ILLINOIS POLLUTION CONTROL BOARD
October
 14,
 1971
NATIONAL STARCH
AND
CHEMICAL
CORPORATION
v.
 )
 PCB 71—83
ENVIRONMENTAL PROTECTION AGENCY
Mr. James
 W. Kissel,
 Sidley
 & Austin for National Starch and
Chemical Corporation
Mr.
 Roger Ganobcik for the Environmental Protection Agency
Opinion of the Board
 (by Mr.
 Dumelle):
In this petition
 for variance National Starch and Chemical
Corporation
 (National)
 sought to be allowed to discharge effluent
from its chemical processing plant containing contaminants
 in con-
centrations
 in excess of
 thoso. ~flowed by regulation for
 a period
extending through 1972 during which
 they would be planning and in-
stalling treatment facilities.
National filed their petition
 for variance with
 the Board on
April
 22,
 1971.
 A hearing was held on June 18
 at which
 the Environ-
mental Protection Agency
 (EPA) was
 not, present.
 An order granting
National
 a variance until October
 1 and requiring
 a further hearing
was issued by this Board on July
 19,
 A second hearing was held
on August
 31.
 The variance request
 is granted
 for
 a limited period
subject
 to the several conditions discussed in this opinion.
National
 is
 a multi-plant chemical producer.
 The plant which
is the
 subject
 of
 this variance petition is located about one mile
south of the town of Meredosia;
 about sixty miles west of Spring-
field.
 The plant is on the Illinois River and primarily produces
polyvinyl acetate polymers in emulsion
 form and several specialty
products used generally
 in the adhesive, paper, paint and textile
industries
 (R.8-9).
 The plant employs approximately 110 employees
and operates on
 a
 3 shift,
 7-day~a—weekbasis
 (R.7).
2
 611
Water
 is obtained from
 6 deep wells which provide
 a flow of
approximately 2,000 gallons per minute.
 The plant processes
 the
following types of major raw materials: Monomers
 (mostly vinyl
acetate, about 5,000,000 lbs./moj;
 solvents
 and plasticizers
(about 400,000 lbs,/moj;
 inorganic chemicals
 (about 290,000 lbs./
mo.);
 and organic chemicals
 (about 315,000 lbs,/mo,)
 (R.lO-l2).
The waste water from the plant is ccmposed of two streams,
water from cooling processes which
 is discharged at about
 2,000
gallons per minute and contaminated waste water which
 is discharged
at approximately 130 gallons per minute
 (R.l6-l7).
 This
 latter
waste stream is discharged into
 two stabilization
 lagoons
 for
 a
total retention time
 of approximately
 10 days.
 The combined
effluent from both waste streams
 is then discharged to the Illinois
River,
 In
 1967, National engaged
 a consultant
 to study the plant’s
effluent,
 Certain major physical changes in
 the plant were made
and the cooling water was separated from the contaminated waste
water
 (R.46).
 With
 the changes the retention time in the
 stabiliza-
tion
 lagoons
 was
 increased
 from
 approximately
 1
 day to more
 than
10
 days
 (R.20).
 The
 chal)ges
 were
 completed
 in
 October,l969
 (R.46).
Sometime thereafter,
 in September,
 1970,
 National
 engaged
Monsanto Biodize Systems.
 Inc.
 to act as
 its consultant,
 and
Monsanto
 made
 studies
 and
 analyzed
 samples
 from
 the
 plant
 (R.47,85).
Monsanto made the following conclusions regarding the untreated
 wastes:
 (1)
 The wastes from the plant
 can be biologically treated
to remove 97
 of
 the POD with
 a retention time
 in the oxidation
basin of
 36 hours;
 (2)
 filtration probably will be required to
reduce the effluent turbidity level
 to acceptable limi?s;
 and
 (3)
 an
on-~sitestudy will be necessary to determine the effects of waste
variation on the treatment system and
 the degree of treatment re~
quired to meet the effluent standards.
 (Petition
 p.
 5).
Mr.
 P.H. Woodruff,
 one of National’s present consulting
engineers, outlined the program now proposed for the plant as
follows:
(1)
 Consultant to continue study
 and to begin on-site
field studies to define the nature,
 character and
volume of
 the discharge.
(2)
 October,
 1971,
 consultant
 to have completed field
studies,
 analysis,
 and recommendations
 for treat-
ment methods
 to improve effluent quality.
2
 612
(3)
 February,
 1972, design plans and specifications
for improved treatment process and procedures to
be completed.
(4)
 April,
 1972, begin construction.
(5)
 End of 1972,
 construction
 to be completed. Ready
to start up
 (R.6l-63,
 71,
 Pet.
 Ex.
 5).
The effluent standard
 for POD in SWB-8
 is
 30 milligrams per
liter
 (mg/l)
 and National’s effluent before dilution calculates
to be
 at 104 mg/l
 as
 an average
 (R.34,
 75-76).
 EPA samples of
the lagoon effluent showed BOD concentrations of 45 and 48 mg/l
and combined effluent POD concentrations
 of 52 and
 54 mg/l.
As
 for suspended solids,
 regulation SWB-8 limits effluents
to
 35 mg/l.
 Mr.
 Peck.
 the plant manager testified that
 the
plant’s suspended solids discharge was in the area of
 80 mg/l,
 as
an average,or approximately twice that permitted by regulation
(R.36,
 77-78).
 EPA samples showed
 a suspended solids concentration
of 43 mg/i in the combined effluent and concentrations of 59 and
79 mg/i in
 the lagoon effluent.
National had an independent testing laboratory study made
of the effect of its discharge on two different types of fish,
The only effect noted was that the
 fish were more quiescent after
exposure to
 the effluent
 (R.25-27).
 Mr.
 Peck expressed the
opinion that the effluent had no detrimental effect on the fish
 life in the
 area
 (R.35).
 Additionally,
 a
 statement from Mr.
 H.
Edlen,
 a long-time local fisherman, was put into
 the record and he
expressed the opinion that Natiønal’s discharges had had no adverse
effect on the availability of
 fish
 in the river
 (R.49-40).
In each variance case which comes before us we must weigh
the asserted arbitrary or unreasonable hardship on the petitioner
against the harm to the citizenry as
 a whole; that
 is,
 the harm
to the environment.
 In this case we must consider whether the
harm done to
 the Illinois River is so great as to outweigh the
hardship which the petitioner would suffer should the variance be
denied.
 We
 find that the harm to the River in this
 case is not
of such magnitude
 as to prevent our granting
 a license
 to pollute
in this
 case.
 However,
 we cannot be as sanguine about the effect’
on the River
 as petitioner’s witnesses.
 The, company president
testified as
 to the monthly usage of 400,000 pounds of plasticizers
and solvents,
 We do not know the identity or exact quantity of the
2—613
plasticizers
 and can only wonder if among
 them are any of the
persistent and environmentally ubiquitous polychlorinated biphenyls
 (PCBS).
 If PCBS are being used and discharged
-
 are they being
controlled,
 or monitored?
 We know not
 and can comment no further
with the present state of the record.
The Environmental Protection Act states that any variance
granted under the Act
 is limited to one year
 and then may be extended
only if satisfactory progress has been shown.
 We grant this variance
to terminate on October
 1,
 1972.
 If the petitioner will need
 a
further exemption from prosecution beyond that time,
 it should take
the precaution of filing
 a further petition some 90 days before the
date
 of termination of the instant grant.
 The statute explicitly
authorizes
 the Board
 to impose such conditions
 as the policies
 of
this Act may require when granting a variance
 (Section 36(a)).
 Several
conditions
 are required here to further the purposes of the statute,
First, we shall require National to submit quarterly progress
reports.
 Periodic progress reports are necessary
 as
 a means
 of
checking compliance with program schedules.
 The reports should
detail progress
 to date ~nd fully document and explain significant
deviations from the
 program
 as
 originally
 planned.
 The
 first
 re-
port
 shall
 cover
 the
 period
 from
 the
 present
 through
 December
 31,
1971.
 National
 should
 submit
 such
 reports
 to
 the
 Environmental
Protection
 Agency
 and
 the
 Board
 a
 reasonable
 time
 after
 the
 expira-
tion of the calendar quarter but in no case shall this period
extend
 beyond
 three
 weeks.
 We
 do
 not
 wish
 to
 be
 in
 the
 position
a
 year
 from
 now
 of
 discovering
 for
 the
 first
 time
 that
 there
 have
been
 further
 delays.
 For
 the
 same
 reason,
 we
 shall
 insist
 not
 only
that
 the
 company
 aim
 toward
 ultimate
 compliance
 by
 the
 end
 of
1972,
 but
 that
 it
 meet
 several
 interim
 deadlines,
 in
 accord
 with
its
 proof
 at
 the
 hearing,
 in
 order
 to
 give
 us
 intermediate
 check-
points
 against which to measure progress.
 We shall require that the
engineering
 design
 be
 complete
 by
 February
 18,
 1972,
 and that
construction
 be
 commenced
 by
 April
 14,
 1972.
The
 primary
 cell
 of
 the
 lagoon is presently about one-third
full
 (R.124, EPA Ex.
 1)
 and the separating dike between the pri-
mary and secondary cell
 is almost completely submerged
 (R.l28).
~s of the date
 of the second hearing, National did not, know if
the
 two-celled lagoon would be part of the proposed treatment
3ystem
 (R.l32—l33).
 However,
 their consultant’s
 concept engineer—
ing design was
 due to be submitted to National within
 a
 few days
after
 the
 hearing
 (Pet,
 Ex,
 5).
 We
 are
 thus
 uninformed
 as
 to
whether
 or
 not
 the
 lagoons
 will
 constitute
 an
 integral
 part
 of
 the
2— 614
proposed treatment system.
 Nonetheless,
 the
 fact
 that the new
system will not be operational
 for well over
 a year,
 the
 fact that
the present effluent contains suspended solids and POD greatly
in excess of the regulation’s
 limits,
 the
 fact that presently dredg-
ing the lagoons will increase the retention time very substan-
tially,
 and the fact
 that the separation between the
 two treat-
ment cells is perilously close to no separation compel us,
 as
 a
further condition of this variance
 grant,
 to require National
 to
proceed
 with
 all
 practicable haste
 to dredge
 the primary lagoon
and
 thus
 improve
 the
 present
 waste
 treatment.
 National
 shall
commence
 the
 work
 within
 sixty
 (60)
 days
 of
 the
 date
 of
 this
opinion and order.
Since
 this
 is
 a case
 in which the hardship is temporary and
the sole reason for the variance is the need for time
 in which to
install treatment
 facilities,
 the Act
 (Section 36(a))
 requires the
posting of security to assure that the company meets
 the dates it
has
 set.
 We have required security
 in comparable past cases
 (see
Ozark-Mahoning v.
 EPA, PCB 70-19),
 and statutory bond requirements
are
 in fact quite common and accepted
 in other
 fields.
 The pur-
pose of the bond requirement is to provide an additional incentive
to the variance holder to meet its deadlines, by imposing
 the
threat of forfeiture if it does not.
 The amount must be high
enough to make it more unattractive
 to default than to spend the
money
 for control facilities,
 We think
 a security in the amount
of $75,000 will be adequate in this
 case,
 to be forfeited pro rata
if the interim deadlines
 of
 (1) February
 8,
 1972, by which engineer-
ing design is to be complete
 and
 (2) April 14,
 1972, by which con-
struction is to have commenced,
 are
 not met.
There
 is
 a period in
 the recent past in which at least eleven
months went by with no significant activity by National in cleaning
up its contaminated discharges
 (R.47).
 We deem this lapse to be
inexcusable and,as
 a further condition
 to
 the grant of this variance,
we will require National to pay the sum of Two Thousand Dollars
($2,000)
 as
 a money penalty for the inordinate delay in complying
 with
 an abatement program whose deadline was
 July,
 1969.
 From
October of 1969 to September of 1970,
 the company did virtually
nothing to further its clean-up program.
 In September of 1970,
 it
retained
 a consultant and several months
 later, perhaps eight or
nine,
 it dropped that consultant and retained their present con-
sulting engineers,
 all the while seemingly oblivious
 to the firm
requirement of SWB-8 to be in compliance by July,
 1969.
 There
 is
no testimony
 of any departures asked
 for
 and’ permitted from com-
pliance with
 the July,
 1969 date by which construction
 of treat-
ment facilities was
 to be complete.
 We are now two years beyond
2—
615
the date by which construction was
 to be complete.
 National
 is
contemplating December,
 1972 as the date by which
 the treatment
facilities
 are finally to be installed.
 Some may consider this
Two
 Thousand Dollar money penalty for missing
 a treatment deadline
by three and
 one half years
 an inadequate way of dealing with
 such
a delay.
 We devoutly hope, however,
 that
 it will serve to impress
 the company of this Board’s commitment
 to hastening compliance with
this state’s pollution regulations.
This opinion constitutes the Board’s findings of
 fact and
conclusions
 of law.
ORDER
The Board having considered the transcript
 and exhibits in
this proceeding hereby grants
 a variance
 to the National Starch and
Chemical Corporation
 (National) subject to the following conditions:
1.
 Variance frgm the regulations
 in
 SWB-8 relating
to
 effluent
 quality
 as
 regards
 BOD
 and
 suspended
solids
 is granted until October
 1,
 1972.
 In no
instance
 shall
 the
 suspended
 solids
 concentra-
tion
 discharge
 leaving
 the lagoon exceed
 150 mg/l.
2.
 National shall meet the following schedule dead-
lines put forth
 at the hearing:
(a)
 February 18,
 1972
-
 complete engineer-
ing design; and
(b)
 April
 14,
 1972
 —
 commence construction
of treatment facilities.
3.
 National shall dredge
 the primary settling lagoon and
restore it to full capacity.
 The work shall commence
within sixty
 (60)
 days.
4.
 National shall submit to the Environmental Protec-
tion Agency
 and
 the Board quarterly reports on
the progress of their program to bring their plant
effluent into compliance with
 the regulations.
The first report shall cover the period from the
present through December
 31,
 1971, with each
subsequent report covering the calendar quarter.
The reports shall be submitted
 a reasonable time,
not to exceed three weeks after the last date
reported.
2
 —
 616
5.
 National shall post with the Environmental Pro-
tection Agency,
 on or before November
 1,
 1971,
and in such
 form as
 the Agency may
 find satis-
factory,
 a bond or other adequate security
 in
the amount of $75,000, which sum shall be for-
feited to the State of Illinois pro rata in the event
that the interim deadlines of February
 18,
 1972
and April
 14,
 1972
 are not met.
6.
 National shall pay within
 30 days
 of date,
 to
the State
 of Illinois general revenue
 fund the
sum
 of Two Thousand Dollars
 ($2,000)
 as
 a money
penalty
 for
 the undue delay incurred to date
in complying with
 the regulations of SWB-8.
7.
 During the period that this variance is in effect
National shall not increase
 the pollutional nature
of
 its discharges either in strength or in volume,
8.
 Failure
 to adhere
 to any of the conditions of
this variance shall be grounds for revocation
of the variance.
I,
 Regina E.
 Ryan, Clerk of
 the Illinois Pollution Control
Board, hereby certify that
 the Board adopted the above Opinion and
Order
 on the
 14
 day of October,
 1971.
2— 617