ILLINOIS POLLUTION CONTROL BOARD

December

20,

1969

ARCO PRODUCTS COMPANY,

a

wholly

owned subsidiary of ATLANTIC

RICHFIELD COMPANY,

)

Petitioner,

PCB 8$~5

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MR. JOSEPH S. WRIGHT, JR., OF MARTIN, CRAIG, CHESTER ~

SONNENSCHEIN, APPEARED ON BEHALF OF PETITIONER;

MR. JOHN J. BRESLIN, APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by R. C. Flemal):

This matter comes before the Board upon a petition to appeal

an NPDES permit filed by Arco Products Company (“ARCO”) on

January 13,

1989. Specifically, ARCO requests

review of the

Illinois Environmental Protection Agency (“Agency”) imposed

limits and monitoring for toluene, xylenes, benzene, lead, and

total phenols.

A Board hearing was held or. June 27, 1989 in Mount Prospect,

Illinois; no members of the public attended. Briefs were filed

by Petitioner on August 11, 1989, by the Agency or. Sep:ember 15,

1989, with a reply brief filed by Petitioner on September 22,

1989.

BACKGROUND

ARCO owns and operates a gasoline loading and jet fuel

storage and distribution terminal located at 1000 Terminal Drive,

Arlington Heights, Illinois (Petition at 1). The facility

consists of nine storage tanks for jet fuel used at O’Hare

Airport and a loading rack. The stormwater runoff from the

facility is treated in two, connected API oil—water separators

(H. at 6—7).

The primary constituent of the water treated by ARCO is

stormwater. After treatment in the separators the water is

stored in a retention pond prior to discharge. Discharge occurs

only after the retention pond is filled, usually during wet

seasons (Id. at 6—8).

1fl(~—397

---

—2—

The ARCO discharge is to an unnamed tributary to Higgins

Creek. It is uncontested that the unnamed tributary has a 7—day,

10—year low flow of zero cfs (Agency Record, Exh. 5 at 1).

The ARCO facility has held three NPDES permits prior to the

one in question, the first having been issued in 1974. Those

permits contained the following effluent limitations:

Year

30 Day

Daily

Daily

Issued

Parameter

Average

Average

Maximum

1974

Oil and Grease

10 mg/i

15 mg/l

1978 Oil, Fats and Grease 15 mg/i

30 mg/i

1983

Oil and Grease

15 mg/i

30 mg/i

ARCO was required to sample monthly and to submit its accumulated

discharge monitoring reports every six months (ARCO Exh. 1).

On December 14, 1988, the Agency issued the ARCO NPDES

permit No. IL000i775 containing the following effluent

limitations:

30 Day Average

Daily Maximum

Oil and grease

15 mg/i

30 mg/i

Toluene

2.0 mg/i

Xylenes

0.44 mg/i

Benzene

0.005 mg/i

Lead

0.1 mg/i

Total phenols

0.1 mg/i

The permit also requires monitoring for each of the parameters in

the form of monthly grab samples (Agency Record, Exh. 1).

ARCO subsequently filed this appeal. On February 2, 1989,

the ~oard issued an order noting that the contested NPDES permit

is stayed during the pendency of the challenge of that permit,

pursuant to Section 16(b) of the Illinois Administrative

Procedure Act. The terms of ARCO’s prior permit, issued in 1983,

have applied during the pendency of this appeal.

CONTESTED PROVISIONS

As stated above, ARCO has appealed the limits and monitoring

required in its permit for toiuene, xyienes, benzene, lead, and

total phenols. Basically, ARCO believes that the limitations and

monitoring requirements for these five parameters should not be

included in its permit because they bear no relationship to

Illinois standards. ARCO questions the limits because, as it

states, there has been no change in Illinois regulation which

would require such a change from previous permit limitations

solely for fats, oil and grease, and that the new requirements

are the result of an Agency policy change (H. at 22—3).

106--39S

---

—3—

ARGO further contests the basis for the limitations chosen

by the Agency for inclusion in the permit. As indicated by the

record, the Agency permit drafter selected limits from federal

drinking water health advisories for toluene and xylenes (Agency

Record, Exh. 5 at 4). (There are currently no effluent limits for

these parameters in the Board’s regulations.) The level imposed

was one which assumes a safe lifetime drinking water standard for

an adult (See ARCO Exhs. 2 and 3). ARCO notes that these

advisories are not legally enforceable standards (ARCO Brief at

6, ARCO Exhs. 2 & 3). For benzene, the Agency selected limits

from a proposed federal Maximum Contaminate Level (“MCL”). ARCO

again notes that these limits, being proposed federal limits, are

not legally enforceable standards (R. at 43). ARCO alleges that

for these parameters, the limits imposed are inappropriate to an

industrial discharge, and would only apply to a drinking water

source (ARCO Brief at 6).

The lead and phenols parameters were chosen from the Board’s

water quality standards for General Use waters (H. at 43; Agency

Record Exh. 5 at 4; 35 Ill. Adm. Code 302.208). ARCO believes

that the application of such standards at the “end of the pipe”

was improper because 1) the Agency imposed the General Use

Standards without any data relating to stream quality, aquatic

biota, or stream flow; 2) the Agency failed to provide a mixing

zone as contemplated by 35 Ill. Adm. Code 302.102; 3) the Agency

failed to consider that the discharge is intermittent with no

discharge during dry seasons. ARCO believes there is therefore

no justification for imposition of standards different or more

strict than the Board’s effluent limitations (ARCO Brief at 7).

Finally, ARCO contends that it. should not be rec~uiredto

perform expensive monitoring for toluene, xylenes, benzene, lead,

and phenols when those substances are not expected to be found in

a particular discharge (Id.).

In response, the Agency states that it properly included

limits for the contested parameters. The Agency agrees that the

list of regulated substances in the permit was the result of an

Agency policy change (Agency Brief at 2). Specifically, as

stated by Mr. Timothy Kluge, Agency industrial pertnit manager,

the laboratory tests for oil and grease would not necessarily

indicate the presence of certain volatile organic compounds found

in gasoline and jet fuel, including toluene, xylenes, benzene,

lead, and phenols (R. at 54; Agency Brief at 2). The Agency

states that the presence of petroleum products (gasoline and jet

fuel) in the discharge was established in the permit application:

This facility is a terminal storing and dispensing

petroleum products. Jet Fuel is shipped from the

facility, via pipeline. Gasoline products (from

storage at an adjacent terminal) are dispensed

through a truck loading rack at the facility.

Application at Section XII

106—399

---

—4—

This was confirmed by ARCO’s witness, Mr. Lawrence J.

McLaughlin, environmental engineer, who noted that gasoline and

jet fuel are unloaded at the facility (H. at 12).

The Agency further contends that it included, the proper

effluent limitations for the contested parameters. The Agency

states that 35 Ill. Adm. Code 309.141 and 304.105 require that

NPDES Permit limitations ensure the maintenance of water quality

standards. The Agency reasons that since ARCO has not provided

the Agency with any information to show that dilution will be

available when discharges occur, therefore the effluent from the

ARCO facility must meet water quality standards. The General Use

Water Quality Standards for lead and phenols found at 302.208

were included in the permit.

Additionally, the Agency states that Section 302.203

provides that waters shall be free from “combinations toxic or

harmful to human, animal, plant or aquatic life”, and that

Section 302.210 states in relevant part that “amy substance

toxic to aquatic life shall not exceed one—tenth of the 96—hour

median tolerance limit (96—hr. TLm) for native fish or essential

fish food organisms...” The Agency states that its policy is to

impose the strictest category of water quality limits in the

absence of additional information from the applicant. The Agency

believes, that this policy ensures maximum protection to the

public and the receiving waters. Therefore the Agency included

more stringent limits than the 1/10 96—hr TLm for benzene,

toluene and xylenes (Agency Brief at 3—4).

In response, ARCO emphasizes that limits imposed for

benzene, toluene and xylenes are not water quality based (R. at

39, 41—3), and that the selection of drinking water standards for

ARCO’s permit limitations is arbitrary (ARCO Reply Brief at 2—3).

Evaluation

When reviewing an Agency permit decision, the Board must

determine whether the application, as submitted to the Agency,

demonstrates that no violation of the Environmental Protection

Act (“Act”), or Board regulations would occur if the permit were

issued. (See, City of East Moline v. Illinois Pollution Control

Board, No. 3—88—0788, slip op. at 5, 11 (Ill. App. Ct. 3d Dist..,

August 31, 1989); Joliet Sand and Gravel v. Illinois Pollution

Control Board, 163 Ill. App. 3d 830, 516 N.E.2d 955, 958 (3d

Dist. 1987); Ill. Rev. Stat. 1987, ch. 111—1/2, par. 1039(a).).

The First District has also stated:

For purposes of review, the imposition of conditions

is regarded as a permit denial.

.

The sole question before the Board in review of the

Agency’s denial of a permit is whether the petitioner

106—4fl1)

---

—5—

can prove tk-’a~ its permit at~1icatipnas submitted to

the Agency establishes that the facility will not.

cause a violacijn of the Act. If the Agency has

granted the permit with conditions to which the

petitioner objects, the petitioner must prove that

the conditions are not necessary to accomplish the

purposes of the Act and the!efore were improperly

imposed.

IEPA v. P03 (Album),

118 Ill. App. 3d 772,

775—6 (1933). (emphazs

in original)

While AP.CO claims that the imposition of limitations and

monitoring for the contested parar~e.ters is arbitrary, ar.d that it

has not been shc’.’.-~ that the contested parameters are present in

ARCI)

‘

s

oIl

1 ~:or

,

l~r

.

Ki

u~je

Lest

Ii o.~ t~eteli

~

ho

~-‘~ ~

peLe~:le~ersare O.L~’~,Ou

1.0 L~

Cc~..).1eflts 0~ cJeS Lin~, ~

the

volatile organics would orobably not be large co:npcnents of

jet fuel (R. at 5$)

.

As noted above, it is clear from the record

that ARCO’s effluent contains both gasoline and jet fuel. ARCO’s

petition states that the ARCO facility is both a “gasoline

loading and jet fuel storage and distribution terminal.”

(Petition at 1), which was also corroborated by ARCO’s witness.

It is uncontested that drainage from the loading rack and tank

farm areas goes through the oil water separators and is

discharged into the retention ponds prior to discharge to the

unnamed tributary (H. at 7). Therefore, it is not arbitrary for

the Agency to impose limitations and monitoring for toluene,

xylenes, henzene, lead, and total phenols, as such recutrements

are necessary to ensure that no violations of the Act or- Board

regulations would occur upon issuance of ARCO’s NPDES permit.

The issue remains as to whether the imposition of effii.ient

limits based upon water quality limits for lead and phenols, and

the drinking water advisories and MCLs for toluene, xyienes, and

benzene, are necessary to ensure compliance with the Act. and

Board regulations. Section 302.210 and 302.203 establish water

quality standards for toxic substances. Pursuant to Secrion

304.105, no effluent shall cause a violation of any apolicable

water quality standard. These sections, when taken together,

provide clear authority for the imposition of an effluent

toxicity limit whenever such limit is necessary to ensure

compliance with the Board’s water quality standard for

toxicity. Proper relation of the contested parameters to water

quality standards was also noted in the Agency permit transmittal

letter:

Your request for substitution of total petroleum

hydrocarbon sampling for benzene, xylene and toluerte

was not granted because of (Agency policy for

discharges from gasoline spills and cleanup. The

---

—6—

concentration of petroleum hydrocarbons cannot be

related to water quality criteria or the

concentration of organic compounds of concern. Also,

an analysis of a representative sample of your

discharge was not submitted showing the absence of

these organic compounds.

It

is reasonable for the Agency to apply General Use Water

Quality Standards for lead and total phenols as the effluent.

limits in ARCO’s NPDES permit without a mixing zone when there is

little, if

any, indication that mixing

would

occur. There is

evidence in the record that the stream has a 7—day, 10—year low

flow of zero cfs. Furthermore, as acknowledged in the permit

application, the effluent discharges to General Use waters.

Therefore, the General Use Standards would apply.

However, the proonned drInk

i. nq wet or sten~erdn and NCRs are

dtLd~Lrury

as

here aoplied.

in no circu:i rrne~~dues

th~ L3o3rd,

Agency, or any other authority require protection to the

stringent levels of drinking water standards where human

consumption off water does not occur. The small unnamed tributary

to which ARCO discharges is manifestly not a drinking water

source; neither is Higgins Creek to which the unnamed tributary

is tributary; neither is Willow Creek to which Higgins Creek is

tributary; and neither is the Des Plaines River to which Willow

Creek is tributary. To nevertheless imply that drinking water

standards can be applied in the instant case as penalty for

ARGO’s failure to expressly state this obvious absence of

downstream drinking water supplies is grossly arbitrary.

ARCO is nevertheless required pursuant to 35 Ill. Mm. Code

304.105 to comply with water quality standards which are

applicable in the receiving waters. The receiving waters are

General Use Waters pursuant to 35 Ill. Adrti. Code 302.201. For

toxic substances such as at issue here, the applicable General

Use Standards are the general prohibition against toxic

concentrations found at 35 Ill. Mm. Code 302.203 and the

quantitative standard found at 35 Ill. Adm. Code 302.210. The

latter standard specifies that concentrations of substances toxic

to native fish or essential fish food organisms shall not exceed

1/10 of the 96—hour mean tolerance limit (“96—hr TLm”)~

The Agency apparently now agrees that it is the 1/10 96—hr

TLm standard which should be appropriately applied in the instant

case, and that it would now issue a permit within which this

standard applied (H. at 61). The Board agrees that 1/10 96—hr

TLm is the appropriate standard. The principal use of the waters

involved in the instant case is maintance of aquatic life, and

the standard is designed to protect against toxicity to aquatic

life.

---

—7—

Since the Board has found that the 1/10 96—hr TL standard

is proper in this instance, it becomes necessary to a~dress some

additional concerns raised by ARCO in its brief. ARCO presents

concerns regarding how it believes the Agency will apply the 1/10

96—hr TL standard. What ARCO desires amounts to a request for

the Boar~to provide the 1/10 96—hr TLm figures, or to direct the

Agency on how this standard should be applied. On this matter,

the Board must remain silent and remand to the Agency since the

Agency has not based the limits on this standard. Even if the

Board were inclined to so direct the Agency, there is no evidence

in the present record which would allow the Board to make such a

determination. Suffice it to state that what the standard

requires is clear on its face.

In sum, the Board upholds the Agency imposed permit

limitations and monitoring requirements for lead and total

phenols, and the monitoring requirements for toluene, xylenes,

and berizene. The Board remand~ that portion of the permit

relating to the limitations for toluene, xylenes, and benzene to

the Agency for determination of effluent limits in accordance

with the water quality standard contained in Section 302.210.

ORDER

The NPDES permit No. IL0001775 issued by the Agency on

December 14, 1988 is affirmed in part and remanded in part. The

Agency is directed to issue NPDES permit No. IL000l775 applying

the limitations for toluene, xylenes, and benzene in accordance

with the water quality standards as set forth in 35 Ill. Adm.

Code 302.210.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif that the abve Opinion and Order was

adopted on the

_______

day of

__________________,

1989, by a

vote of

‘7-c

~

DorothyM.7~’unn,

/~.

Clerk

/~~)

Illinois P~1lution Control Board

106—403