ILLINOIS
    POLLUTION CONTROL BOARD
    October
    9, 1975
    DE
    SOTO, INCORPORATED,
    Petitioner,
    v.
    )
    PCB 75—277
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    OPINION AND ORDER OF THE
    BOARD
    (by Mr. Zeitlin):
    Petitioner, De Soto, Inc., (De Soto), seeks a Variance
    to permit mercury discharges which exceed the limitation set
    in Rule 702 of Chapter 3: Water Pollution, of the Pollution
    Control Board Rules and Regulations. PQ Regs., Ch.3, Rule
    702. Rule 702 sets a sewer discharge criteria for mercury
    of 0.0005 mg/l; Petitioner estimates that its discharges
    will not exceed 0.005 mg/l of mercury at any time, (expressed
    in
    the
    Petition as 5 parts per billion,), and will not
    exceed a total of 2 lbs. per year. De Soto discharges its
    effluent to the Bloom Township Sanitary District.
    De Soto’s Petition for Variance was filed with the
    Board on July 18, 1975. A Recommendation was received from
    the Environmental Protection Agency, (Agency), on August 22,
    1975. No hearing was held in this matter.
    De Soto operates a paint manufacturing plant in Chicago
    Heights, Illinois. Prior to 1973, De Soto used phenyl
    mercurial preservatives in its latex paint to prevent the
    growth of bacteria and to prevent product spoilage. After
    beginning a research and development program aimed at substituting
    non-mercurial compounds as preservatives, De Soto was able
    to eliminate the use of mercury in its paints after
    January 1, 1973. In the past several months, however,
    De Soto has encountered problems of bulging paint cans, and
    was required by its customers to recall batches of paint
    which had been contaminated by bacteria. (It should be
    noted here that De
    ‘5
    Petition is not exact regarding
    the dates or extent of this problem.) As a result, Dc Soto
    recently resumed the use of phenyl mercurial preservatives,
    and subsequently reported this fact to the Agency on May 9,
    1975.
    19—63
    —2—
    De Soto’s Petition indicates that Dc Soto incurred
    expenses in excess of $250,000 in connection with its research
    and study of non—mercurial biocides. In addition, Dc Soto
    has incurred
    “
    substantial losses” due to the recall of
    spoiled paints. Based on these hardships and its estimate
    that the mercury discharges for which a Variance is asked
    would not pose any threat to public health or safety, Dc
    Soto seeks permission to continue its present mercury discharges
    for one year. De Soto claims that the problem of bacterial
    growth in latex paints is common to its industry, and that
    no completely reliable biocide other than phenyl mercurial
    compounds has been found to date. Dc Soto also claims that
    there is no known feasible method to effectively remove
    mercury from its effluent to meet the 1/2 ppb standard of
    Rule 702.
    The Agency’ s Recommendation agrees that Dc Soto’ 5
    discharges would have a minimal, and virtually indetectable,
    impact on the receiving stream. Agency inspections of the
    Bloom Township Sanitary District’s effluent to the Thorn
    Creek found mercury concentrations of zero. But the Agency
    also points out the fact that Dc Soto’s Variance Petition
    contains no reference to a viable compliance plan. The
    Agency therefore recommends that this Variance be denied.
    The Board agrees that this principle
    -
    the requirement
    of a compliance plan
    -
    must be applied here, and that the
    Variance must be denied. The cases cited in the Agency
    Recommendation, as well as many others, indicate a firm
    committment by the
    Board to require such a compliance plan
    as a condition for any Variance. Although, as the Agency
    points out, we have allowed further research and development
    programs as compliance
    with this requirement, even this
    form
    of
    compliance plan is lacking in Dc Soto’s Petition. After
    citing past costs for research into non—mercurial biocides,
    De Soto states only that, “additional expenses for future
    studies for replacements of mercurial biocides will be
    incurred in presently undetermined
    sums.”
    This is insufficient
    to meet the compliance plan requirement.
    The necessity of a compliance plan is of particular
    importance when dealing with mercury discharges. The Board
    has previously found that mercury
    is a virulent poison which
    “neither degrades to harmless substances nor ceases to exist”
    once introduced into the environment. In the Matter of
    Mercury
    Standards, R70—5, 1 PCB 411,412(1971).
    19—64
    —3--
    We
    shall dismiss this matter without prejudice and
    without
    ruling on the other matters raised in Dc Soto’s
    Petition.
    Dc Soto is expressly invited, should it have or
    develop an adequate compliance plan, to file a new Variance
    Petition regarding this problem.
    This
    Opinion constitutes the findings of fact and
    opinion of law of the Board in this matter.
    ORDER
    IT
    IS
    THE
    ORDER
    OF THE POLLUTION CONTROL BOARD THAT the
    Petition for Variance of Dc Soto, Inc. in this matter is
    dismissed without prejudice.
    I, Christan L,
    Moffett, Clerk of the Illinois
    Pollution
    Control Board, hereby certify the above Opinion and Order
    ~‘ereadopted on the _____________day of September, 1975
    by a vote of
    ~
    14
    C~tanThfeerk
    Illinois
    Pollution ~bntro1
    Board
    19
    —
    55

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