ILLINOIS POLLUTION CONTROL BOARD
April
7,
1988
NEW JERSEY ZINC COMPANY,
Petitioner,
v.
)
PCB 86—187
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ELIZABETH
E.
TtJLMAN, ATTORNEY-AT-LAW,
APPEARED ON BEHALF OF
PETITIONER; AND
THOMAS DAVIS,
ATTORNEY-AT-LAW, APPEARED ON BEHALF
OF THE
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes
to the Board on
an October
24,
1986
Petition for Variance filed
by the New Jersey Zinc Company
(hereinafter
“NJZ”).
On November
20,
1986,
the Board
found the
petition deficient,
inter
alia,
in that
it contained
an
insufficient: compliance plan.
On March
6,
1987,
NJZ filed an
Amended Petition for Variance.
On April
20,
1987,
the Illinois
Environmental Protection Agency (“Agency”)
filed a Recommendation
that variance be granted.
Hearing was held July 16,
1987.
No
briefs were filed.
On March
21,
1988, NJZ
filed a Motion
to
Revise Compliance Schedule.
On March
29,
1988, the Agency filed
a response that agreed with the requested revision.
The Board
hereby grants the requested
revision.
Factual Background
The NJZ plant,
located at De
Pue,
Illinois,
is engaged
in
the manufacture of zinc dust
for the coatings industry.
In
a
predominantly agricultural
area,
it employs approximately 26
workers and staff, with
an annual payroll
of approximately
$700,000.
In previous years, NJZ’s processing
and manufacturing
activities generated residues from
zinc
smelting, and lithopone
waste
from pigment production.
These waste materials, which are
not produced by current operations, were placed on
a field at
the
plant
site.
The zinc smelting residues were deposited
in one
pile
at the southern end of the property,
known as
the “cinder
bank.”
North of this pile,
lithopone residues were collected
in
five ridges.
At one time,
an open ditch surrounded
the cinder
bank.
Runoff from the cinder bank
and lithopone piles drained
into the ditch, which then flowed
in
a generally southerly
0
—2—
direction into
a storm drain
for Marquette Street.
The
groundwater
table
for this area
is high,
and
in times of heavy
rainfall,
groundwater
would seep into
the ditch, and combine with
land runoff.
The Marquette Street drain carried
the runoff
to
Lake DePue,
a shallow oxbow lake created
by the changing
course
of the Illinois
River.
Lake DePue
is
in equilibrium with the
Illinois River, rising
and falling as the river
level varies.
In March
of 1978,
the State of
Illinois commenced
a civil
action against
NJZ
in Bureau County, Illinois Circuit Court.
(People of the
State of Illinois
v.
Gulf
& Western Industries
and
the New Jersey Zinc Co., Case No.
78—CH—4.)
The Agency asserted
that water conveyed by the open ditch contained levels of metals
in excess of the contaminant levels
in 35
Ill.
Adrn.
Code 304.124
(or Rule 408, as
it was then
identified).
The Agency sought
injunctive relief that would require NJZ to
take
action to reduce
the metals contained
in the ditch
water.
The action was resolved
by entry of
a Consent Order
and Agreement on October
30,
1981.
This Order directed NJZ
to make certain physical changes
to
reduce
the amount of metals picked
up by stormwater
runoff and
to
convey that stormwater runoff
in
a manner
so as
to isolate
it
from groundwater
seepage.
The remedial measures required under
the Court Order were completed by August
1985,
to the Agency’s
satisfaction.
The Agency subsequently approved
the construction
and released $200,000 of
a $225,000 performance bond.
The
remaining $25,000 was to be released
at the expiration of the
Consent Order
on October
30,
1986.
Pursuant
to
the
terms of the Consent Order, and subsequent
federal regulations
found at
40 CFR Section 122.26, NJZ
is
required
to secure an NPDES permit.
The present NPDES permit
places effluent limits on the discharge of certain parameters.
NJZ’s variance petition requests relief
from six of those
parameters:
All Coçicentrations in mg/i
Current
Limits~
Regueste~3
Limits
Parameter
30-Day
Average
&
Daily
Max.
30-Day
Average
&
Daily
Max
cadmium
.15
0.3
0,5
1.0
copper
0.5
1.0
2.0
4.0
iron
2.0
4.0
3.0
6.0
mar?ganese
1.0
2.0
5.0
10.0
¶LSS
15
30
75
150
zinc
1.0
2.0
25
50
NJZ requests that it be allowed
to subtract the upstream
concentration of any parameter
in determining its effluent
values.
1 These values are directly from 35
Ill.
Adm.
Code
304.124(a),
and the Averaging
rule
at
35
Ill.
Adm.
Code 304.104(a).
88—20
—3—
A small volume of
flow is involved, typically
50 gallons per
minute or
less.
After
this
flow enters the Marquette Street
drain,
it
is augmented by other
sources, including water
from the
nearby Mobil
Oil lagoon.
Mobil
Oil did not estimate the flow
from their lagoon, but based on visual
observations, NJZ believes
the flow to be somewhere
in the vicinity of 10,000 gallons per
minute.
After combining with Mobil discharge,
the Marquette
Street drain
flows
into Lake DePue.
Lake DePue
is a
shallow
oxbow lake
(perhaps two
to three feet
in depth)
adjacent to the
Illinois River.
Discussion
The Board may grant variance relief where
the record shows
that immediate compliance with the regulatory standard would
impose an arbitrary and unreasonable hardship on the petitioner
and
the record shows
that such hardship would outweigh the risk
of environmental harm.
The Agency arid NJZ are
in agreement that
these conditions have been met.
NJZ believes immediate compliance would impose
an arbitrary
and unreasonable hardship.
NJZ asserts
that:
1.
It
cannot
improve
the
land
runoff
collection
system;
2.
The
present
collection
system
was
installed
as
the
Agency directed
and
is
being
maintained
in
the
best
manner
possible;
3.
Installation
of
a
treatment
plant
to
further
control
contaminants
would
cost
over
$750,000,
with
annual
operating
expenses of over
$200,000; and
4.
Revenues
from
the
DePue
facility
are
insufficient
to
cover
these
costs
(Am.
Pet, par.
36).
The Agency agrees
(Rec.
par.
7).
Both the Agency and NJZ believe
that the risk of
environmental harm
is minimal at present levels of discharge
(Am.
Pet., pars.
36—37;
Rec.,
par.
5).
The Board finds that
immediate
compliance would impose an arbitrary and unreasonable hardship
and that such hardship outweighs
the risk of environmental
harm.
88—2 1
—4—
Compliance Plan
The variance procedure
is not available
for permanent relief
from pollution control requirements.
Variance relief may be
granted
for a maximum period
of five years
and the petition must
describe
ho.w the petitioner will achieve compliance.
Board
regulations, at
35 Ill. Adm.
Code
104.121(f)
particularly
describe the scope of
an adequate compliance plan:
Section 104.121 Contents of Variance Petition
To
enable
the
Board
to
rule
on
the
petition
for variance,
the following
information, where
applicable,
shall
be included in the petition:
*
*
*
f.
A
detailed
description
of
the
existing
and proposed equipment or proposed method
of
control
to
be
undertaken
to
achieve
full
compliance with the Act
and regula-
tions,
including
a
time
schedule
for
the
implementation
of all phases
of
the con-
trol program
from initiation of design
to
program
completion
and
the
estimated
costs
involved
for
each
phase
and
the
total
cost
to achieve compliance.
The question before the Board
is whether NJZ has such a
compliance plan.
NJZ’s plan
for
full compliance with the Act and
regulations
is,
in
toto:
g.
By
November
30,
1988,
NJZ
will
submit
a
schedule
for
further
action
to
be
taken
to
achieve
compliance
with
Illinois
rules.
Further
action
may
include
a
schedule
for
additional
sampling
and
studies,
a date
for filing
a
“Petition
to
Amend
Regulations”
seeking
site—specific
rules, and/or
a construction schedule for
improvements.
(Motion
to Revise,
p.
3)
This provision simply does not constitute
a compliance
plan.
It provides no guidance
to
the Board on how,
when or
if
NJZ will ultimately comply with applicable regulations.
Con-
sequently, the Board must
find that NJZ does not have
a plan for
ultimate compliance with the Act and Board regulations.
Under normal circumstances,
the Board would simply deny the
variance for lack of
a compliance plan;
however, this case does
not present normal
circumstances.
The
violation
of
Board
regulations does not result from some presently ongoing activity
88—22
—5—
by
NJZ
which could simply be discontinued
if variance were
denied.
The violation results
Erom the interaction of rainfall
(and some amount of groundwater seepage) with
a piece of NJZ’s
property.
Even
if NJZ ceased all operations
immediately,
rainfall would
still
occur
and
the runoff would still,
presumably,.. violate Board effluent regulations.
Because of these unique circumstances,
the Board believes
that NJZ should be granted
a short—term variance
for
the purpose
of developing
a plan
for ultimate compliance with the Act and
regulations.
Consequently, the Board will grant NJZ
a variance
until November
30,
1988, with the conditions agreed upon by the
parties.
This Opinion constitutes the Board’s findings of fact and
conclusions of law
in this matter.
ORDER
New Jersey
Zinc Company
is hereby granted
a variance from 35
Ill.
Adm.
Code 304.124(a),
as
it pertains
to cadmium, copper,
iron, manganese,
zinc,
and total
suspended solids, subject
to the
following conditions:
1.
This variance will expire November
30,
1988;
2.
Not later
than November
30,
1988,
New
Jersey Zinc shall prepare
and submit
to
the Agency a plan
for ultimate compliance
with the Act and Board
regulations;
3.
During
the term of this variance,
the
following
interim
limits
shall
apply
to
New Jersey Zinc’s discharge:
Parameter
30—Day Av.
Daily Max.
cadmium
0.5
1.0
copper
2.0
4.0
iron
3.0
6.0
manganese
5.0
10.0
TSS
75
150
zinc
25
50
4.
Sampling
and analysis of effluent para-
meters shall
be
in accordance with New
Jersey Zinc’s NPDES permit.
However,
in
determining whether compliance has
occurred, New Jersey Zinc may subtract
the concentration of any background
level
of contaminant determined
by sampling
at
88—23
—6—
Point
II
of
their
NPDES
permit.
All
sampling and analysis data shall be
reported
to
the Illinois Environmental
Protection Agency;
5.
New Jersey Zinc shall
submit quarterly
reports
to the Illinois Environmental
Protection Agency, within
15 days of each
calendar quarter;
6.
Within 45 days after
the date of this
Opinion
and Order, New Jersey Zinc shall
execute
and send
to:
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
New
Jersey
Zinc
fails
to
execute
and
forward
the certificate 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 Opinion and Order of
the Illinois Pollution Control
Board
in PCB 86—187,
dated April
7,
1988,
understand
and accept
the said Opinion and Order,
realizing
that such acceptance
renders all
terms and conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
88—24
—7—
Section
41
of
the
Environmental
Protection
Act
(Ill.Rev.Stat.
ch.
111—12,
par.
1041,
1985,
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
I, Dorothy
M. Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby
certify
that
the
abov
Opi,nion
and
Order
was
adopted
on
the
Y~Z
day
of
_________________________,
1988,
by
a
vote
of
~
~7.
Dorothy
M.
nn,
Clerfc
Illinois
Pollution
Control
Board
88—25