenters that radium in drinking water constitutes a health
threat. Rather, the dispute centers solely on the identity of
the affected population and on the magnitude of the threat.
89—78
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The issue of the affected population may be clarified by
first noting the effect upon existing and new VHWS connections
under the assumptions that the variance is granted and that the
County adheres to its compliance plan. Under these conditions
the following circumstances of exposure of radium in drinking
water would prevail:
Existing
New
Connections
Connections
present to mid—1991
no change
exposure to
existing water
after mid—1991
receive low
receive low
radium water
radium water
The converse scenario, that which would prevail should the
variance be denied, is less certain. The one clear facet is that
the present prohibition against new connections would remain in
force for the immediate future, and thus rio new connections would
occur immediately. Over the longer term the County might cause
the VHWS to be brought into compliance, thus both allowing new
connections and reducing the radium content in the water
delivered to existing connections. However, the date at which
this could be achieved is uncertain. The record indicates that
the County is unlikely to achieve compliance, by whatever option,
earlier than about mid—1991 due to required lead time for new
facilities (R. at 283), and that moreover the County’s ability to
achieve compliance at any future time would be restricted in the
absence of funds generated from new connections (R. at 405). The
date at which compliance might be achieved absent the instant
variance is therefore uncertain, but would not likely be sooner
than mid—1991. Denial of variance would thus most reasonably
cause the following to prevail:
Existing
New
Connections
Connections
present to mid—1991
.
no change
none
mid—1991 or later
fate
fate
uncertain
uncertain
The distinction between the two scenarios therefore is that
grant of the variance would cause a certain population served by
new water connections to receive VHWS’s currently elevated radium
water for a period up to three years, whereas there would be rio
such population if the variance request were to be denied. In
addition, grant of the variance would assure that the entire
VHWS—served population, both existing and new customers, would by
mid—1991 be served by compliant water. Conversely, denial of
variance would provide no assurance of compliant water being
89—79
—12—
delivered to the general VHWS population at any date prior to or
after mid—1991.
On the matter of the magnitude of the health threat, both
the County and the Agency believe that any harm caused to the
public from granting of variance would be minimal. In support
thereof, the County emphasizes that grant of variance would in no
way affect the water provided to current consumers, other than as
grant of variance may speed replacement of the current high—
radium deep—well system with the low—radium Lake Michigan water
system. It further notes that any adverse health effects would
be limited to a short period of time and only to “that small
group of persons occupying the new developments which are yet to
be permitted” (County Brief at 11).
The Agency believes that while radiation at any level
creates some risk, the risk associated with VHWS’s water is
low. Moreover, the Agency believes that “an incremental increase
in the allowable concentration of the contaminant in question
even up to a maximum of four times the MAC for the contaminant in
question, should cause no significant health risk for the limited
population served by new water main extensions for the time
period of this recommended variance” (Agency Rec., par. 23;
emphasis in original). In conclusion the Agency states:
The Agency believ3s that the hardship resulting from
denial of the recommended variance from the effect of
being on Restricted Status would outweigh the injury
of the public from grant of that variance. In light
of the cost to the Petitioner of treatment of its
current water supply, the likelihood of no
significant injury to the public from continuation of
the present level of the contaminant in question in
the Petitioner’s water for the limited time period of
the variance, the Agency concludes that denial of a
variance from the effects of Restricted Status would
impose an arbitrary or unreasonable hardship upon
Petitioner.
The Agency observes that this grant of variance from
restricted status should affect only those users who
consume water drawn from any newly extended water
lines. This variance should not affect the status of
the rest of Petitioner’s population drawing water
from existing water lines, except insofar as the
variance by its conditions may hasten compliance.
In so saying, the Agency emphasizes that it continues
to place a high priority on compliance with the
standards.
Agency Rec., par. 35 and 36.
89—80
—13—
Vernon Hills additionally referred the matter of radium in
O
its drinking water to its Citizens Advisory Committee That
committee undertook its own evaluation of the health risk
associated with radium in drinking water and issued a report in
October 1986 (Vernon Hills Exh. 4). The report concludes:
the maximum additional risk obtained from
consuming the current water supply for an additional
five years is a fraction of the normal background
cancer risks to which everyone is exposed
independently of Vernon Hills’ water supply. (Id, at
9).
Both the County and the Agency also refer the Board to the
testimony presented by Richard E. Toohey, Ph.D., of Argonne
National Laboratory, at the hearing held on July 30 and August 2,
1985 in R85—l4, Proposed Amendments to Public Water Supply
Regulations, 35 Ill. Adm. Code at 602.105 and 602.106. At
hearing the County moved to have the written testimony of Dr.
Toohey admitted into the record as Petitioner’s Exhibit 7 (R. at
84, 383) for its substantive content. The Hearing Officer
referred the motion to the Board (R. at 85—6). The motion is
hereby granted and said written testimony is admitted into the
record as Petitioner’s Exhibit 7.
A large number of exhibits which address in some manner or
another the health effects of radium have been entered into the
record in this matter. The Board does not believe that
individual summaries of these is justified. It does note,
however, that in its review of them it finds full support for the
position of the Agency as articulated in its Recommendation, Par.
23, 35, and 36 (see above)-.
-
ECONOMIC DEVELOPMENT ISSUE
It is apparent that a significant portion of the opposition
to the requested variance is rooted in differences concerning
advisability of economic development (e.g.., R. at 887—937, 966—
83, 1103—8). The intrusion of this issue into the instant record
is exemplified by the following allegation:
And the fact
-—
and the inference is made that
the reason for bringing lake water in is to deal with
the radium.
And, in fact, they are not bringing lake water to
deal with the radium. They are bringing in the lake
water to provide growth.
R. at 578.
89—81
—14—
The Board notes that whether the County may or may not have
considered “growth” as one motive for its choice of compliance
plans has no relevancy to the instant matter. The County, in
fact, readily admits to multiple motives, including improvement
in water quality and quantity and long—term cost effectiveness
(R. at 124—6; 582—3; 693). Nevertheless, the only relevant
matter here is whether the plan successfully “deals with the
radium”.
Similarly, it is not within the Board’s general purview to
determine for the County and the other CLCJAWA members the
specific arrangements and routes by which they might best deliver
Lake Michigan water to their customers, or from whom, if anyone,
they should purchase water (e.g, R. at 417—510; 834—9). The only
exception which the Board readily sees would be the circumstance
where such choices significantly affected the timing and ability
of the County to carry out its compliance plan. No credible
evidence has been supplied which would indicate that such
circumstance exists here.
COMPLIANCE WITH CONDITIONS OF PRIOR VARIANCE
It is uncontested that the County has fully complied with
the majority of the conditions imposed in the Order of PCB 86—35,
the prior variance. However, the County admits that it has not
fully complied with various of the conditions, although it does
contend that it has “substantially complied” with all of same
(County Brief at 15—26). At particular issue are conditions (g)
and (h). Condition (g) reads in full:
(g) On or before June 15, 1987, or within any written
extension of this period made by the Agency, the
Department shall apply to the Agency, DPWS,
Permit Section, for all permits necessary for
construction of installations, changes or
additions to the Department’s public water supply
needed for achieving compliance with 35 Ill. Adm.
Code 6O4.301(a).
The County (referred to as “the Department” in condition
(g)) does not contest that it has yet to apply for the
construction permits in question. However, it does point out
that it has successfully sought and obtained an extension through
September15, 1987, pursuant to such provision within Condition
(g). The County contends that it sought additional extensions
(R. at 353; Pet. Exh. 16), but that its request was not responded
to by the Agency (R. at 355). The argument that the County
presented to the Agency as the basis for the requested extensions
is the same argument that the County continues to offer for its
failure to comply with condition (g). That is, the County argues
that it could not apply for construction permits because CLCJAWA,
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which is the unit of government responsible for erecting the
system, had not yet designed the project to the point where
application for construction permits would be possible (R. at
349; County Brief at 6).
Several of the Intervenors construe the County’s action with
respect to Condition (g) as evidence of bad faith (e.g.,
Santopoalo Brief at 2; LCD Brief at 5—7). The Agency, in
contrast, believes that the County has chosen a reasonable
compliance option and that it appears to be making progress in
implementing that alternative (Agency Rec., par. 34). For this
reason the Agency concludes that the County’s action regarding
Condition (g) “should not necessarily preclude the grant of
variance” (Id.), which the Agency in fact recommends be granted.
Condition (h) of the Order in PCB 86—35 reads in full:
(h) Pursuant to 35 Ill. Adm.. Code 606.201, in its
first set of water bills or within three months
after the date of this Variance Order, whichever
occurs first, and every three months thereafter,
the Department shall send to each user of its
public water supply a written notice to the
effect that Petitioner has been granted by the
Pollution Control Board a variance from 35 Ill.
Adm.. Code 602.105(a) Standards of Issuance and 35
Ill. Adm. Code 602.106(b) Restricted Status, as
it
relates Section 604.301(a).
The County submits that it did supply the required written
notice on quarterly bills mailed to VHWS customers in July and
August of 1986, but that thereafter it failed to do so (R. at
374—5). The County contends that the omission after August 1986
was inadvertent and related to removal by some person unknown of
instructions to continue printing the notice (R. at 365—6), Mr.
Martin Galantha, Superintendent of the Public Works Department,
asserts that neither he nor anyone else in his Department ordered
this action (Id.). The County thus characterizes failure of
continued notT~e to be “an unfortunate clerical error” (County
Brief at 24).
In further defense, the County contends that it has never
sought to conceal its radium situation from its customers. As
evidence thereto, the County submits that it: (1) assisted the
Village of Vernon Hills in the preparation of a letter sent to
Vernon Hills residents and dated February 6, 1986 advising
residents of the results of radium analyses (R.. at 334; Pet. Exh.
11); (2) on February 1986 sent its own letter to all VHWS
customers advising them of the results of radium analyses (R. at
332; Pet. Exh. 10); (3) responded to over 200 telephone inquiries
b~citizens (R.. at 378); (4) mailed over 200 copies to citizens
ot the Agency’s pamphlet “Radiation in Public Water Supplies” (R,
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at 379); (5) set out approximately 50 copies of the Argonne
National Laboratory report “Long—Term Retention of Radium in
Female Former Dial Workers” and the testimony of Dr. Richard E.
Toohey in R85—14 (R. at 380—2); and, (6) participated in a public
panel discussion on the health risks from radium held in Vernon
Hills on January 7, 1987 (R. at 376—7).
While it is clear to this Board that the County has indeed
failed to fully comply with all of the conditions of the prior
variance, the Board finds that in each case there are mitigating
circumstances. Moreover, the Board can not find that the remedy
urged by the opponents of the requested variance, which is to
deny the variance, would constitute an action commensurate with
the magnitude of the transgression.
TERM OF VARIANCE
The County requests variance for five years, which, if
counted from the date of this action would cause variance to
extend to May 1993. The Agency, conversely, recommends that
variance terminate on May 9, 1991 (Agency Rec., par. 37), an
effective period of three years. The Agency bases its
recommendation on the assertion by the County that its hookup to
Lake Michigan water can be operational by mid—1991 (R. at 387;
County Brief at 5). The Board, like the Agency, will accept this
assertion of the County at face. However, the Board notes that
the ability to have fully operational facilities by mid—1991 does
not necessarily equate with an ability to demonstrate compliance
by mid—1991.
A demonstration of compliance, in fact, requires that the
concentration of an annual composite of consecutive quarters or
the average of the analyses of four consecutive quarterly samples
be less than the 5 pCi/i standard, pursuant to 35 Ill. Mm. Code
605.105(a). Thus, the accumulation of data necessary to
demonstrate compliance may require as much as a year after sub—S
pCi/i concentrations are first achieved. For this reason the
Board will grant variance to May 31, 1992, approximately one year
after the date on which the County asserts it will have the
facilities necessary for attaining compliance. Additionally, the
variance will be conditioned to terminate if compliance is
achieved earlier. This action allows the County up to
approximately one year beyond the scheduled completion of the
facilities portion of its compliance program in which to
demonstrate that compliance has been achieved.
The Board emphasizes that the period of variance from May
31, 1991 to May 31, 1992 is intended solely to allow
demonstration of compliance, and is not intended to provide
additional time for completion of facilities. Pursuant thereto,
the Board will specify that the variance shall terminate on May
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31, 1991 if the County fails by that date to have operational all
O
installations, changes, or additions necessary to achieve
compliance.
The Board will otherwise condition the variance with the
internal deadlines as contained in the Agency’s recommendation,
with adjustment only to allow for the later date of decision in
this matter as caused by extension of the hearing schedule.
CONCLUS ION
The Board finds that, in light of all the facts and
circumstances of this case, denial of variance would impose an
arbitrary or unreasonable hardship upon Petitioner. The Board
also agrees with the County and the Agency that no significant
health risk will be incurred by the persons who are served by any
new water main extensions, assuming that compliance is timely
forthcoming. For this reason the Board will grant the requested
relief, subject to conditions intended to assure public awareness
of the variance and expeditious compliance, among other matters.
The Board is also pleased to observe that the County’s
action pursuant to this grant of variance provides that all VHWS
customers will be removed from their current drinking water risk
in an expeditious and effective manner.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1. Petitioner, the County of Lake, is hereby granted variance
for its Vernon Hills Water Supply System from 35 Ill. Adm.
Code 602.105(a), Standards of Issuance, and 602.106(b),
Restricted Status, but only as they relate to the 5 pCi/i
combined radium—226 and radium—228 standard of 35 Iii. Mm.
Code 604.301(a), subject to the following conditions:
(A) This variance expires on May 31, 1992, or when
compliance with 35 Ill. Adm. Code 604.301(a) is
achieved, whichever is sooner.
(B) Compliance shall be achieved with the maximum allowable
concentrations of combined radium—226 and radium—228 no
later than May 31, 1992.
(C) Notwithstanding condition (A) above, this variance shall
terminate on May 31, 1991 absent full compliance with
condition (C) below.
89—85
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(D) By May 31, 1988, the Petitioner shall submit to the
Agency a certified copy of the Interim Public Water
Supply Contract signed by all members of the Central
Lake County Joint Action Water Agency (“CLCJAWA”).
(E) Petitioner shall report to the Agency by November 30,
1989, as to the status of obtaining Lake Michigan water
before this variance expires. Petitioner shall provide
the Agency along with said report a copy of a fully
executed contract between Petitioner and the CLCJAWA.
The contract shall provide for delivery of sufficient
quantities of Lake Michigan water that will assure that
Petitioner will be in compliance with the standard
regulating said contaminant prior to the expiration of
this variance. The Agency may extend in writing the due
date for providing a copy of the contract for good cause
shown. If Petitioner fails to provide said copy by
November 30, 1989, or prior to the expiration of any
written extension granted by the Agency, whichever is
later, Petitioner shall apply to the Agency for all
necessary permits for the construction of treatment
facilities by May 31, 1990, and install said facilities
and have them operational prior to said expiration.
(F) In consultation with the Agency, Petitioner shall
continue its sampling program to determine as accurately
as possible the level of radioactivity in its wells and
finished water. Until this variance expires, Petitioner
shall collect quarterly samples of its water from its
distribution system, shall composite and shall analyze
them annually by a laboratory certified by the State of
Illinois for radiological analysis so as to determine
the concentration of the contaminant in question. The
results of the analyses shall be reported to the
Compliance Assurance Section, Division of Public Water
Supplies, IEPA, 2200 Churchill Road, P.O. Box 19276,
Springfield, Illinois 62794—9276, within 30 days of
receipt of each analysis. At the option of Petitioner,
the quarterly samples may be analyzed when collected.
The running average of the most recent four quarterly
sample results shall be reported to the above address
within 30 days of receipt of the most recent quarterly
sample.
(G) By no later than May 31, 1990, unless there has been a
written extension by the Agency, Petitioner shall apply
to IEPA, DPWS, Permit Section, for all permits necessary
for construction of installations, changes, or additions
to the Petitioner’s public water supply needed for
achieving compliance with the maximum allowable
concentration for the standard in question. All such
installations, changes, or additions must be operational
by May 31, 1991.
89—86
—19—
(H) Pursuant to 35 Ill.. Adm. Code 606.201, in its first set
of water bills or within three months after the date of
this Variance Order, whichever occurs first, and every
three months thereafter, Petitioner shall send to each
user of its public water supply a written notice to the
effect that Petitioner has been granted by the Pollution
Control Board a variance from 35 Iii. Adm. Code
602,105(a) Standards of Issuance and 35 Ill. Adm. Code
602.106(b) Restricted Status, as it relates to the MAC
standard in question.
(I) Pursuant to 35 Ill. Mm. Code 606.201, in its first set
of water bills or within three months after the date of
this Order, whichever occurs first, and every three
months thereafter, Petitioner shall send to each user of
its public water supply a written notice to the effect
that Petitioner is not in compliance with the standard
in question. The notice shall state the average content
of the contaminant in question in sample.s taken since
the last notice period during which samples were taken.
(J) Until full compliance is reached, Petitioner shall take
all reasonable measures with its existing equipment to
minimize the level of contaminant in question in its
finished drinking water.
(K) The Petitioner shall provide written progress reports to
IEPA, DPWS, FOS every six months concerning steps taken
to comply with paragraphs E, G, and J. Progress reports
shall quote each of said paragraphs and immediately
below each paragraph state what steps have been taken to
comply with each paragraph.
2) Within 45 days of the date of this Order, Petitioner shall
execute and forward to Scott 0. Phillips, Enforcement
Programs, Illinois Environmental Protection Agency, 2200
Churchill Road, P.O. Box 19276, Springfield, Illinois 62794—
9276, a Certification of Acceptance and Agreement to be
bound to all terms and conditions of this variance. The 45—
day period shall be held in abeyance during any period that
this matter is being appealed. Failure to execute and
forward the Certificate within 45 days renders this variance
void and of no force and effect as a shield against
enforcement of rules from which variance was granted. The
form of said Certification shall be as follows:
89—87
—20—
CERTIFICATION
I (We),
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in PCB 87—198, May 5, 1988.
Petitioner
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. lii 1/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Members Jacob D, Dumelle and Bill Forcade dissented.
I, Dorothy M. Gum, Clerk of the Illinois Pollution Control
Board, hereby certifythat the above Opinion and Order was
adopted on the
$~
day of ___________________,
1988, by a
vote of
________.
Dorothy M. rim, Clerk
Illinois Pollution Control Board
89—88
