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