ILLINOIS POLLUTION CONTROL BOARD
June
30,
1988
IN THE MATTER OF:
PROPOSED AMENDMENTS TO
)
R85-14
PUBLIC WATER SUPPLY
REGULATIONS,
35 ILL. ADM.
CODE 602.105
and 602.106
)
DISMISSAL OF PROPOSAL.
OPINION AND ORDER OF THE BOARD
(by
3.
Anderson):
Procedural History
This proposal was initiated by the regulatory proposal filed
by the Illinois Environmental Protection Agency
(Agency) on June
12,
1985.
The purpose
of the proposal
is
to “suspend” the
effects of restricted status
to allow Agency
issuance of water
main extension permits until January
1, 1989 to certain public
water supplies.
More specifically,
the proposal would affect
over
100 municipal and other water supplies which are presently
on restricted status and which deliver water to their customers
containing:
a)
fluoride at concentrations less than or equal
to 4.0 mg/l.
b)
combined radium 226 and 228 at concentrations
less than or
equal
to 20 pCi/i, and
C)
gross alpha particle activity at concentra-
tions less than or equal
to
60 pCi/i.
The Agency stated
in its proposal that there were
“compelling reasons”
supporting
it, including
its beliefs
that:
1.
“the standards are being reviewed by USEPA”;
2.
“for
a few years,
there is unlikely to be any
significant public or environmental harm”;
3.
“the economic burden of compliance is not
outweighed
by public
or environmental
benefit”;
and
4.
“it would be economically unreasonable
to
stop”
the growth
of those communities awaiting
Lake Michigan water meeting existing MAC
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requirements as a longer term solution to
achieve compliance until
it
is actually
obtained
(expected to occur “in several
years”)
(Proposal,
pp.
5—6).
On June
13, 1985,
the Board ordered first notice publication
in the Illinois Register, which notice appeared at
9 Ill.
Reg.
10594.
On August
15,
1985, after
two public hearings, held on
July 30,
1985 and August
2,
1985,
the Board adopted the proposal
as emergency rules which expired January 11,
1986.
Additional merit hearings were held on June 10 and August
25, 1986.
On October
23,
1986,
the Department of Energy and
Natural Resources
(DENR)
filed a “hearing copy”
of its study “An
Economic Impact of Proposed Amendments to Public Water Supply
Regulations Pending Before the Illinois Pollution Control Board”
(EelS).
By Order of
April 16,
1987, the Board again directed first
notice publication of this proposal, as required by the
Administrative Procedures Act when a rule has not been adopted
within one year of
first notice publication.
This notice
appeared at 11
Ill. Reg. 7873 on May 1, 1987.
Economic hearings
were held on May
5 and May 12,
1987.
On August 24,
1987, DENR
filed a “final report”
of this EcIS which contained certain
changes on the basis of information presented at hearing.
For the reasons outlined below the Board hereby dismisses
this docket.
General Background and Overview
The Federal Safe Drinking Water Act requires USEPA
to
establish regulations for contaminants which may have any adverse
human health effect.
The fluoride standard was promulgated
December 24,
1975.
The USEPA regulations on combined radium and
gross alpha were promulgated
in their
final form on July 9,
1976.
Both regulations became effective at the federal level
June 24, 1977.
USEPA delegated to the State of Illinois its primary
enforcement authority,
so state standards must be as
strict as
federal
standards.
The Pollution Control Board adopted the
fluoride and combined radium and gross alpha standards
and they
became effective August 29,
1978.
Delays occurred
in
determining compliance, particularly with
the radiological quality standards.
It takes
a year
of
collecting
to obtain a sample to analyze for compliance with the
combined
radium and gross alpha standards.
In the early 1980’s,
some analyses were invalid due
to laboratory error and needed
to
be re—analyzed.
USEPA agreed
to analyze samples on a time as
90—628
—3—
available basis, which turned out to be two years before analyses
were reported to IEPA.
The last federal reports came
in 1985.
More than one hundred supplies were found
to have excessive
combined radium or gross alpha levels, and more than 40
to have
excess fluoride.
Many supplies requested temporary relief by way of variances
from these standards.
For most,
the Agency recommended
a grant
of the requested variance and the Board granted the variances in
most
instances.
USEPA determined that
in its opinion variances from federal
standards could not be granted unless
the supply had already
installed
the treatment technology.
USEPA revoked
a number
of
variances
in 1986.
Since spring of 1986,
the IEPA had been
recommending that supplies seek variances only from the
restricted status regulations,
not the federal regulations.
Congress passed amendments
to the Safe Drinking Water Act
in
the latter half of 1986.
USEPA was mandated by Congress
to
initiate enforcement action in
a prescribed manner.
Illinois EPA
in close consultation with USEPA has been developing what may be
called
an enhanced enforcement program.
Under this program all
public water supplies that do not have USEPA approved enforceable
compliance plans when the program starts will face enforcement
action,
leading either
to compliance orders or federal
administrative orders.
The result
of this
is that all systems
violating all standards,
including the radiological standards,
must come into compliance within a few years.
The Board’s restricted status rule, which prohibits the
Agency from issuing permits for water main extensions,
is
exclusively
a state
rule:
Illinois
is not required
to have such
a
rule pursuant
to the SDWA, and USEPA rules do not contain
a
restricted status component.
One effect of the rule is
to
provide an additional economic incentive for achievement of
compliance,
especially
in cases where no formal enforcement
action had been initiated.
The Agency filed
its proposal on June 12,
1985 and asked
that the proposed rule expire January
1,
1989.
The reason
for
the proposal
and the time limit to the rule are related.
One reason
for the proposal was that USEPA had proposed
rule—making on these contaminants and the Agency believed there
was
a chance the standards could be changed
before
1989.
Hence,
the Agency proposed relaxing the economic penalty for violating
these standards while USEPA was reviewing
its standards.
Another
reason was that,
given
the number
of communities which had only
recently learned of their violations
of the standard, it appeared
that
a rule change would be
in the best interests of all
90—629
—4—
concerned,
as
it would avoid the necessity of processing numerous
variance petitions.
USEPA did relax
its fluoride standard in April of
1986.
USEPA has not as yet taken action on the radiological standards.
Reasons For Dismissal
The Board will not summarize the substantial
technical
testimony which was presented in this docket relative
to the
health effects of
ingestion of water containing fluoride or
combined radium at various levels, as this testimony provides no
basis for the Board’s determination to dismiss this docket.
As
aforementioned, one of the bases
for this proposal was
considerations of administrative economy,
that
is,
that the
affected class should be given regulatory relief from the
restricted status
rules
to avoid the necessity of
their seeking
similar
relief one—by—one in variance proceedings.
Given the
shift
in enforcement priorities resulting from the 1986 SDWA
amendments,
it is
to the benefit of the Board, the Agency,
and
the affected communities
to retain intact the restricted Status
rule which fosters entry, by way
of
a Board variance, of an Order
tailored to
a community’s individual compliance problems,
including any economic ones.
Generally,
the Board finds
that while the proposal was
a
reasonable and appropriate response
to
a problem when made in
1985, amendment
of the rule as suggested today would
be highly
inappropriate, given events which have occurred and experience
which has been gained by the Agency and the Board during the
pendancy of this proceeding.
In 1985, many of the affected communities shared
a “common
hardship”:
they had only recently been informed
of their non-
compliance status,
and so could not be reasonably expected
to
have cured
the problem.
Under
these circumstances, the
restricted status sanction, whose effect
is
to halt economic
development,
did not appear
to be “fair”, particularly since
revenue increases brought by economic development would assist
communities
in financing the very system improvements or deep
well water supply alternatives which would
be necessary to
achieve compliance.
The Board takes official notice of the fact that, since
1985,
it has received 27 petitions for variance from the
restricted status rules
as they relate
to radium,
and
4 petitions
for variance from the restricted status rules
as they relate
to
fluoride.
The Board incorporates into this record as Group
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Exhibit No.
58, the Opinions and Orders which
it has entered in
cases which have come
to judgment.*
*
Where
a case is still pending,
the word “open” appears in
parentheses following the case name
and number; otherwise,
the
decision date is
listed.
The 4 restricted status/fluoride cases are as
follows:
Village
of Wataga
v.
EPA, PCB 85—20
(August
15,
1985)
Turnberry Utilities,
Inc.
v.
EPA, PCB 87—186
(December
3,
1987)
~4cIntosh,Ltd.—Holdings
v.
EPA, PCB 88—81
(Open)
Turnberry Utilities,
Inc.
v. EPA, PCB 88—88
(Open)
The
27 restricted status/radium cases are as follows:
City of Batavia
v.
EPA, PCB 85-11, April
4,
1985
Village of Hanover Park
v.
EPA, PCB 85—22
(May 30,
1985)
Village
of Hanna City v.
EPA, PCB 85—40
(July 11,
1985)
City of Aurora
v.
EPA, PCB 85—51
(July 11 and July 19,
1985)
City of Geneva
v.
EPA, PCB 85—93
(September
20,
1985)
Village of Minooka
v. EPA, PCB 85—100
(September
20, 1985)
Village of Oswego v
EPA, PCB 85—106
(June
20, 1985)
Village of Montgomery
v.
EPA, PCB 87—5
(April
16,
1987)
Village
of Plainfield
v.
EPA, PCB 87—9
(April 16,
1987)
City of Lockport
v.
EPA, PCB 87—16
(June 10,
1987)
City of Yorkville v.
EPA,
PCB 87—33
(April
16, 1987)
Village of Minooka
v.
EPA, PCB 87—35
(September
17,
1987)
City of Oglesby
v.
EPA, PCB 87—37
(July
16,
1987)
Village of Roselle
v.
EPA, PCB 87—39 (December
3,
1987)
Village of Romeoville v.
EPA, PCB 87—69
(June
2,
1988)
City of Batavia v.
EPA, PCB 87—79
(August
20,
1987)
Village of North Aurora
v.
EPA, PCB 87—83
(October 15,
1987)
Lake County Public Works Department Wildwood Subdivision Water
Supply System v.
EPA,
PCB 87—107
(April
7, 1988)
Village of Willowbrook
v.
EPA, PCB 87—114
(February 4,
1988)
Village of Hinckley
v.
EPA, PCB 87—140
(November 19,
1987)
City of Yorkville v.
EPA, PCB 87—158
(January 21,
1988)
County of Lake
(Vernon Hills Public Water
Supply System)
v.
EPA, PCB 87—198
(May 5,
1988)
Village of Elburn
p.
EPA, PCB 88—4
(June
2,
1988)
City
of Geneva
v. EPA, PCB 88—11
(May 5,
1988)
Village
of
Ladd v.
EPA, PCB 88—30
(March
24, 1988)
Village
of Channahon v.
EPA, PCB 88—42
(June
30,
1988)
Village
of Coal City v.
EPA, PCB 88—83
(June
30,
1988)
90—631
—6—
Some of these cases
are requests for extensions of prior
variances, while others are requests from communities with newly
discovered problems.
Without singling out any particular
communities for praise or blame,
the Board will generally observe
that the petitions filed, particularly restricted status/radium
ones, do not indicate that a “common hardship” exists.
While
many communities have diligently worked
to solve their problems
in timely fashion,
others who have requested variance extensions
have done little or nothing during the initial variance term
based on a strategy of “waiting and seeing” whether standards
would change,
a strategy which
is totally unacceptable
to the
Board.
The Agency’s enhanced enforcement program,
inaugurated last
year,
does address the problem of
the “wait and see” public water
supplies
to some extent.
As explained by the Agency at the last two hearings in this
matter the enhanced enforcement program works
as follows:
“Basically,
if certain communities are in
violation,
they
are on the (JSEPA computer
program,
and we will be notified, and pursuant
to the Federal Act
SDWA
if enforcement
action
is not undertaken within certain time
periods, the Federal Government, USEPA, must
take enforcement action as
a matter
of federal
law.
Roughly speaking, what we would do
is contact
the communities, pursuant to Section 31(B)
of
the Act, provide notice of the violations,
ask
them to meet with us
to come up with a
compliance plan.
After that meeting we would expect them to
present the compliance plan, which would be
somewhat similar
to the IEPA model variance
petition package, which has increments of
progress and a final compliance date.
They would then come back to us later with a
final engineering situation, but we also would
turn this compliance plan into an enforceable
order, either
a Pollution Control Board order
or court order.
Then pursuant
to
that court order, we would
expect
a penalty
to be paid as well as
compliance with the compliance plan and with
the order.
(R.
237—239).
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—7—
The Agency went on
to explain,
however, that resource
limitations will likely not permit
it
to immediately commence
proceedings against all public water supplies which are not in
compliance;
rather,
the Agency will need
to prioritize some
situations over others,
and proceed on a phased basis over a
period of years.
Given these circumstances, retention of
the existing
restricted status rule will serve to stretch enforcement
resources by giving water supply owners additional economic
incentive to interact with
the Agency and the Board by way
of
variance proceedings,
rather than following
a natural,
if
regrettable, tendency to “wait
and see”
if formal enforcement
proceedings are commenced.
For these reasons,
the Board
is dismissing this docket,
whose stated purpose was amendment of the restricted status rules
only,
and which did not seek to amend the fluoride or
radiological quality standards
themselves.
The issue
of changing
these underlying standards has been indirectly raised in this
docket and
is deserving of brief mention here.
As to the fluoride standard, the Board notes that
it has the
legal authority
to raise the standard
to the 4.0 mg/l level
established by USEPA, and that the Agency has already developed
a
technical record
in this proceeding which can be utilized
in a
docket devoted
to consideration of raising the standard.
By
Order
of April
21,
1988,
the Board opened Docket R88—l3 for the
purpose of considering revisions to the fluoride standard.
As
noted
in the Board’s Order
of June
2,
1988 in R88—l3,
in response
to
a request by the Board, the Agency is presently consulting
with USEPA to determine what program elements must be addressed
in a proposal.
The Board presently anticipates adopting
a first
notice proposal shortly after receipt of Agency comments,
now due
by July 2,
1988.
As to the combined radium and gross alpha standards,
the
Board will consider initiation
of
a docket
to modify them only in
the event that USEPA makes any modification.
For these reasons, this docket is dismissed.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the
ove Opinion and Order was
adopted on the
~
day of
______________,
1988, by a vote
of
7—o
.
/
~.
~
Dorothy M/Gunn, Clerk
Illinois Pollution Control Board
90—633