ILLINOIS POLLUTION CONTROL BOARD
June 5, 1985
VILLAGE OF HANNA CITY,
Petitioner,
PCB 85—40
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
VILLAGE OF GARDNER,
)
Petitioner~
v.
)
PCB 85-42
ILLINOIS ENVIRONMENTAL
)
PROTECTiON AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J.
Anderson):
The Village
of Hanna City filed
its petition
for variance
from the
5 pCi/i combined radium drinking water standard
of
35
Ill,
Adni,
Code 604.301(a)
~
April 8, 1985; on April
12 the
Agency moved
the Board
to join as additional parties 46 public
water
supplies.
The Village
of Gardner filed
its petition for
relief from
the
15 pCi/i
gross alpha particle activity drinking
wat~er standard of
35 Ill. Adm. Code 604.301(b); on April
13. the
~.gencymoved
the Board
to join as additional parties
36 public
water
supplies.
On April
18, the Board entered an Order
requesting
the Agency to address several issues concerning
legal
ramifications and procedural manageability of the group variance
approach suggested by the Agency.
On May 24,
the Agency filed
a
reply
to the April 18 Order,
as well as
a motion to withdraw its
previous request that the Board
join additional parties
to these
variances.
The motion
to withdraw does not involve an Agency retreat
from the group variance concept, but instead involves an
acknowledgment of
the
time required for the Agency
to contact
water supplies
to determine whether
a)
t.hey wish to ~‘optin”
to a
group variance proceeding after reviewing
a petition,
b)
will
waive
the decision period
c) will waive hearing and present an
affidavit attesting
to
its
factual allegations.
As all
of this
activity could substantially retard completion of the records
in
64~-213
—2—
the Hanna City and Gardner variances,
the Board will grant
the
Agency’s motions
to withdraw.
The Agency~sProcedural Proposal
In its Reply to
the Board’s Order,
the Agency requests Board
approval
of various procedures proposed by the Agency after
its
consideration of the questions posed by the Board and the
Agency’s
resulting consultation with USEPA.
In the interests of
facilitating resolution of
a problem facing some four score
public water supplies, the Board will comment on the Agency’s
suggestions.
The Agency has refined or altered
its previous approach
in
several respects.
The Agency
is inclined to take
a group
approach
to communities
in violation of the fluoride standard,
as
well
as
those
in violation of
the gross alpha
and
radium
standards or combinations thereof.
The Agency has volunteered
to
itself provide certain basic data concerning each water
supply,
and
to serve as
a clearing—house for data which can only be
supplied
by
that
supply.
The
Agency
suggests
that
each
supply’s
request
should
be
separately
docketed,
but
consolidated
for
hearing and/or decision purposes.
The Agency intends
to present
scientific
testimony
at
hearings
which
may
be
scheduled
at
the
Board’s discretion or
in response
to statutory objection.
However,
it notes that its witnesses, especially those who are
not Agency employees, may not be expected
to be available at each
of
the hearings which could hypothetically be required by
statute,
as
the affected communities are located
in some 25
counties.
The
single most significant change
in the Agency’s manner
of
approach
to the problems of these communities
is its intention to
recommend
that variance be granted only from the Board
rule
35
Ill. Adm. Code 602.105(a)
requiring denial of water main
extension permits
for communities placed on,
or
eligible
for
placement on,
restricted status because of violation of the
combined radium and/or gross alpha and/or fluoride standards.
The Agency would
no longer recommend grant of variance from the
drinking water
standards themselves,
In explaining
its postural change,
the Agency recites the
history of disagreement of the Agency and
the Board with the
(JSEPA concerning
the eligibility of water supplies for federal
variances under Section 1415 of the Safe Drinking Water Act where
characteristics of
the raw water source
are the reason for
noncompliance, but where certain technologies identified by USEPA
in a guidance document have not been installed,
The USEPA has
taken
the position that the technology must be
installed before
relief can be granted;
the Board has maintained a contrary legal
position since
1980.
The Agency wishes
to avoid the possibility
of USEPA revocation
of numerous Board variances from drinking
water
standards,
and resulting potential
revocation of Illinois
Primary Enforcement Responsibility under
the SDWA and its
84-214
—3—
attendant $1 million
in federal funds by recommending variance
only from the Board’s restricted status rule,
The Board’s Suggestion
The Restricted Status Problem
Lack of compliance with a drinking water
standards brings
two consequences:
1)
the possibility of enforcement by IEPA,
USEPA,
or any other person and
2)
restricted status,
a “sanction—
by—rule” precluding additional service connections independent of
any enforcement decisions.
In the usual drinking water variance
where variance
is granted from the standard,
the restricted
status sanction
is automatically extinguished since
the variance
grant forgives the non—compliance.
The proposed restricted status variance
is,
in effect,
a
variance
to the Agency, allowing
it to issue construction and
operating permits under Sections 601.101 and 601.102 which would
otherwise be precluded under Section 602.105.
It
is the opinion
of
the Board that this result can be better
and more directly
reached by initiation of
a rulemaking to consider making an
exception to the restricted status by giving the Agency explicit
authority to issue permits
to water supplies whose exceedances of
the drinking water standards fall within limits established
in
such an exception to the general
rule.
If supported by the
hearing
record, this
route would more effectively utilize the
resources of the Board,
the Agency,
and the affected communities
in two ways.
First,
it would eliminate much of the duplicative
paperwork involved
in the group variance proposal.
Second,
the
quality of
the hearing and public participation process will be
enhanced.
As earlier noted,
a group variance could hypothetically
require that hearings be held
in 25 counties.
The Agency has
stated that
it will provide
the expert witnesses who will testify
concerning
the health effects of consuming drinking water
exceeding the standards at issue here, but that
it cannot
dispatch them to every location at which hearing might be
required
to repeat their
testimony..
In some counties, then,
interested persons might hear little “live” explanatory
testimony, although they would have the option of presenting
comments on testimony presented
in other
locations.
Under
the rulemaking approach, merit hearings would
be
scheduled in at least two areas of the state.
All
of the expert
testimony could be presented at each location to provide
a more
informative hearing
to the citizen participants, but without
imposing
a substantial
burden on scarce Agency resources,
The Board notes that neither a group variance request from
restricted
status nor
a restricted status rulemaking would
solve
the water
supply’s other problem of continued liability to
enforcement because of its failure
to comply with the drinking
64-215
—4—
water standards.
The Board’s standards are identical
to USEPA’S
standards,
Change of Board standards would not provide
a
community with complete
relief from enforcement,
since USEPA
could enforce
its own standards,
The only procedural mechanism
to accomplish this goal
is by way of variance from the standards
themselves.
The
Board does not retreat from its position that variances
under
the Safe Drinking Water
?~ctcannot be denied on the basis
of failure
to install treatment technology
identified
in
a
guidance manual, ~~herethe guidance manual has not been
promulgated
as
a
;:ule,
Any public water supply remains free to
petition the BoarQ for variance
from the drinking water
standards.
Such petitions will
be subject to
the usual Board
procedures and analysis.
Summa~j
The Agency is strongly urged
to submit
a proposal
for
amendment
to Section 602.105(a).
The proposal should specify
the
numerical limits for
each
parameter
concerning which the Agency
wishes
to
remove water supplies from the effect of restricted
status.
A statement of the basis
for
the
Agency’s choice of each
numerical limit should be provided at the same time,
so that the
public
is
informed to some degree of the Agency~sthinking
in
advance of hearing.
The length of time anticipated
for Federal
action on pertinent pending drinking water
standards should also
be
indicated.
Hearings will be promptly scheduled after
the
Board’s
receipt of this proposal and the proceedings will
be
expedited a~much as
is possible.
Finally, the Board notes
that Hanna City has amended
its
petition
to request only a variance from restricted status, while
Gardner has moved
to withdraw its petition.
In light of
the
views expressed by
the Board
in this Order, each Village may wish
to reevaluate
its decisions concerning
its variance proceeding.
The Board requests
a filing from each Village indicating whether
it wishes
to proceed with
its variance petition as presently
filed.
These filings should be made on or before June
21,
1985.
IT IS SO ORDERED..
Board Member Bill Forcade dissented.
84~~216
—5—
I,
Dorothy
M.. Gunn, Clerk of
the
Illinois Pollution Control
Board hereby certify that ~he above Order was adopted on
the
~
day
of
__________________,
1985 by a vote
of
____________
7,
~
-
Dorothy M. Gt~in,Clerk
Illinois Pollution Control Board
64-217