ILLINOIS POLLUTION CONTROL BOARD
July 10, 1980
VILLAGE OF ALTONA,
Petitioner,
v.
)
PCB 80—74
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE
BOARD
(by J. Anderson):
On April 15, 1980, the Village of Altona (Village), filed
a petition for variance from the 2.0 mg/l fluoride maximum
level contained in Rule 304, Chapter 6: Public Water Supplies
(Chapter 6). On May 16, 1980, the Environmental Protection
Agency filed a Recommendation, and on June 13, 1980, filed its
First Amended Recommendation; both support variance through
January 1, 1981. Hearing was waived, and none was held.
The Village of Altona, located in Knox County, currently
supplies approximately 240 water users from a well approximately
820 feet deep. In March, 1980, the Village applied to the
Environmental Protection Agency (Agency) for a construction
permit for a water main. The Agency responded that it could
not issue the permit because its records indicated that the
water pumped to the distribution system contained fluoride in
excess of the 2.0 mg/l limit of Chapter 6. (Pet. Ex. 1). On the
basis of thirteen Agency analyses taken over the period April,
1951, to May, 1979, the Agency states that these levels have
ranged from 2.2 mg/l to 2.8 mg/l, for an average of 2.49 mg/l
Rec. ¶2.
The Village estimates the installation cost of the
recommended activated alumina adsorption treatment system to be
$185,000, and that additional annual revenues of $40,000 would
be required to finance and operate such a system, necessitating
a $14.00 monthly increase in user charges over the present $2.50
(Pet. ¶4). The Village therefore pleads that requiring defluoridation
would impose an arbitrary and unreasonable economic hardship upon
it, and in addition, states its belief that defluoridation equipment
is unreliable and difficult to operate and would be of little benefit
since no public health hazard exists (Pet. ¶5).
The Agency agrees that no threat to health exists at such
levels, and has urged the U.S. Environmental Protection Agency
to raise the allowable level of fluoride to 4.0
mg/i
(Rec. ¶4—6).
2
The Agency acknowledges that defluoridation equipment is difficult
to operate. It also acknowledges that it will be expensive, although
the Agency calculates that the monthly user charges would increase
by no more than $8.87. (1st. Am. Rec. ¶2).
The Agency therefore recommends that relief be granted through
January 1, 1981, the deadline for exemption from the Safe Drinking
Water Act (SDWA) as provided by §1416, 42 U.S.C. §300(g)—5. The
Agency was informed by the United States Environmental Protection
Agency (USEPA) that this position is consistent with the USEPA
interpretation ofthe SDWA. The USEPA appears to believe that
variances, which are defined in §1415, 42 U.S.C. 300(g)-4 and
have no federal deadline, can not be granted.
However, the USEPA, recognizing that small systems are
unlikely to meet the January 1, 1981 exemption deadline, has
published a strategy to address this problem. In a recent
“interim final policy” statement entitled “Small System Strategy
for Public Water Supply Systems—Safe Drinking Water Act,” (Interim
Final Policy) 45 Federal Register 40222—40226, June 13, 1980, of
which the Board takes official notice, USEPA has recommended that
primacy states issuing SDWA exemptions should establish compliance
schedules extending beyond the statutory compliance date. USEPA
pledged not to enforce against these schedules “if a good faith
effort towards compliance) has been and continues to be made by
the State and utilities system.” 45FR at 40225.
The Agency has stated that it “does not believe that the
State’s system could accommodate this procedure, quite apart
from the question of whether it is in accordance with the federal
requirements themselves.” In attempting to deal with this new
compliance problem, the Agency proposes granting a variance until
January 1, 1981, and to enter into a compliance agreement, under
its own enforcement powers after January 1, 1981, if that deadline
is not extended. (1st Am. Rec. 3).
The Board has addressed the problem of the 2.0 mg/i fluoride
standard as applied to the small water supplier twice this year in
Turnberry Utilities, Inc. v. EPA, PCB 79—257, March 20, 1980 (sup-
plying 75 single—family homes and certain recreational facilities,
raw and finished water fluoride content 2.72 mg/i) and Village of
Wataga v. EPA, PCB 80-30, May 1, 1980 (supplying 390 people,
finished water fluoride content averaging 2.2 mg/i). The SDWA
requirements are in a state of flux: the Agency has urged that
the fluoride standard be raised to 4.0 mg/i, and both the Agency
and USEPA anticipate Congressional extension of the SDWA compliance
deadline. Also, as explained below, fluoride treatment technologies
for small systems are still being researched and developed.
Section 1415 of the SDWA, 42 U.S.C. §300(g)—4 allows for
variance where no unreasonable health threat exists, and where
“EbJecause of characteristics of the raw water sources” compliance
is unattainable “despite application of the best technology,
3
treatment techniques, or other means, which the Administrator
finds are generally available (taking costs into consideration).”
USEPA has advised the Agency that variance in these fluoride cases
is inappropriate because “a means of treatment has been identified
by the Administrator in the USEPA publication “Manual of Treatment
Techniques for Meeting the Interim Prmary Drinking Water Regulations,”
and that treatment has not been put in place by Petitioner” (Rec.2).
In Turnberry Utilities, supra, at p.4, the Board observed
that the Manual has not been promulgated as a regulation. Yet,
even were such the case, the Manual itself disclaims its appli-
cability to small systems. Specifically, the Introduction states:
“One difficulty encountered in preparing
this document was the lack of information on
treatment technology applicable to the small
water utilities serving 1,000 consumers or
less. Research is now underway in an attempt
to fill that void; because the research has
not been completed, this document does not
contain the information. Cost data were
another~ifficulty. It is impossible to
prepare treatment cost information that is
universally applicable to all utilities.
The authors, therefore, recognize that the
costs contained in this document may not
apply to all situations.” (p.1, emphasis
added)
The Board has received no new information which would cause it
to retreat from its findings in Turnberry and ~
that fluoride
removal techniques are not “generally available”; this finding is
in fact buttressed by USEPA observations in Interim Final Policy
that “Many of the available technologies for the removal or reduction
of contaminants are not directly applicable to small systems,” 45FR
at 40223. Variance relief is the only and the proper mechanism
whereby sufficient time as well as protection from enforcement can
be granted to a~piiali ~ystem to allow it to wait for stabilization
of requirements and for research and development of reliable, cost
effective treatment systems.
An exemption would give petitioner little relief from the
dilemma in which it finds itself. The Village would be forced
to immediately begin development of a compliance schedule to cor-
rect a slight, naturally occurring violation of a fluoride standard
in a situation where 1) no health hazard is present, 2) a change
in that standard has been recommended, 3) postponement of statutory
compliance deadlines is expected, 4) timely compliance with existing
statutory deadlines is impossible, and 5) cost effective treatment
technology applicable to its very small system is in the process of
being developed. Even if such a schedule were to be developed,
the Village would continue to be exposed to the threat of a federal
enforcement action in the event that a) USEPA questions the good
faith of the Village’s efforts or modifies or abandons its recent
4
nonenforcement policy, or b) this
policy
is successfully challenged
in court. To reach such a result-which the Board need
not
merely
by giving the language of 51415 its natural meaning—would be
unreasonable.
Therefore,
a five—year variance is granted, subject to the
conditions outlined in the attached order.
This Opinion constitutes the Board’s finding of fact
and
conclusion of
law
in this matter.
ORDER
Petitioner, the Village of Altona is granted a variance from
the 2.0 mg/l
maximum
fluoride concentration standard of Rule 304
of chapter 6: Public Water Supplies, subject to the following
conditions:
1. This variance will expire 5 years from the date of this
order, or at such earlier time as fluoride standards
are
revised.
2. Subject to prior revision of fluoride standards, by
January 1, 1981, the Petitioner shall
submit
to the Agency a report
on the availability of, and economic feasibility of utilizing,
alternative water sources which could be blended with its current
well sources to reduce the fluoride content of the finished water.
3. Subject to prior revision of fluoride standards, beginning
on or about January 1, 1981, and at
six
month intervals thereafter,
the Petitioner shall communicate with the Agency in order to ascertain
whether fluoride
removal techniques specifical ly applicable to very
small systems have been developed
and
identified.
As expeditiously
after such identification as is practicable, Petitioner shall submit
to the Agency a program (with increments of progress) for bringing
its system into compliance
with
fluoride standards.
4. Petitioner shall take all reasonable measures with its
existing equipment to minimize the level of fluoride in its water
supply
and
shall
not
allow the fluoride concentration to
exceed
4.0 mg/l.
5. On or before September 30, 1980, and
every
three months
thereafter Petitioner will
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 the 2.0
mg/i
maximum
fluoride standard. The notice shall state the
average content of fluoride in samples
taken
since the last
notice period during which
samples were taken. The notice shall
state
that consumption of water containing excessive
amounts
of
fluoride
can result in fluorosis and that dental mottling can occur
at levels in excess of 4.0 mg/l.
5
6. Petitioner and the Environmental Protection Agency shall
devise a mutually agreeable schedule for sampling of Petitioner’s
public water supply.
7. Within forty—five days of the date of this Order,
Petitioner shall execute and forward to the Illinois Environmental
Protection Agency, Variance Section, 2200 Churchill Road, Spring-
field, Illinois 62706, a Certificate of Acceptance and Agreement
to be bound to all terms and conditions of this variance. This
forty-five day period shall be held in obeyance for any period
this matter is being appealed. The form of the certificate shall
be as follows:
CERTIF ICATION
I, (We), ____________________________, having read the
Order of the Illinois Pollution Control Board in PCB 80—74,
dated
______,
understand and accept the said Order, realizing
that such acceptance renders all terms and conditions thereto
binding and enforceable.
Petitioner
By:
___________________________,
Authorized Agent
Ti tie
Date
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
were adopted on the
~
day ~
,
1980 by a vote
Control Board
