ILLINOIS POLLUTION CONTROL BOARD
April 20, 2000
IN THE MATTER OF:
PETITION OF TAKASAGO CORPORATION
(U.S.A.) FOR AN ADJUSTED STANDARD
FROM 35 ILL. ADM. CODE 302.208 AND
304.105
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AS 00-4
(Adjusted Standard - Water)
OPINION AND ORDER OF THE BOARD (by M. McFawn):
Before the Board is a petition for an adjusted standard filed by Takasago Corporation (USA)
(Takasago). Takasago seeks an adjusted standard from 35 Ill. Adm. Code 302.208 and 304.105 so
that it may discharge wastewater containing levels of total dissolved solids (TDS) in excess of the
concentrations allowed under the water quality standard set forth in the Board’s regulations,
i.e.
, 1000
mg/L. See 35 Ill. Adm. Code 302.208(g). This standard, however, was adjusted for the relevant
portion of Deer Creek to 2,100 mg/L (the limit sought by Takasago) in a prior adjusted standard
proceeding. See
In re
Petition of NutraSweet Co. (February 28, 1991), AS 89-3. Because of the
relationship between Takasago and Consumers Illinois Water Company (CIWC), the treatment works
in and a party to the earlier proceeding, this adjustment in effect applies to Takasago. The Board
therefore concludes that Takasago does not need the requested adjusted standard, and denies
Takasago’s petition, as is explained is further detail below.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Takasago has a plant in University Park in Will County, Illinois, where it produces aroma
chemicals. Pet. at 1. Wastewater from the plant contains heightened levels of TDS. Pet. at 2. The
plant has a single wastewater sewer discharge, to the CIWC treatment works collection system. Pet. at
1, 2. CIWC discharges its effluent to Deer Creek pursuant to a National Pollutant Discharge
Elimination System (NPDES) permit. Pet. at 2.
The plant in University Park was previously operated by NutraSweet Co., which produced its
namesake artificial sweetener there. Pet. at 2. NutraSweet’s wastewater also contained heightened
levels of TDS. Pet. Exh. A. CIWC and NutraSweet received initially a variance (PCB 88-84) and
ultimately an adjusted standard (AS 89-3) permitting discharge from CIWC’s outfall resulting in a
heightened level (2,100 mg/L) of TDS in Deer Creek. NutraSweet Co. v. Illinois Environmental
Protection Agency (July 27, 1989), PCB 88-84;
In re
Petition of NutraSweet Co. (February 28,
1991), AS 89-3. By its petition, Takasago seeks essentially the same adjusted standard that the Board
granted to CIWC and NutraSweet.
Takasago filed its petition on September 10, 1999. Takasago’s petition incorporated and
updated the information which NutraSweet and CIWC had submitted in support of the relief granted in
AS 89-3. The petition addressed all the criteria under 415 ILCS 5/28.1(c) for granting an adjusted
2
standard. See
infra
. In its petition, Takasago explained its operations compared to NutraSweet, and
the continuing need for the adjusted TDS water quality standard.
On November 8, 1999, after notice of the petition was published in accordance with 35 Ill.
Adm. Code 106.711, the Board received a request from Michael W. Bernard, a member of the public,
that a hearing be held on the petition.
1
On December 3, 1999, the Illinois Environmental Protection
Agency (Agency) filed its response to the petition, recommending that the petition be granted. A
hearing was held in University Park, Illinois, on December 22, 1999. At that hearing, witnesses from
Takasago, the Agency and the community explained the current conditions at the treatment works and
the water pollution control and NPDES permits issued by the Agency to Takasago and CIWC
respectively. Takasago filed additional material to supplement the record on January 13, 2000. On
February 3, 2000, the Agency moved to file additional material, which motion was granted by the
hearing officer on February 14, 2000. The additional materials filed included the water pollution control
permits for Takasago and NutraSweet and the NPDES permit for CIWC.
RELEVANT STATUTES AND REGULATIONS
By its petition, Takasago seeks an adjusted standard from 35 Ill. Adm. Code 302.208 and
304.105. Section 302.208(g) (the relevant provision) establishes a water quality standard for TDS in
waters of the State of 1000 mg/L. Section 304.105 provides, in relevant part, that “no effluent shall,
alone or in combination with other sources, cause a violation of any applicable water quality standard.”
The Board’s authority to grant adjusted standards derives from Section 28.1 of the Illinois
Environmental Protection Act (Act), 415 ILCS 5/28.1 (1998). Section 28.1(a) provides that a
petitioner may request, and the Board may impose, a standard different from that which would
otherwise apply to the petitioner as the consequence of the operation of a rule of general applicability.
The criteria for granting an adjusted standard are set forth in Section 28.1(c), which provides:
c.
If a regulation of general applicability does not specify a level of justification
required of a petitioner to qualify for an adjusted standard, the Board may grant
individual adjusted standards whenever the Board determines, upon adequate
proof by the petitioner, that:
1
Section 106.711 requires that notice of an adjusted standard petition be published within 14 days of
filing a petition in a newspaper of general circulation in the area likely to be affected by the petitioner’s
activity. The notice informs readers that any person may request a hearing within 21 days after the date
of publication. In this case, Takasago published a timely notice, but the notice contained typographical
errors which, while not fatal, could have impaired the effectiveness of the notice. The Board directed
Takasago to publish a corrected notice.
In re
Petition of Takasago Corp. (USA) (October 21, 1999),
AS 00-4. Takasago published the new notice on November 4, 1999. Thus, Bernard’s request for
hearing was timely.
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1.
factors relating to that petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting the
general regulation applicable to the petitioner;
2.
the existence of those factors justifies an adjusted standard;
3.
the requested standard will not result in environmental or health effects
substantially and significantly more adverse than the effects considered
by the Board in adopting the rule of general applicability; and
4.
the adjusted standard is consistent with any applicable federal law. 415
ILCS 5/28.1(c) (1998).
Because the regulations at issue do not specify levels of justification to qualify for adjusted standards,
the criteria in Section 28.1(c) apply to Takasago’s request. If any of these criteria is not met, the Board
may not grant an adjusted standard.
DISCUSSION
This petition can be resolved by application of the second Section 28.1(c) criterion,
i.e.
, that the
existence of special factors relating to the petitioner justifies an adjusted standard. This criterion is not
met if the requested adjusted standard would have no impact. First, Takasago requests that the 1,000
mg/L water quality standard for TDS set forth in Section 302.208(g) be adjusted to 2,100 mg/L.
Second, Takasago requests relief from the requirements of Section 304.105 as that section relates to
the water quality standard for TDS in Section 302.208 (
i.e.
, the rule of general applicability, 1,000
mg/L). The Board concludes, in light of the existing adjusted standard granted to CIWC in proceeding
AS 89-3, that the adjusted standard requested by Takasago is not necessary.
The water quality standard in 302.208(g) has already been adjusted to 2,100 mg/L by the
Board’s order in AS 89-3, and consequently the “applicable water quality standard” referenced in
Section 304.105 for CIWC, the direct discharger to Deer Creek, is 2,100 mg/L, not 1,000 mg/L.
Takasago does not discharge directly to waters of the State (as that term is defined in 35 Ill. Adm.
Code 301.440). Rather, Takasago discharges to CIWC’s treatment works, which in turn discharges to
Deer Creek. Takasago’s discharge reaches the stream, thus, as a component of CIWC’s discharge.
Unless CIWC’s discharge causes a violation of a water quality standard, Takasago’s discharge cannot
cause a violation of a water quality standard. And, consequently, if CIWC is subject to a different
water quality standard by operation of its adjusted standard, then the adjusted water quality standard is,
in effect, applicable to Takasago as well.
Bearing this relationship in mind, we turn to the relief requested by Takasago, compared to that
already granted to CIWC. The Board’s order in AS 89-3 provides:
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Pursuant to the authority of Section 28.1 of the Environmental Protection Act, the
Board hereby adopts the following adjusted standard. This standard becomes effective
on the date of this order.
1)
The water quality standard for total dissolved solids shall be 2,100 mg/1 for that
portion of Deer Creek between the point of discharge from the facility of
Consumers Illinois Water Company in University Park, Illinois and the
confluence of Deer Creek with Thorne Creek, and for that portion of Thorne
Creek between the confluence of Thorne Creek with Deer Creek and the
USGS gaging station located on Thorne Creek approximately fifteen miles
downstream of the point of discharge from the above-mentioned facility. The
water quality standard for total dissolved solids found at 35 Ill. Adm. Code
302.208 shall not apply. In re: Petition of NutraSweet Co. (February 28,
1991), AS 89-3, slip op. at 11.
For comparison, Takasago has requested the following adjusted standard:
(1)
The water quality standard for TDS shall be 2,100 mg/L for that portion of
Deer Creek between the point of discharge from the facility of CIWC in
University Park, Illinois and the confluence of Deer Creek with Thorn Creek,
and for that portion of Thorn Creek between the confluence of Thorn Creek
with Deer Creek and the USGS gauging station located on Thorn Creek
approximately fifteen miles downstream of the point of discharge from the
CIWC facility (USGS Gauging Station 05536275). The water quality standard
for TDS found at 35 Ill. Adm. Code 302.208 shall not apply to these portions
of Thorn Creek.
(2)
The requirements of 35 Ill. Adm. Code 304.105, as that section relates to the
water quality standard for total dissolved solids of 35 Ill. Adm. Code 302.208,
shall not apply to the effluent discharges from the Takasago facility in University
Park, Illinois, so long as the TDS concentration in the effluent discharges from
CIWC does not exceed a maximum daily composite concentration of 2,100
mg/L and a monthly average composite concentration of 1,675 mg/L and the
discharge from Takasago to CIWC does not exceed 11,100 kg/day as a
maximum daily composite and 6000 kg/day as a monthly average.
(3)
The adjusted standard granted to Takasago shall be conditioned upon the
revision of Takasago’s Water Pollution Control permit consistent with these
adjusted standards. Takasago shall perform all monitoring requirements for the
discharge of TDS as may be required in its permit. Pet. at 14-15.
The quoted paragraph from CIWC’s adjusted standard changed the TDS water quality
standard from 1,000 mg/L to 2,100 mg/L for the referenced portions of Deer Creek and Thorn Creek,
to which CIWC discharges. The first paragraph of the adjusted standard Takasago seeks is thus
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redundant; it is essentially identical to the existing adjusted standard granted in the first paragraph of the
Board’s order in AS 89-3.
The second paragraph of Takasago’s requested adjusted standard seeks relief from a regulation
that is not applicable to Takasago: Section 304.105 as it relates to the TDS limit in Section 302.208.
Under the CIWC adjusted standard, that limit has been superseded by the 2,100 mg/L limit imposed in
AS 89-3. Thus, no effluent discharged from Takasago’s facility to CIWC could cause a violation of the
Section 302.208 standard (
i.e.
, 1000 mg/L) in the receiving stream. “The requirements of 35 Ill. Adm.
Code 304.105, as that section relates to the water quality standard for total dissolved solids of 35 Ill.
Adm. Code 302.208” already do not apply to Takasago, even without the conditions it proposes.
Because the water quality standard for TDS contained in Section 302.208 has already been
adjusted, and because the prior adjustment in effect applies to Takasago due to its relationship to
CIWC, Takasago already has the relief from Section 302.208 that it seeks by this adjusted standard
petition. Thus, Takasago does not need specific relief from Section 304.105. See
In re
Petition of
Abbott Laboratories (July 8, 1999), AS 99-5, slip op. at 3. Since the adjusted standard would have no
effect if granted, the Board concludes that it is not justified, and consequently the second criterion set
forth in Section 28.1(c) is not met.
CONCLUSION
Based on the foregoing analysis, the Board finds that Takasago does not need the adjusted
standard it seeks. For that reason, Takasago cannot make the demonstration required by Section
28.1(c)(2) of the Act. Therefore, the petition for an adjusted standard is denied. The Board notes that
the Agency is authorized to reopen and modify Takasago’s current water pollution control permit in
accordance with this opinion. This opinion constitutes the Board’s findings of fact and conclusions of
law in this matter.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the
appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this order.
Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d R. 335; see also
35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above
opinion and order was adopted on the 20th day of April 2000 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
