ILLINOIS POLLUTION CONTROL BOARD
February 4, 1993
ANEROCK CORPORATION,
)
Petitioner,
v.
)
PCB 92—120
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on Amerock Corporation’s
(Amerock) August 21, 1992 petition for variance extension. On
October 19, 1992, in response to a Board order, Ainerock filed an
amended petition. Amerock seeks extension of its variance from
the effluent limitations for hexavalent chromium, total chromium,
copper, cyanide, zinc, and total suspended solids (TSS). (35
Il1.Adm.Code 304.124.) The Board previously granted Ainerock a
variance for those pollutants on January 9, 1992, as modified on
February 6, 1992. (PCB 87-133.) That variance expired on
December 21, 1992.
Although the Illinois Environmental Protection Agency
(Agency) is required by the Environmental Protection Act (Act)
and the Board’s procedural rules (415 ILCS 5/37(a) (1992); 35
Ill.Adm.Code 104.180) to file a recommendation in all variance
proceedings, the Board has not received any communication
whatsoever from the Agency.
Backc~round
Amerock owns and operates a facility in Rockford, Illinois
which manufactures high—quality decorative hardware products.
The facility includes a wide variety of manufacturing operations
necessary to convert alloys of steel, zinc, and copper, as well
as plastics, into finished products for the home. Manufacturing
operations at the plant include sheet metal fabrication, zinc
diecasting, plastic molding, burnishing, buffing, cleaning,
electroplating, coloring, painting and lacquering, assembling,
packaging, and shipping. Amerock employs approximately 1200
people at its Rockford facility. (Pet. at 1.)
Most work areas in which dust or metal—containing particles
are generated are vented to the outside air. Amerock states that
this venting is done to comply with the requirements of the
federal Occupational Safety and Health Act, and to otherwise
ensure employee health and safety. (Pet. at 2.) Amerock states
0139-0037
2
that all of its air emission sources are in compliance with the
Board’s air pollution regulations. However, some of the material
exhausted to the atmosphere (primarily metal-containing
particulate) settles on the roof of the facility and is washed
into the roof drainage system by rain and snow melt. The roof
drainage system is routed to eight separate outfalls (numbered
000-007 in Amerock’s NPDES permit) which discharge into North
Kent Creek. (Pet. at 3.)
In 1983 Amerock discovered that effluent discharges from the
eight outfalls exceed, from time to time, effluent limitations
for chromium (both hexavalent and total), copper, cyanide, zinc,
and TSS. Amerock petitioned this Board for a variance for those
parameters, and the Board granted variance on September 20, 1985,
in PCB 84-62. As modified on November 21, 1985, the variance
expired on September 1, 1987. Ainerock then filed a petition for
extension of that variance. The Board granted that petition on
January 9, 1992, in PCB 87-131. As modified on February 6, 1992,
the variance extended from December 21, 1987, to December 21,
1992. It is that variance granted in PCB 87—131 which Arnerock
seeks to extend.
Compliance Plan
As a condition of its first variance, Amerock was required
to investigate possible means of compliance with the effluent
standards. (PCB 84-62, September 20, 1985, p. 5.) Amerock hired
Lancy International, Inc. to study the problem and recommend
control options. Lancy’s report gave five alternative control
options: collection and treatment, abatement at the source,
sanitary sewer discharge, combination with cooling water
discharge, and retention after collection for slow release into
the cooling water discharge. Amerock evaluated the options, and
determined that only two would be further investigated:
collection and treatment of the roof run—off at Amerock’s on-site
treatment facility, and source abatement. Amerock contends that
the cost of these control options range from approximately $2.5
million for collection and treatment to $7 million for source
abatement. (Amended pet. at 2.) In addition to these options,
Amerock prepared and filed a petition for site—specific
rulemaking which would raise the applicable effluent limitations
and change the limitations from concentration—based to mass—
loading in pounds discharged per month. (Pet. at 2-3.) That
site-specific petition, docketed as R87-33, is currently pending
before the Board.
Amerock seeks a variance from December 22, 1992 until
December 22, 1995, or until the Board takes final action granting
the site-specific rule, whichever occurs first. In the event
that the Board denies the site-specific rulemaking request,
Amerock will conduct a more detailed analytical evaluation of the
two control options. (Amended pet. at 2.) Amerock states that
01390038
3
it has included time in its variance request to enable such
analyses to be conducted. (Amended pet. at 2.)
Environmental Impact
Aiuerock contends that there is minimal, if any, adverse
environmental impact from its storm water discharge into North
Kent Creek. (Amended pet. at 2.) In support of this contention,
Ainerock has incorporated information from the record in R87—33,
including the results of biological surveys, effluent and water
quality data, and the Agency’s water quality report (1988-1989).
Consistency With Federal Law
There is no direct information in this record on whether the
requested variance would be consistent with federal law.
However, the Board notes that in PCB 87-131, the Agency stated
that the Board could grant that variance consistent with federal
regulations.
HardshiP
Amerock states that the cost of immediate compliance with
the applicable effluent limits far outweighs the minimal, if any,
adverse environmental impact of the storm water discharge.
Additionally, Amerock points out that if the Board grants its
requested site—specific rule, additional control expenditures
will be unnecessary. (Amended pet. at 2.)
Conclusions
After a review of the record, the Board finds that immediate
compliance with the effluent standards for hexavalent chromium,
total chromium, copper, cyanide, zinc, and total suspended
solids, found at 35 Ill.Adm.Code 304.124, would impose an
arbitrary or unreasonable hardship. Although there is not a
great deal of sampling information in the record of this
proceeding, the Board believes that the information which does
exist indicates that any impact of Amerock’s current discharges
on water quality and biota is minimal. The Board finds that
Amerock has demonstrated satisfactory progress towards
compliance, although compliance has not yet been obtained. The
minimal environmental impact, together with Amerock’s
satisfactory progress towards compliance and the fact that
compliance expenditures may not be necessary if a site-specific
rule is granted, lead the Board to conclude that immediate
compliance with the applicable effluent standards would result in
an arbitrary or unreasonable hardship.
The Board notes that it has historically been very reluctant
to grant variance where, as here, the petitioner has not actually
committed to a specific method of attaining compliance. The
Board recognizes, however, that Amerock has specifically
01390039
4
committed to implementing either the collection and treatment
option or the source abatement option if the requested site-
specific rule is denied. Because of the peculiar circumstances
of this case, and based upon the specific commitment to achieve
compliance by the end of this variance, the Board will grant the
requested variance.
The Board also points out that the conclusions it reaches
based upon the record of this variance proceeding do not
necessarily reflect on the merits of Amerock’s site—specific
rulemaking proposal, currently pending before the Board in R87-
33. The burdens of proof and the standards of review in a
rulemaking (a quasi—legislative action) and a variance proceeding
(a quasi—judicial action) are distinctly different.
~
Titles
VII and IX of the Act; see also Willowbrook Development v.
Pollution Control Board (2d Dist. 1981), 92 Ill.App.3d 1074, 416
N.E.2d 385.) The Board cannot lawfully prejudge the outcome of a
pending regulatory proposal in considering a petition for
variance. (City of Casey v. IEPA, 41 PCB 427, 428 (PCB 81—16,
May 14, 1981).)
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
Amerock Corporation (Ainerock) is hereby granted a variance
from the following effluent standards located at 35 Ill.Adm.Code
304.124: hexavalent chromium, total chromium, copper, cyanide,
zinc, and total suspended solids. This variance applies to
Amerock’s facility located at 4000 Auburn Street, Rockford,
Illinois, and is subject to the following conditions:
1. This variance begins on December 22, 1992, and expires
on the earlier of: December 22, 1995, or the date of
final action on any grant of Ainerock’s requested site—
specific rule, currently pending before the Board in
R87—33.
2. During the period of the variance, Amerock’s discharges
shall not exceed the following limits:
Constituent
Limitation (lbs/month)
chromium (hexavalent)
1.0
chromium (total)
4.0
copper
20.0
cyanide (total)
3.0
zinc
60.0
total suspended solids
300.0
3. In addition to the sampling required by Amerock’s NPDES
01 3Q-Q0L~0
5
permit, Amerock shall inspect each discharge location
during and shortly after periods of rainfall. Amerock
shall obtain one sample from each outfall per month.
The samples shall be analyzed for the parameters
required by the NPDES permit. The results of these
analyses shall be attached to Amerock’s DMRs and
submitted to the Agency. If no discharges occurred
during the month, Amerock shall so indicate in its
DMRs.
4. Ainerock shall sample the water and sediment of North
Kent Creek once each month at sites: (1) upstream of
Outfall 000; (2) between Outfalls 001 and 003; (3)
between Outfalls 004 and 007; and (4) downstream of
Outfall 007. This sampling shall occur at a time when
discharges are present. However, even if no discharges
occur in a given month, Amerock shall take the monthly
samples at the locations listed above. These samples
shall undergo chemical analysis for the parameters
listed in Condition 2, except that sediment samples
need not be analyzed for total suspended solids. The
results of the analyses shall be attached to Ainerock’s
DMRS and submitted to the Agency.
5. Amerock shall continue to conduct a biological survey
of North Kent Creek to monitor any impact of its
discharges on the biological organisms in the stream.
These surveys shall be conducted twice a year at
similar sampling locations to those for chemical
analysis listed in Condition 4. The results of these
surveys shall be submitted to the Agency’s Compliance
Assurance Section, Water Pollution Control Division,
2200 Churchill Road, P.O. Box 19276, Springfield,
Illinois 62794—9276.
6. Within forty-five days of the date of this order,
Amerock shall execute and forward to:
Lisa Moreno
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
a certificate of acceptance and agreement to be bound
to all terms and conditions of the granted variance.
The 45-day period shall be held in abeyance during any
period that this matter is appealed. Failure to
execute and forward the certificate within 45-days
renders this variance void. The form of certificate is
as follows.
013900’41
6
Certificate of Acceptance
I (We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 92—120,
February 4, 1993.
Petitioner
Authorized Agent
Tit1e
Date
IT IS SO
ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders. The
Rules of the Supreme Court of Illinois establish filing
requirements. (But see also 35 Ill.Adin.Code 101.246 “Notions for
Reconsideration” and Castenada v. Illinois Human Rights
Commission (1989), 132 Ill.2d 304, 547 N.E.2d 437.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert~i~y.that the a~ve opinion and order was
adopted on the .L~.Lt7~-’ day of -_eL~~4~~L..
,
1993, by a vote
of
—
O
.
orothy M. Gi4, Clerk’
Illinois Po~.~ion Control Board
O139-00L~2