ILLINOIS POLLUTION CONTROL BOARD
    December
    5,
    1985
    SORDEN CHEMICAL COMPANY,
    Petitioner,
    v.
    )
    PCB 82—82
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    )
    Respondent.
    MR.
    SHELL
    J.. BLEIWEISS OF SIDLEY
    & AUSTIN APPEARED FOR
    PET
    ITIONER;
    MR.
    F.
    WILLIAM
    HUTTON APPEARED FOR RESPONDENT.
    ‘)PTNION AND ORDER OF THE BOARD (by J.
    Marlin):
    This matter comes before the Board upon
    a June
    22,
    1982
    filing
    by Borden Chemical Company
    (Borden)
    of
    a petition for
    variance from the 1,000
    mg/i
    general
    use total
    dissolved solids
    (TDS)
    and 500 mg/l chloride water quality
    standards
    (WOS)
    of
    35
    Ills
    Adm, Code 302.208.
    Two year relief
    (R.
    8)
    is requested from
    Sections 302,208 and 304.105, the latter providing
    that
    no
    effluent shall
    cause
    a violation of
    a WOS.
    While relief from the
    1.5
    Mg/i ~mmon~a ni~roge~genoral
    ~se WOS wa3 also ori9inaily
    requested,
    such relief
    is now unnecessary.
    That
    portion of the
    proceeding has been dismissed
    (Order, April
    18,
    1985).
    An open
    waiver
    of the Board*s time
    to render
    a decision was fiLed on July
    2’~,
    t~82.
    t~ughoutthe length of
    the proceeding,
    hearings were
    cancelled at
    least
    three times.
    On April 6,’~l983,the hearing
    was continued “generally~ on motion of Borden.
    There was no
    action
    until on~year later,
    at which time the Illinois
    Environmental Protection Agency (Agency)
    filed another
    appearance.
    The
    last
    (third) Agency amended recommendation was
    filed on May
    20,
    1985.
    Hearing was held on July
    15, 1985
    in
    Springfield, Sangamon County,
    Illinois.
    The prior variance granted in PCB 78—269
    (34 PCB 71, June
    22,
    1979) expired on June
    22,
    1982
    see
    35 PCB 557, October
    8,
    1979 dismissal
    of R 78—13~,
    It had provided relief from the TDS
    and chloride general use WOS’s of old rule
    203(f)
    Section
    302,208
    and from old rule 402
    Section
    304.1051,
    Borden was
    also granted
    a provisional variance for
    45 days from the
    suspended solids effluent standard of old rule 404(c)
    t304.l20(c)1,
    such relief starting
    on June
    14,
    1982
    (47 PCB 285,
    PCB 82—74, June
    10,
    1982).
    The Borden plant
    is located
    in
    a rural
    area one mile west
    of
    Tiliopolis,
    Illinois.
    It employs about
    170 people and produces
    polyvinyl
    chloride
    (PVC)
    resin, PVC latex emulsions,
    styrene—
    67-03

    2
    hutadiene
    emulsions,
    polyvinyl
    acetate
    emulsions
    and
    PVC
    plastic
    film and moulding
    compounds.
    Vinyl
    chloride
    emission
    control
    is
    provided
    by combustion
    in
    an incinerator followed by
    scrubbing,
    his
    omission control system cost
    $15,000,000 and became
    operational
    on October 21,
    1978.
    The scrubbing operation
    produces
    a water solution of hydrochloric acid which
    is
    neutralized with caustic or soda ash to produce
    a neutral
    effluent containing salt.
    This effluent
    is added
    to
    the plant’s
    other wastewater prior to discharge.
    The design average flow of
    borden’s
    wastewater treatment plant
    is 0.615 million gallons per
    day
    (MGD) while actual flow is 0.444 to 0.712 MGD
    (Ag.
    2nd Am.
    Eec.).
    The
    plant
    discharges
    about
    400,000
    gallons
    per
    day
    (GPD)
    into
    an
    unnanied
    ditch
    which
    has
    a
    seven—day,
    ten—year
    low
    flow
    at
    zero.
    However,
    Borden
    represented during
    the prior variance
    proceeding
    that
    for
    the
    thirteen
    years preceeding 1982,
    the ditch
    had
    never
    been
    dry.
    Upstream
    are
    located
    two
    other
    dischargers,
    a
    municipal
    water
    treatment plant which discharges filter back wash
    and
    a
    chicken
    hatchery
    which
    discharges
    cage
    and
    crate
    washings.
    Borden
    claims
    that
    the
    ditch
    is
    not
    used
    for
    recreational purposes and that chloride and TDS concentrations
    will
    not detract from whatever aesthetic value
    the ditch might
    have,
    The ditch
    runs about one and one—half miles before joining
    a
    drainage area known as Long Point Slough, which flows
    into the
    Sangamon River
    about one—half mile past the ditch.
    The ditch
    is classified as
    a general use water and the
    app1icabl~WQS’s ar~1,000
    mg,’l TOS and 500 mg/l chloride
    (Section 302.208).
    Discharge data supplied
    in the Agency’s
    second and third amended recommendations demonstrate that the
    requested
    2200 mg/l TDS and 700 mg/l chloride levels
    in the
    receiving
    ditch,
    downstream
    from the discharge, wore
    substantially met during and since the last variance (3rd at
    2,
    2nd
    at
    9).
    Reduced flow (Agency
    lists zero flow for September
    1984)
    in
    September, October and November of 1984 caused
    the
    monthly averages for TDS
    to exceed 2200 mg/l.
    Agency water
    quality data for the Sangamon River
    for “water year 1982” are
    below the present general use WQS’s of 1,000 mg/l TDS and 500
    mg/l
    chloride
    (3rd Am. Rec,)
    Borden has alleged
    that
    compliance with the Board’s TDS
    chloride WOS regulations would impose an arbitrary or
    unreasonable hardship.
    Regarding alternate methods of TDS and
    chloride control,
    the record shows no change
    from the prior
    variance record.
    The Board
    finds that there
    is
    no proven
    conventional technology which
    is also economically feasible to
    treat
    TDS and chloride levels
    in Borden’s wastewater.
    TherefOre,
    the Board finds that compliance with Section 304.105
    as
    it
    relates
    to TDS and chloride WQS’s
    of Section
    302.208 would
    impose
    an
    arbitrary or unreasonable hardship on Borden.
    Borden
    has
    had
    more
    than
    sufficient
    time
    to
    submit
    environmental
    impact
    data
    and has failed to do
    so.
    In
    the prior
    67-04

    3
    variance proceeding,
    the Board
    in
    its Opinion stated
    that
    any
    data collection pursuant
    to the variance should
    include
    ‘•.,.hiologicai surveys which include counts of
    salt tolerant and
    sensitive species
    as low flow conditions develop...”
    (34 PCB
    71,,
    74,. June 22,
    1979, PCB 78—269).
    The only environmental
    impact
    evidence presented by Borden was
    in
    the
    original
    petition,
    wherein
    It
    was
    stated
    that
    the
    ditch
    is
    not
    used
    for
    recreation
    and
    that the ditch was
    not
    a habitat for “significant aquatic
    life’1
    (Pet, at 8).
    The Agency itself was concerned with the
    potential
    for
    harm
    to
    downstream
    public
    water
    supply
    users
    but
    with
    new
    information
    has receded from its previous variance
    denial
    posture
    (3rd
    Am.
    RecJ.
    The
    Agency
    has
    stated
    that
    any
    adverce
    environmental
    impact
    would
    be
    minimal
    (Id.).
    While
    the
    environmental
    impact
    evidence
    is
    sorely
    lacking
    in
    substance,
    the
    Board
    finds,
    based
    on
    the
    data
    in
    the
    record,
    that
    any
    adverse
    environmental
    impact
    will
    be
    minimal
    during
    the
    term
    of
    any
    V a
    r
    ian
    Ce.
    I~
    Borden. is planning
    to fulfill
    its representation
    at
    hearing that
    it will be filing
    a site—specific proposal
    •(R.
    11),
    an environmental study must be submitted at the time the proposal
    is filed.
    The study should address those points listed
    in
    the
    Board~Order dismissing R78—13
    (35 PCB at
    558, October
    18,
    1979),.
    Any
    such site—specific proposal should include copies of
    any
    documents
    from prior proceedings
    that Borden wants
    considered.
    The, Board
    notes that the record in this proceeding
    is
    cluttered
    with
    a
    number
    of
    conflicting
    or
    overlapping
    proposals~recommendations,
    and clarifications.
    Outright
    incor~orat1~Ofl~f the prior records could
    lead to confusion.
    Of
    particular interest will
    be updated information on the source of
    contaminants and the potential means of removing them from
    the
    effluent by either process changes or treatment.
    Copies of any
    applicablre
    ~
    ~er~nfts~
    should be
    included.
    Additionally,
    Borden
    is
    reminded that
    a revision or modification of
    a WQS
    is
    accomplished through either changing the use designation of the
    stream by
    a use attainability analysis or by revising the WQS
    criteria consistent with the stream designation
    33
    U.S.C.
    §1313(c)(2),
    40 CFR
    1311.
    If Borden seeks to revise or modify
    a
    WQS,
    it will have to submit
    information addressing
    such
    issues.
    Borden should be aware that the Board
    is
    currently
    considering
    Sangamon Basin Water Quality Standards
    in R83—20,
    Petitioner
    is reminded that the filing of
    a proposal for
    site—specific relief
    is not
    a compliance plan for variance
    purposes.
    Any assumption that it will be granted
    is speculative,
    Citizens Utilities Company of Illinois
    v.
    IPCB et al~,479 N.E,2d
    1213
    (3rd.Dist.
    1985) affirming Citizens Utilities. v.
    IEPA, PCB
    ~3—l24,
    April
    19
    and
    June
    14,
    1984.
    By
    interim
    order
    of
    the
    Board
    dated
    September
    5,
    1985,
    the
    parties were requested to address whether
    the Board could grant
    variance relief from water quality standards consistent with
    ~edera1 law,
    specifically 33 U.S,C~ §~l3l3,1370,
    After meeting
    with the USEPA,
    the Agency stated that the Board may grant
    67-05

    4
    variance
    relief
    from
    water
    quality
    standards
    based
    on
    a
    No~iemhor
    1977
    Memorandum
    of
    Agreement
    between
    the
    two
    agencies
    (Agency
    -tatus
    Report,
    October
    4,
    1985).
    Based
    on
    the
    minimal
    short—term
    adverse
    environmental
    impact:
    md
    that
    immediate
    compliance
    would
    impose
    an
    arbitrary
    or
    nnrtasonable
    hardship,
    the
    Board
    hereby
    grants
    Hordon
    a
    variance
    from 304,105 as
    it
    relates
    to
    the
    TDS
    and
    chloride
    WQS’s
    o~
    Section
    302.208,
    subject
    to
    the
    conditions
    suggested
    by
    the
    •\~ency.
    The
    Board
    will
    continue
    the
    interim
    water
    quality
    ‘~tandards
    of
    2200
    mg/l
    TDS
    and
    700
    mg/l
    chloride.
    The
    Board
    takes
    notice
    that
    the
    Agency
    did
    recently
    issue
    an
    NPDES
    permit
    t~nrBorcIen~sdischarge
    and
    Borden’s
    appeal
    is
    docketed
    as
    PCI3
    85—82.
    Borden
    has
    requested
    rolief
    retroactive
    to the date of
    issue
    of
    the
    latest
    applicable
    NPDES
    permit.
    The
    stipulation
    in
    cLarification
    contains
    a
    May
    25,
    1985
    issue
    date
    (p.
    2,
    para
    5)
    and
    the
    hearing
    record
    contains an effective date of June
    22,
    1985
    (R,
    12).
    The
    Agency
    recommends
    the
    grant
    of
    retroactive
    relief
    starting
    June
    22,
    1985
    (R.
    12).
    The
    Board
    rarely
    grants
    retroactive
    variances
    absent
    some
    showing
    of
    exceptional
    circumstances.
    Quaker
    Oats
    Company
    v.
    IEPA,
    59
    PCB
    25
    (July
    19,
    1984,
    PCB
    83—107T.
    The
    variance period will begin on the date of
    this
    Order,
    as
    no
    exceptional
    circumstances
    have
    been
    shown
    whatsoever.
    If
    anything
    there
    has
    been
    excessive
    delay
    on
    the
    part
    of
    Borden and presentation of less than optimal information
    supporting
    the petition.
    This constitutes
    the Board’s findings of
    fact and
    conclusions
    of
    law.
    ORDEI~
    Borden
    Chemical
    Company
    is
    hereby
    granted
    a
    variance
    from
    35
    111.
    Adm. Code 304.105
    as
    it relates to the TDS and chloride
    wOs’s
    of
    Section
    302.208 for
    its wastewater discharge
    at
    its
    Iliopolis,
    Illinois plant subject
    to
    the following conditions:
    1.
    This variance shall commence on the date of this Order
    and expire on the date of
    issuance of
    a final Board
    Order
    in any site—specific proceeding or July
    1,
    1988,
    whichever
    is sooner,
    2.
    Petitioner’s effluent shall
    not cause
    the water quality
    in
    the
    unnamed ditch to exceed
    a monthly average
    concentration level
    of 2200 mg/l TDS or 700 mg/l
    chloride, based upon the sampling frequency contained
    in
    its NPDES permit.
    3.
    Petitioner shall
    file
    its request concerning
    its
    Illiopolis plant
    for
    a site—specific rule change from
    the TDS and chloride water quality standards on
    or
    before
    April
    1,
    1986.
    67-06

    5
    4.
    If Petitioner
    is denied full
    relief
    in
    the site—specific
    proceeding
    and
    additional
    compliance
    measures
    become
    necessary,
    they
    shall
    be
    completed
    in
    accnrdance
    with
    the following schedule:
    Items
    Completion
    Date
    mhmit plans
    and specifications
    6 months from date of final
    to
    Agency
    for
    permit
    review,
    Board
    Order in site—specific
    rulemaking.
    Complete
    construction
    of
    15
    months
    from
    date
    of
    improvements,
    submission
    of
    plans
    and
    specifications
    or
    July
    1,
    1988,
    whichever
    occurs
    first.
    5.
    Within
    forty—five
    days
    of
    the
    date
    of
    this
    Order,
    Petitioner
    shall
    execute
    and
    forward
    to
    the
    Illinois
    Environmental
    Protection
    Agency,
    Compliance
    Assurance
    Unit,
    Water
    Pollution
    Control
    Division,
    2200
    Churchill
    Road,
    Springfield,
    IL
    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 during which
    this matter
    is
    being
    appealed.
    The
    form
    of
    this
    certificate
    shall
    be
    as follows:
    Certificate
    I,
    (We)
    having
    read
    the
    Order
    of
    the
    Illinois
    Pollution
    Control
    Hoard
    in
    PCI3
    82—82,
    dated
    _____________________________,
    understand and
    accept
    the said Order, realizing
    that such acceptance renders all
    terms
    and conditions thereto binding and enforceable.
    Petitioner
    By:
    Authorized
    Agent
    bate
    Title
    IT
    IS
    SO
    ORDERED,
    Board
    Member
    3.D,
    Dumelle
    concurred.
    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
    MI
    Gunn,
    Clerk
    Illinois
    Pollution
    Control
    Ho~r~
    67-07

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