ILLINOIS POLLUTION CONTROL BOARD
February 23,
1989
MORTON THIOKOL INC.,
)
MORTON CHEMICAL DIVISION,
)
Petitioner,
v.
)
PCB 88—102
ILLINOIS ENVIRONMENTAL
PROTECTION ACENCY,
Respondent.
RICHARD
J.
KISSEL
AND
SUSAN N.
FRANZETTI,
~PPEAPED
ON
BEHALF OF
THE PETITIONER;
AND
WAYNE WIEMERSLAGE APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter
comes before the Board
on the June 15,
1988
petition and
the September
28,
1988 amended petition
for variance
extension filed
by Morton Thiokol,
Inc.,
Morton Chemical Division
(M—T)
regarding 80D5 discharges
from Outfall OO1A at its
Ringwood,
Illinois plant.
On November
29,
1988,
the
Environmental Protection Agency (Agency)
filed
its Recommendation
to grant variance, with conditions.
Hearing was held
on January
6,
1989,
at which two members of the public entered
appearances;
Dr. Louis Marchi, who testified and Patricia Malo, who did not.*
Procedural T~istory
Before proceeding
to
the merits,
a summary and resolution of
certain aspects of
the procedural
history
in this proceeding
is
necessary to clarify the situation.
On May 28,
1987,
in PCB 86—223,
the Board granted
t1—T
a
variance
for
its Ririgwood plant from the
35
111.
Adm.
Code
304.120(c)
effluent limitation of
10 mg/l
for 80D5 and from
Section 304.141(a),** which Section forbids effluent discharges
in excess of permit standards
and
limitations.
That variance
expired
on June
30,
1988.
*
On December
15,
1988,
the Board denied M—T~smotJon
to cancel
hearing,
in part based on
Ms. Malo’s environmental concerns.
**
For brevity,
the Opinion will
identify relevant rules by
Section number rather than by repeating
the
35 Ill.
Adm. Code
format.
96—169
—2—
On June
15,
1988,
as noted above, M—T filed
its instant
petition for
a one year variance extension, but nevertheless
requested it until December
31,
1989,
from the same
10 mg/i BOD5
effluent limitation
in Section 304.124(c), applicable only to its
Outfall
OOlA, which Outfall OOlA is combined with
a non—contact
cooling water discharge designated as Outfall
001.
M—T also
requested that the record, opinions and orders from the prior PCB
86—223 variance proceeding be
incorporated into the record of
this proceeding.*
M—T also requested that the compliance
standards be determined by the Board’s Dilution Rule at Section
304. 102.
However, on September
28,
1988,
M—T filed an amended
petition for variance extension with
a substantial number of
changes.
First,
it now requests
a variance extension from Section
304.120(a), which Section sets
a less stringent effluent standard
of
30 mg/i
of BUD5
thus,
using
the Board’s Section 304.104
averaging rule,
a
30 mg/i monthly average
and 60 mg/i daily
composite
limit is established.**
M—T asserts
that the Agency
had recently determined that the 30/60 standard applies
to
Outfall
OOlA; however, because Outfall OOlA exceeds this limit
also, M—T needs variance from this less stringent standard.
Next, M—T no longer
requests that the Board’s Dilution Rule
be applied
(which, M—T asserts, would
have allowed
a 50/133 mg/i
BOD5 limit.)
Next, M—T now requests variance only until March 31,
1989.
It states that this change was in response to Agency concerns
expressed as an settlement offer
and
at
a settlement meeting
on
August
17, 1988.
The Agency’s concerns revolved around USEP~
regulations,
effective March
31,
1989, set forth at 40 CFR 414
and 416,
with Subpart D of
Part 414 being specifically
applicable, which establish “pretreatment regulations”
(sic)
containing effluent limitations
of
24 mg/i monthly average and
64
mg/i daily maximum for BUD5, applicable
to
the Organic Chemicals
Plastics and Synthetic Fibers
(OCPSF)
category, within which
the
Ringwood plant
falls.
(Amendment
to Amend.
Pet.
p.
2,3).
M—T states that, because
the federal
24/64
mng/l limit
is
more stringent
than both the 50/133 mg/i
limit pursuant to the
*
On June
16
and October
6,
1988,
the Board allowed incorporation
by reference of prior Opinion and Order
in PCB 86—223 but
required
M—T
to file
three copies of any other
portions of the
record
it wished
to
incorporate.
M—T
filed the latter
as
exhibits on January 17,
1988.
**
No mention
is made of the Board’s grab sample limit of
150
mg/i that
is also
a limit derived
from the Section
304.104
averaging
rule.
96—170
—3—
Dilution Rule and the Board’s 30/60
limit, the federalregulations
supersede the Board’s regulations after March
31,
1989;
thus,
the
Board will not have authority to grant variance from
its rules
beyond March
31,
1989.
Prior
to March
31,
1989, M—T no longer
requests variance from the Board’s Dilution Rule,
just
from the
30 mg/i BOD standard
in Section 304.120(a).
Regarding compliance with
the federal
requirements, M—T,
on
May
3,
1988 requested from the USEPA
a “fundamentally different
factors” variance
to operate
under
an alternative 133/50 mg/i
limit.
However,
if M—T finds
it can comply with the 24/64 OCPSF
standard with its new biological
treatment system,
it will seek
alternate relief,
such as
an administrative order specifying
a
three year schedule of compliance after issuance of
its renewed
NPDES permit.
M—T also believes the plant may also be able
to
comply with the Board’s
30/60 mg/i standard.
In its recommendation,
and
in
a subsequent stipulation of
facts
submitted
at hearing
in lieu of oral testimony each party
would otherwise present at hearing,
the Agency essentially agrees
with M—T’s assessment, and also recommended
that
no BOD5 limit be
imposed during the term of
the Board’s variance.
However, the
parties proposed that, even though
the variance should terminate
on March 31,
1989,
the compliance schedule
in the variance should
extend until
December 31,
1989.
The Agency also recommends that
the Board condition
the
variance on posting a performance bond or other security,
pursuant
to Section
36(a)
of the Act,
with
a proviso
that, upon
failure
to complete construction, the bond be
used
to complete
the construction or
forfeited
to
the Illinois Environmental Trust
Fund.
(Agency Rec.
p.
15)
At hearing, M—T protested such
a
requirement
(R.
27—30).
Finally,
at hearing, M—T requested that
the variance be
back—dated
to July
1,
1988,
the day after
the expiration
of their
prior variance.
The Agency opposes
this request.
Board Initial Comments
First,
regarding the rationale
for terminating
the variance
on March
31,
1989,
the Board disagrees.
Assuming that the
federal
regulation
is
in fact more stringent than the Board’s
limits,
the Board agrees it should not order modification
of
the
permit beyond the above
date.
However,
an NPDES permit does not
protect M—T from violation of the Board
rule,
or from citizen
enforcement,
as
long
•as M—T
is not
in compliance with that rule;
thus,
M—T needs variance from the Board
rule until December
31,
1989.
At the
federal
level,
an NPDES permit
is
a shield from
enforcement (see
40 CFR 122.5).
At the State level,
this
is
not
96—1 71
—4—
true.
By way of explanation,
the Board directs attention
to
Sections 304.141(a),
309.184
and, particularly Section
309.102(a).
Section 304.141(a)
requires compliance with effluent
standards and limitations set forth
in
the permit.
Section 309.184 addresses ordering permit issuance
or
modification pursuant to
a variance consistent with the Board
Order, the CWA,
Federal NPDES regulations and
the Act.
Then,
Section 309.102(a)
states:
“Except
as
in
compliance
with
the
provisions
of
the
Act,
Board
regulations,
and
the
CWA,
and
the provisions
and conditions of the NPDES
permit issued
to the discharger,
the discharge
of
any contaminant
or
pollutant by any person
into
the
waters
of
the
State
from
a
point
source or
into
a well shall
be unlawful.”
In essence, without variance, M—T must comply both with its
NPDES permit and the Board standard.*
Variance thus would have
to be granted until December 31,
1989, with variance
from the
requirement
to
include the Board’s limits as
a permit condition
terminating on March
31,
1989.
Next,
the issue arises
as
to which standard
is more
stringent.
The federal 24 mg/i monthly average
is obviously more
stringent than the Board’s
30 mg/i monthly average.
However,
neither party mentioned,
in this context, that the Board’s
60
mg/i daily maximum
is more stringent
than the federal 64 mg/i
daily maximum,
and neither party mentioned the Board’s
150 mg/l
grab
sample limit, all pursuant
to Section 304.104 averaging.
*
The Board
notes
that at one time the Board
standard “dropped
out”
if the permit was an NSPS permit containing effluent
limitations reflecting USEPA’s best available demonstrated
control
technology guidelines and standards.
In P76—21,
the Board
adopted such
a provision on December
3,
1981
(46 PCB
203 et
sec.)
as Rule
412.
This provision was repealed, effective January
18,
1984,
in response
to Agency concerns,
one of which was
to
eliminate
inequity between new and existing sources
(see R82—5,
P82—10 consolidated,
46 PCB 81;
8 Ill.
Peg.
1600, and Source Note
in Section 304.142
(formerly rule 412).
Also
note that 40 CFR
414.44 sets the BOD5 NSPS effluent standard
at the same 24/64
limit
that
is
at issue
in this
instant proceeding.
**
See
the P76—21 Opinion,
proposed
on September
24,
1981
(43 PCB
368—374)
and adopted
on December
3,
1981,
for
a lengthy
discussion
of the effects of the present Section 304.104
“1,2,5”
averaging
rule.
96—172
—5—
The Board has already held that
a hybrid standard
is
unacceptable,
since
the cost of compliance with such a standard
is greater
than either the Board
or USEPA regulations and neither
the Board or USEPA intended this result.
(Peabody Coal Company
V.
Environmental Protection Agency, PCB 78—296,
p.
7,
38 PCB 131,
137, May
1,
1980).
The Board can only note that,
over the long
term, and particularly given
these numbers,
the monthly limits
would control, resulting
in the federal standards being more
stringent.**
The Board cautions, however,
that “there
is no
guarantee
that
it will always be possible
to derive Illinois
standards which can always be compared with the federal
standards.”
(Ibid
p.
7)
The Board also notes
that,
if variance
is granted
from
the Board standards until December
31,
1989,
M—T
must be
in compliance with those standards after
that
in any
event.
Next,
as long
as variance
is granted
until December
31,
1989,
the problem of ordering
a compliance plan beyond the term
of the variance becomes moot.
Finally,
the Board
notes
that pretreatment regulations are
not at issue here.
The Board directs
the parties’ attention
to
52 FR 42572—42574,
November
5,
1987,
40 CFR,
Part
414,
Subpart
D,
Sections 414.41 and 414.43,
which Sections set as effluent
limitations,
for existing sources,
the 24/64 mg/i BOD5
standard.
(Sections 414.45 and 414.46 set the pretreatment
standards
for existing and new sources
respectively and are not
involved here).
The Facility
Because of
the changing nature of this proceeding over time,
the Board will hereafter primarily utilize
the Stipulation of
Facts entered
at hearing.
M—C owns and operates
a plant located
in the unincorporated
community of Ringwood,
Illinois, McHenry County, which has a
population of about
200.
The Pingwood plant
is
a specialty chemical plant producing
emulsion polymers and co—polymers;
solvent and water based
adhesives;
elastomers; epoxy molding compounds;
and
an
agricultural
soil
fumigant.
The Pingwood plant normally operates on rotating shifts,
twenty—four hours per day and seven days per week.
The work
force consists of approximately 300 employees.
The
plant discharges an average of
1.3 MCD of non—contact
cooling water, boiler blowdown and de—ionizer backwash.
In
addition,
the treated polymer washwater from Outfall
OO1A
is
discharged
at
an average rate of 0.013
MGD.
The production
96—173
—6—
processes which contribute
to
the generation of the Outfall OO1A
discharge
include the following:
Polyvinylidene chloride
emulsion polymerization (latex); polystyrene emulsion
polymerization
(latex); polystyrene
—
Acrylic copolymer emulsion
polymerization (latex), and polyester
resins.
The bulk of the Ringwood plant’s polymer washwater
is
generated during the washing
and cleaning of the reactors,
strainers,
filters, storage
tanks and miscellaneous pieces ~
equipment which are used
in the production of the i~ariouslatex
products.
A minor portion of the stream is generated during
polyester
production.
This portion
is water which
is
a
polymerization reaction by—product and which
is separated from
the product mix via distillation.
The existing water pollution control
treatment facilities
for
the Outfall COlA polymer washwater consist of the
following:
A pH adjustment
tank
(installed 1981);
a vibratory
screener
to remove separable solids (installed
1981);
an A.P.V.
vapor
recomnpression concentrating system to
reduce the stream
volume by about
75
(installed 1981);
a LtJW~wiped wail
evaporator
to further concentrate
the stream
to approximately 50
solids
(installed
1987);
a packed column steam stripper
to remove
VOCs
from
the condensate stream (installed 1981);
a heat
exchanger
to condense the steam stripper vapors
(installed
1981);
and
a carbon adsorption column to remove phenols from
the
condensate
(installed 1986).
Prior
to treatment,
the polymer washwater contains
approximately three percent
solids.
The treatment process
involves
a multi—step sequence that increases the concentration
of this wastestreani by use of pH controls,
evaporation
and
foaming controls.
The evaporator concentrate
is disposed
of
as
a
solid
non—hazardous waste.
The evaporated overhead material
is condensed
and then sent
to
a steam stripping column
for
removal of volatile organics.
This condensed wastestream is then passed through
a granular
activated carbon bed (GAC)
for phenol reduction.
The vapors from
the steam stripping
column pass through a condenser.
The
condensate
is collected
in
a closed system for further reaction
to polymerize
the contained VOC materials.
The non—condensables
from the
steam stripper vapor stream are passed through
a
regenerative carbon system
for removal
of organics prior
to
discharge
to
the atmosphere.
The resulting wastestream
is then
combined with the Pingwood plant’s wastestream of spent non—
contact cooling water, boiler blowdown and dc—ionizer
backwash,
thus creating
a single, combined wastestream which
is discharged
to the receiving stream from Outfall 001.
In October
of
1985,
the Agency issued
a modified NPDES
permit
to M—T allowing the addition of the new wastewater
96-174
—7—
discharge,
currently designated
as Outfall OO1A,
to the existing
Outfall 001 wastestreamn.
When issuing the October 31,
1985 NPDES
permit, and over M—T’s objection,
the Agency designated
the
internal polymer washwater from Outfall OOlA
as
a separate
Outfall.
This polymer washwater had been disposed of
in
a
landfill prior
to November,
1985.
While no effluent limitations were imposed
on Outfall
OO1A,
the Agency did require that M—T perform
a one—time analysis of
the polymer washwater discharge
for priority pollutants, heavy
metals and organics.
The analysis results showed that
the BOD5
concentration was 19.3 mg/i.
Subsequent analysis of the Outfall OOlA discharge sampled on
September
9,
1986 showed BOD5 levels of 320 mg/l and 520 mg/l
respectively.
On September
26,
1986,
the Agency issued M—T a
reissued NPDES permit which contained an effluent limitation
for
BODç at Outfall COlA of
10 mg/I for
a thirty day average and
a
daily maximum of
20 mg/l.
However, the Agency, as earlier
noted,
has proposed
to modify the permit
to reflect
the less stringent
BOD5 limit
of 30/60 mg/i average thirty day and daily maximum
respectively.
*
Compliance Efforts
The combined wastewater
stream discharged
from Outfall 001
has shown
a BOD5 level consistently below
5 mg/l,
and
is thus
in
unquestioned
compliance with the BOD5 effluent limitations
contained
in
the Board’s regulations.
The primary purpose
for installing
its treatment system was
to decrease the volume of wastewater landfilled
from the Pingwood
plant.
Since
1975,
~—T has pursued efforts
to minimize
the
amount of wastewater generated
at the plant while increasing the
amount of product produced.
These wastewater minimization
efforts have included:
Adding rinse water
to
the product mix;
educating plant operators as
to
the importance of wastewater
minimization
and conservation, including adding shut—off nozzles
to hoses;
removing sediment from the product stream for
a
significant portion of the product batches which require less
rinse water
than filter presses.
These conservation efforts have
resulted
in
a decrease
in
wastewater generated from the plant,
as measured by the ratio of
the volume of product manufactured divided
by the volume of
wastewater
generated,
from about
0.25
in 1975
to
1.4
in 1978
to
1.7
in 1987.
*
The Board
notes
that what was once
a
30 day average was amended
in late 1981
to
a monthly average; see Section 304.104.
96—175
—8—
However,
as a result of the above water conservation
efforts,
the concentration of BOD5
in the Ringwood plant’s
untreated polymer washwater infiuent has increased from an
average of 2080 mg/I
in 1978
to an average of 4020 mg/l
in
1988.
The higher BOD5 concentration levels have hindered M—T’s
efforts
to effectively remove BODç from the Outfall OOlA
wastestream to achieve
the
30 mg/i level.
However, M—T asserts
that the estimated
total
removal efficiency to be achieved
through the installation of
a biological treatment system, which
is M—T’s latest compliance effort, will average greater than 98
percent.
(Stip.
p.
13,14)
M—T
initiated
efforts
to achieve compliance with the Board’s
BOD5 effluent limitation when
it retained the professional
ser~iicesof Dr. James Patterson of Patterson Associates,
Incorporated, Chicago,
Illinois,
environmental consultants.
Studies,
initiated
in October,
1986,
and completed during
the
last variance period,
showed that,
as between the aerobic
biological
and ozonation
treatment approaches studied, only ozone
oxidation was technologically capable of consistently achieving
compliance with the
then applicable
10 mg/l BOD5 effluent
limitation
for Outfall COlA.
Unexpectedly,
the overall estimated cost
for installing
the
proposed ozone treatment process was $4.2 million or about
$2l0/GPD treatment capacity
——
ten—fold more
than the high end
of
the typical range of treatment costs,
plus annual electrical
power costs estimated
to be
in excess of $500,000.
On about June 29,
1987,
M—T sent
a sample of the Outfall
OOlA polymer washwater discharge
to Emery Industries
(“Emery”)
in
Cincinnati,
Ohio,
a vendor of ozonating equipment.
Emery
performed
additional BOD5 treatability studies and
in early June,
,l987, Emery informed M—T that
it did not recommend ozonation
as
a viable technological approach for treatment of the BODç
in
Outfall COlA’s discharge.
(Stip.
p.
15,16)
In July,
i98~7,
M—T
reauested O’Brien and Gere Engineers,
Inc.
(“O’Brien and Gere”)
in Edison,
New Jersey,
to evaluate all of the data generated
during the Phase
I and
II Treatability Studies conducted by
Patterson Associates
and requested O’Brien and Gere
to evaluate
that data
and,
if appropriate,
to submit
a proposal for treatment
tests.
Second,
in early July,
1987,
M—T also contacted AcuaTec,
Inc.
(“AquaTec”)
of Rockford,
Illinois,
a distributor
of
the
“Ping
Lace” wastewater
treatment system
——
an advanced biological
treatment process.
However, upon further evaluation,
M—T decided
not
to pursue
the Ring Lace treatment system because
it
is an
unproven
technology for this application.
In August,
1987,
M—T
retained O’Brien and Gere
to evaluate
the effectiveness of biological
treatment.
In bench—scale
biological
treatment
tests of the Outfall 00Th effluent,
lasting
nine weeks, and utilizing hydraulic
retention times ranging from
96—176
—9—
two
to four days,
the treated level
of BOD5
ranged fairly
consistently
from 160
to 350 mg/I,
for a resultant average
concentration of 240 mg/i.
At these BODç concentration levels,
the bench—scale biological
treatment sysEems were effective
in
further reducing the SOD5 concentration of the Outfall
00Th
effluent
to an average value less than or equal
to 10 mg/l.
Based upon these initial sampling results,
in November,
1987,
O’Brien
and Gere determined that
a biological treatment system to
comply with the Board’s 10/20 BOD5 standard would
be feasible.
However, the last Outfall OOlA wastewater sample received by
O’Brien and Gere on November
20, l987,contained
a much higher
SOD5
influent concentration of 570 mg/i.
This higher
concentration resulted
in levels
in excess of 10 mg/i with the
biological
treatment system.
By February 1988,
sampling results showed
an average SOD5
level of 593 mg/i
in
the Outfall OO1A effluent.
This effluent
concentration was approximately 145
greater
than
the average
effluent concentration of 240 mg/l observed by O’Brien and Gere
during
their
1987 treatability testing.
In March
1988, O’Brien
and Gere informed M—T that the
variability of the SOD5 level
in the wastestream was greater than
had been previously considered
and, therefore,
the validity of
the previous treatability studies
for Outfall 00Th was doubtful.
(Stip.
p.
17—19)
O’Brien
and Gere concluded
that the proposed biological
treatment system should consistently achieve
a monthly average
effluent BOD5
of
50 mg/i or less and
a daily maximum effluent
SOD5
of 133 mg/i
or
less.
The test results also show that, with
average
SOD5 effluent concentration levels up to approximately
400 mg/I,
the proposed biological treatment system will achieve
compliance with the 10/20 mg/i standards.
Since, during the
period
from June
1987 through April
1988,
that concentration
level has intermittently been exceeded, O’Brien and Gere further
concluded that an extended aeration biological treatment system
at an estimated cost of between $500,000 and $700,000 should
consistently achieve SOD5 reduction
to
a thirty—day average level
of
50 mg/i
——
resulting
in an average
total treatment system
removal efficiency rate of approximately 98.4 percent.
Based upon these new findings, M—T realized for the first
time
in March
1988,
that its ability to comply with
the Board’s
BODç effluent limitations by installing
a biological treatment
sys?em
was uncertain;
therefore M—T believes that an extension of
the prior variance
is warranted.
Since March
of
1988,
subsequent treatability studies suggest
that the Pingwood plant should be able
to consistently meet
the
Board’s BOD5 standard of
30 mg/i and possibly the
federal OCPSF
96—177
—10—
standard of 24/64 mg/i with the installation of the proposed
biological treatment system.
As part of its proposed compliance plan, M—T completed
in
the fall of 1988 detailed design criteria for the refined
biological
treatment system.
M—T requests an additional nine
months to order and receive the equipment,
and construct the
treatment
system.
Finally, M—T requests an additional three
months
to attain steady state operations and achieve maximum BOD5
removal capabilities.
As previously stated,
if the system does
not meet the federal 24/64 SOD5 standard, M—T will continue
pursuing
relief through
its pending
fundamentally different
factors variance but
is not contending
that the granting of the
instant variance be conditioned upon M—T’s ability to obtain an
FDF variance.
Environmental Impact
M—T discharges
at Outfall
001
into an unnamed
tributary
which flows
for approximately three miles to the confluence with
Dutch Creek.
Dutch Creek
flows two miles
to
the confluence with
the Fox River.
Adjacent habitat
is predominantly row crops, such
as corn, with some fallow fields and hay fields.
Livestock also
graze
in areas adjacent
to
the stream.
M—T asserts that the granting
of this variance will not
result
in an adverse environmental impact upon the unnamed
tributary or Dutch Creek, since discharge from Outfall
001 has a
BOD5 concentration that is consistently below
5 mg/i.
M—T also
references
a biological study by Huff and Huff,
Inc.
in June,
1987, concerning a Modine Manufacturing Company’s discharge
to
a
tributary separate from M—T’s; but both tributaries converge
before flowing
into Dutch
Creek.
The study showed water quality
below Outfall
001 was good.
Also,
an August,
1986 Agency report
showed acceptable water quality and
no significant impact
biologically.
Consistent with the above study,
the Agency concluded
in its
Variance Recommendation filed
in M—T’s original variance
proceeding
and
in this proceeding
that the Agency’s report “would
tend
to support Petitioner’s contention that there
is little,
if
any, adverse
impact” upon the receiving stream.
(Agency Rec.,
Exhibit C at P.
7).
M—T further points out that the Board
in
the
earlier variance concluded
there was
no significant
impact.
(PCB
86—223, May 28,
1987,
p.
5)
Also, M—C has reported
the results of its mercury
concentrations
in Outfall
001 and OOlA
to
the Agency
in its
monthly progress reports, as required by Condition
6
of the
Board’s prior variance Order.
The daily maximum and monthly
average results
in all cases comply with the Board’s effluent and
water quality limits of 0.005 mg/i.
(Agency
Bec.
p.
6,
Ex.
Q &
96—178
—11—
R).
The Agency recommends that M—T no longer be required to
monitor
and report mercury concentrations
at Outfalis 001 and
00Th on
a monthly basis because the monthly and weekly sampling
results
since July 1987 have without exception shown
that the
level
of mercury
is below the detection limit.
(Agency Rec., p.
6,
Exhibits
Q
and R).
Impact Minimization
M—C does accept
a requirement to comply with Conditions
3
and 6 of the Board’s prior Order concerning BOD5 monitoring and
monthly compliance progress
report respectively.
Regarding compliance alternatives, M—C also asserts that
it
has determined
that there are no known process changes which can
be
implemented which would adequately control
SOD5 levels
in
Outfall
OOiA and maintain the quality of
its products.
After
reviewing the costs and treatment capabilities of the
above systems and investigating process changes at the plant, M—T
has determined
that the biological treatment system proposed by
its current consultant O’Brien
and Gere represents
the best
method
for achieving compliance with the Board’s SOD5 effluent
limitations.
Hardship
M—T asserts that the arbitrary and unreasonable hardship
that the Board
found
in PCB 86—223 continues
to exist, and that
denial would leave M—T with one of two options:
shut down that
part of the Bingwood plant operations which generate
the polymer
washwater discharge,
losing approximately eighty percent of the
Ringwood plant’s production;
or return to disposing
of the
polymer washwater
at a permitted sanitary landfill.
The
additional costs associated with the landfill disposal of this
wastestream are estimated
to be $550,000 per year.
M—T
is
proposing
a biological
treatment system,
at
a cost of between
$500,000—$700,000, which
it believes will
reduce the 8005
concentration in the Outfall 00Th discharge
to below the 30/60
limitation
of Section 304.120(a),
as well as the
federal 24/64
8005 effluent limitation.
Two
issues remain:
Whether
the Board should require
a
performance bond and whether
the variance should be back-dated.
Regarding
the performance bond,
the Agency expressed
its
dissatisfaction with M—T’s “slow pace toward compliance”
noting
that this
is
a second’ variance extension request, since M—T
sought,
and was granted,
a construction start—up delay during its
prior variance from January
31,
1988
to June
30,
1988,
(though
not extension of
the term of variance itself, see Board Order
of
September
17,
1987,
PCB 86—223), and now wants more time.
Also,
no significant progress has been made except
for changing its
96—179
—12—
treatment plans, noting
that, although plans and specifications
were filed on November
18,
1988,
no construction has commenced
and compliance
is not assured.
(Agency Pec.
p.
14,15).
M—T responds that
it has made reasonable further
progress.
It has made diligent effort in—house,
retained consultants,
complied with all prior variance conditions,
has a good past
history of compliance, a technical
solution has been difficult
ar’d
time—consuming,
and that the longer time needed
for
compliance does not create unfair advantage but,
rather, cost M—T
more time, money and problems.
M—T also asserts that its
financial ability
to comply was never
an issue
and
is already
contractually committed
to $400,000,
over half the total cost of
the biological treatment system.
(R.
27—29)
Regarding the back—dating of the variance,
the Agency
believes
that retroactive variances should be denied as a matter
of principle and,
in any event,
there
is nothing
in this
particular case making
it more
or less appropriate.
(R.
32,33)
M—T argues that Section 36 of the Act does not prohibit the
Board
from doing
this,
the Board has
in fact done so,
that, since
their petition was timely filed
on June 15,
1988, prior
to the
June 30,
1988 expiration of the prior variance, M—T would be
unnecessarily subject to enforcement and failure
to provide such
relief would
be contrary to the “general intent behind requesting
the variance.”
(R.
31,32)
Finally,
Dr. Louis Marchi expressed general concerns
in his
testimony, disputing how minimal impact determinations are made,
particularly for chronic effects, particularly
in that Dutch
Creek empties
into the Fox River which
in turn supplies the City
of Elgin’s drinking water.
The Agency noted that
Dr. Marchi did
not earlier ask for any document
and had not read the whole
Agency document with attachments prior
to his testimony.
Board Conclusions
The Board
finds that M—T has presented adequate proof that
compliance with the Board’s regulations concerning ROD5
discharges would, for the term
of this variance,
impose an
arbitrary or unreasonable
hardship.
The environmental effects are not significant
and
t4—T has
persuasively demonstrated
its hardship, particularly
insofar as
the need
to formulate
a new compliance effort resulted from
unexpected and disappointing
results from its prior compliance
effort.
For reasons expressed earlier
in this opinion, variance will
be granted until December
31,
1989, with the conditions generally
as proposed by M-T and the Agency.
As also proposed,
no interim
96—180
—13—
SOD5 limits will
be
imposed; given
the facts
in this proceeding
and the conditions imposed,
the Board does
not believe they are
necessary.
The Board,
in granting variance,
is not ordering any permit
modifications beyond March
31,
1989.
The Board will not order M—T
to post
a performance bond
or
other security to cover construction requirements;
it does not
view M—T’s
failure
to
initiate construction earlier as resulting
from dilatory efforts or uncertain financial health.
In
so
saying,
the Board expects M—T
to take all necessary steps
to come
into compliance.
The Board also notes that
it
is presently
considering requiring
a performance
bond
or other
security to
assure completion
of work as
a
standard condition of
future
variances where applicable.
The Board does not accept M—T’s argument that
its variance
petition was timely filed.
The petition would have been timely
filed
120 days before expiration of
a prior variance, which
is
the statutory
time frame
for Board decisions.
The Board
also notes that its procedural
rules regarding
variance extensions 35
Ill.
Adm.
Code 104.123, states that
variance extensions shall
be a new petition
for variance,
subject
to all requirements except that,
regarding filing requirements,
information from
the prior variance may be
incorporated.
M—T’s
“general intent” argument
is not persuasive.
See also Rowe
Foundry
& Machine
v.
Illinois Environmental Protection Agency,
PCb 88—21,
February 23,
1989.However,
the Board will backdate the
variance
to October
16,
1988, which is 120 days after M—T’s
initial filing.
This retroactive date
is
in recognition of the
fact that much of the delay was caused by the federal regulation
question,
the Agency’s changed view as
to
the applicable
standards,
and also
that M—T continued
in
the interim to pursue
its compliance efforts, including construction plans.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Morton Thiokol,
Inc., Morton Chemical Division,
is hereby
granted variance from
35
Ill.
Adm.
Code
304.120(a), and
304.141(a)
as they relate
to effluent limitations
for BOD5
applicable
to Outfall 00Th at Petitioner’s Pingwood Plant,
subject
to the following conditions:
A.
This variance shall expire on December
31,
1989.
B.
This variance shall apply only
to Outfall
001(A).
96—181
—14—
C.
Petitioner
shall continue
to monitor and report all
parameters
for Outfall 001(A)
as required by its NPDES
permit,
including BOD5.
D.
Petitioner
shall complete design and treatability
studies, finalize design and obtain project approval,
and apply
to the Agency for
a construction permit,
by
January
1,
1989 or within 14 days after grant of
a
variance
in this proceeding,
whichever
is later,
for a
treatment system fo~Outfall 00Th sufficient
to comply
with the effluent standard of
30 mg/l for BODç as
determined by the averaging rule of
35
Iii. Aam. Code
304.104.
After March
31,
1989,
this grant of variance
shall
not apply to any superseding permit limits
required by USEPA regulation regarding SOD5.
E.
Petitioner shall
cause all equipment described
in said
construction permit
to be delivered
to its Ringwood
plant’s site by June
30,
1989.
F.
Petitioner
shall complete construction of said
treatment
system by September
30, 1989.
G.
Petitioner
shall complete
testing
of said treatment
system, achieve required operating levels and begin
operation,
and achieve compliance with applicable BOD5
effluent limits by December
31, 1989.
H.
Petitioner
shall continue
to report monthly on its
progress
in complying with this variance.
Reports
shall
be submitted
to
the Agency concurrently with its
Discharge Monitoring Reports.
I.
Petitioner
shall continue to meet Final Effluent limits
of 10 mg/i SOD5 at Outfall
001,
as well as all other
effluent limits set
in its NPDES permit.
J)
Within
45 days of the date of this Order,
Petitioner
shall execute
and
forward
to Thomas Davis, Enforcement
Programs,
Illinois Environmental Protection Agency,
2200
Churchill
Road,
Springfield,
Illinois 62794—9276,
a
Certification of Acceptance
and Agreement
to be bound
to
all terms and conditions of this variance.
The 45—day
period shall
be held
in abeyance during any period that
this matter
is being appealed.
The form
of said
Certification shall
be
as follows:
3)
Within 45 days after
the date of this Opinion and Order,
Morton Thiokol
Inc., Morton Chemical Division,
Zinc
shall execute and send
to:
96—182
—15—
Illinois Environmental Protection Agency
Attention:
Thomas Davis
Enforcement Programs
2200 Churchill Road
Springfield,
IL 62794—9276
a certificate of acceptance of this variance by which
it
agrees to be bound
by the terms and conditions contained
herein.
This variance will be void
if Morton Thiokol
to
execute and forward
the certifcate
within the 45—day
period.
The 45—day period shall
be
in abeyance for any
period during which the matter
is appealed.
The form of
the certification shall
be as
follows:
CERTIFICATION
I,
(We), _____________________________,
having read the
Order
of the Illinois Pollution Control Board,
in PCB 88—102,
dated February 23,
1989, understand
and accept the said Order,
realizing that such acceptance renders all terms
and conditions
thereto binding and enforceable.
Petftioner
By:
Authorized Agent
Title
Date
Section
41 of the Environmental Protection
Act,
Ill.
Rev.
Stat.
1987
ch.
111 1/2 par.
1041,
provides
for appeal
of Final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
3.
D.
Dumelle concurred.
96—183
—16—
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certifZ that the above Opinion and Order was
adopted
on the 25~-~dayof
~
,
1989, by a vote
of
7—~2
•
p7).
Dorothy M,7Gunn, Clerk
Illinois ~Pollution Control Board
96—184
