ILLINOIS POLLUTION CONTROL BOARD

August 15, 1985

VTLLAGE OF WATAGA,

)

Petitioner,

)

v.

)

PCB 85-20

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY3

)

)

Respondent.

)

OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):

This matter comes before the Board upon a variance petition

filed February 11, 1985 as amended on March 1, 1985 and June 4,

1985. Petitioner requests extension of a previous variance for a

period of five years from the maximum allowable concentration of

2.0 mg/i for fluoride in its finished drinking water (35 Iii.

Adm. Code 604.203(a)) or alternatively from the effect of

Restricted Status as it relates to fluoride (35 Ill. Adm.

602.105(a) and 602.106). The Village previously sought and was

granted a variance from the fluoride standard in PCB 80-30,

May 1, 1980 which expired on March 31, 1985. The Illinois

Environmental Protection Agency (Agency) filed its recommendation

on April 4, 1985 recommending denial of the variance for lack of

information. An amended recommendation was filed on July 2, 1985

recommending that variance from Section 602.105 as it relates to

fluoride be granted, but that variance as it relates to the

health-based standard for fluoride itself be denied. Hearing was

waived and none was held.

The Village of Wataga is located in Knox County, Illinois.

Its public water supply serves approximately 386 consumers. The

water supply facilities consist of a 840 foot deep well, a

150,000 gallon elevated storage tank, a 16,000 gallon water

treatment tank and the distribution system. Water is pumped,

aerated for hydrogen sulfide removal and discharged into the

treatment holding tank. It is then chlorinated and discharged

through a wet riser pipe to the elevated storage tank. From

there, the water is received by the distribution system. During

1983 and 1984, the fluoride levels in the finished water ranged

from from 2.13 mg/i to 2.54 mg/i.

Wataga contends, and the Agency agrees, that to require the

Village to immediately comply with the fluoride standard would

impose an arbitrary or unreasonable hardship. This is because

the compliance options available to the Village are asserted to

be technically infeasible and/or economically unreasonable. The

petition discusses three options. One alternative is the use oF

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activated alumina adsorption as a treatment technique. The

installation cost of this technology is estimated at $400,000

with annual revenue requirements to pay for and operate the

installation of $94,250, This translates into an estimated

increase of $20 per user per month for defluoridation. The

Board, in its previous order, noted that this is not a generally

available treatment technology.

The second alternative discussed is the construction of a

water main to Wataga from the City of Galesburg, a distance of

approximately seven miles.

No cost estimate is provided but the

Agency notes that it “undoubtedly” would be costly.

Wataga also

notes that the

cost

would be even higher than in

1980 when the

Board and Agency concluded it was unreasonable.

The third alternative

considered

is

the drilling of

additional wells from shallow aquifers for blending purposes.

The technical feasibility of this alternative is questionable as

the water quality of the shallow aquifers in the area is poor due

to significant iron content. Additionally, the wells may not be

capable of producing enough water to make a blending program

successful. Aside from these technical objections the costs

associated with this alternative, including drilling

(approximately $40,000), land acquisition, equipment, engineering

design and project supervision fees, would result in an increase

of water service charges of between $5.00 and S10.00 per month,

Wataga argues that to require any of these alternatives

would impose an arbitrary or unreasonable hardship especially in

light of the minimal adverse health impacts expected at these

fluoride concentrations. In its order granting Wataga’s previous

variance, the Board found:

The finished water shows an average fluoride level of 2.2

mg/i in excess of the standard of 2.0 mg/l

. . . .

The

Agency agrees that fluoride shown in Wataga’s water

presents no threat to health (Rec. 2). Aside from dental

mottling, there are no known harmful effects from drinking

water at levels up to 8 mg,’l fluoride.

In connection with this petition, the Agency states that

there is no recent information to alter this conclusion (Rec. at.

par. 12). Moreover, the fluoride standard is in a state of flux

and may be revised upwards to 4.0 mg/i. (See attachment to

Petition, Letter to Mr. Hillemeier)

The Board finds that at these concentration levels, the

hardship imposed by requiring immediate compliance outweighs the

minimal environmental or public health impact.

Remaining at issue is the question whether variance from the

health based standard for fluoride or variance from the effects

of being on Restricted Status alone should be granted.

The

Village has stated its request for relief in the alternative and

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-3-

although no arguments are made or preferences given for either

request, the Board assumes that Wataga would prefer variance

From

the health based standard since it affords the most complete

relief. The Agency, however, recommends that variance from the

health based standard be denied preferring that the Board grant

variance only from Restricted Status.

The Agency’s recommendation stems from a long-standing

disagreement with USEPA over the proper interpretation of the

Safe Drinking Water Act (SDWA), 42. U.S.C. Sec. 300(E) et seq. and

regulations pursuant there~c.~,which provides for a federal

variance from

the

maximu~: ~:;‘~:aminantlevels (MCL) for drinking

water supplies upon a Eir~:i~

that:

a) Because of ch~~:eristicsof the raw water

sources which are

roa~onably available to the

system, the system cannot meet the requirements

respecting the maximum contaminant levels of the

drinking water regulations despite application

of the best technology, treatment techniques, or

other means.1 which the USEPA Administrator

finds are generally available (taking costs into

consideration); and

b) The granting of a variance will not result

in an unreasonable risk to the health of persons

served by the system. Section 1415 of the SDWA,

42 U.S.C.~ 300g—4(a)(1)(A).

Although IJSEPA has published a “Manual for Treatment

Techniques for Meeting the Interim Primary Drinking Water

Regulations” (hereinafter referred to as “Manual”), it has been

the Board and Agency’s position that the Manual does not meet the

requirement that the Administrator issue regulations under the

SDWA. Hence, the Board has determined that it has authority to

grant variances to both large and small water supplies even where

no treatment technology has been installed providing there is a

demonstration of an arbitrary or unreasonably hardship.

The Agency notes, however, that USEPA disagrees with this

determination citing 45 Fed, Reg. 56633, July 31, 1980, wherein

IJSEPA maintains that the Manual and the establishment of the MCLs

satisfies the “rule-making” requirement. Thus, it is apparently

USEPAS stance that variances may only be granted where the

application of the best treatment techniques or technology is

required. Should USEPA determine that “a state in a substantial

number of instances, abused its discretion in granting variances”

it could seek to revoke the variances after public hearing. In

addition. USEPA could seek

to revoke

the determination that

the

state has primary enforcement responsibility, which would

occasion a loss of approximately one million dollars in federal

funding for the state,

65-24

1

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The Agency believes that a variance from Restricted Status,

because it is not a variance from the

national primary drinking

water regulations themselves, avoids the risk of loss of primacy

while addressing the concerns of the water supply to no longer be

under Restricted Status. Variance from Restricted Status does

not, however, insulate the supply from the possibility of federal

enforcement or enforcement proceedings brought by third parties

under the Illinois Environmental Protection Act and

regulations

pursuant thereto for violations of the health based standard.

The Board finds that in this instance full relief from the

health-based st~rdard should be granted. First, the Board notes

that even were

the

Manual to rise to the level of “rule-making”

-it specifically ó.isclaims

its

applicability to small systems such

as Wataga’s~ Specifically,, the Manual’s 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

difficulty. 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)

Secondly,

the

Board believes that, in this factual

situation, a five-year variance from

the

fluoride standard of 35

Ill. Adm. Code 604,203(a) is warranted, The issue is not whether

Wataga need ever compl~with the national regulations, but rather

how it may best reach compliance in a finite period, given the

nature

of its current

raw water sources and the lack of reliable

alternate sources

or

treatment

technologies

for small supplies.

The Board notes that

the

variance as granted is in the nature of

a compliance order, requiring activities which the Village has

agreed to perform in order to reach compliance within a five year

period. However, in the interest of eliminating any possible

delay or uncertainty the Board will also grant variance from

Restricted Status (35 Ill. Adm. Code 602.105(a) and 602.106)

although variance from the health-based standard makes relief

from this sanction for non—cor:~piiance superfluous.

Balancing

the

great

extense to

comply at this time with the

minimal threat.

to the public he~~lth, the

Board finds that

requiring immediate ccnnpliance with the fluoride standard would

constitute an arbitrary or unreasonable hardship.

Accordingly,

variance is here by granted to the Village of Wataga from the

provisi~ons of 3:~ ill. ~dm~ Code 60L1,203(a),

602.105(a)

and

b02.

lOt,

d5-242

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—5—

This Opinion constitutes the Board’s findings of fact and

ORDER

The

Village of Wataga is hereby granted variance from 35

Ill. Adm. Code 604.203(a), 602.105(a) and 602.106 subject to the

following conditions:

I.

This

“:

iance shalt expire upon attainment of compliance

with

the

fluoride standard or August 15, 1990, whichever

2.

Petitioner shall make all reasonable efforts to

identify

a fearible compliance method for achieving compliance

3.

As eztxditiously after identification of a feasible

compi:.~nce method as is practicable, but in any event no

latet han three years after grant of the variance,

Petitksner shall submit a program (with increments of

progress) for bringing its system into compliance with

the fluoride

quality standard to the Agency’s Division

of Public Water Supplies. Permit Section at 2200

4. Petitioner shall achieve compliance within two years

from the date of submission of the compliance program

described above,

but in any event no later than

August

15, 1990.

5.

That

pursuant to 35 Ill. Adm. Code 606.201, Petitioner

shall 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 for

fluoride (35 Ill. Adm. Code 604.203(a)) in the first set

of water bills issued after the grant of this variance

6. That Petitioner shall take all reasonable measures with

its existing equipment to minimize the level of fluoride

in its finished water, and shall at all times maintain a

7. That wtthin forty-five days of the date of this Order,

Petitioner shall execute and forward to E. William

Hutton, Enforcement

Prograns,

Illinois Environmental

Protection Agency, 2200 Churchill

Road, Springfield,

Illinois 62706, a Certificate of Acceptance and

Agreement

to be baund to

afl

terms and conditions of

05- !~43

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this variances ThIs forty-five day period shall be held

in abeyance for any period during which this matter is

being appealed~ The form of certification shall be as

follows:

CERTIFICATION

I, (We)

,

hereby accept

and agree to ~ boun balE rms and

conditions

of the Order of

the Pollution Control Board in PCB 85-20, August 15, 1985~

Petitioner

Authorized Agent

Date

IT IS SO ORDERED~

I, Dorothy M. Gunn,

Clerk of the

Illinois Pollution Control

Board, hereby certify that

the above Opinion

and Order was

adopted

on

the

~

day of

~

1985, by a

Dorothy M~ unn, Clerk

Illinois Pollution Control Board

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