ILLINOIS POLLUTION CONTROL BOARD
September 11,
1986
CENTRAL ILLINOIS UTILITY
CO.,
Petitioner,
v.
)
PCB 86—53
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
MR.
DANIEL KUCERA,
CHAPMAN
& CUTLER APPEARED FOR PETITIONER.
MR.
E. WILLIAM HUTTON APPEARED FOR RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by 3.
Theodore Meyer):
This matter comes before the Board upon an April
15, 1986,
Petition for Variance Extension filed on behalf of Central
Illinois Utility Company
(Company).
The Company seeks an
extension
for five years of the variance granted
in PCB 80—234,
April
16, 1981,
from the 2.0 ing/l maximum allowable concentration
(MAC)
level
for
fluoride
(35 Iii. Adm.
Code 604.203(a)).
The
Illinois Environmental Protection Agency (Agency)
filed
its
recommendation for granting
the variance, subject to conditions,
on June
12, 1986.
Hearing was waived and none has been held.
The Company provides water service to the Oak Run
Development,
a subdivision located
in Knox County, which consists
of approximately 250 users,
almost
all of whom are single family
homes.
The Company owns and operates a water supply well, water
treatment equipment,
a 150,000 gallon elevated storage tank and
a
distribution system.
The well
is finished at
a depth of 802 feet
with a capacity
of 125 gallons per minute.
Treatment consists of
the addition of chlorine, potassium permanganate and filtration
through pressurized greensand ion exchange filters to remove
hydrogen sulfide and iron.
(Pet.
pp.
1—2).
Based upon laboratory analyses conducted by the Illinois
State Water Survey and the Agency,
the raw water from the
Company’s well contains fluoride ranging from 2.5 mg/i to 2.85
mg/i
and the finished water quality contains fluoride in the same
range.
The most recent
test, on March 17, 1986,
showed
a
fluoride level of 2.76 mg/i.
(Id.).
The Company seeks extension of the variance granted
in
Central Illinois Utility Co.
v
IEPA, PCB 80—234, April
16,
72-264
—2—
1981.
The issue before the Board
is whether denying the Company
variance would constitute an arbitrary or unreasonable
hardship.
For
the following reasons,
the Board
finds that
denying the Company variance would constitute an arbitrary or
unreasonable hardship and,
therefore,
the Board grants
the
Company
its
requested variance, subject
to conditions.
The Board notes,
at the outset,
that the proper decision
criteria to apply
to this requested variance from the fluoride
drinking water
standard are those embodied
in the state’s
“arbitrary or unreasonable hardship” standard.
The federal
decision criteria for granting variance from the fluoride
drinking water
standard are inapplicable.
On April
2, 1986,
the
USEPA promulgated
a new fluoride drinking water
standard
of 4.0
mg/l up from the then current 2.0 mg/i
standard.
Consequently,
the fluoride standard
to which
the federal criteria for granting
a variance applies is the 4.0 mg/i
standard.
Such decision
criteria include finding that either the water
supply system is
unable
to comply with maximum contaminated level despite
installing
the best treatment technology generally available
(BTGA)
or
the system
is so small
that the BTGA is not available
and effective.
However,
since the fluoride content of
the
Company’s water supply is below
the federal standard, the
federal
criteria does not apply and the Board will apply the state’s
“arbitrary or
unreasonable hardship” standard
to the Company’s
requested variance.
In 1981,
the Company’s consulting engineers recommended
that
of the various central fluoride removal processes available,
that
the activated alumina absorption process would be the least
costly.
Installation of the necessary equipment
to treat the
water from the existing well would
involve
a capital expenditure
of $127,860.
Yearly operation and maintenance costs of $28,000,
in combination with other treatment related expenses,
will impose
additional yearly revenue requirements of $61,248.
(Pet.
pp.
4—
5,
Ex.
D,
E).
The Company also provides
a balance sheet and income
statement to support its contention that
it does not have
sufficient cash or income
to finance the installation cost of the
fluoride removal system.
The Company states that its rates are
subject to approval by the Illinois Commerce Commission
(ICC)
and
contends that
if the ICC were
to permit the Company
to pass on
to
its users the burden of the additional revenue requirements,
the
Company will have
to charge the 250 users at least $360 per
year
in addition
to the present rate for water
service.
Such an
imposition,
the Company argues, would result
in an unreasonable
economic burden
being placed
on the system’s users.
(Pet.
pp.
5—
6).
The Board
notes that the cost figures quoted
in this and the
preceding paragraph appear
to be based on 1981 cost figures.
The
Board believes that 1986 cost figures would be appreciably higher
due
to inflation.
72-265
—3—
The Company asserts
that no adverse health effects are
expected
if the variance
is granted.
Further,
the Company
contends that the presence of
fluoride in drinking water has been
shown
to have beneficial effects including reduction of tooth
decay and hardening of bone structure.
Consequently, the Company
argues that any health effects experienced by ingesting water
with fluoride levels
in the range of 2.5 mg/i
to 2.85 mg/i will
be either aesthetic or beneficial.
(Pet.
p.
7).
The Agency
agrees that the adverse impact to the users would
be minimal
at
these fluoride levels.
(Ag. Rec.
p.
5).
The Agency agrees with the facts
as presented by the
Company,
including
the cost of compliance as well
as the
financial hardship experienced
by the Company and its users were
the Board
to deny variance relief.
(Ag.
Rec.
p.
4).
The Agency,
therefore,
recommends the grant of variance, subject
to
conditions,
until September,
1991,
or until the Company achieves
compliance with the present or any future fluoride drinking water
standard.
The Board finds that denying the Company variance would
constitute
an arbitrary or unreasonable hardship.
The Company is
a small water supply system serving
a small residential community
near Dahinda, Illinois.
The Board acknowledges the Company’s
financial condition and believes that immediate compliance with
the fluoride standard would impose an unreasonable hardship upon
the Company.
Also,
the Board agrees that any adverse impact
experienced by the users of the Company’s water would
be minimal
at these fluoride
levels.
The Board
notes that the Company’s
water supply system may be
in compliance with the state’s
fluoride standard
should
it be revised
in conformance with the
federal standard.
However, such
a revision
is purely speculative
at this point
in
time.
The Company’s consulting engineers
explored the various treatment technologies available to reduce
fluoride levels and found
that the activated alumina absorption
treatment method would be
the least costly.
In light of this
recommendation,
the Board will require as
a condition of this
variance that the Company develop a compliance plan (with
increments of progress)
for achieving compliance with the 2.0
mg/i fluoride standard five years
from the grant of this
variance.
This Opinion constitutes the Board’s findings of fact and
conclusions
of law in this matter.
ORDER
Central Illinois Utility Company
is hereby granted variance
from 35
Ill. Adm.
Code 604.203(a),
subject
to the following
conditions:
1.
This variance expires when Petitioner can demonstrate
72-266
—4—
that its water supply system
is
in compliance with the
applicable maximum allowable concentration level
for
fluoride or on September 11,
1991, whichever occurs
first.
2.
Within eighteen months of the grant of variance,
Petitioner shall submit
to the Agency
a plan outlining
the method and
the complete program (with increments of
progress) for achieving compliance with the 2.0 mg/i
fluoride standard.
3.
Pursuant
to 35 Iii. Adm. Code 606.202, on or before
January
1, 1987 and every three months thereafter,
Petitioner
shall send each user of its water supply
system a written notice stating that Petitioner has been
granted variance by the Pollution Control Board
from the
2.0 mg/i fluoride standard.
The notice shall state the
average content of fluoride
in samples taken since the
last notice period during which samples were taken.
4.
Pursuant
to
35
Ill. Adm. Code 606.201,
in its first
set
of water
bills or within three months after
the date of
this Order, whichever occurs
first, and every three
months thereafter, Petitioner will send
to each user of
its public water supply
a written notice to
the effect
that Petitioner
is not
in compliance with the
fluoride
standard.
The notice
shall state
the average fluoride
content
in samples taken since the last notice period
during which samples were taken.
5.
Within
45 days of the date of this Order, Petitioner
shall execute and forward
to the Illinois Environmental
Protection Agency, Division of Public Water Supplies,
2200 Churchill Road,
Springfield, Illinois 62706,
a
Certificate of Acceptance
arid Agreement to be bound by
all the terms and conditions
of this variance.
This
45
day period shall be held
in abeyance for any period this
matter
is being appealed.
The form of the certificate
shall be as follows:
CERTIFICATION
I,
(We), __________________________,
having read the Order
of the Illinois Pollution Control Board,
in PCB 86—53, dated
September ii, 1986,
understand and accept the
said Order,
realizing that such acceptance renders all terms and conditions
thereto binding and enforceable.
Petitioner
72.267
—5—
By:
Authorized Agent
Agent
Date
IT
IS SO ORDERED.
I,
Dorothy M. Gum, Clerk of the Illinois Pollution Control
Board, hereby certif~that the ab
e 0 muon and Order was
adopted
on the
//
day of
_________________,
1986 by a vote
Dorothy
M.
Gufin,
Clerk
Illinois Pollution Control Board
72.268