ILLINOIS POLLUTION CONTROL BOARD
September
8,
1988
MCINTOSH,
LTD,
—
HOLDING,
INC.
and
TURNBERRY UTILITIES,
INC.
Petitioners,
v.
)
PCB 88—81
PCB 88—88
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
JANICE EDWARDS OF MCDERMOTT, WILL AND EMERY APPEARED ON BEHALF OF
PETITIONER, TURNBERRY UTILITIES
EDWARD J. GRIFFIN OF DEFRIES AND FISKE APPEARED ON BEHALF OF
PETITIONER,
MCINTOSH, LTD.,
—
HOLDING,
INC.
BOBELLA GLATZ APPEARED ON BEHALF OF THE RESPONDENT
OPINION OF THE BOARD
(by Michael Nardulli):
This matter comes before the Board
from two petitions for
variance.
The
first was filed
on May
3,
1988 on behalf of
McIntosh,
Ltd.
—
Holdings (hereinafter “McIntosh”).
This
petition was subsequently amended on May 11,
1988.
The second
petition for variance was filed
on May 16,
1988 on behalf of
Petitioner, Turnberry Utilities,
Inc.
(hereinafter
“Turnberry”).
In response
to a Board order
of May 19,
1988,
the
parties agreed
to the consolidation of proceedings
for
the two
petitions.
On June 15,
1988, Turnberry
filed
its answer
to
McIntosh’s amended petition
for variance and on July 18,
1988
further amended
its petition for variance.
The Petitioners request variance from 35
Ill.
Adm.
Code
Section 602.105(a),
Standards for Issuance,
to the extent those
rules involve 35
Ill.
Adrn. Code Section 604.203(a).
Under
this
rule,
in certain counties,
including McHenry County where
the
Petitioners are located,
the maximum allowable concentration of
flouride
in drinking water
is 2.0 mg/i.
Public hearing was held on July
22, 1988
in the Village of
92—109
—2—
Lakewood, McHenry County.
The hearing officer was Mr. Alien
E.
Shoeriberger.
No post—hearing briefs were submitted by the
parties.
On August
4, 1988,
in response
to
a July 18,
1988
request
for expedited decision,
filed on behalf of Petitioner
Turnberry,
the Board issued
a final order
in this proceeding.
The
order granted variance to Turnberry from Section 602.105(a)
Standards
for Issuance and 602.106(b) Restricted Status, but only
as they relate
to the 2.0 mg/i fluoride standards
in 35
Iii.
Adm.
Code 604.202 fluoride.
The period of the variance
is from May
16,
1988
to May 16,
1991 and
is subject
to conditions.
The Board
did not grant
a variance to McIntosh.
The Board notes that
in the time since the order was issued,
Illinois House Bill 4009 has been signed into law and become
Public Act 85—1330.
As
a result of Public Act 85—1330,
the State
of Illinois has adopted the Federal maximum allowable
concentration for flouride
in drinking water as of August
31,
1988.
The Federal standard
is 4.0 mg/i.
Therefore, since August
31,
1988, Turnberry has been
in compliance with the new state
standard of 4.0 mg of flouride per liter
of drinking water, and
the variance
from the rule has become unnecessary.
The Board
is prepared
to consider
a Motion for
Reconsideration
to limit
the period
of the variance from the
present period of May 16,
1988 until May 16,
1991
to the required
period
of May 16, 1988 until August
31, 1988.
An adjusted
variance will alleviate Turnberry’s obligation
to adhere to the
conditions
in the order while
it
is
in compliance with the
flouride standard.
BACKGROUND
McIntosh
is engaged
in business as
a
real
estate developer
and builder and is the owner
of the Turnberry Subdivision
in the
Village of Lakewood,
McHenry County.
The subdivision is planned
and zoned
for 870 residents and two eighteen—hole golf courses.
As of December
31, 1987,
one golf course,
a club house and ninety
houses had been built.
Turnberry is
a sewer
and water utility formed
to provide
service
to Turnberry Subdivision.
Turnberry owns and operates a
deep—well water supply system and maintains the public water
distribution
system that includes pumps,
a storage
tank and
distribution
facilities.
Turnberry currently operates a single
well providing utility service to all residential and commercial
users
in
its certificated
area.
The fluoride level
of
Turriberry’s water was reported
at 3.0
mg/i
in July of
1978.
The Public Water Supply Division of the
Agency notified Turnberry on July
19,
1979 that Turnberry would
be placed on the Restricted Status List because their water
Supply exceeded the maximum allowable concentration
for
fluoride.
The most recent level
of
fluoride concentration was
92—110
—3—
reported
as
3.16 mg/i.
Turnberry is not on restricted status for
any other contaminant.
PETITIONER’S COMPLIANCE PLANS
In its petition for variance, Turnberry stated that it
is
not able to comply with the 2.0 mg/i
standard
for fluoride
because
the excess fluoride
in
their water
is naturally occurring
and not amendable
to control
by Turnberry.
Turnberry says the
available technology to remove the excess fluoride
is
prohibitively expensive.
Further, there
is no surface water
supply of proven quality available
which offers an economically
feasible alternative water supply source.
Turnberry also states
that should
an individual
customer desire
a reduction of fluoride
in his water, alternatives are available
to such customers which
are more economical
than central
fluoride removal.
McIntosh states
in its petition for variance that part of
its compliance plan would
be to
request the Illinois Commerce
Commission
to order Turnberry
to review and evaluate the
situation and
to prepare recommendation
for resolving the
problem.
McIntosh also offers to petition the Illinois Commerce
Commission
to require Turnberry to take
a number of actions
during
the proposed variance period
to accurately determine the
concentration of
fluoride
in the water, secure professional
assistance
in investigating compliance options and prepare and
initiate a compliance program.
HARDSHIP AND ENVIRONMENTAL IMPACT
In its variance recommendation,
the Agency points out that
on August
2,
1986,
the United States Environmental Protection
Agency increased the maximum allowable fluoride contaminant level
to 4.0 mg/l,
establishing this level
as the level indicative of
concern for health.
The Agency believes that no significant
health risk exist
for the population served by new water main
extensions for
the time period of
the requested variance.
Further, the Agency believes that grant of the requested variance
would have no adverse affect on the environment.
The Agency maintains that failure
to grant relief to the
Petitioners from the Standard
of Issuance would result
in an
arbitrary or unreasonable hardship because denial of the variance
would
require the Agency to continue
to deny construction and
operating permits until compliance
is achieved.
This means that
growth of the subdivision,
based on new water main extensions,
would not be allowed.
The arbitrary or unreasonable hardship
is further developed
by the
fact that no economically feasible treatment system has
been proposed.
The consulting engineers engaged by Turnberry
concluded
that compliance could only be achieved by use of
a
92—111
—4—
central
fluoride removal system.
The estimated cost of
installing
the system is over one million dollars and the annual
operating cost is estimated
at approximately $400,000.
Assuming
that all 850 homes are built, each customer’s share would be an
additional $450 per year.
This hardship would be even greater
if
the Board’s proposed change
in the State’s maximum allowable
concentration level,
and its proposed establishment of
a
secondary maximum allowable concentration level
for
Illinois,
which would comport with
federal standards,
is adopted.
AGENCY RECOMMENDATION
The Agency believes
that the hardship resulting
from denial
of the recommended variance would outweigh the injury to the
public
from grant of that variance.
In light of the cost
to the
Petitioner
of treatment of
its current water
supply, the
likelihood of no significant
injury to the public from
continuation of the present level of the contaminant
in question
in the Petitioner’s water
for the limited
time period of the
variance, and the possibility of a new maximum allowable
concentration level,
the Agency concludes that denial
of
a
variance from the effects of Restricted Status would
impose an
arbitrary or unreasonable hardship upon Petitioner.
The Agency observes that this grant of variance from
restricted status should affect only those users who consume
water drawn from any newly extended water
lines.
This variance
should not affect the status of the rest of Petitioner’s
population drawing water
from existing water
lines.
In so
saying, the Agency emphasizes that it continues
to place
a high
priority on compliance with the standards, whatever
the standards
will
be
in the future.
Wherefore, the Agency recommends that
Petitioner
be granted
a variance from 35 Ill.
Adm. Code
602.105(a)
Standards for Issuance, and 602.106(b)
Restricted
Status, but only as they relate
to fluoride,
from May
16,
1988
to
May 16,
1991 subject
to conditions adopted
in the Order.
SUMMARY
The Board adopts
the recommendation of the Agency
in support
of
a grant of
the variance.
The Board finds that denial of
variance
to Turnberry would
impose
an arbitrary or unreasonable
hardship, and grants variance subject to conditions as suggested
by the Agency.
The Board will grant variance solely
to
Turnberry,
which
is the operator of
the public water
supply.
Variance
to McIntosh
is unnecessary, as variance
to Turnberry
provides all necessary relief
to both Petitioners and as all
conditions
to
the variance require actions only by Turnberry.
Petitioner, Turnberry Utilities,
Inc. has been granted
variance
from 35
Ill.
Adm. Code 602.105(a) Standards for
Issuance, and 602.106(b)
Restricted Status, but only as
they
92—112
—5—
relate
to the
2.0 mg/i fluoride standard contained
in
35
Ill.
Adm. Code 604.202
fluoride,
from May 16,
1988 to May 16,
1991
subject to conditions recommended by the Agency and adopted
in
the Order.
This Opinion constitutes
the Board’s finding of fact and
conclusion of law in this matter.
I, Dorothy
M. Gunn, Clerk of
the Illinois Pollution Control
Board,
h~y
certify that
he above Opinion was adopted on
the
___________
day of _______________________, 1988, by a vote
of
7—~9
Ill
iution Control Board
92—113