ILLINOIS POLLUTION CONTROL BOARD

June 27, 1985

CITY OF ABINGDON,

Petitioner,

)

v.

)

PCB 84—184

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

OPINION AND ORDER OF TUE BOARD (by R. Flemal):

This matter comes before the Board on a Petition for

variance, filed on December 31, 1984, and an Amended Petition,

filed February 13, 1985, by the City of Abingdon (Abingdon).

The Environmental Protection Agency (NAgencyu) filed a

Recommenlation on March 3, 1985, and an Amended Recommendation on

April 11, 1985, both of which support in substance the relief

requested by Abingdon. Public hearing was held at 10:00 a.m. on

May 2, 1985, in the Council Chambers of the Abingdon City Hall.

Although an anonymous citizen letter was filed, no members of the

public attended the hearing.

In its December 31 petition, Ahingdon requósted a star ia-ice

from the Board’s standards for the maximum allowable

concentrations of both gross alpha particle activity (35 Ill.

Adm.Code 604.301 (b)

)

and fluoride (35 Ill. i\r~~ Code 604.202

and 604.203) in finished drinking water.

Based on sampled collected between January, 1983, and July,

1984, the Agency has determined that Petitioner is

curreztly in

compliance with the 15 pCi/i standard for gross alpha activity,

and that variance from this standard is accordingly unnecessary.

In its February 16 petition, Abingdon acknowledged the Agency’s

determination of compliance (Amended Petition, para. 19), and did

not reassert its request for variance from the gross alpha

particle standard. The Board construes this action as a

withdrawal of Petitioner’s request for gross alpha particle

variance. The Board does note that this withdrawal does not

preclude Petitioner from ref iling for a variance from the gross

alpha standard should Petitioner ever find circumstances so

warrant.

with respect to the requested flouride variance, the Board

notes that Abingdon asks for variance from both 35 Ill. Adm. Code

604/202 and 604.203. The Board further notes that section 604.203

(a) treats exceptions to section 604.202, and that section

604.203 (a) overrides section 604.202 in the case of patitioner.

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—2-

~bingdo&s request for variance to 35 iii. Adm, Code 604.202 is

thereby denied as inapplicable, and the remainder of this opinion

and order directs itself solely to variance from 604.203 (a).

Abingdon was previously granted, by Board Order of May 27,

1982, variance from the 2.0 mg/i fluoride limitation in case

number PCB 81—107. That variance expired January 1, 1984. The

Agency recommends that the Board grant a new variance from 35

Ill. Adm. Code 604,203 (a) for five years as requested by

kbingdon, subject to conditions.

The City of Abingdon, located in

Knox

Count~,

supplies water

to its 4150 citizens (approximately 1500 user units) from two

deep wells, Raw water is drawn from the wells, chlorinated,

pumped to two ground storage reservoirs, and then pumped to the

distribution system and a 100,000 gallon elevated storage tank.

The daily average water production is 530,000 gallons per day.

Seven samples of finished water recorded between March,

1983, and December, 1984, show respectively a minimum, mean, and

maximum fluoride concentration of 2.16, 2.43 and 2.73 mg/i. Such

concentrations are endemic to many of the raw water supplies in

the west—central area of Illinois, including Knox County.

The Safe Drinking Water Act (~SDWA~)requires that the

granting of a variance will not result in an unreasonable risk to

the health of persons served by the system (42 U.S.C. Section

(g)—4). The extent to which fluoride concentrations minimally

above the 2.0 mg/i standard impose health risk on the citizens of

the State has been at issue in many cases before the Board.

Moreover, Illinois is not alone in facing this issue, The Board

notes that United States Environmental Protection Agency

(‘~USEPA”) has recently proposed a Recommended Maximum Contaminant

Level for fluoride in drinking water at 4.0 mg/i (50 Fed. Reg.

20164, May 14, 1985), However, until there is final action on the

USEPA proposal the Board must make its findings consistent with

the existing standard.

In the instant case the Board agrees with Petitioner and the

Agency that there is no overt evidence of health risk, and that

therefore the granting of the requested variance would not result

in unreasonable risk in the short—term, By conditioning the

variance on eventual compliance, long—term exposure is avoided.

Futher conditioning the variance to prohibit concentrations above

4.0 mg/i assures that exposures above the present risk level are

minimized,

Pursuant to conditions accepted in PCB 81—107, Abingdon

undertook a study, prepared by Anderson Engineering Consultants,

Inc. (Anderson report), of means to attain compliance (Pet.

Exhibit A). Measures explored include: (1) an alternate water

supply source, (2) reverse osmosis, (3) absorption process and

(4) lime softening. A finding of this report is that no

alternative ground water supply of sufficient quantity and lower

fluoride content is available,

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—3—

The Anderson report notes that Abingdon could come into

compliance by buying either raw or finished water from Galesburg.

This would require construction of a connection watermain between

8 and 10.5 miles long, depending upon the point of hookup. it

would also require negotiating with the City of Galesburg

regarding availability of water, proposed rates, and future

charges and ownership of the transmission line. The least

expensive alternative would cost $567,500 and would require a 142

percent increase in rates for the typical user (Amended Pet. 15).

The Anderson report further notes that the various treatment

alternatives would entail still greater costs. The Agency concurs

with the compliance cost estimates presented by the Petitioner,

and concludes that the facts presented by Petitioner establish

hardship sufficient to allow the granting of the variance.

The Board may, to the extent consistent with the SDWA, grant

a variance if compliance with the Board’s standard would impose

an arbitrary or unreasonable hardship. The Board finds that the

cost of compliance does impose such a hardship in light of the

minimal adverse environmental impact.

To continue to grant a series of variances without a plan

for compliance would violate the intent of the Illinois

Environmental Protection Act and case law in this area, The

Supreme Court stated, in ~

Board, 67 Ill. 2d 276, 367 N.E. 2d 684, 688 (1977), that “the

concept of a variance which permanently liberates a polluter from

the dictates of a board regulation is wholly inconsistent with

the purpose of the Environmental Protection Act.~It is therefore

appropriate to grant a variance for a period of time sufficient

to comply with Board regulations. The variance will be granted

with conditions that Abingdon coninue to explore compliance

methods, and from these to develop a compliance plan.

This Opinion constitutes the Board~sfindings of fact and

conclusion of law in this matter.

ORDER

The City of Abingdon is hereby denied variance from 35 Ill.

Adm, Code 604.202 as inapplicable and unnecessary.

The City of Abingdon is hereby granted a variance for its

public water supply from the 2,0 mg/l fluoride limitation of 35

Ill. Adm. Code 604.203 (a), subject to the following conditions:

1. This variance will expire three years from the date of

this order.

2, Petitioner shall investigate compliance options twice

each year and shall report its findings to the Agency on

April 1 of each calendar year during which this variance

remains in effect,

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3. AS ezpeditiously after identification of a feasible

compaliance method as is practicable, but no later than

April 1, 1988, Petitioner shall submit a program (with

increments of progress) for bringing its system into

compliance with the fluoride standard to the Agency’s

Division of Public Water Supplies, Permit Section, at

4. Petitioner shall take all reasonable measures with its

existing equipment to minimize the level of fluoride in

its water supply. The fluoride level shall

not be

5. Pursuant to 35 Ill. Ada. 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 a

variance by the Pollution Control Board from the

fluoride standard in the first set of water bills issued

after the grant of this variance and every three months

thereafter. The notice shall state the average fluoride

in samples taken since the last notice period during

6. Within forty—five days of the date of this Order,

Petitioner shall execute

and

forward to the Illinois

Environmental Protection Agency,

PWS

Enforcement

Programs, 2200 Churchill Road, Springfield, Illinois

62706, a Certificate of Acceptance and Agreement to be

bound to all terms and conditions of this variance. This

forty—five day

period

shall be held in abeyance for any

period this matter is being appealed. The form of the

certificate shall be as follows:

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CERTIFICATION

I, (we),

,

having

read the Order

of the Illinois Pollution Control Board,

in PCB

84—184, dated June 27, 1985, understand and accept the said

Order,

realizing that such acceptance renders all terms and

conditions thereto binding and enforceab1e~

Petitioner

By:

Authorized Agent

Title

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

vote of ~

Dorothy M~ Gdnn, Clerk

Illinois Pollution Control Board

64~477