BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

LERKS

OFF

FE8202

0119

CITY

OF

JOLIET,

Petitioner,

V.

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

)

)

)

)

)

PCB

09-025

)

(Permit

Appeal-Water)

)

)

)

)

STATE

OF

ILLINOIS

PlJtj

Control

Board

TO:

See

Attached

Service

List

NOTICE

OF

FILING

PLEASE

TAKE

NOTICE

that

on

February

20,

2009,

we

filed

with

the

Office

of

the

Clerk

of the

Pollution

Control

Board

—

Petitioner’s

Post

Hearing

Memorandum,

a copy

of

which

is

served

upon

you.

Dated:

February

20,

2009

Roy

M.

Harsch,

Esq.

Lawrence

W.

Falbe,

Esq.

Yesenia

Villasenor-Rodriguez,

Esq.

Drinker Biddle

&

Reath

LLP

191

North

Wacker

Drive

- Suite

3700

Chicago,

IL 60606-1698

(312)

569-1441

(Direct

Dial)

(312)

569-3441

(Facsimile)

THIS

FILING

IS

BEING

SUBMITTED

ON

RECYCLED

PAPER

CHOI!

25304165.1

---

BEFORE

THE ILLINOIS

POLLUTION

CONTROL

BOARD

CITY OF

JOL1ET,

)

20

21)09

Petitioner,

v.

)

)

PCB

09-025

llut!on

STAr

OF

Control

LLlNOIS

Board

)

(Permit

Appeal-Water)

ILL1NOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

PETITIONER’S

POST-HEARING

MEMORANDUM

Petitioner,

City

of

Joliet

(“Joliet”),

hereby

submits

its

post-hearing

memorandum

in

the

above-captioned

matter.

I.

QUESTION

PRESENTED

The

issue presented

in

this

permit

appeal

is

whether

the

Illinois

Environmental

Protection

Agency

(“IEPA”

or

the

“Agency”)

improperly

denied

Joliet’s

request

to

modify

its

Land

Application

of

Sewage

Sludge

Permit

(the

“Permit”)

in

connection

with

Joliet’s

environmentally-beneficial

land

application

of

bio-solids

as

fertilizer

on

farm

fields,

which

it

uses

as

an

alternative

to

disposal

of

this

material

in

landfills.

In

2007,

Joliet

requested

modification

of

Special

Condition

2

of

the

Permit,

which

limits

the

total

accumulative

amount

of

radium 226

and

228

in

soil’

to only

0.4

picoCuries

per

gram

(pCi/g)

above

background

levels,

to

a

higher

limit

of

1.0

pCi/g.

The

reason

for

this

modification

request

was

because

the

lower

limit

of

0.4

pCi/g

restricted

the

number

of

land

applications

of

bio-solids

to

so

few

total

applications

Radium

is

a

radioactive

element

that

is

found

naturally

in

soil

and

groundwater,

and

also

in

the

bio-solids

that

are

produced

by

Joliet

in

the

process

of

treating

its

wastewater.

Each

application

of

bio-solids

to

a

farm

field

is

assumed

to

add

a

tiny

incremental

amount

of

radium

to

the

soil

and,

therefore,

Special

Condition

2

has

the

effect

of

limiting

the

total

number

of

applications

of

bio-solids

that

are

allowed

on

any

one

farm

field.

THE

FILING

IS

BEING

SUBMITTED

ON

RECYCLED

PAPER

---

that

farmers were

reluctant

to

disrupt

their

standard

fertilization

programs

for

such

a

limited

benefit.

Prior

to

final denial

of

the

requested

modification,

IEPA

and

Joliet

had

engaged

in

extensive

negotiations

concerning

the

appropriate

radium

limit.

At

the

end

of

the

day,

the

py

actual

point

of disagreement

between

Joliet

and IEPA

(which

caused

JEPA

to

deny

the

modification

request)

was whether

the

standard

and

required

building

practice

of

removing

topsoil

is

a

factor that

may

be

considered

in

determining

the

allowable

increase

of

radium

levels

in

the

soils

from

Joliet’s

bio-solids

program.

Thus,

the

specific

question

to

be

decided

in

this

appeal

is

simply

whether

the

record

shows

that

Joliet

proved

that

its

bio-solids

program

with

the

requested

permit

modification

would

not

cause

a

violation

of

the

Illinois

Environmental

Protection

Act

(the

“Act”),

415

ILCS

511

et

seq.,

or

applicable

regulations,

or

otherwise

would

cause

harm

or

undue

risk

to

human

health

or

the

environment,

if

Special

Condition

2

had

been

modified

as

Joliet

had

requested.

II.

STATEMENT

OF

THE

CASE

This permit

appeal

is

somewhat

unusual

in

that

the

only

issue

that

is

in

dispute

between

IEPA

and

Joliet

is

one

small

facet

of

Special

Condition

2

(which

itself

is

one

small

part

of

the

Permit);

specifically,

whether

the

legally-mandated

building

practice

of

removing

topsoil

before

constructing

a

residence

is

a

factor

that

may

be

considered

in

determining

the

theoretical

allowable

increase

of

radium

levels

in

the

soils from

Joliet’s

bio-solids

program.

Thus,

this

case

is

about

whether

the

land

disposal

of

bio-solids

that

can

add

small

amounts

of

radium

to

farm

soil

is

permitted

at

all—it

j

allowed,

consistent

with

the

conditions

of

the

Permit.

This

case

is

also

not

about

challenging

IEPA’s

authority

to

regulate

radium

levels

under

the

Permit—for

the

purposes

of

this

appeal,

Joliet

does

not

contest

IEPA’s

authority

to

limit

the

total

amount

of

-2-

---

radium

incident

in

soils

in

conjunction

with

the

land

application

of

bio-solids.

Nor

is

this

case

about

the

actual

dosage

of

radiation

that

is

considered

protective—i

0 millirems—as

each

party

agrees

that

the

10

millirem

exposure

level

is

the

appropriate

maximum

level

from

which

the

land

application

limit

(e.g.,

0.4

pCi/g

in

the

Pennit,

compared

to

1.0

pCi/g

as

requested

by

Joliet)

is

derived.

Rather,

the

real

issue

is

whether

Joliet

or

IEPA

is

correct

as to

the

proper

exposure

model

input

to

use

when

calculating

the

radium

dosage

based

on

the

assumptions

that

are

made

concerning

whether topsoil

is

usually

removed

as

part

of

residential

construction.

As

set

forth

herein,

the

record, including

evidence

and

testimony

submitted

by

Joliet’s

experts,

shows

that

applicable

building

codes

in

the

Joliet

area

mandate

that

topsoil

must

be

removed

for

structural

reasons

before

beginning

construction

of

slab-on-grade

residential

structures.

2

Thus,

by

scraping/removing

such

topsoil

before

constructing

a

house, the

risk

of

radiation

exposure

resulting

from

the

elevated

levels

caused

by

previous

bio-solid

application

on

the

land

is

greatly

reduced,

and

the

exposure

model

should

take this

into

consideration

in

calculating

the

total

land

application

limits

for

bio-solids

based

on

a

10

millirem

safe

radiation

exposure

level.

Also

unusual

is

the

fact

that

the

record

clearly

shows

that

IEPA’s

technical

staff

in

large

part agrees

with

Joliet,

as

evidenced

by

discussions

with

IEPA’s

personnel

and

internal

IEPA

memos

that

are

contained

in

the

record.

Interestingly,

it

appears

from

the

record

that

the

contention

over

the

building

code

issue

is being

driven

by

the

Illinois

Emergency

Management

Agency

(“IEMA”),

which

also

participated

in

the

Permit

modification

negotiations

(although

it

is

not

a

party

to

this

appeal).

Despite

the

agreement

of

IEPA

personnel

with

Joliet

on

these

issues,

2

For

residential

structures

with

below-grade

features,

e.g.,

a

basement,

this

is

not

even

an

issue,

since

the

topsoil

obviously

must

be

removed

in

order

to

construct

such

features

at

all.

---

in

the

final decision

on

the

Permit

modification

request,

it

appears

that

TEPA

improperly

gave

deference

.to

the

position

of

TEMA,

rather

than

acknowledge

the

evidence

presented

by

Joliet

and

even

the

opinions

of

its

own agency

personnel.

The

only

justification

IEPA

provided

for

denying

Joliet’s

appeal

request

in

connection

with

Special

Condition

2

was

a

1984

Memorandum

of

Agreement

(“MOA”)

between

IEPA

and

JEMA.

3

As

explained

herein,

not

only

does

the

specific

limitation

in

the

MOA

(0.1

pCi/g)

constitute

an

impermissible

rulemaking

without

following

proper

rulemaking

procedures

under

the Administrative

Procedure

Act (“APA”),

5

ILCS

100/5-40,

or

any specific

authority

to

implement

such

a

rule

under

the

Act, IEPA’s

reliance

on

the

MOA

as

justification

for

denial

of

the

requested

Permit

modification

is

misplaced,

simply

because

IEPA

has

already

disregarded

the

MOA

by

issuing

the

Permit

with

a

limit

of

0.4

pCi/g

in

Special

Condition

2—a

limit

that

is

clearly

in

excess

of

what

it is

allowed

under

the

same

MOA.

4

Thus,

as

is

evidenced

in

the record,

IEPA

did

not

follow

the

applicable

rulemaking

procedures

set forth

in

the

APA.

IEMA

and

IEPA

entered

into

this

agreement

without

giving

the

public

and

those

affected

by

this

rule

notice

or

an

opportunity

to

comment

on

such

rule,

thereby

violating

the

rulemaking

requirements

to

which

both

agencies

are

subject.

Consequently,

the

MOA

constitutes

an

impermissible,

arid

unenforceable,

rulemaking.

Furthermore,

given

that

Special

Condition

2

allowed

for

a

higher radium

limit

than

what

was

dictated

in

the

plain

Interestingly,

Joliet

commenced

its

bio-solids

program

in

1982;

however,

it

was

not

until

October

2006,

when

TEPA

issued

Joliet’s

renewal

permit

number

2006-SC-4784

(“October

2006

Permit”)

that

IEPA

imposed

such

a

limitation

on

the

allowable

increase

in

soil

radium.

Consequently,

although

the

MOA

between

IEPA

and

IEMA

has

been

in

existence

for

most

of

the

duration

of

Joliet’s

bio-solids

program,

IEPA

waited

24

years

before

it

applied

such

limitation

to

Joliet’s

Land

Application

of

Sewage

Sludge

Permit.

‘

Although

IEPA

has

also

generally

cited

to

Sections

12

and

39

of

the

Act

in

support

of

its

Permit

modification

denial,

these

sections

of

the

Act

simply

concern

enforcement

of

the

general

prohibitions

on

causing

water

pollution

and

IEPA

fails

to

offer

any

evidence

that

granting

the

Permit

modification

from

0.4

pCi/g

to

1.0

pCilg,

as

requested,

would

have

caused

a

violation

of

these

sections.

NOr

is

any

evidence

concerning

this

issue

set

forth

in

the

record.

-

-4-

---

language

of

the

MOA,

it

is

clear that

IEPA

did

not

even

follow

the

terms

of

the

MOA

when

it

issued Joliet’s

modified

permit

on

February

16,

2007,

and

obviously

did

not

consider

itself

bound

by

the

MOA at

that

time.

Finally,

Joliet has

shown,

and

the

record reflects,

that

the

modification

of

Special

Condition

2

from

0.4

pCi/g

to

1.0

pCi/g

will

not

cause

a

violation

of

the

Act.

Prior

to

the

hearing,

Joliet provided

IEPA and

JEMA

with

substantial

information

supporting

the

request

for

modification

of

Speóial

Condition

2.

(R6

-

R335).

IEPA

and

TEMA

agreed with

many

of

the

conclusions

supported

in

the

reports

and

documents

prepared

by

Joliet’s

witnesses

as

evidenced

by

the

Mr.

Hutton’s

July

18,

2007

memorandum

to

various

employees

of

IEPA.

(R27

—

R35).

Most

importantly,

IEPA

and

IEMA

accepted

and

agreed

that

a

10

millirem

radiation

dose

is

deemed

safe.

However,

although

he

parties

agree

that such

is

an

acceptable

dose,

JEPA

and

TEMA differ

in

opinion

with

respect

to

the

method

of

calculation

of

the

theoretical

dose.

Specifically,

IEMA

does

not

accept

that

topsoil

is

almost

always

stripped

before

homes

are

built

and,

therefore,

IEMA’

s

modeling

assumes

that

the

topsoil

always

remains

underneath

a

house.

In

fact,

the

ôontrary

is

true

because,

as

set

forth

in

the

record,

the

majority

of

building

codes

(as

well

as

standard

building

practices)

require

that

the

topsoil

be

removed

prior

to

construction.

Moreover,

at

the

Permit hearing,

Joliet’s

expert

witnesses’

testimony

showed

that

Joliet’s

program

of

land

application

is

safe,

and

that

a more

stringent

limitation

in

Special

Condition

2 is

not

necessary.

Surprisingly,

counsel

for

IEPA

did

not

present

y

witnesses

from

IEPA

or

IEMA to

challenge

Joliet’s

expert

witnesses’

testimony.

5

Based

on

the

above,

there

is

substantial

evidence

in

the

record

that

supports

Joliet’s

contention

that

a modification

of

its

current

permit

Moreover,

no

representatives

from

either

agency

even

attended

the

hearing.

-5-

---

limitation

to

1.0

pCi/g is

safe

and

protective

of

human

health

and

the

environment,

and

will

not

cause

a violation

of

the

Act

or

applicable

regulations.

The

denial

of

Joliet’

s

requested

Permit

modification

will

have

a

great

negative

impact

on

Joliet and

the

farmers

that

rely

on

bio-solids

because

such

a limitation

is

too

restrictive

and

scientifically

unnecessary,

as

explained

further below.

Joliet

has

operated

a

successful

and

safe

bio-solids

program

that

is considered

a

model

for

others.

In

addition

to

providing

a benefit

to

the

recipient

farmers/landowners,

the

program

is

beneficial

to

the

environment

because

the

only

other

alternative

for

dealing

with

the

radium

containing

bio-solids

would

be

to

dispose

of

the

material

in

a

landfill.

The

current

present

value

of

the

cost

associated

with

the

existing

land

application

program

is

about

$10,265,000.

However,

the

cost

for

disposal

of

such

to

a

landfill

would

be

more than

four

times

the

current

cost,

and

totals

$48,083,408.

Therefore,

for

the

reasons set

forth

herein,

the

Boardshould

overturn

IEPA’s

denial

of

Joliet’s

permit modification

request,

and

remand

the

permit

determination

back

to

IEPA

with

instructions

to

revise

Special

Condition

2

to

allow

for

a

limit

of

1.0

pCi/g

of

radium

to

be

added

to

soil

as a

result

of

bio-solid

applications.

III.

BACKGROUND

FACTS

AND

PROCEDURAL

HISTORY

A.

Background

Facts

Joliet

is

a

municipality

that

operates

three

wastewater

treatment

plants

(“WWTP”).

(R2).

In

1982,

Joliet

started

a Land

Application

Program

for

the

disposal

of

bio-solids

from

two

of

its

WWTP

operations,

and

has

continued

this

successful

program

ever

since.

(R55).

From

the

beginning

of

the

program,

Joliet

used

an

independent

agronomist

to

do

all

of

the

field-testing

required

by

the

permit

it

received

from

IEPA which

authorized

the

land

application

of

its

bio

-6-

---

solids.

(R55).

Joliet has

never

received

any

notice

of

violation

or

complaint

regarding

its

bio

solids program.

(Hearing

Testimony

dated January

13,

2009

of

H.Harty

8:8-19,

Exhibit

1,

at

1).6

Joliet’

s

land

application

program

follows

the

applicable

environmental

requirements

concerning

setbacks

from streams,

roads,

and

buildings

to

prevent

any

potential

violation

of

the

Act

or

the

regulations.

(D.Duffield

15:20-16:4,

Exhibit

4,

at

24).

In

fact,

its

program

has

met

or

exceeded

all

requirements

set

by

the

IEPA and

the

United

States

Environmental

Protection

Agency

(“U.S.

EPA”).

(H.Harty

8:8-19,

Exhibit

1,

at

1).

Joliet

has worked

with

Daniel

Fiedler,

a

licensed

Agronomist

of

Land

Treatment

Alternatives,

since

the

inception

of

its

bio-solids

program.

(R55).

Mr.

Fiedler

serves

as

Joliet’s

independent

agronomist

and,

in

that

capacity,

has

the

responsibility

of

talking

to

interested

growers,

confirming

achieved

yields,

conducting

testing

of

the

soil

and

calculating

the

amount

of

bio-solids

necessary

to

achieve

the

expected

yield

of

the

crop.

(R55).

There

is

extensive

testing

that

is

conducted

prior

to

the

land

application

and

thereafter.

(R55).

After

application,

the

dates

and

rates

are

recorded

and

kept

on

file.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

All

fields

since

the

1980s

that have

had

bio-solids

applied

are

on

file,

and

additional

testing

is

performed

prior

to

the

next

application

on

the

same

field.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

Joliet

will

not

apply

bio-solids

to

a

field

that

has

received

bio-solids

from

other

facilities.

(H.Harty

9:5-2 1,

Exhibit

2,

at

1).

The bio-solids

process

begins

at

the

Joliet

treatment

plant

with

the

treatment

of

its

sanitary

sewage

sludge.

(H.Harty

7:18-8:17,

Exhibit

1,

at

2).

Sludge

settles

in

plant

clarifiers

and

is

directed

to

digesters

at

each

plant.

(R280

-

R283).

Bacteria

in

the

digesters

reduce

the

6

Subsequent

citations

to

witness

testimony

at

the

January

13,

2009

hearing

will

be

referenced

by

witness

name

and

reference

to

the

hearing

transcript.

-7-

---

amount

of

organic

matter

and

stabilize

the

sludge

for

land

application.

(R280

-

R283).

Thereafter,

the

bio-solids

are

collected

in

the

anaerobic

digesters

at Joliet’s

two

older

plants

(the

East

Side

and

West

Side

Plants)

and

in

the

aerobic

digester

at

its

newer

plant

(Aux

Sable

Plant).

(R280

-

R283).

The

bio-solids

are

transferred

to

storage

tanks

at each

plant

site.

(R280

-

R283).

Joliet

enters

into

an

annual

agreement

with

each

landowner/grower

whose

fields

have

been

identified

by

Joliet’s

agronomist

as

potential

fields

for

the

contract

period.

(R55).

All

farmers

are

informed

of

the

constituents

of

the

bio-solids

and

sign

a User

Information

Sheet

form

accepting

the

bio-solids.

(R282).

This

User Information

Sheet

identifies

the

analysis

of

the

sludge, the

crop

to be

grown

and

the

yield

goal.

(H.Harty

7:18-8:17,

Exhibit

1,

at

2).

The

hauling

and

land

application

is

contracted

by

public

bid

to

licensed

applicators

who

are

independent

of

the

agronomist.

(R55).

The

applicator

provides

tank

trucks

to

transport

liquid

sludge

from

the

Joliet

plants

to

each

specific

field

in

the

program.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

Each

truck

holds

approximately

5500

gallons

per

load.

(H.Harty

9:5-21,

Exhibit

2,

at 1).

The

applicator

provides

fertilizer

applicators

with

chisel

plows

mounted

with

injectors

to

apply

the

bio-solids

below

the

ground

surface

in

the

top

12

inches

of

soil.

(H.Harty

9:5-21,

Exhibit 2,

at

1).

The application

rates

established

by

the

agronomist

and

agreed

to

in

writing

by

the

landowner/grower

are

utilized.

(R55).

The

percentage

of

solids

of

the

sludge

applied

and

the

gallons

applied

are

recorded

to

verify

application

rates.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

The

agronomist

adds

the

current

application

based

on

the

records

of the

total

applied

to

a

given

field.

Total

loadings

are

compared

to

U.S.

EPA

and

IEPA-allowed

loadings

to

assure

compliance.

(R48).

To

encourage

acceptance

of

sludge

in

the

spring,

growers

are

paid

$50

per

acre

for

the

right

to

apply

the

bio-solids,

and

up

to

an

additional

$50

per

acre

is

paid

if

the

crop

yield

is less

-8-

---

than

the

five-year

average

yield

for

that

field.

(H.Harty

7:18-8:17,

Exhibit

1,

at

2).

The

City

of

Joliet’s

Land Application

Program

has

become

a

model

for

others

to

follow.

(H.Harty

7:18-8:17,

Exhibit

1,

at

2).

This

program

has merit

in

that Joliet

is

recycling

the

product

to

the

best

use

of

technology.

(R55

-

R59).

The

only

economical

alternative

for

Joliet would

be

to

landfill,

which

has

no

benefit

to

the

environment

and is

considerably

more

costly.

(R60

-

R65).

Although

Joliet

has

operated

its

program

since

1982, Joliet

was

not

subject

to

a

limitation

on

radium

until

October

2006,

when

IEPA

issued

Joliet

permit

2006-SC-4784

(“October

2006

Permit”).

7

(R6

-

R8). The

limitation

in

the

October

2006 Permit

concerned

Joliet

because

it

only

allowed

for

a

total accumulative

increase

of

radium

to

a

maximum,

level

of

0.1

pCi/g

resulting

from

the application

of

bio-solids.

(R6

-

R8).

Based

on

this

limitation,

Joliet’s

agronomist

and

consultants

concluded

that

the

number

of

applications

would

be

limited

to

only

one.

(R104

-

R291).

Joliet’s

agronomist

informed

Joliet

that

it

would

be

very

difficult,

if

not

impossible,

to

get

landowners/growers

to

agree

to

be

part

of

the

program

for

such

limited

benefit.

(H.Harty

7:18-8:17,

Exhibit

1,

at

2).

It

was

at

this

point

that

Joliet began

a series

of

discussions

with

the

JEPA

and

IEMA

to

attempt

to

reach

an

agreement

to

increase

the

limitation

in

its

Permit

before

proceeding

with

the

formal

attempts

to

appeal

the

decision

as

described

in

Section

B

below.

The

documentation

concerning

these

discussions

is

included

in

the

record

at

R6

-

R96.

The

IEPA

proposed

regulations

concerning

water

quality

standard

for

radium

on

January

13,

2004

and

adopted

as

the

final

rule

on

March

15,

2006,

and

docketed

as

PCB

R2004-02l.

Mr.

Dennis

Duffield,

who

was

employed

at

Joliet

at

that

time,

was actively

involved

in

this

It

is

uncontroverted

that

IEPA

never

included

any

requirements

in

the

Joliet

land

application

permit

that

limited

the

quantity

of

radium

applied

to

farm

fields

until

October

of

2006,

some

22

years

after

it

was

originally

issued.

Furthermore,

Joliet

is

not

aware

of

any

other

permit

with

limits

that

predate

its

October

2006

permit.

(D.Duffield

15:20-16:4,

Exhibit

4,

at

5).

-9-

---

rulemaking

proceeding.

(R317

-

R318).

It

was

during

the

course

of

the

hearings

concerning

the

proposed

rule

in

PCB

R2004-021,

that

Joliet

first

learned

of

the

MOA between

IEPA

and

TEMA

regarding

the radium

in

sludge.

Based

on

the

potential

consequences

of

the

above rule

and

the

MOA,

Joliet

wrote

a

letter

on

April

4,

2004

to

IEPA

in

which

it

expressed

its

concerns.

In

a

letter

dated

May

10,

2004,.

IEMA

responded

to

Mr.

Al

Keller

of

IEPA,

in

which

IEMA

expressed

concerns

regarding

the

number

of

applications

and

the

potential

exceedance

of

the limitation

provided

for

in

the

MOA.

(R292

-

R293).

As

requested

in

IEMA’s

May

2004

letter,

Joliet

submitted

a

new proposal

for

land

application

on

February

28,

2005,

in

which

it

responded

to

IEMA’s

two

concerns.

(R104

-

R291).

To

prepare

this

submittal,

Joliet

gathered

a

team

of

water

supply engineers,

wästewater

treatment

engineers,

a consulting

agronomist

and

a

health

physicist.

(D.Duffield

15:20-16:4,

Exhibit

4,

at

6).

As

part

of

its

team,

Joliet

retained

Mr.

Eli

Port of

RSSI

as

its

expert

witness.

Mr.

Port

is

a

consulting

health

physicist

who

performed

dose

modeling

of

the

application

procedure

to

determine

the

theoretical

radiation

dose

to

future

residents

of

the

currently

agricultural

land.

(Rl07

-

R277).

RSSI

used

the

RESRAD

model

to

determine

dose.

(R107

-

R277).

RSSI

used

the inputs

for

radium

concentration

in

sludge

based

on

the

concentrations

measured

in

the

sludge

from

the

Joliet

Eastside

Wastewater

Treatment

Plant

and

the

Joliet

Westside

Wastewater

Treatment

Plant.

(R107

-

R277).

The

models

provided

for

eight

applications

of

sludge

over

20

years

and

nine

applications

of

sludge

over

22

years.

(Ri

07

-

R277).

The

input

information

was

based

on

the number

of

homes

per

acre,

size

of

home,

type

of

foundation

and

the

normalpractice

of

removing

expansive

topsoil

prior

to

construction.

(R107

-

R277).

All

models

had

results

that

residents would

receive

a

dose

of

less

than

10

millirems

of

radiation

per

year.

(R107

-

R277).

-10-

---

On January

24,

2007,

Joliet

met

with representatives

of

IEPA

and

JEMA.

(R92

-

R94).

JEMA

expressed

two

concerns

regarding

the

allowable

dose

and

correct

field

application.

(R92

-

R94).

However,

at

this

meeting,

all

parties

agreed

that

10

millirems

per

year

was

an

allowable

radiation

dose.

(R92

-

R94).

As

a result

of

this

meeting,

IEPA

agreed

to

an

interim

limitation

raising

the

Special

Condition

2

from

0.1

to

0.4

pCi/g.

(R92

-

R94).

IEPA

issued

a

modification

to

Joliet’s

Land

Application

of

Sewage

Sludge

Permit

on

February

16,

2007

as

provided

below.

On

June 29,

2007,

Mr.

Duffield

sent

a

copy

of

the

Rogina

&

Associates,

Ltd.

Report

entitled

“Land

Application

of

Radium

Bearing

Bio-solids”

to

Jeff

Hutton

of

IEPA.

(R39).

TEMA

did

its

own modeling

using

the

RESRAD

model,

but

used

a

higher

concentration

of

radium

in

soil

than could

result

from the

Joliet program.

(R35

-

R38).

However,

the

inputs

utilized

by

IEMA

were

not

specific

to

Joliet

and

also improperly

assumed

that

the

home

was

built

on

radium-bearing

topsoil.

(R35

-

R38).

Therefore,

IEMA’s

modeling

was

too

conservative,

as

attested

to

by

Mr.

Hutton

of

JEPA

in

his memorandum

summarizing

Joliet’s

2007

submittal.

(R35

-

R37).

Mr.

Hutton

agreed

with Joliet’s

conclusion

that

the

1.0

pCi/g

background

limitation,

and

the

removal

of

the topsoil

under

the

structures,

would

be

sufficiently

protective

of

human

health

and

the

environment.

(R35

-

R37).

He also

stated

in

his

memorandum

that

this

is

the

same limitation

allowed

by

Wisconsin.

(R35

-

R37).

IEPA,

TEMA

and

Joliet

had

two

subsequent

meetings,

the

first on

August

14,

2007

(R32)

and

the

second

meeting

on

February

26, 2008.

(R23

-

R24).

In

addition,

Joliet

met

with

IEPA

on

August

28,

2008 to

discuss

its

permit modification

request

submitted

on

June

17,

2008.

(R3

-

R22).

However,

the

parties

could

not

agree

as

to

the appropriate

limitation

of

Special

Condition

2

and thereafter,

Joliet

filed

this

appeal

as

provided

below.

Because

negotiations

between

IEPA,

-11-

---

IEMA,

and

Joliet have

continued

for

several

years,

Section

B

summarizes

the

formal

procedural

history

before

the

Board.

B.

Procedural

History

On

October

5,

2006,

the

IEPA

Division

of

Water Pollution

Control

renewed

Joliet’s

Land

Application

of

Sewage

Sludge

permit

2001-SC-2708

and

replaced

it

with

permit

number

2006-

SC-4784

(“October

2006”)(the

new

permit

included

Special

Condition

2

which

is

the

subject

of

this

appeal

as

noted above).

At

Joliet’s

request,

IEPA

filed

a

petition

with

the

Board

on

December

7,

2006

regarding

an

extension

of

time

for

which

Joliet

could

appeal

this

permit.

The

Board

accepted

and

docketed

this

request

as

PCB

07-3

8.

The

purpose

of

this

extension

was

to

facilitate

negotiations

between

IEPA,

IEMA,

and

Joliet

regarding

Special

Condition

2.

Joliet

did

not

file

a

formal appeal

because

it

thought

the

appeal

would

be

unnecessary

in

light

of

its

ongoing

negotiations

with

the

IEPA

and

IEMA.

Therefore,

on

March

1,

2007,

the

Board

dismissed

the

PCB

07-3

8

matter.

During

the

course

of

those

negotiations,

IEPA,

IEMA,

and

Joliet

agreed

that

IEPA

would

issue

an

interim

permit

modification

which

would

allow

additional

land

applications

up

to 0.4

pCi/g.

Subsequently,

on

February

16,

2007

IEPA

issued

a

modified

permit

(Permit

No.

2006-

SC-4784-2)

to

increase

the

allowable

radium

226

and

228

in soil

level

from

0.1

to

0.4

pCi/g

as

set

forth

in

Special

Condition

2.

However,

as

was

understood

by

IEPA

and

IEMA,

Joliet

did

not

agree

with

the

0.4

pCi/g

interim

limitation

and,

therefore,

Joliet

filed

an

appeal

on

March

21,

2007. This

appeal

was

docketed

as

PCB

07-94.

During

the

pending

of

this

appeal,

Joliet

continued

its

discussions

with

JEPA

and

JEMA

regarding

the

limitation

of

Special

Condition

2,

and

proceeded

to develop

additional

information

to

support

its

position.

Based

on

its

ongoing

discussions,

Joliet

filed

a

motion

to dismiss

this

appeal

on

June

6,

2008.

The

Board

granted

this

request and

dismissed

PCB

07-94

on

June

19,

2008.

-

12

-

---

Thereafter,

on

July

30,

2008,

Joliet

submitted

a permit

application

requesting

a

modification

tO

increase

the

allowable

soil

levels

provided

in Special

Condition

2

from

0.4

to

1.0

pCi/g, which

Joliet

deemed

to

be

a safe

and

acceptable

limitation

based

on

its

previous

submittals,

and

the

new

information

included

with

the

application.

On

September

12,

2008,

the

IEPA

denied

this

request

on

the

basis

that

the

1984

MOA

with

IEMA

limits

the

increase

in soil

radium

to

0.1

pCi/g

above

background

levels.

(Ri

-

R2).

In

response,

Joliet

filed

this

present

appeal

docketed

as

PCB

09-25

on October

17,

2008.

On

January

13,

2009,

a public

hearing

was

held

before

Hearing

Officer

Kathleen

Crowley

and

there

were

no members

of

the

public

present

nor

any

representatives

from

IEPA

or

IEMA.

Joliet,

-

its

attorney

Roy

Harsch,

presented

four

witnesses:

1)

Harold

Harty,

who

is

currently

employed

as

the

Plant

Operations

Superintendent

in

charge

of

Joliet’s

three

wastewater

treatment

plants.

Mr

Harty

has

been

employed

by

Joliet for

the

past

34

years.

Mr.

Harty’s

testimony

describes

the

processes

of the

Joliet

plant

and

the

details

relating

to

its bio-solids

program.

(Testimony

of H.

Harty,

7:13-14:17)

2)

Dennis

Duffield,

who

is

the

Project

Manager

for

Rogina

and

Associates,

Ltd.,

a

consulting

firm.

Prior

to Rogina

and

Associates,

Mr.

Duffield

served

as

the

Joliet

Director

of

Public

Works

and

Utilities

for

25

years.

Mr.

Duffield’s

testimony

describes the

history

and

background

of

radium

regulations

and

the

impact

it

had

on

Joliet’s

sludge

disposal

program.

(Testimony

of D.

Duffield,

15:2-20:1)

3)

Eli

Port,

who

is the

President

of

Radiation

Safety

Services,

Inc.

(“RSSI”),

a

consulting

firm.

Mr.

Port

is

a

health

physicist

and

has

been

employed

by

RSSI

for

the

past

33

years.

He

and

his

firm

were

employed

by

Joliet

to

assist

in

studying

the

potential

health

effects

from

the

radionuclides

in

its

wastewater

treatment

sludge

in

connection

with

Joliet’

s effort

to continue

its

program

to

use

the

material

on agricultural

lands.

Mr.

Port’s

testimony

focused

on

the

safety

of

Joliet’s

program.

(Testimony

of

E.

Port,

20:11-27:5)

- 13

-

---

4)

Dr. Richard

Toohey,

Director

of

Dose Reconstruction

Programs

for

Oak Ridge

Associated

Universities,

in

Oak

Ridge,

Tennessee.

Mr. Toohey

was

hired by

Joliet

to

assist

in

assessing

the

health

effects

and

risks

of

radium.

(Testimony

of

Dr.

R.

Toohey,

27:18-

31:14)

Respondent

1EPA

did

not

present

any

withesses.

Hearing

Officer

Crowley

set

a

schedule

at

the

hearing

for

the

parties’

post-hearing

briefing.

IV.

BURDEN

OF

PROOF

AND STANDARD

OF

REVIEW

In

this

appeal,

Joliet contests

IEPA’s

denial

to

modify

Special

Condition

2

of

its

Permit

2006-SC-4784-2

to

1.0

pCi/g.

Section

3

9(a)

of

the

Act

sets

forth

the

standard

concerning

IEPA’s

authority

to

impose

conditions

in

a

permit:

“In

granting

permits

the

Agency

may

impose

such

conditions

as

may

be

necessary

to

accomplish

the

purposes

of

this

Act,

and

are

not

inconsistent

with

the

regulations

promulgated

by the

Board

thereunder.”

415

ILCS

5/39(a)(2007).

As

is

evidenced

by

the

record,

JOliet

believes

that

it

has

shown

that

no

violations

of

the

Act

will

occur

if

the

IEPA

issues

its

permit

with

the

requested

modification

of

1.0

pCi/g

and

that

its

request

is

protective

of

human

health

and

the

environment.

Section

40(a)(1)

of

the

Act

and

Section

105.112(a)

of

the

Board

rules

places

the

burden

of

proof

on

the petitioner

in

permit

appeals.

415

ILCS

5/40(a)(1)(2007);

Browning-Ferris

Industries

of

Illinois,

Inc.

v.

PCB,

179

Ill.

App.

3d

598,

534

N.E.

2d

616 (2d

Dist.

1989).

In

Browning-Ferris,

the

appellate

court

held

that

a

permit

condition

that

is

not

necessary

to

accomplish

the

purposes

of

the

Act

or

Board

regulations

is

arbitrary

and

unnecessary

and

must

be

deleted

from

the

permit.

Browning-Ferris

at

179

Ill.

App.

3d

598,

603;

534

N.E.

2d

616,

620.

Based

on

the

facts presented

in

the

record,

the

limitation

contained

in

Special

Condition

2

is

arbitrary

and unnecessary.

-

14

-

---

In

making

its

determination,

the

Board

is

limited

to

its

review

of

the

record

before

the

Agency

when

it

made the

decision.

415

ILCS 5/40(e)(3)(2007);

Citizens

Utilities

Company

v.

Illinois

Environmental

Protection

Agency,

PCB 85-140

(Slip.

op.

3

March

9,

1989).

As

set

forth

herein,

the record

strongly

support

Joliet’s

request

that

the

Board

should

overturn

IEPA’s

decision

to

modify

Special

Condition

2.

V.

ARGUMENT

A.

GRANTING

JOLIET’S

REQUEST

FOR

MODIFICATION

OF

SPECIAL

CONDITION

2

WOULD

NOT

CAUSE

A

VIOLATION

OF

THE

ACT

OR

RELEVANT

BOARD

REGULATIONS

The

Board

should

overturn

the

IEPA’s

decision

to

deny

Joliet’s

request

to

modify

Special

Condition

2

from 0.4

pCi/g

to

1.0

pCi/g

of

its

permit

because

this

request

does

not

violate

the

Act

or

Board

regulations

and,

is

protective

of

human

health

and

the

environment.

In

granting

permits,

the

IEPA

may

impose

such

conditions

as

may

be

necessary

to

accomplish

the

purposes

of

this

Act,

and

are

not

inconsistent

with

the

regulations

promulgated

by

the

Board.

415

ILCS

5/39(a)

(2007)

;

Illinois

Environmental

Protection

Agency

v.

Jersey

Sanitation

Corporation,

336

Ill.

App.3d

582,

593,

784

N.E. 2d

867,

875-786, (4th

Dist.

2003).

The record

in

this

matter

does

not

reference

any

provisions

in

the

Act

or

associated

Board

regulations

that

specify

the

allowable

increase

of

radium

levels

in

soil

in

connection

with

land

application

of

bio-solids.

As

evidenced

in

its

September

12,

2008

denial

letter

(Ri

-

R3),

IEPA

has

cited

no

rule

under

the

Act

or

Board

regulations

that

requires

the

specific

limitation

provided

for

in

Special

Condition

2.

Rather,

IEPA

generally

cites

to

Sections

12

and

39

of

the

Act,

and,

specifically,

references

the 1984

MOA

with

JEMA,

which

is

not

referenced

in

the

Act

or

Board

regulations.

(Ri

-

R3). In

making

its

determination,

the

Board’s

review

is

limited

to

the

record

before

the

IEPA when

it

made

the

decision.

415

ILCS 5/40(e)

(3)

(2007);

Citizens

Utilities

Company

v.

-

15-

---

Illinois

Environmental

Protection

Agency,

PCB

85-140

(Slip.

op.

3, March

9,

1989).

Consequently,

if

the

record

before

the

Board

does

not

contain

any

specific

references

under

the

Act

or

Board

regulations

regarding

the

amount

of

allowed

increased

radium

in

soil

levels,

then

how

could

IEPA

justify

denying

Joliet’s

request

for

a

modification

based

on

a

violation

of

the

Act

or

Board

regulations?

The

answer

is

that

the

IEPA

cannot

make

this

assertion.

For

example,

in Jersey

Sanitation

Corporation,

the

court

held that

although

there

was

a

general

duty

to

conduct

monitoring

for

15

years

after

the

landfill

site

was

closed,

the

JEPA

could

not

impose

conditions

upon

the

landfill

operator

requiring

a

specific

level

of

certain

groundwater

monitoring

requirement

when

neither

the

Act

or

the

Boards

regulations

provided

any

specific

limitations.

Illinois

Environmental

Protection

Agency

v.

Jersey

Sanitation

Corporation,

336

Ill.

App.3d

582,

594,

784

N.E.

2d

867,

876

(4th

Dist.

2003).

Based

on

the

above,

Joliet

argues

that

it

would

be

improper

for

the

Board

to

deny

its

appeal

based

on

the

fact

that

the

record

is

devoid

of

any

reference

to

provisions

in

the

Act

or

Board

regulations

which

require the

imposition

of

only

a 0.1

pCi!g

limitation

as

set

forth

in

Special

Condition

2.

Although

there

is

no

specific

numerical

limitation

provided

in

the

Act

or

Board

regulations,

Joliet

would

like

to

make

it clear

that

it

is

not

challenging

JEPA’s

authority

to

regulate

radium

levels under

the

Permit.

Rather,

Joliet

contests

the

limitation

imposed

by

Special Condition

2

because

it

is

unnecessary

and

unreasonable,

given

the

environmental

and

economic

investigations

that

were

conducted

by

its

consultants,

which

concluded

that

the

soil

concentration

of

radium

can

be

increased

to

1.0

pCi/g

without

exceeding

a

dose

of

10

millirems

per

year.

(R9

-

R22).

Joliet

has

been operating

its

bio-solids

program

successfully

for

well

over

25

years.

(R55

-

R57). Joliet

has

never

received

any

notice

of

a violation

or

complaint

regarding

its

bio-solids

-

16-

---

program.

Joliet’s

land

application

program

follows

the

applicable

environmental

requirements

concerning

set

backs

from

streams,

roads,

and

buildings

to

prevent

any

potential

violation

of

the

Act

or

the

regulations.

(D.Duffield

15:20-16:4,

Exhibit

4,

at

24).

In

fact,

its

program

has

met

or

exceeded

all

requirements

set

by

the

IEPA and

the

U.S.

EPA.

(D.Duffield

15:20-16:4,

Exhibit

4,

at

24).

The

program

has

proved

to

be

beneficial

to

Joliet and

the

participant

famers/landowners.

(R41-R91).

In

the

June 2007

Rogina

&

Associates

Report

titled,

“Land

Application

of

Radium

Bearing

Bio-solids,”

(“June 2007

Report”),

Mr.

Dennis

Duffield

summarizes

the

benefits

of

the

land

application

for

the

farmers/landowners.

(R41

-

R80).

Specifically,

the

June

2007

report

notes that

the

application

of

bio-solids

increases

the

fertility

of

crop

land

and

allows

growers

to

achieve

desired

crop

yields without

expenditures

for

commercial

fertilizer.

(R54).

The June

2007 Report

also

describes

the

actual

operational

procedures

that

are

taken

to

assure

the

proper

application

rates

as

well

as

the

safety

of

the

program.

(R55

-

R59).

Moreover,

the

report

also

discusses

the

environmental

benefits

of

Joliet’s

current

program

in

comparison

to

landfill

disposal.

(R60).

Specifically,

the

June

2007

Report

states

that

the

disposal

of

bio-solids

has

the

potential

to

increase

the

atmospheric

concentration

of

radon.

If

the

bio-solids

are

concentrated

in

limited

portions

of

a

landfill,

atmospheric

concentrations

of

radon

above

and

downwind

of

the

landfill may

exceed

background.

(R60).

In

addition,

to

the

potential

environmental

implications,

the

cost

of

disposing

the

bio-solids

is

well

oyer

four

times

that

of

its

current

program.

(R81

-

R9

1).

The

environmental

consulting

firm

of

Clark

Dietz,

Inc.,

prepared

an

August

2004

report

titled “Evaluation

of

Radium

Removal

Impacts

to

Sludge

Handling

at

the

Eastside

and

Westside

Wastewater

Treatment

Facilities”

at

the

request

of

Joliet

to

assess

the

costs

and

-

17-

---

benefits/disadvantages

of

changing

its

practice

from

land

application

to the

disposal

of its

bio

solids

in

a landfill

and

concluded

that

the

disposal

of

the

bio-solids

in

a

landfill

is

not

cost

effective.

(R8

1

—

R9

1).

Clark

Dietz

determined

that

the

total

amount

of

solids

requiring

landfill

disposal is

approximately

43,927

tons

and

such

landfilling

would

require

significant

capital,

operational

and

maintenance

costs.

(R81

-

R91).

Specifically,

the

report

concluded

that

landfill

alternative

would

be

over

$48

million

in

present

value

life

cycle

cost,

versus

the

existing

land

application

program

which

is

just

under

$10

million.

(R81

-

R91).

The

report

also

cited

to

additional

costs

that

were

not

as

easily

quantifiable,

such

as

the

substantial

nutrient

benefit

to

the

local

farmers

participating

in

the

program

and

a cumulative

annual

savings

of approximately

$48,000.

(R90).

Based

on

the

above,

it

would

seem

illogical

for

Joliet

to

expend

the

$48

million

in

municipal

funding

when

the

cost

of landfill

disposal

taking

into

account

both

economiô

and

environmental

considerations

is not

justified.

Furthermore,

Joliet

has

been

operating

its

current

program

in

compliance

with

all

the

JEPA

and

U.S.

EPA

rules

at a

fraction

of

what

the

landfill

alternative

would

cost,

plus,

it

has

additional

benefits.

Rogina

&

Associates

updated

the

cost

figures

in

its

June

2007

report

and

concluded

that

the

lowest

cost

alternative

continues

to

be

the

current

Joliet

Program.

Additionally,

the

cost

figures

were

updated

to

reflect

the

total

present

value.

(R60

-

R65).

The

total

present

value

of

Joliet’s

current

program

is

approximately

$10,265,000,

whereas,

the

landfill

disposal

costs

are

almost

$48,100,000.

(R65).

Throughout

its

25

years

of

operation,

Joliet

has

worked

with

experts

to

ensure

that

its

program

is

safe

and

beneficial

to

the

farmers/landowners.

(R54

-

R87).

From

the

start

of

its

program,

Joliet

has

worked

with

the

same

independent

agronomist,

Dan

Fiedler,

who

completes

all

of

the

field-testing

required

by

the

IEPA

permit

which

authorizes

the

land

application

of

its

-18-

---

bio-solids.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

The

June 2007

Report

prepared

by

Rogina

&

Associates

exemplifies

that

there

is

a

significant

amount

of

testing

that

is

completed

by

Mr.

Fielder,

prior

to

entering

Joliet’s

program

and thereafter.

(R55

-

R57).

More

importantly,

Mr.

Fiedler

has

direct

contact

with

both

Joliet

and the

landowners/farmers

and

understands

what

it

takes

to

operate

a

successful

program.

Based

on

Mr.

Fiedler’s

experience,

a

limitation

of

0.1

pCi/g would

be unacceptable

by

most,

if

not

all,

of

the

farmers

in

the

program

because

such

limitation

would

only

allow

for

one application

of

bio-solids.

Therefore,

this

would

be

unacceptably

disruptive

to

the

participant

farmers’

long

term

fertilizer

program.

(H.Harty

9:5-

21,

Exhibit

2,

at

1).

Moreover,

Mr.

Fiedler

indicates

that

even

a

limitation

of

0.4

pCi/g

would

only

allow

four

applications

and that

would

still

be

unacceptably

disruptive

to

the

farmers’

fertilizer

program.

(H.Harty

9:5-21,

Exhibit

2,

at

1).

Joliet

has

been

operating

its

program

with

an

interim

limitation

of

0.4

pCi/g

and

Mr.

Fiedler’s

letter

shows

that

the

growers

have

indicated

that

they cannot

continue with

a

bio-solids

application

program

that

has such

limitations.

(H.Harty

9:5-2

1,

Exhibit

2,

at

1).

Joliet

wishes

to

continue

to

operate

a

program

that

is

beneficial

to

the

farmers/landowners

and

Joliet.

However,

with

such

limitations,

it

is

evident

that

Joliet

cannot

continue

to

operate

its

bio-solids

program.

Therefore,

Joliet

would

be

forced

to

dispose

of

its

bio-solids

in

a

landfill.

Given

the

potential

environmental

implications

as

well

as

significant

costs

as

explained

above

in

the

Clark

Dietz

August

2004

Report,

this

alternative

is

unreasonable.

Furthermore,

it

is

inconsistent

with

the

“As

Low

As

Reasonably

Achievable”

(“ALARA”)

criteria

as

defined

by

the

Health

Physics

Society.

(R48-R49).

The ALARA criteria

provides

that

the

allowable

radiation

dose should

be

based

on

the

following:

“making

every

reasonable

effort

to

maintain

exposures

to

ionizing

radiation

as

far

below

the

dose

limits

as

practical.

Be

consistent

with

the

-

19-

---

purpose

for

which

the

licensed

activity

is

undertaken,

taking

into

account

the

state

of

technology,

the

economics

of

improvements

in

relation

to

state

of

technology,

the

economics

of

improvements

in

relation

to

benefits

to

th

public

health

and

safety,

and

other

societal

and

socioeconomic

considerations.

The

means

are

in

relation to

utilization

of

nuclear

energy

and

licensed

materials

in

the

public

interest.”

(R49).

In the

June

2007

Report,

Mr.

Port indicated

that

reasonable

efforts

to

limit

ionizing

radiation

should

include

removing

the

topsoil

from

beneath

the

home.

(R67).

Based

on

the

above,

Joliet

requests

that

the

Board

should

impose

the

appropriate

limitation

that

will

continue

to allow it

to

operate

its

bio-solids

program.

Moreover,

as

explained

below,

the

1.0

pCi!g

limitation

which

Joliet

requests,

is reasonable

and

will

not

cause

a violation

of

the

Act

or

Board

regulations,

and

is

consistent

with

the

ALARA

criteria.

Joliet

has

undertaken

extensive

investigations

to

understand

and

quantify

the

risks

and

benefits

of

its

program

and,

based

on

its

investigations,

Joliet

believes

that

a

1.0

pCi/g

limitation

is

protective

of

human

health

and

the

environment,

while

also

being

the

best

economic

and

environmentally-friendly

alternative.

Joliet’s

consultants

prepared

several

reports

each

of

which

are

contained

in

the

record

and

were

provided

to

IEPA:

(1)

The

Rogina

&

Associates

June

2007

Report

titled

“Land

Application

of

Radium Bearing

Bio-solids”

(R39

-

R91);

(2)

The

Clark

Dietz

August

2004

report

titled

“Evaluation

of

Radium

Removal

Impacts

to

Sludge

Handling

at

the

Eastside

and

Westside

Wastewater

Treatment

Facilities”

(“August

2004

Report”)

(Referenced

in

June

2007

Report

at

R81

-

R91);

and

(3)

The

RSSI

October

25,

2004

report

titled

“Report

of

RESRAD

Dose

Modeling

for

Waste

Water

Treatment

Plant

Sludge

Applied

to

Land

Currently

Used

for

Agriculture”

(“RSSI

October

2004”)

(R107

-

R272).

Interestingly,

although

Joliet

prepared

-20-

---

several reports

in

support

of

its

request,

absent

in

the

record

are

any

reports

prepared

by

JEPA

or

IEMA which

refute

the

claims

asserted

in

Joliet’s reports.

The

August

2004

and

the

RSSI

October

2004

reports

were

provided

to

JEPA

in

a

letter

dated

February

28,

2005.

(Ri

04

-

R327).

It

was

in

this

letter

that

Joliet

first

requested

that

it

be

allowed

to

increase

the

soil

concentration

of radium

by

1.0

pCilg.

The

October

2004

Report

was

prepared

by

Eli

Port

of

RSSI,

a

consulting

health

physics

firm.

(Ri

05).

The

report

summarizes

the

dose modeling

of

the

application

procedure

utilized

by

Joliet’s

bio-solids’

program

to

determine

the

dose

to

future

residents

of

what

is

currently

agricultural

land,

but

later

may

be

developed

for

residential

purposes.

(R107

-

R272).

RSSI

used

the

RESRAD

6.22

model which

was

developed

at

Argonne

National

Laboratory

for

the

U.S.

Department

of

Energy

to

calculate

radiation

dose.

(R50).

This

program

is

the

same

model

used

by

the

Interagency

Steering

Committee

on

Radiation

Standards

(“ISCORS”)

in

its

review

of

bio-solids.

(Ri05).

RSSI

used

the

inputs

for

radium

concentration

based

on

the

actual

concentrations

measured

in

the

sludge

from

the

Joliet

Eastside

Wastewater

Treatment

Plant

and

the

Joliet

Westside

Wastewater

Treatment

Plant.

(Rii2

-

Ri

13).

The

models

provided

for

eight

applications

of

sludge

over

20

years

and

nine

applications

of

sludge

over

22

years.

The

input

information

was

based

on

the

number

of

homes

per

acre,

size

of

home,

type

of

foundation

and

the

normal

practice

of

removing

expansive

topsoil

prior

to

construction.

All

models

had

results

that

residents

would

receive

a

radiation

dose

of

less

than

iO

millirems

per

year.

(Ri

10

-

R277).

As

evidenced

in

the

record,

IEPA,

IEMA,

and

Joliet

agreed

at

the

January

24,

2007

meeting,

that

a

dose

of

10

millirems

per

year

was

found

to

be

an

acceptable

and

safe

limitation.

(R92

-

R94).

Mr.

Port’s

testimony

at

the

hearing

also

confirms

this

(E.Port

21:2-10).

-

2i

-

---

Q.

Mr.

Port,

I

guess

in

summary

follow-up do

you

have

an

opinion

as

to

whether

based

on

our

various

meetings

that

we’ve

had

that

are

detailed

into

the

record

as

well

as

your

individual

meetings

with

IEMA,

the

Department

of Nuclear

Safety staff

that

are

also

referenced

in

the

record,

that

both

IEPA

and

IEMA

accept

the

ten

millirem

dose

as

being

an

acceptable

number?

A.

Yes.

Interestingly,

IEMA

also

prepared

its

own

modeling

of

the

potential

dose

using

the

RESRAD

model.

(R50).

However,

Joliet

contests

that

the

inputs utilized

by

IEMA

were

improper

and,

therefore,

IEMA’s

modeling

should

not

be

dispositive

of

IEPA’s

decision

to

modify Special

Condition

2

as

requested

by

Joliet.

Mr.

Jeff

Hutton,

who

is

the

permit

writer

for

IEPA’s Division

of

Water

Pollution

Control

(“DWPC”),

prepared

a memorandum

analyzing

the

two

models.

(R35

-

R38).

In

this

memorandum,

Mr.

Hutton,

even

expressed

concms

and

identified

certain

flaws

with

the

input

values

utilized

by

IEMA

because

they

were

not

reflective

of

the

actual

circumstances.

(R35

-

R38).

Based

on

Mr.

Hutton’s

analysis

of the

two

models,

the

biggest

factor

impacting

exposure

is

the

question

of

whether

the

topsoil

is

removed

before

construction

of

the

residence.

(R35).

This

is

the

main

issue

to

be determined

by

the

Board

in

this

matter

as Mr.

Port,

Joliet’s

expert

health physicist,

testified

at

the

hearing.

(E.Port

21:11-22:14).

Q.

And

can

you

characterize

what

appears

to

be

the

sole

point

of

dispute

in this

matter?

A.

The

issue

we

have

discussed

repeatedly

has

been

whether

it

is

reasonable

to assume

that

houses will

be

built

as

required

by

code or

follow

conventional

building

practices

or

whether the

non-confirming

homeowner,

someone

who

builds

a

home

that’s

in

non-conformance

with

either

building

practices

or

code

should

be

protected

should

he

choose

to

build

a home

on

uncompacted

soil.

Q.

Have

you

evaluated

the

RESRAD

modeling

done

by

IEMA?

-

22

-

---

A.

To

some

extent,

yes.

Q.

And

have

you

looked

at

that

modeling

to

see

how

it

compares

to

the

modeling

that

you

performed?

A.

Yes.

Q.

And

if

IEMA

were

to

have

accepted

the

assumptions,

the

removal

of

topsoil,

could you

tell

us

what

the

result

would

be,

if

you

know?

A.

I believe

that

when

they

ran

the

RESRAD

model,

which

is

a

computer

code,

with

topsoil

removed,

because they

used

some input

parameters

that

were

different

from

ours,

we

used

—

they

used

default

values

and

we

used

values

supplied

by

the

City

of

Joliet,

they, at

one

picocurie

per

gram

increased

loading

of

the

soil

at

under six

millirem

and

we

have

about

nine

millirem.

Consequently,

the

issue

before

the

Board

is

whether

the

evidence

in

the

record

supports

Joliet’s

assertion

that

it

is

reasonable

to

assume

that

houses

will

be

built

as

required

by

local

building codes

and

conventional

building practices.

The

evidence

in

the

record

clearly

supports

Joliet’s

assertion.

Joliet

engaged

in

discussions

with

IEPA

and

IEMA

for

over

four

years

and

such

negotiations

were

ultimately

fruitless

only

because

of

this

one

difference

of

opinion.

In

actuality,

the

difference

of

opinion

is

really

not

between

IEPA

and

Joliet

but,

rather,

between

IEMA and

Joliet.

However,

IEMA

is

not

even

a

party

to

this

case,

and

it

is

illogical

that

IEPA

chose

to

ignore

the

evidence

in

the

record

when

it denied

Joliet’s

permit

modification

decision,

including

evidence

prepared

by

IEPA’s

own

representative,

Mr.

Hutton,

who

is

charged

with

writing

the

permits

in

the

Division

of

Water

Pollution

Control.

Mr.

Hutton’s

own

memorandum

concluded

that

“If

IEPA

allows

an

increase

of

1.0

pCi/g

above

background

and

assumes

removal

of

top

soil

under

the

structure,

it will

be

protective

of

human health.”

(R37).

Further,

Mr.

Hutton

noted

that

this

is

the

same

increase

above

background

levels

that

is

allowed

under

Wisconsin’s

rules

and

results

in

less

than

10

millirem

-

23

-

---

per

year

of

radiation

exposure

based

on

Joliet’s

model.

(R37).

Evidently,

IEMA

is

in

disagreement

with

the

JEPA

and

Joliet;

however,

the

record

is

devoid

of

any

sound

evidence

which

would

support JEMA’s

position

and,

consequently,

JEPA’s

reliance

on

it.

IEMA’s

only

justification

for

assuming

that

the

top

soil

will

not

be

removed

under

the

structure

is

based

on

Joliet’s

alleged

lack

of

documentation

to

verify

that

building

codes

require

removal

of

topsoil.

(R33

-

R34).

Joliet

disagrees

with

this assertion

because

IEMA’s

calculation

is

overly

conservative

and

is

at

odds

with

actual

practice.

Moreover,

Joliet’s

expert,

Dennis

Duffield

of

Rogina

&

Associates,

conducted

a

survey

of

the

communities

that

receive

bio-solids

from

Joliet.

Based

on

Mr.

Duffield’

s

investigations,

it

is

common

home

construction

practice

to

remove

topsoil

prior

to

building,

and

all

of

the

communities

that

participate

in

Joliet’s

bio-solids

program

have

building

codes

that

require

removal

of

topsoil prior

to

construction

of

the

home

or

building.

(R5

1

-

R52).

The

survey

results were

documented

in

Appendix

A

to

the

June

2007

Report.

(R52).

Once

again,

the

record

shows

that

IEPA

agreed

with

Joliet’s

investigations.

Mr.

Hutton

indicated

in

his

July 2007

memorandum

that

he

contacted

several

builders

selected

at

random

from

the

phone

book

and

all

said the

same

thing:

“The

top

3

feet

of

soil

is

removed

prior

to

construction

so

that

the

footings

of

the

structure

are

below

the

frost

line.”

(R35).

The

reason

for

this

practice

is

a

simple

one,

as

explained

by

Joliet

in

a

letter

dated

December

22,

2007

to

Al

Keller

of

IEPA’s

Division

of

Water

Pollution

Control:

because

the

land

is tiled

two

or

more

times

a

year,

the

topsoil

layer

has

absolutely

no

structural

bearing

capacity

and

must

be

removed

• prior

to

building

any

type

of

structure.

(R26

-

R28). Based

on

the

above,

there

is

substantial

evidence

in

the

record

to

support

that

this

is

a

reasonable

assumption.

Not

only

do

IEPA

-

24

-

---

personnel

agree,

as

evidenced

by

Mr.

Hutton’s

July

2007

memorandum

(R35-

R38),

there

is

a

stark

absence

in the

record

of

any

evidence

refuting

the

above.

Based

on

the

way

Joliet

operates

its

program,

and

given

what

is

legally

required

by

most

local

building

codes

and

considçred

to be

a

standard

practice,

a limitation

of

1.0

pCi/g

will

not

cause

a

violation

of

the

Act

or

Board

regulations.

However,

even

if

it

assumed

that

the

topsoil

will

not

be

removed,

the

difference

in dose

is

minimal.

Joliet’s

consultants

conducted

an

additional

model

which

assumed

the

topsoil

will

not

be

removed

prior

to construction

of a

home

or

building

and,

based

on

the

results,

the

anticipated

dose

would

be

15.35

millirems,

which

is

5.35

millirems

more

than

the

10

millirems

per

year

agreed

upon.

(R12).

At

the

hearing

Mr.

Port,

Joliet’s

expert

witness,

testified

as

to what

the

actual

difference

means.

(E.Port

23:4-23:9).

Q.

Can

you

perhaps

place

into

perspective

what

the

difference

in

dose

is

from

the

assumption

of

removing

topsoil

or

not

removing

the

topsoil?

A.

Yes.

And,

frequently,

in explaining

load

doses

it’s

difficult

to

assign

any

significance

to

the

doses

other

than

to

compare

with

other

sources

of

comparable

dose.

I did

a

quick

investigation

of

the

doses

— the

difference

in doses

of

a

person

who

lives

in

a wooden

structure

versus

a brick

or

masonry

structure.

And

the

ranges

—

in the

United

States

the

estimates

are

the

difference

between

wood

and

brick.

This

is

the

EPA’s

estimate

from

its

website,

77

millirem.

The

University

of

Iowa

Healthcare

System

has

an

estimate

of

75

millirem

for

the

difference

between

a wooden

house

and

a

brick

house.

The

European

Nuclear

Safety

has

difference

that

ranges

up

to

about

200

millirem

for

a

difference

between

living

in

a