BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOEcEvED
CLERK’S
OFFICE.
CITY
OF
JOLIET,
)
FEB
272009
Petitioner,
))
STATE
OF
ILUNOIS
2
olIuton
Control
Board
)
v.
)
PCB
09-025
)
(Permit
Appeal-Water)
ILLINOIS
ENVWONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
NOTICE
OF
FILING
TO:
See
Attached
Service
List
PLEASE
TAKE
NOTICE
that
on
February
27,
2009;
we
filed
with
the
Office
of
the
Clerk
of
the
Pollution
Control
Board
— Petitioner’s
Response
to
Illinois
Environmental
Protection
Agency’s
Post-Hearing
Brief,
a
copy
of
which
is served
upon
you.
Respectfully
submitted,
Dated: February
27,
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/
25306658.1
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY
OF
JOLIET,
)
Petitioner,
)
)
v.
)
PCB
09-025
)
(Permit
Appeal-Water)
ILLThOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
PETITIONER’S
RESPONSE
TO
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY’S
POST-HEARING
BRIEF
Petitioner,
City
of
Joliet
(“Petitioner”
or
“Joliet”),
hereby
responds
to
the
Post-Hearing
Brief
of
Respondent
Illinois
Environmental
Protection
Agency
(“Respondent”
or
“IEPA”).
I.
RESPONDENT’S
POST-HEARING
BRIEF
FAILS
TO
ADDRESS
THE
ONLY
ACTUAL
POINT OF
CONTROVERSY
IN
THIS
APPEAL
Respondent’s
minimalist
Post-hearing
Brief
(“Respondent’s
Brief”)
misses
the
point,
and
mischaracterizes
(or
fundamentally
misunderstands)
the
precise
controversy
at
issue
in
the
appeal.
It
also
ignores
the
negotiations
that
took
place
over
several
years
and
the
agreements
reached
among
the
interested
parties,
as
set
forth
in
the
record,
including
the
conclusions
of
IEPA’s
own
personnel.
As
explained
in
detail
in
Joliet’s
Post-Hearing
Memorandum
(“Joliet’s
Memorandum”),
the
piy
actual
point
of
disagreement
between
Joliet
and
IEPA
(which
caused
IEPA
to
deny
Joliet’s
requested
modification
of
its
Land
Application
Permit
(the
“Permit”))
was
whether
the
standard
and
required
building practice
of removing
topsoil
before
constructing
a
slab-on-grade
residence
is
a
factor
that
should
be
considered
in
determining
the
allowable
increase
of
radium
levels
in
the
soils
from
Joliet’s
bio-solids
program.
Respondent
fails
to
address
or,
indeed,
even
THIS
FILING
IS
BEING
SUBMITTED
ON
RECYCLED
PAPER
acknowledge,
this
central
issue.
Instead,
Respondent
appears
to argue
that
y
increase
in
radium
levels
in
soils
to
which bio-solids
are
applied
is
a
per
se
violation
of
the
Illinois
Environmental
Protection
Act
(“Act”),
415 ILCS
5/1
et
seq.,
Sections
12
and
39, and
therefore
the
requested
increase
in
the
permissible
radium
levels
as
set
forth
in
the Permit
(from
0.4
picoCuries
per
gram
(pCi/g)
to
1.0
pCi/g)
violates
the
Act
and must
be
denied.
(Respondent’s
Brief,
at
3).
The
firstflaw
in
Respondent’s
argument
is
that
because
this
case is
about
the
permitted
increase
in
radium
levels
in
soils
(specifically,
what
the
allowable
level
should
be),
it
is
simply
not
the case
that
jy
increase
is
a
violation
of
the
Act.
Therefore,
this
premise
must
be
rejected.
Neither
the
Act
nor
any regulations
promulgated
under
the Act
contain
any
specific
limitations
on
radium
levels
in
soils.
Consequently,
Respondent
relies
heavily
on
the
1984
Memorandum
of
Agreement
between
IEPA
and
the
Illinois
Emergency
Management
Agency
(“IEMA”)
that
set
a
limit
of
0.1
pCi/g
of
radium
for
land applications
of
sewage
sludge,
arguing
that
anything
in
excess
of
that
level
‘causes
water
pollution’
and is
a
violation
of
the
Act.
(Respondent’s
Brief,
at
3). But,
in
so
arguing,
Respondent
loses
sight
of
the
fact
that
IEPA
itself
issued
Joliet’s
Permit
with
Special
Condition
2
that
allowed
a
level
of
0.4
pCi/g.
Clearly,
even
if
the
MOA
set
an
enforceable
standard
under
the
Act
(which
it
does
not,
as
discussed
further
below),
land
application
of
radium
in
excess
of
0.1
pCi/g
of
the
background
level
is
not
a
violation
of
the
Act
as
asserted
by
Respondent
in
its
denial
because
the
Permit
already
allows
for
this.’
Thus,
Respondent
states,
“Even
more
specifically,
the
causing,
threatening
or
allowing
of
the
discharge
of
contaminants
which
might
cause
or
tend
to
cause
water
pollution
will
occur
because
the
Petitioner
is
seeking
an
increase
in
soil
radium
from
0.1
pCi/g
above
background
levels
to
1.0
pCilg
above
background
levels,
which
will
exceed
the
limit
set
in
the
Memorandum
of
Agreement
(“MOA”)
between
Illinois
EPA
and
Illinois
Emergency
Management
Agency.”
(Respondent’s
Brief
at
3).
-2-
Respondent’s
position
that
any
land application
of
bio-solids
in
excess
of
0.1
pCilg
is
a
violation
of
the
Act
is
simply
wrong.
The
second
basic flaw
in
Respondent’s
Brief
is
that Respondent
steadfastly
refuses
to
acknowledge
(or
perhaps
does
not understand)
that
the
practical
Permit
limitation
of
0.4
pCi/g
of
radium
in
excess
of
background
that
was
allowed
under
the
Land
Application
Permit
was
a
level
that
was derived
from
modeling
the acceptable
radiation
dose—i
0
millirems—that
all
concerned
(Joliet,
IEPA
and
IEMA)
agreed
is
protective.
(Joliet’s
Memorandum,
at
21).
The
limitation
of
0.4
pCi/g
in
Special
Condition
2
was
not
a level
that
was
chosen
because
radium
at
that
level
(0.4
pCi/g
or
below)
did
not cause
“water
pollution”
under
Section
12
of
the
Act.
This
fundamental
point
must
be
understood
before
one
can
consider
the
ultimate
question
of
whether
granting
the
requested
modification
would
cause
a
violation
of
the Act.
2
Respondent’s
contention
that
anything
above
0.4 pCi/g
of
radium
violates
the
Act
is,
therefore,
fatally
flawed,
and
one
must
examine
the
origin
of
Special
Condition
2
to
determine
if
Joliet’s
requested
modification
would,
in
fact,
cause
a
violation
of
the
Act.
Therefore,
because
all
agree that
10
millirems
is
an
acceptable
radiation
dose,
the
real
issue
in
this
appeal,
as
explained
in
detail
in
Joliet’s
Memorandum,
is
whether
Joliet
or
JEPA
is
correct
as
to
the
proper exposure
model
inputs
to
use
when
calculating
the
radiation
dosage.
The
only
material
difference
in
the
modeling
is
the
assumption
made
as
to
whether
topsoil
is
usually
removed
as
part
of
slab-on-grade
residential
construction
(which
then
determines
whether
0.4
pCi/g
or
1.0
pCi/g
is
the
appropriate
radium
limitation).
2
The
perplexing
failure
of
counsel
for
Respondent
to
grasp
the
most
fundamental
point
of
the
permit
appeal
may
have
something
to
do
with
the
fact
that
no
IEPA
witnesses
were
presented
at
the
hearing,
nor
did
any
IEPA
representatives
attend,
and
so
presumably
have
not
been
intimately
involved
with
crafting
Respondent’s
legal
position
in
this
matter.
-3-
Rather
than
address
this
issue head-on,
Respondent
states
that
“Petitioner
goes to
great
lengths
to
show
this
increase
in
the
concentration
of
radium
in
the
soil
and
hence
the
increased
risk to
the
population
is
insignificant.
That
is
beside
the
point”
(Respondent’s
Brief,
at
4).
In
fact,
that is
precisely
the
point.
3
As
the
Petitioner,
Joliet’
s
burden
is
to
show that,
as
reflected
in
the record,
Joliet’s
bio-solids
program
would not
cause
a
violation
of
the Act or
applicable
regulations,
or
otherwise
would
cause
harm
or
undue
risk
to
human
health
or
the
environment,
if
Permit
Condition
2 had
been modified
as
Joliet
had
requested.
Joliet
has
met
that
burden.
Joliet
has shown
with
copious
citations
to
the
evidence
in
the
record
before
the
agency,
including
information
submitted
by
Joliet’s
experts
and statements
by
IEPA’s
own
personnel,
the
applicable
building
codes
in
the
Joliet
area mandate
that
topsoil
must
be
removed
for
structural
reasons
before
beginning
construction
of
slab-on-grade
residential
struQtures.
(Petitioner’s
Memorandum,
at
24-25).
Because
such
topsoil
is
removed
before
building
a
house
as
part
of
good construction
practice,
not
to
mention
being
required
by
applicable
building
codes,
the
risk
of
exposure
to
elevated
radium
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
exposure
level.
(Id.)
As
set
forth
in
detail
in
Petitioner’s Memorandum,
Joliet
has
shown,
as
the
record
before
the
agency
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,
that
Joliet’
s
program
of
land
application
is
safe,
and
that
a
more
Respondent
seems
to
imply
that
the
question
of
whether
the
proposedmodification
is
protective
of
human
health
and
the
environment
is
an
irrelevant
consideration,
and
that
the
only
issue
is
whether
a
violation
of
the
Act
would
result
from
issuance
of
the
Permit
modification.
(Respondent’s
Brief
at
4).
If
this
is
the
case,
however,
Joliet
should
win
this
appeal,
because
there
are
no
radium
limits
to
violate,
either
in
the
Act
or
any
applicable
regulations.
Respondent’s
argument
begs
the
question,
because
the
fact
is
that
the
limitation
in
Special
Condition
2
is
based
on
an
analytical
model
which
is
specifically
designed
to
determine
what
is
protective
of
human
health
to
set
the
appropriate
soil
application
limit
as
to
radium.
-4-
stringent
limitation
in
Special
Condition
2
is not
necessary.
Joliet
prefihled
its.
testimony
in this
case
which
gave
Respondent,
and
IEPA
and
JEMA
personnel,
the
opportunity
to
review
it
prior
to
hearing.
As
this
was
discussed
in detail
in
Petitioner’s
Memorandum,
Joliet
will
not
repeat
its
copious
citations
to
the
record
here,
except
to emphasize
a few
major
points.
First,
JEPA
agreed
with
many
of the
conclusions
supported
in
the
reports
and
documents
prepared
by
Joliet’s
witnesses
as
evidenced by
Mr.
Jeff
Hutton’s
July
18,
2007
internal
IEPA
memorandum.
(R35-R37).
Mr.
Hutton concluded:
If the
Agency allows
an
increase
of 1.0
pCi/g
above
background
and
assumes
removal
of
the
topsoil
under
the
structure,
it
will
be protective
of
human
health
This
is the
same
increase
above
background
as
is allowed
under
Wisconsin’s
rules
and
results
in
less
than
10
mrem!year
exposure
based
on Joliet’s
model.
***
The
Agency
should
propose
an
allowable
increase
of
1.0
pCilg
in
soil
radium
based
on
the
RESRAD
scenariO
where
the
exposed
individual
is
a suburban
dweller
living
in
a
house
where
the
topsoil
has
been
removed
during
the
construction
of that
house.
(R37).
Mr.
Hutton
also
agreed
with
the
conclusions
of
Joliet’s
expert,.
Dennis
Duffield
of
Rogina
&
Associates,
who
opined
that
it is
common
home
construction
practice
to
remove
topsoil
prior
to
building,
and
that
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).
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).
JEPA
therefore
agrees
with
Joliet’s
assertion
that
when
using
the
appropriate
input
values
in
the
RESRAD
model
utilized
by
Joliet
and
IEMA,
the
results
conclude
that
the
dose
is
under
the
10
millirems
deemed acceptable
by all
parties.
(Id.).
Thus,
the
appropriate
radium
limitation
in
Special
Condition
2
should
be
1.0
pCi/g,
based
on
these
assumptions.
-5-
Second,
to
evaluate
the
concerns
expressed
by
TEMA,
Joliet’s
expert,
Mr. Duffield,
calculated
that
the
increased
radiation
exposure
would be
15
millirems,
as
opposed
to
10
millirems,
if
one
were
to
assume,
for
the
purposes
of
the
radiation
model,
a
house
where
the
builder
had foolishly
and illegally
built
a
slab-on-grade
house
over
topsoil
to
which
bio-solids
had
been
applied.
(D.
Duffield
15:20-16:4,
Exhibit
4,
at
15).
To
put
this
risk
associated
with
this
5
millirem
difference
in
perspective,
Joliet’s
expert
Eli
Port
characterized
the
difference
between
the
two
radiation
exposure
levels
(15
millirems
compared
to
10)
as
less
than
the
difference
between
living
in
a brick house
verses
a
frame
house.
(E.
Port
23:14-24:9).
Third,
as
to
the
actual
heath
risk
that
the
10
millirem
exposure
level
actually
poses
to
human
health,
Dr. Richard
E.
Toohey,
who
the
Board
should
remember
from
his
past
testimony
regarding
radium
drinking
water
standards,
stated
the
following
in
his
pre-filed
testimony:
[It]
is
clear
from
the
human
data
that
the
LNT
[linear
no-threshold]
model
is
conservative,
that is,
it
overestimates
the
actual
risk.
Consequently,
the
calculated
risk
froth
disposal
of
radium-bearing
sludge
on
agricultural
land
at
a
level
that
results
in
a
radiation
dose
of
10
mrem per
year
or
less
is
an
extreme
upper
limit
on
the true
risk,
which
may
well
be
zero.
The
disposal
of
radium-bearing
sludge
on
agricultural
land
with
a total
accumulative
increase
of
radium
not
to
exceed
1.0
pCi/g
of
soil satisfies
all
three
of
the
basic
principles
of
radiation
protection:
justification,
limitation,
and
optimization.
Therefore,
the
petition
of
the
City
of
Joliet
should
be
granted
and
the
permit
send
back
to
IEPA
to
reissue
accordingly.
(R.
Toohey
28:16- 29:6,
Exhibit
10,
atp.
6)(emphasis
added).
While
Respondent
cites
to
Dr.
Toohey’s
hearing
testimony
in
its
Brief,
it
mischaracterizes
his
actual
conclusion.
Respondent
states
that
“Dr.
Richard
Touhey
[sic]
testified
that an
increase
in
the
concentration
of
radium
would
lead
to
an
increased
dose
and
assumed
for
regulatory
purposes
an
increased
risk.”
(Respondent’s
Brief,
at
4).
However,
examination
of
the
entire
quote
from Dr.
Toohey
shows
the
true
point
of
Dr.
Toohey’s
testimony:
-6-
Q.
[by
Mr.
Karrj:
Page
2 of
your
testimony,
right
about
the
middle
there’s
a
sentence
that
says,
the
important
thing
to
note
is
that
the
limits
are
for
dose
because
potential
risks
to human
health
from
radiation
exposure
are
assumed
to
be
directly
proportional
to
the
radiation dose
received.
And
the
question
I have
is
if
there
is an
increase
in
the
concentration
of
the—I
guess
in this
case
radium,
does
that
lead
to
a greater
dose
or
exposure?
A.
Yes.
An
increase
in
radium
would
lead
to greater
dose.
The
question
is
does
a slight
increase
in dose
really
cause
an
increase
in
risk?
We
assume
it
does
for regulatory
purposes,
but
there’s
no
convincing
evidence
of
these
levels
of
dose
that
it actually
does
increase
the
risk
in
any
measurable
fashion.
(R.
Toohey,
30:19-31:11
)(emphasis
added).
Tellingly, Respondent
presented
no witnesses
at the
hearing
from
IEPA,
or
even
IEMA,
in an
attempt
to rebut
Joliet’s
testimony
and,
thus,
the
record
is
bereft
any
information
that
would
dispute
or
challenge
the
testimony
and
assertions
of
Joliet’
s experts.
It is
well-settled
that
the
Board
must
make
its
determination
based
on
the
information
contained
in
the
record.
415
ILCS
5/40(e)(3)(2007);
Citizens
Utilities
Company
v.
Illinois
Environmental
Protection
Agency,
PCB
85-140,
March
9,
1989
(Slip.
op.
3).
As
set
forth
above,
and
in Joliet’s
Memorandum,
there
is
substantial
evidence
in
the
record
that
supports
Joliet’
s contention
that
a
modification
of
its
current
permit
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.
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
Industries
of
Illinois,
Inc.
v.
PCB,
179
Ill.
App.
3d
598,
603,
534
N.E.
2d
616,
620
(2d
Dist.
1989).
Based
on
the
facts
presented
in
the record,
the
limitation
contained
in
Special
Condition
2
is
arbitrary
and
unnecessary,
and
the
Board
should
overturn
IEPA’s
decision
to
deny
Joliet’s
request
to
modify
Special
Condition
2
from
0.4
to
1.0
pCi/g.
-7-
II.
NEITHER
THE 1984
MOA NOR
THE “DRAFT”
MOA
REFERENCED
IN
RESPONDENT’S
BRIEF
IS
ENFORCEABLE,
AND
NEITHER
CAN BE
USED
AS
A
BENCHMARK
FOR VIOLATION
OF
THE
ACT
As
noted above,
Respondent’s
Brief
relies heavily
on
the
0.1
pCi/g radium
level
expressed
in
the
1984
MOA
to
support
its
contention
that
any
land
application
of
sewage
sludge
that
exceeds
that
limit
is
a
violation
of
the
Act.
As
explained
in
Petitioner’s
Memorandum,
hot
only
does
the
specific
limitation
in
the
1984
MOA
constitute
an
impermissible
rulemaking
without
following
proper
rulemaking procedures
under
the
Administrative
Procedures
Act
(“APA”),
5
ILCS
100/5-40,
Respondent’s
reliance
on
the
MOA
as
justification
for
denial
of
the
requested
Permit
modification
is
misplaced
because
JEPA
has disregarded
the
MOA
by
issuing
the
Permit with
a
limit
of
.4
pCi/g
in
Special
Condition
2—a
limit
that
is
supposedly
prohibited
under the
same
MOA.
(Petitioner’s
Memorandum,
at
26-28).
Respondent’s
Brief
adds
a
new
twist,
however,
referencing
a
“draft”
MOA
that
Respondent
claims
was
developed
between
IEPA
and
IEMA,
assumedly
in
the
context
of
Joliet’s
negotiations
with
these
agencies
regarding
the
Permit radium
limitations.
(Respondent’s
Brief
at
1-2).
Notwithstanding
that
the
cite
provided
by
Respondent
to
the
record
(R29)
is
to
a
letter
from
the
City
of
Joliet
and
not
to
any
such
draft
MOA
document,
and
that
scouring
the
record
reveals
no
document
purporting
to
be
a
draft
MOA
(and
therefore,
cannot
be
considered
by
the
Board),
Respondent’s
appeal
to
this
phantom
document
is
unavailing,
for
two
reasons.
First, just
as
with
the
1984
MOA,
the
“draft”
MOA
purporting
to
incorporate
the
higher
negotiated
radium
limit
of
0.4
pCi/g
is
equally
as
unenforceable
as
a benchmark
for
violation
of
the
Act, as
it
constitutes
an
improper
rulemaking.
In
fact,
given
that
]EPA
references
the
document
only as
a
“draft,”
one
is forced
to
assume
that
this
document
was
never
finalized,
and
is
therefore
even
less
significant
in
this
context
than
the
1984
MOA.
-8-
More importantly,
however, Respondent’s
reference
to
this
document
in
such
context
dispels
any
myth
that
such
MOAs
require
the
inclusion
of a
suitable
radium
limitation
in
a land
application
permit.
In
fact,
it
the
reverse
is true: it
seems
clear
that
such
a revised
“draft”
MOA
would
have
been
the
result
of
the
negotiations
between
IEPA,
IEMA
and
Joliet
in
the
context
of
Joliet’
s
request
for
an
increase
in
the
radium
limitation,
rather
than
the
prospective
authorization
(or,
indeed,
a
mandate)
for
such
an
increase. Neither
the
1984
MOA,
nor
the
purported
“draft”
MOA,
could
have
been
the
legal
basis
or
authorization
for
the
radium
limitation
that
was
the
subject
of
negotiations
between
JEPA
and
Joliet.
Thus,
Respondent’s
appeal
to
the
MOAs
as
the
benchmark
for
establishing
a violation
of
the
Act
is
unavailing,
and
should
be
easily
dismissed
by
the
Board.
III.
CONCLUSION•
This
case
must
be put
in perspective.
Joliet’s
appeal
of
IEPA’s
denial
to
increase
the
allowable
calculated
concentration
of
radium
in
soils
resulting
from
the
application
of
Joliet’s
bio-solids
from
the
presently
permitted
value
of
0.4
pCi/g,
to
1.0
pCi/g,
involves
only
one
narrow
issue,
potentially
impacting
only
a
small
number
of people,
concerning
a risk
that,
if
it
exists
at
all,
is
vanishingly
small.
While the
risk
of
impact
to human
health
is
either
miniscule
or
in
fact
non-existent,
the
continued
viability
of
Joliet’s
land
application
program
is
at
stake,
with
a
current
net-worth
economic
impact
to Joliet
in
excess
of
$40
million,
if
it is
forced
to
chose
the
less
environmentally-friendly
alternative
of
landfilling
its
bio-solids.
Contrary
to
Respondent’s
apparent
misunderstanding
of
the
record
before
the
agency,
IEPA,
IEMA
and
Joliet
have
agreed
that
an
increase
in
radium
concentration
in the
soil
in
farm
fields
is
acceptable
and
permissible
pursuant
to
Special
Condition
2
of
Joliet’s
Permit.
This
increase
does
equate
to
water
pollution
as
argued
by
Respondent.
IEPA,
JEMA
and
Joliet
-9-
reached agreement
that
this
increasô should
be
limited
to
a
concentration
that
would
not
result
in
an
unacceptable
level
of
risk
to
those who
might
reside
in
houses
that
might
subsequently
be
built
on
these
lands
where
Joliet’s bio-solids
had
been
applied.
They
agreed
that
this
risk
would
be
determined
by
evaluating
the
increased
exposure
to
radon
gas
from
the
decay
of
the
radium
that
would
not
produce
an
increased
dose
of
more
than
10
millirems.
The
IEPA,
TEMA
and
Joliet
reached agreement
on
the
use
of the
RESRAD
computer
model
to
calculate
this
increased
radiation
exposure.
Joliet’s
experts
used
this
model
to
predict
that
an
allowable
soil
radium
concentration
of
1.0
pCi/g
in
the
soil
would
result
in
less
than
a
10
millirem
increase
to
an
individual
occupying
a
residence
that
had
been
constructed
using
the
legally
required
and
accepted
building practice
of removing
the
topsoil
when
building
an
on-grade
slab
house.
As
explained
in
detail
in the
record
by
Joliet
and
its experts,
and
in Joliet’s
briefs,
while
IEMA’s modeling
with
this
assumption
also
produced
a
value
less
than
10
millirems,
IEMA
would
not
agree
that
this
assumption
should
be
allowed
to
be used
when
modeling
the
increased
risk
because
some
individual
might
proceed
to
violate
building
codes
and
ignore
sound
construction
practices
by
building
a
house
with
the
slab
poured
on
top
of
the
topsoil.
4
is
the
sole
controversy
at
issue.
It
is
not
whether
any
increase
in
radium
will
cause
water
pollution
or
violations
of
the
Act
or
regulations,
as argued
by
Respondent,
or as
cited
in
the
boilerplate
JEPA
permit
denial
letter.
In
sum,
IEPA
may
not
impose
conditions
in
a
permit
when
such
are
not
necessary
to
accomplish
the
purpose
of
the
Act.
Joliet’s
experts
conducted
substantial
investigations
to
determine
whether
the
modification
it
requested
was
protective
of
human
health
and
the
‘
Joliet
has
previously
suggested
conditions
that
the
IEPA
might
include
in
permits
to
assure
that
removal
of
top
soil
is
properly
considered.
-10-
environment.
Even
JEPA
personnel
who
administer
its
sludge
permitting
program
agreed
with
Joliet’s investigations.
However,
for
some
unexplained
reason,
IEPA
chose
to ignore
the
sound
scientific
evidence
in
the
record
and
denied
Joliet’s permit
modification
request
based
on
a MOA
that:
1)
it
previously ignored
for
over
twenty
years;
2) is
unenforceable
.as
a
legal
basis
for
such
a
limitation
because,
inter
alia,
it constitutes
impermissible
rulemaking
in
violation
of
the
APA;
and
3)
IEPA
ignored
anyway
when
it previously
modified
the
Permit
from
a 0.1
pCi/g
radium
limitation
to
0.4
pCi/g.
The
real,
and
only,
issue
in
this
appeal
is
whether—since
all
agree
that
10
millirems
is
an acceptable
radiation
dose—the
proper
exposure
model
to use
when
calculating
the
radium
dosage
assumes
that
topsoil
is removed
as
part
of residential
construction.
Joliet’s
model
was
accepted
by
the
agencies,
and
its
model
assumption
regarding
legally
required
building
practices
is
sound.
For
all
of
these
resons,
the
Board
should
find
that
IEPA
inappropriately
determined
that
a
limitation
of
1.0
pCi/g
in
Condition
2 of
Joliet’s
Permit
would
cause
a violation
of
the
Act
and,
therefore,
the
Board
should
overturn
IEPA’s
decision
and
instruct
it
to
issue
a
modified
Permit
with
a
radium
limit
of 1.0
pCi/g
as
requested
by
Joliet.
Respectfully
submitted,
THE
Dated: February
27,
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)
CHO1/
25308374.1
B
-11-
CERTIFICATE
OF
SERVICE
It
is hereby
certified that
true
copies
of the
foregoing
Petitioner’s
Response
to
Illinois
Environmental
Protection
Agency’s
Post-Hearing
Brief
were
mailed,
first
class,
on
Friday,
February
27,
2009,
to
each
of the
persons
on
the attached
service
list.
It is hereby
certified
that
a
true
copy
of the
foregoing
Petitioner’s
Brief
was
hand
delivered
to
the following
on
Friday,
February
27,
2009:
John
T.
Therriault
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W. Randolph
Street—
Suite
11-500
Chicago,
IL 60601
THIS
FILING
IS
BEING
SUBMITTED
ON
RECYCLED
PAPER
CHOI/
25306658.1
Service
List
PCB
09-25 (Permit
Appeal —
Water)
Gerald
Karr
Office
of
the
Attorney General
of Illinois
Senior Assistant
Attorney General
Environmental
Bureau
69
West
Washington
—
Suite
1800
Chicago, IL
60602
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
Street
— Suite
11-500
Chicago,
IL
60601
Illinois
Environmental
Protection
Agency
Division
of
Legal
Counsel
1021
North
Grand Avenue
East
P.O.
Box
19276
Springfield,
IL
62794-9276
THIS
FILING
IS
BEING
SUBMITTED
ON
RECYCLED
PAPER
CHOI/
25306658.1