ILLINOIS

POLLUTION

CONTROL

BOARD

December

3,

1981

VILLAGE

OF

KIRICWOOD,

)

)

Petitioner,

)

v.

)

PCB

81—111

)

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

RONALD D

•

STOMBAUGH

APPEARED

ON

BEHALF

OF

PETITIONER;

AND

JOHN

DEREK

WILLIAMS

APPEARED

ON

BEHALF

OF

RESPONDENT.

OPINION

AND

ORDER

OF

THE

BOARD

(by

S.

Anderson):

This. matter

comes

before

the

Board

on

the

petition

for

variance

filed

by

the

Village

of

Ki.rkwood

(Village)

July

9,

1981

as

amended

July

15,

1981.

The Village

seeks

variance

from

the

2.0

mg/i

fluoride

standard

of

Rule

304(B)(4)

of

Chapter

6:

Public

Water

Supplies.

On July

17,

1981

the

Illinois

Environmental

Protection

Agency

(Agency)

filed

its

Recommendation

that

variance

be

granted

until

January

1,

1984

the

current

deadline

date

for

exemption

under

51416

of

the

Safe

Drinking

Water

Act

(SDWA).

Pursuant

to

a

timely

objection

to

the

variance

request

filed

by

Mr.

and

Mrs.

Phil

Goedert

on

~Tnly 23,

1981,

hearing

was

held

in

this

matter

on

September

30,

1981.

At hearing, the Village presented

testimony of its

consulting

engineer, Stephen Linkemann of Kenneth E. Schrader and Associates,

Ltd., Village President Bruce Albert, Village Clerk Mary Hayes,

and Village Attorney Ronald D. Stombaugh.

The Agency presented

the testimony of its

employee

Environmental

Protection

Specialist

Richard Gerard, and of Sharon Pierce, dental health administrative

assistant to the head of the dental health division of the

Illinois Department of Public Health (IDPH).

Each witness sup-

plemented the

information

in

the

written

record

before

the

Board,

and many responded to questions posed by Mr. and Mrs. Goedert.

The Village of Kirkwood,

located in western Warren County,

has a population of approximately 1Q00, billing approximately

350 water users on a bi—monthly basis.

This public water supply,

established in 1894, currently supplies water from two deep wells,

drilled in 1948 and 1958.

The Village’s

raw

water contains

fluoride in excess of the 2.0 mg/i standard, as does the water

44—165

---

from many deep wells in Knox, Peoria, Fulton, Warren,

and

Henderson counties, according to the

~Iilinois) State Water

Survey.

According to Agency

records,

the

fluoride content has

been measured as ranging between 2~.4

mg/i

and 3~4mg/i,

and

averaging

2.9

mg/i (R~46)~~

The

Goederts,

in their objection,

as well as other witnesses,

partlcularly Mr. Gerard,

explained

that

the

Village

has problems

with its

water

supply and delivery

system

of hardness, corrosive-

ness,

low water pressure, staining

and

smell,

problems which

installation of fluoride removal systems would not correct

(R.

10—12,

18,

41—50).

The

Village seeks variance to allow issuance of permits to

construct a new water tower and new water mains, which would solve

the water pressure problems.

This project is expected to be com-

pleted with the aid of $350,000 from Farmers Home Administration

funds,

The Village believes that,

if it

is required to install

fluoride removal equipment,

it would ~‘putthe new water tower

project in jeopardy”,

as the Village cannot afford to undertake

both projects at the same time

(Pet0

2,

A.

33).

Engineer Linkemann

believes

that

compliance could be most

cheaply

attained

by

use

of

the

activated

alumina

or

bone

char

adsorption process.

Capital

costs

of

equipment

installation

would

be about $174,000, with annual operating expenses of about $26,000.

This would increase the average $10

per

month

water bill of each

user

by

$11

per

month

(Pet,

Ex0

A—C,

A.

22).

There

is

no

other

alternate

ground

or

surface

water

supply

available

that

would

not

exceed

the

fluoride

limit

or

he

of

proven

quality

that

is

economically

or

“political

ly~ feasible

(Pet.

3,

R~ 16).

While

Mrs.

Goedert

was

conc~rn~ about

the

Village’s

other

water

problems,

she

was also concerned about

the

effects

upon

her

young children (ages

I and 4)

of consuming water with

fluoride

at

the 2,4 to 3.4 mg/i level,

Ms. Pierce of the IDPH,

who has worked

in the dental field

for

9 years and has been participating in a

National Institute of Dental

Research

study

concerning the fluoride

problem in west central Illinois, addressed this

issue.

It is her

opinion that there is no discernible physiological effect on teeth

by consumption of fluoride at these

levels,

although teeth become

discolored and more brittle at the

8 to 14 mg/i

fluoride

level.

However, children younger

than

12

years

of

age

who

drink water at

the

3

to

4 mg/i

level may suffer the cosmetic

tooth

mottling effect

of “fluorosis”.

When this occurs,

the

child’s teeth

absorb

fluoride as they are being formed, which may have the effect of

either whitening or browning the teeth~ The effects of mottling

can be lessened by dental bleaching of the teeth,

and of course

can be avoided by use of an alternative supply of water

R.

53—59,

see also Central Illinois Utility Co.

v.

IEPA,

PCB 77—349

(April

13,

1978)1.

44—166

---

Based on the evidence presented,

which

demonstrates

that

no danger to public health exists,

and that immediate

compliance

would

impose an unreasonable

economic

hardship to this

small

community, the Board finds

that

variance should be

granted.

The

Agency

acknowledges

that

this

petition falls

in

line with recent

cases

in which the Board has granted

5 year variances

to

small

municipalities

(1000

users

or

less)

pursuant

to

the variance

provision

of

§1415 of the SDWA, which has no deadline,

rather

than

§1416

with its

exemption

deadline

of January

1,

1984.

For

the

reasons

stated

in

these previous opinions,

the

Board

grants

variance for

a five year period,

subject to the

conditions

outlined

in the attached order

see,

e.g. Trivoli

Public Water

District,

PCB 80—208,

(March

5,

1981) and cases cited therein).

There remains yet another matter

for the Board to

resolve,

pursuant to the terms of its September 24,

1981 Order.

On August

31,

1981 the Village requested

that the Board assume

the

costs

of the

stenographic

transcript

of

the

hearing

since

“paying

all

the

costs

for

the

hearing would present somewhat of a financial

hardship”.

It was the Village’s testimony that the holding of a

hearing

will

cost

it $500

in

engineering

fees1

$400

in attorneys

fees,

and

$200

in

court

reporting fees,

in addition

to

the

$248

expended

in

preparing

the

variance

petition itself

(R.

14,

37).

The

Village

argues

that

“it

would

not

he

to

the

best

interest

of

the

People

of

the

Village

of

Kirkwood

and

those

that

use

the

water

system,

to

have

them

pay

the

costs

of

this

hearing

based

upon

what

we’ve

determined

in

one

complaint~

Alternatively,

at

hearing

the

Village

requested

the

Board

to

pay

for

all

hearing

costs

(A.

65).

The

Board

will

consider

only

the

cost

of

the

transcript

68

pages,

pursuant

to

Procedural

)luie

412(b).

Variance

from

the

Board’s

rules

is

not

thutornatic”,

or

available

as

a

matter

of

ahsol~it:e riaht

under

the

Act.

The

legislature

has specifically provided an absolute

right

to

a

hearing to the writer of

“one complaint”,

Section 37 of the

Act

specifies that “if any.. .person files a written objection

to the

grant of

a

variance within 21 days,

then

a

hearing

shall be

held”.

While

some

might

feel

that.

this

is not

the

most

efficient

manner

of

adjudicating

a variance request,

it does

insure

an

open

forum

where

one

or more

citi~ens~

legitimate

health

and

other

environmental concerns

will

he heard,*

The

Board

most

certainly

appreciates

Village

President

Albert’s

statement

concerning

the

Village’s

financially

“narrow

margin”

of operations

(A.

34),

However,

this

general

allegation

is

unsupported

by

any

ev:Ldence

showing

the

Village’s

precise

financial

situation.

The

petition

is therefore

denied

for

failure

to

prove

“good

cause”.

*The Board must note that many objections

are

filed

by

citizens who have received little or no prior explanation

from

their

local officials concerning

the

action being taken

before

the Board on their behalf.

44—167

---

This

Opinion

constitutes

the

soarcis

findings

of

fact

and

conclusions

of

~ew

in

this

matcnr~

ORDER

1.

Petitioner,

the

Viliaqe of Kirkwood, is granted a

variance from

the

2,0 mg/i

maximum

fluoride

concentration

limit

of Rule 304(B)~4)

of

Chapter

6~

Public

Water

Supply

for five

years,

subject

to

the

followinq

conditions~

a.

Beginning

on or about June

1,

1982, and at

six

n~onth intervals

thereafter,

the

Petitioner

shall

communicate

with

the

Agency

in

order

to

ascertain

whether

fiouride

removal

techniques

specifically

applicable

to

small

systems

have

been

developed

and

identi

fied

b.

As

expeditiously

after

identification

of

a

feasible

compliance

method

as

is

practicable,

but

no

later

than

danuary

1,

1984,

Petitioner

shall

submit

to

the

Agency

a prograr~(with increments of progress)

for

bringing

its system

into

compliance

with

fluoride

standards.

c.

Petitioner

shall

take

all

reasonable

measures

with

its

existing

equipment

to

minimize

tte

level

of

fluoride

in

its

water

sepeiv

and

shall

not

aL low

the

fluoride

concentration

~:o euceed

an

average.

of

4.0

mg/l.

a.

Pursuant

to

Atm

313

~tJ

(1

)

of

Chapter

6,

on

or

before

January

30,~ 1982

and

every

three

months

thereafter,

Petitioner

will

send

to

eanLi

user

of

its

public

water

supply

a

written

notice

to

the

effect

that

petitioner

has

been

granted

a

v

th;oo.L:

~im

Lite

2.

C

eq/~

~aximum

fluoride

stanciard

by

rue

Pollution

Controi

3oord.

The

notice

shall

state

the

averac~e content

of

fluoride

in

samples

taken

since

the

last

notice

period

during

which

samples

were taken.,

2.

Within

forty—five

dave

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

62704;

a

Certificate

of

Acceptance

and

Agreement

to

be

bound

to

all

terms

and

conditions

of

this

varince.

This

forty—five

day

period

shall.

be

held

in

abeyance

for

any

period

this

matter

is

beinq

•om~ealed.

The

form

of

the

certificate

shall

be

as

follows;

CERTIFICATE

I,

(We),

,

having read

the Order of the

Illinois Pollution ContrqJ. Board in PCB 81-111,

dated

____________

understand

and

accept the

said Order,

realizing

that

such

acceptance

renders

all

terms and

conditions

thereto

binding

and enforceable.

44—168

---

Petitioner

By:

Authorized

Agent

~flt1e

*

Date

3.

The Villages

August

31r

1981 motion that the

Board

assume costs

is

denied.

IT IS SO ORDERED.

I, Christan L.

MOffCttr

Cle~:kof

toe

Illinois

Pollution

Control Board, he~e,~y

certift

th~t

the

above

OpirL:Lon and

Order

was

adopted

on

~J~e

~

day

or

________

,

1981 by

a

vote

of

~S-b

//

4;

1

4

—

I

_~

,

—

/1

~

io.

.~..

_______—

Christan

L.

Moff~V.i C~y

II linois

Polluti~hL.control

Board

44— 169