2

In this opinion, the Board first describes the legal framework for variances, followed by

the procedural history of this case. The Board then provides background on petitioners’ facility,

the Consent Decree, the S & S Canal and the Des Plaines River, and the air pollution control

equipment to be installed and the expected impacts from the resulting wastewater discharge.

Next, the Board sets forth the TDS water quality standards from which petitioners seek relief:

the general use water quality standard and the secondary contact water quality standard. The

Board then discusses the requested variance, including petitioners’ proposed compliance plan

and the Agency’s recommendation. Lastly, the Board makes its findings on hardship,

environmental impact, consistency with federal law, and conditions for the variance.

 

LEGAL FRAMEWORK

 

A “variance is a temporary exemption from any specified rule, regulation, requirement or

order of the Board.”

See

35 Ill. Adm. Code 104.200(a)(1). Under Title IX of the Environmental

Protection Act (Act), 415 ILCS 5/35-38 (2002), the Board is responsible for granting variances

when a petitioner demonstrates that immediate compliance with the Board regulation would

impose an “arbitrary or unreasonable hardship” on petitioner.

See

415 ILCS 5/35(a) (2002).

The Board may grant a variance, however, only to the extent consistent with applicable

federal law.

See

415 ILCS 5/35(a) (2002). Further, the Board may issue a variance with or

without conditions, and for only up to five years.

See

415 ILCS 5/36(a) (2002). The Board may

extend a variance from year to year if petitioner shows that it has made satisfactory progress

toward compliance with the regulations from which it received the variance relief.

See

415 ILCS

5/36(b) (2002).

Specifically, as it relates to petitioners’ request for a TDS water quality variance, the Act

provides:

 

To the extent consistent with applicable provisions of the Federal Water Pollution

Control Act . . . and regulations pursuant thereto . . . :

     

The Board may grant individual variances beyond the limitations prescribed in

this Act, whenever it is found, upon presentation of adequate proof, that

compliance with any rule or regulation, requirement or order of the Board would

impose an arbitrary or unreasonable hardship. 415 ILCS 5/35(a) (2002);

see also

35 Ill. Adm. Code 104.200, 104.208, 104.238.

   

In granting a variance the Board may impose such conditions as the policies of

this Act may require.

***

[A]ny variance granted pursuant to the provisions of this Section shall be granted

for such period of time, not exceeding five years, as shall be specified by the

Board at the time of the grant of such variance, and upon the condition that the

person who receives such variance shall make such periodic progress reports as

the Board shall specify. 415 ILCS 5/36(a), (b) (2002);

see also

35 Ill. Adm. Code

104.200, 104.210, 104.242, 104.244.

---

 

3

 

The Act requires the Agency to provide public notice of a variance petition, including

notice by publication in a newspaper of general circulation in the county where petitioner’s

facility is located.

See

415 ILCS 5/37(a) (2002); 35 Ill. Adm. Code 104.214. The Board will

hold a hearing on the variance petition if petitioner requests a hearing, if the Agency or any other

person files a written objection to the variance being granted within 21 days after the newspaper

notice, or if the Board, in its discretion, concludes that a hearing would be advisable.

See

415

ILCS 5/37(a) (2002); 35 Ill. Adm. Code 104.224, 104.234.

 

The Act requires the Agency to appear at hearings on variance petitions (415 ILCS 5/4(f)

(2002)) and to investigate each variance petition and “make a recommendation to the Board as to

the disposition of the petition” (415 ILCS 5/37(a) (2002); 35 Ill. Adm. Code 104.216). At

hearing, the “burden of proof shall be on the petitioner.” 415 ILCS 5/37(a) (2002);

see also

35

Ill. Adm. Code 104.200(a)(1), 104.238(a). In a variance proceeding then, the burden is on the

petitioner to prove that immediate compliance with Board regulations would cause an arbitrary

or unreasonable hardship that outweighs public interest in compliance with the regulations.

See

 

Willowbrook Motel v. PCB, 135 Ill. App. 3d 343, 349-50, 481 N.E.2d 1032, 1036-1037 (1st

Dist. 1985).

 

PROCEDURAL HISTORY

 

Petitioners filed their petition for variance on November 8, 2004, requesting a hearing.

On November 18, 2004, the Board accepted the petition for hearing. On February 7, 2005, the

Agency filed its recommendation on the variance petition, which included proof of publication of

the variance petition notice on November 26, 2004, in the

Lemont Reporter/Metropolitan

.

1

This

initial recommendation of the Agency was that the Board should deny the requested variance.

 

On February 17, 2005, petitioners filed the prefiled testimony of two witnesses: Claude

Harmon and James Huff. Petitioners included 15 exhibits associated with the prefiled testimony.

Harmon has been with CITGO as the Environmental Manager of the Lemont Refinery since

1994, and has been in the environmental field for 30 years.

See

Hearing Transcript at 17-18.

Huff is a registered Professional Engineer and Vice President of Huff & Huff, Inc., an

environmental consulting firm. Over the last 25 years, Huff has been involved in over 30

environmental impact studies associated with wastewater discharge impacts on receiving

streams, including surveys of the S & S Canal and the Des Plaines River. Huff has worked with

the Lemont Refinery for the past 22 years on various wastewater issues. Huff was retained by

petitioners to assist in evaluating alternatives for the wastewater stream to be generated by the

new air pollution control equipment, identifying associated water quality impacts, preparing

related permit applications, and providing technical support on the variance petition.

See

 

Hearing Transcript at 29-32; Hearing Exhibit 8.

 

1

The Board cites the variance petition as “Pet. at _.” The Board cites the Agency’s February 7,

2005 recommendation as “Agency Rec. at _.”

  

---

 

4

Hearing Officer Bradley Halloran conducted the hearing on the variance petition in

Chicago on February 24, 2005. At hearing, the prefiled testimony of Harmon and Huff was

entered into the record as if read, and petitioners’ 15 exhibits were offered and admitted into the

record, all without objection.

2

The Agency offered no testimony or exhibits at hearing. Counsel

for the Agency stated on the record at the close of hearing that with petitioners’ submission of

testimony and exhibits, the Agency was prepared to support petitioners’ request for variance. Tr.

at 47-48.

 

The parties agreed to file their post-hearing briefs simultaneously. Petitioners filed their

opening brief on March 14, 2005. The Agency filed its opening brief on March 15, 2005, in

which the Agency recommended that the Board grant petitioners the requested variance. The

parties waived their opportunity to file response briefs.

3

  

 

  

BACKGROUND

 

Overview

 

As noted, PDVMR owns and CITGO operates the Lemont Refinery, which is located at

135th Street and New Avenue in Lemont, Will County. Exh. 4 at 1; Exh. 11 at 1; Tr. at 13.

Petitioners entered into a Consent Decree with USEPA and the States of Illinois, Louisiana, New

Jersey, and Georgia to resolve alleged air quality violations at three refineries owned or operated

by CITGO and related entities. Exh. 1; Exh. 4 at 1; Exh. 6 at 1; Tr. at 7, 20. The Consent

Decree was entered on January 26, 2005, in the United States District Court for the Southern

District of Texas, Case No. H-04-3883. Exh. 1 at 165; Tr. at 20; Pet. Br. at 2.

 

According to petitioners, under the Consent Decree, petitioners must reduce air emissions

at the Lemont Refinery, a process that will contribute additional levels of TDS to the facility’s

treated wastewater. Tr. at 24; Exh. 4 at 1; Pet. Br. at 2. Petitioners maintain that, to comply with

the Consent Decree, they must construct certain equipment and obtain air and water construction

and operating permits from the Agency. Exh. 4 at 1; Exh. 3 (construction permit drawings).

Petitioners state that they face significant stipulated penalties if they fail to comply with the

Consent Decree schedule. Tr. at 10, 21; Exh. 2 (schedule); Pet. Br. at 4. Harmon testified that

petitioners will be undertaking a “major construction project extending approximately 20

months.” Tr. at 20-21;

see also

Pet. Br. at 2; Exh. 2.

 

The Lemont Refinery discharges its treated wastewater to the S & S Canal. Exh. 4 at 2.

In December 2004, petitioners submitted to the Agency a construction permit application to

install new wastewater treatment equipment—that application is still pending before the Agency.

Agency Rec. at 8; Exh. 5 (application for wastewater construction permit); Tr. at 21-22.

2

The Board cites the hearing transcript as “Tr. at _” and the hearing exhibits as “Exh. _ at _.”

The variance petition was admitted as a hearing exhibit, and is cited as either “Pet. at _” or “Exh.

4 at _.”

  

3

The Board cites petitioners’ brief as “Pet. Br. at _” and the Agency’s brief as “Agency Br. at

_.”

---

 

5

According to Harmon, the Agency advised petitioners that it cannot issue a wastewater

construction permit because of occasional water quality violations for TDS. Tr. at 22; Exh. 4 at

2; Exh. 5; Pet. Br. at 2, Exh. B.

 

Specifically, Harmon testified that “two critical issues” raised by the Agency “pose

challenges for the consent decree schedule.” Tr. at 22; Pet. Br. at 2. First, the Agency will not

grant the construction permit without also issuing a modified National Pollutant Discharge

Elimination System (NPDES) permit. Second, because there has been an exceedence of the TDS

standard in the past “in association with snow melt runoff, carrying road salt and similar

compounds into streams,” the Agency could not issue an NPDES permit for this project unless

petitioners obtained a variance from the Board. Tr. at 22; Pet. Br. at 2-3. Huff likewise testified

that “the Agency position that the addition of this wastewater stream would contribute to the

existing TDS violations that periodically occur due to salt runoff from highway deicing activities

leads to this variance request.” Tr. at 40.

 

Petitioners maintain that the variance is needed because, with increased TDS discharge,

there is a potential impact both in the S & S Canal and downstream at the Interstate 55 (I-55)

Bridge over the Des Plaines River. Exh. 4 at 2; Tr. at 24. Petitioners state that their variance

petition was filed soon after the Consent Decree was lodged. Pet. Br. at 3.

 

The Lemont Refinery

 

The Lemont Refinery was built during the period 1967 through 1970, and became

operational in late fall 1969. Exh. 4 at 2. Approximately 25 different products are made at the

Lemont Refinery, including gasolines, turbine fuels, diesel fuels, furnace oils, petroleum coke

and various specialty napthas that can be manufactured into intermediate products such as

antifreeze, Dacron, detergent, industrial alcohols, plastics, and synthetic rubber.

Id

. Ninety

percent of the Lemont Refinery’s output goes toward making gasolines, diesel fuels, home

heating oils, and turbine fuels for use throughout the Midwest.

Id

. Currently, the Lemont

Refinery produces 168,626 barrels daily on average and employs approximately 530 people.

Id

.

 

The Lemont Refinery draws water from the S & S Canal, and discharges into the Canal

upstream of the Lockport Lock & Dam. Exh. 4 at 2, 5. According to petitioners, the Refinery

takes approximately 4.0 million gallons of water daily from the Canal, and discharges

approximately 3.8 million gallons to the Canal—the difference constituting cooling tower

evaporation and steam losses.

Id

. at 2-3. The wastewater effluent contains dissolved solids

derived from crude oil compounds that are removed at the Refinery, as well as concentrating the

TDS present in the Canal intake water from the evaporation cooling.

Id

. at 3.

 

The Lemont Refinery operates under an NPDES permit (No. IL0001589), which was

issued by the Agency and became effective September 1, 1994. Exh. 4 at 3; Exh 12 (existing

NPDES permit); Agency Rec. at 8. Petitioners timely submitted a renewal application for the

NPDES permit, so the permit continues in full force and effect during the Agency’s review of the

renewal application, which is still pending. Exh. 4 at 3; Agency Rec. at 8. The NPDES permit

includes Outfall 001 at river mile 296.5 on the S & S Canal (latitude 41°38’58” and longitude

88°03’31”). The current NPDES permit does not have effluent limits on TDS. Exh. 4 at 3. In

---

 

6

August 2004, petitioners submitted to the Agency an application to modify their NPDES

permit—that application is also still under review by the Agency. Agency Rec. at 8; Exh. 11

(NPDES permit modification application).

 

The Lemont Refinery includes a physical/chemical and biological wastewater treatment

plant, which performs primary, secondary, and tertiary treatment on the generated wastewater

before it is discharged to the S & S Canal. Exh. 4 at 3-4. Besides the discharge that is the

subject of this variance petition, no specific projects are currently being developed that would

increase the production rate of the amount of TDS discharged. Tr. at 22-23.

 

S & S Canal and Des Plaines River

 

Below the Lockport Lock & Dam, the S & S Canal merges with the Des Plaines River,

passes through Joliet, and 11 miles downstream of Joliet passes beneath the I-55 Bridge. Exh. 4

at 5; Exh. 6 at 1. Upstream of the I-55 Bridge, the waters are designated as secondary contact

waters. Downstream of the I-55 Bridge, the Des Plaines River is a general use water. The

general use waters begin 18.5 miles downstream of petitioners’ outfall. Tr. at 33; Exh. 4 at 5;

Exh. 6 at 1.

 

According to Huff, from 1998 to 2005, petitioners weekly sampled for TDS in their water

intake from the S & S Canal, collected upstream of the Lemont Refinery’s wastewater discharge.

Tr. at 33-34; Exh. 6 at 3; Exh. 9. From 1998 to 2002, the mean TDS ranged from a low of 541

milligrams per liter (mg/L) in 1998 to a high of 629 mg/L in 2001. Huff testified that the

maximum TDS result (and the only exceedence of the 1,500 mg/L secondary contact TDS

standard from 1998 to 2005 recorded by petitioners at the water intake) was 1,636 mg/L on

March 8, 2002. Tr. at 34; Exh. 6, Table 1; Exh. 9.

 

The Metrolpolitan Water Reclamation District of Greater Chicago (MWRDGC) also had

a weekly sampling program in 2001 and 2002. Tr. at 34; Exh. 6 at 3. The MWRDGC data is

contained in Huff’s report entitled

Impact of CITGO’s Proposed Discharge on Water Quality

 

(December 2004), which was entered into the record at hearing as Exhibit 6. Tr. at 34. At the

first MWRDGC sampling site downstream of the Lemont Refinery, at Lockport, the average

TDS for January 2001 through July 2002 was 626 mg/L—petitioners’ average since 2001 was

599 mg/L. Exh. 6 at 3, 8-9. At the I-55 Bridge, MWRDGC measured a mean TDS since 2001

of 705 mg/L.

Id

.

 

Huff testified that at the Lockport Lock & Dam, downstream of the Lemont Refinery

outfall, the MWRDGC recorded one TDS exceedence (1,595 mg/L), on January 4, 2001, adding

that the Lemont Refinery recorded 1,408 mg/L TDS the next day. Tr. at 34. At the sampling

station at Jefferson Street in Joliet, which is the next MWRDGC station downstream from the

Lockport Lock & Dam, the MWRDGC recorded one TDS exceedence (1,535 mg/L), on

February 24, 2000.

Id

. Further downstream at the Empress casino, one TDS exceedence (1,867

mg/L) was recorded, also on February 24, 2000.

Id

. At the I-55 Bridge, where the general use

water quality standard begins, the 1,000 mg/L TDS standard was exceeded on March 16, 2000

(1,902 mg/L), on January 25, 2001 (1,194 mg/L), on February 1, 2001 (1,075 mg/L), and on

February 8, 2001 (1,139 mg/L).

Id

. at 34-35. The last three exceedences occurred over three

---

 

7

consecutive sampling events, which Huff testified implies that the “TDS excursion was

persistent for at least 15 days.”

Id

. at 35.

 

According to Huff, there is a “strong correlation between the upstream TDS readings and

the downstream TDS readings,” which “is to be expected as TDS is considered a ‘conservative’

pollutant; that is, there is little or no reduction due to chemical or biological processes.” Tr. at

36. Huff added that “the preponderance of flow at the I-55 Bridge originates from the Chicago

area, so there [are] limited dilutional effects until further downstream.”

Id

.

 

Huff testified that a “review of all the TDS data (Exhibits 6 and 9) reveals that all of the

elevated TDS readings occur in the winter, and are attributable to snowmelt runoff carrying salt

runoff from highway deicing activities.” Tr. at 35. Huff’s report likewise concluded:

 

The source of the elevated TDS in the waterway is from highway de-icing runoff.

The significant tons of road salt that is applied in the drainage basin causes these

TDS exceedances, independent of other activities. Exh. 6 at 5.

 

Because of deicing and snow melt run-off, petitioners maintain that the TDS violations would

occur with or without petitioners’ current or future contribution of TDS. Exh. 4 at 6, 8; Tr. at 8.

 

Wet Gas Scrubber

 

Under the Consent Decree, petitioners will install a wet gas scrubber, along with

substantial support equipment and controls, at the Lemont Refinery. The wet gas scrubber is

designed to reduce sulfur dioxide (SO2) in air emissions from the carbon monoxide boiler on the

Fluid Catalytic Converter Unit (FCCU). Exh. 3; Exh. 4 at 5; Exh. 6 at 1; Tr. at 8, 20-21. It is

expected that by July 2006, construction of the wet gas scrubber will be complete and the

discharge will begin. Exh. 4 at 12.

 

Huff testified that the wet gas scrubber discharge “will contain significant sodium sulfate,

which essentially is the source of the TDS subject to the variance request.” Tr. at 33.

Specifically, the wet gas scrubber process generates water purge, which contains particulate and

SO2. The purge stream will be removed from the wet gas scrubber to control TDS and Total

Suspended Solids levels in the scrubber water. Exh. 6 at 1; Tr. at 33.

 

Purge water from the wet gas scrubber will then be treated to remove suspended solids

and ammonia, and cooled to 90°F. Effluent from the purge treatment unit will contain

approximately 94,000 mg/L TDS and will be discharged to the treated water basin of the Lemont

Refinery’s wastewater treatment system and discharged through Outfall 001, along with the

existing process wastewater. Exh. 4 at 5; Exh. 6 at 1-2; Pet. Br., Exh. A at 2. The combined

outfall will have a projected TDS level of 8,700 mg/L. Exh. 6 at 4.

 

The purge treatment unit’s effluent is expected to add 274,000 gallons per day average

flow to the Lemont Refinery’s wastewater discharge, and 215,000 pounds per day of TDS. Exh.

6 at 1; Tr. at 21, 33, 38-39;

see also

Exh. 5, 11. Huff estimated that low-flow stream conditions

(7-day, 10-year) in the S & S Canal at the Lemont Refinery would be 1,134 million gallons per

---

 

8

day (MGD) and in the Des Plaines River at the I-55 Bridge would be 1,260 MGD. Tr. at 38-39;

Exh. 4 at 5; Exh. 6 at 3-4.

 

According to Huff’s estimate, the incremental increase at low flow in TDS levels from

the FCCU effluent would be 23 mg/L in the S & S Canal and 21 mg/L in the Des Plaines River

at the I-55 Bridge. Exh. 6 at 4. Using the existing water quality data described above and adding

this incremental amount, petitioners project the following TDS concentrations after mixing: 606

mg/L in the S & S Canal and 726 mg/L in the Des Plaines River at the I-55 Bridge.

Id

. Huff

added that the maximum TDS reading of 1,902 mg/L in the Des Plaines River is the equivalent

of 38,000,000 pounds per day of TDS, and “the Lemont Refinery’s contribution would be on the

order of 0.6 percent of the total loading.” Tr. at 36.

 

APPLICABLE REGULATIONS

 

Petitioners seek a variance from TDS water quality standards at 35 Ill. Adm. Code

302.208(g) and 302.407. Part 302 sets forth water quality standards applicable throughout the

State as designated in 35 Ill. Adm. Code 303.

See

35 Ill. Adm. Code 302.101(a).

 

Subpart B of Part 302, which contains Section 302.208(g), sets forth general use water

quality standards that must be met in waters of the State for which there is no specific

designation.

See

35 Ill. Adm. Code 302.101(b);

see also

35 Ill. Adm. Code 303.201 (“general

use waters”). Section 302.208(g) provides a general use water quality standard for TDS of 1,000

mg/L. Petitioners seek variance relief from this standard for the Des Plaines River. Section

302.208(g) reads in relevant part:

 

Section 302.208 Numeric Standards for Chemical Constituents

  

g) Concentrations of the following chemical constituents shall not be

exceeded except in waters for which mixing is allowed pursuant to Section

302.102.

  

Constituent

Unit

STORET

Number

Standard

Total Dissolved

Solids

mg/L

70300

1000

 

35 Ill. Adm. Code 302.208(g).

 

Subpart D of Part 302, which contains Section 302.407, sets forth the secondary contact

and indigenous aquatic life water quality standards.

See

35 Ill. Adm. Code 302.201(d). Section

302.407 provides a TDS standard of 1,500 mg/L. Petitioners seek variance relief from this

standard regarding the S & S Canal. The S & S Canal is designated among Illinois’ secondary

contact and indigenous aquatic life waters, as is the Des Plaines River “from its confluence with

the Chicago Sanitary and Shipping Canal to the Interstate 55 bridge.”

See

35 Ill. Adm. Code

---

 

9

303.441(a), (i). The provision from which petitioners seek relief, Section 302.407, reads in

pertinent part:

 

Section 302.407 Chemical Constituents

 

 

Concentrations of other chemical constituents shall not exceed the following

standards:

  

CONSTITUENTS

STORET

NUMBER

CONCENTRATION

(mg/L)

Total

Dissolved

Solids

70300

1500

 

  

35 Ill. Adm. Code 302.407.

 

THE REQUESTED VARIANCE AND AGENCY RECOMMENDATION

 

In their petition, petitioners request a five-year variance from the TDS water quality

standards of Sections 302.208(g) and 302.407. Pet. at 2, 13. Based on the petition, the Agency

originally recommended that the Board deny the requested variance for two primary reasons.

First, the Agency believed that petitioners “had not adequately supported [their] contention that a

binding consent decree required the installation of air pollution control equipment that prompted

the variance petition.” Agency Br. at 2. Second, the Agency maintained that petitioners’

compliance plan set forth in the petition was inadequate.

Id

.

 

The Agency now believes that petitioners have addressed these two alleged deficiencies.

Agency Br. at 1-3. As for the Agency’s former concern regarding the Consent Decree, the

Agency states that “[w]ith the introduction of the executed consent decree into the record of this

matter, CITGO has now resolved this deficiency.”

Id

. at 2. As for the Agency’s former concern

regarding the petition’s compliance plan, the Agency states that petitioners’ Exhibit 7 consists of

a “detailed compliance plan,” which is the “product of a series of meetings and negotiations

between CITGO representatives and Illinois EPA staff.”

Id

. at 2-3. This “new compliance plan

fully resolves the Illinois EPA’s concerns.” Agency Br. at 3; Tr. at 11-12. The Agency therefore

now recommends that the Board grant the requested variance. Agency Br. at 1, 3.

 

Petitioners’ new compliance plan in Exhibit 7 reads as follows:

 

DATE TASK

October 1, 2006

Identify a location near the I-55

Bridge for collecting water samples

and secure access.

November 1, 2006

Retain a contractor to collect TDS

samples in the Des Plaines during

snow melt conditions.

---

 

10

December 1, 2006

CITGO will collect TDS samples,

three times per week during the

winter months (December 1 to

March 30). During the defined

sampling period, CITGO will

attempt to identify the relationship

between TDS levels at the discharge

versus TDS levels at the I-55 bridge,

with the expectation that this

information will assist CITGO in

identifying the scope of the period

that CITO would need to hold the

discharge.

April 1, 2008

End water quality testing.

May 1, 2008

Size the required retention system

for the wet gas scrubber bleed for

the maximum number of days the

TDS level at the I-55 Bridge remains

above 1,000 mg/L.

June 1, 2008

Initiate design of the system to hold

the FCC wet gas scrubber bleed for

the maximum number of days

required when the TDS exceeds

1,000 mg/L at the I-55 Bridge.

December 1, 2008

Submit a wastewater construction

permit application.

March 1, 2009

Begin construction as needed on

retention system for FCC wet gas

scrubber bleed stream system.

December 1, 2009

Place FCC wet gas scrubber bleed

stream system into operation, as

needed. Monitor the Des Plaines

River five days per week (excluding

weekends and holidays) during the

winter months (December 1 to

March 30).

December 15, 2009

Achieve final compliance with 35

IAC 302.208(g) and 302.407.

Exh. 7.

 

Petitioners state that this “negotiated compliance plan,” which was “completed to the

satisfaction of IEPA,” requires petitioners to collect TDS data from the Des Plaines River at the

I-55 Bridge during winter months. Pet. Br. at 3. Huff testified that the proposed TDS data

collection is “extensive.” Tr. at 40. According to petitioners, this data “will provide information

that the Agency might not otherwise have the funding to undertake and could lead to better

---

 

11

understanding of the snowmelt phenomenon and perhaps yield ideas on how to reduce that

impact.” Tr. at 12.

 

Harmon testified that after two seasons of TDS testing, the Lemont Refinery “will be able

to size the required holding tank or basin for the wet gas scrubber discharge during periods of

high salinity.” Tr. at 25, 40-41; Pet. Br. at 3. According to Harmon, the retention system project

would begin by March 1, 2009, and “would be completed by the winter season beginning

December 1, 2009.” Tr. at 25, 41; Pet. Br. at 3.

 

HARDSHIP

 

In considering a variance request, the Board is required by Section 35(a) of the Act to

determine whether the petitioner has presented adequate proof that it would suffer an arbitrary or

unreasonable hardship if required to immediately comply with the Board’s regulation at issue.

See

415 ILCS 5/35(a) (2002).

 

Petitioners state that their variance request is necessitated by the Consent Decree, to

which the Agency is a party. Exh. 4 at 9. USEPA lodged the Consent Decree, explains

petitioners, to “substantially reduce emissions of [SO2], nitrogen oxides [NOX] and Particulate

Matter [PM].”

Id

. Petitioners will be investing over $120 million at the Lemont Refinery, “most

of which costs are for the very wet gas scrubber which generates the TDS” at issue in the

variance request.

Id

. Petitioners state that they are subject to “substantial penalties” if they do

not meet the Consent Decree schedule. Pet. Br. at 4.

 

The wet gas scrubber will increase the amount of TDS in the Lemont Refinery’s treated

wastewater. Pet. Br. at 4; Exh. 6 at 1; Tr. at 21, 33, 38-39;

see also

Exh. 5, 11. Petitioners

maintain that their contribution of TDS would be “readily within the assimilative capacity of the

waterway,” and that there is no TDS water quality violation “except in association with snow

melt conditions.” Exh. 4 at 9.

 

Petitioners investigated methods to avoid releasing the FCCU wastewater into the

existing wastewater treatment system, including a managed release program with the use of a

storm water basin for retention; deep well disposal; and installation of evaporation wastewater

treatment technology. Petitioners maintain that none of these alternatives is practical. Exh. 4 at

10, 12-13; Pet. Br. at 4. Petitioners also investigated “sewering the discharge . . . to the

[MWRDGC],” but the MWRDGC informed petitioners that it “did not have the capacity to

handle the discharge.” Tr. at 10. The Agency ultimately does not take issue with any of

petitioners’ conclusions regarding the viability of alternative technologies.

 

Further regarding the investigated alternatives, Harmon testified that the storm water

basin at the Lemont Refinery is used to collect site storm water runoff and drainage from

naturally existing waterways. Tr. at 25; Pet. Br. at 4. According to Harmon, because of

residential developments near the northwest facility boundary, there has been a marked increase

in storm water volume in the site’s storm water basin. Tr. at 25; Pet. Br. at 4. Runoff from the

developments feeds into naturally existing waterways that terminate within boundaries of the

Lemont Refinery and ends up in the site’s storm water basin. Tr. at 25; Pet. Br. at 4-5. Harmon

---

 

12

explained that a special condition in an Agency-issued “Groundwater Management Zone

Approval Letter” requires that the basin’s water level be maintained below 12’9”. According to

Harmon, it has been difficult to comply with this condition because of the additional volume of

storm water runoff from the residential developments. Tr. at 26; Pet. Br. at 5. Under these

circumstances, retaining the wet gas scrubber effluent in the storm water basin during periods of

snowmelt and deicing is not viable, Harmon testified. Tr. at 26; Pet. Br. at 5. However,

strategies to divert the residential runoff before it crosses the Lemont Refinery border are being

pursued. Harmon testified that if such a diversion is implemented, the site’s storm water basin

may be able to retain wet gas scrubber effluent during snowmelt conditions. Tr. at 26.

 

Deep well disposal of the scrubber effluent, according to petitioners, is also not a viable

alternative because it would constitute a Class I injection well, which wells “are not permittable

in northeastern Illinois because no cap rock exists over the depth where disposal wells are

drilled.” Pet. Br. at 5. Huff testified that “Class I wells require injection beneath a cap rock that

will prevent migration upwards into higher aquifers” and northeastern Illinois “does not have a

cap rock above the Mount Simon formation used for disposal wells throughout the Midwest.”

Tr. at 39;

see also

Pet. Br. at 5; Exh. 4 at 10; Exh. 13.

 

Petitioners also state that technologies for removing sodium sulfate from a dilute aqueous

stream are limited: electrodialysis has not been applied in the chemical or refinery industries on

this scale; biological sulfate reduction will not reduce the overall TDS concentration by simply

replacing the sulfate ions with carbonate ions; and reverse osmosis concentration is limited

because scaling problems would develop given the high concentration of sodium sulfate. Exh. 4

at 10; Pet. Br. at 5.

 

Petitioners maintain that the only alternative technology potentially available would be

evaporation, which they describe as an energy intensive approach that would result in increased

carbon dioxide emissions. Pet. Br. at 5-6.; Exh. 4 at 10-11, Attachment A; Tr. at 40. According

to petitioners, this alternative “would result in substantial adverse affects on the environment in

the form of increased emissions to evaporate the wastewater.” Exh. 4 at 13. Additionally, in

2004 dollars, the capital cost for applying a falling film evaporator with mechanical vapor

recompression to this wastewater stream is approximately $7 million. Operating costs are

estimated at $1 million per year, including depreciation. Exh. 4 at 11; Pet. Br. at 6; Exh. 14

(evaporation costs). Huff testified that over the years, TDS variance “requests consistently have

found evaporation technology cost- and energy-prohibitive.” Tr. at 40.

 

Petitioners are unaware of any such massive evaporation project being built or operated,

and conclude that requiring it here for the wet gas scrubber discharge would impose on them an

arbitrary and unreasonable hardship. This is especially so, according to petitioners, because:

installation is not practical, particularly in light of the time schedule required by the Consent

Decree; petitioners are not the cause of TDS exceedences; petitioners are investing substantial

funds to reduce air emissions; and the TDS discharge at issue is “relatively modest.” Exh. 4 at

12; Tr. at 35-36; Pet. Br. at 6.

 

Huff testified that TDS effluent limits are not proposed as a condition of the variance

because “it is clear that the TDS water quality violations are due solely to salt runoff from

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13

highway deicing activities.” Tr. at 43. Huff added that “the Lemont Refinery will have no

control over the TDS concentrations, so the only possibility to control the pounds per day

discharged is by limiting the discharge rate.”

Id

. at 45. Limiting the discharge rate would

require the Refinery to hold treated effluent, and presumably cease all discharge if the Des

Plaines River TDS is greater than 1,000 mg/L, according to Huff.

Id

. Huff testified that today

there is no storage capacity at the Lemont Refinery to accomplish this:

 

[T]hese [TDS water quality] violations appear to occur over 15 consecutive days,

but less than 22 days. The Lemont Refinery will have to come up with in excess

of 4,000,000 gallons of capacity to isolate the wet gas scrubber during these

periods of elevated TDS levels at the I-55 Bridge. Currently, this excess capacity

does not exist, and the actual number of days that would require holding wet gas

scrubber water currently is poorly understood. The requested compliance time

frame is for the collection of the necessary data to properly size this holding

basin/tankage.

Id

. at 45-46.

   

ENVIRONMENTAL IMPACT

 

When deciding to grant or deny a variance petition, the Board is required to balance the

petitioner’s hardship in complying with Board regulations against the impact that the requested

variance will have on the environment. Monsanto Co. v. PCB, 67 Ill. 2d 276, 292, 367 N.E.2d

684, 691 (1977). Petitioner must establish that the hardship it would face from denial of its

variance request would outweigh any injury to the public or the environment from granting the

relief, and “[o]nly if the hardship outweighs the injury does the evidence rise to the level of an

arbitrary or unreasonable hardship.” Marathon Oil. Co. v. EPA, 242 Ill. App. 3d 200, 206, 610

N.E. 2d 789, 793 (5th Dist. 1993).

 

Petitioners state that there would be no cognizable benefit to the public or the

environment in making them comply with the existing TDS water quality standards. Pet. Br. at

7. Huff testified that because TDS is composed of a variety of anions and cations, “there are no

‘toxicity’ values that can be applied to the generic TDS parameter.” Tr. at 36. Petitioners

maintain that the Agency has been investigating whether having a TDS water quality standard is

necessary, and that the Agency may soon propose eliminating TDS as a water quality parameter.

Exh. 4 at 9. According to Huff, the Agency believes at this point that the “technical data

supported elimination of the TDS water quality standard.” Tr. at 37; Pet. Br. at 7; Exh. 10.

 

Petitioners state, and the Agency does not dispute, that neither the S & S Canal nor the

downstream Des Plaines River has been listed by the Agency as impaired for TDS. Exh. 4 at 7,

10. Huff testified that “sodium sulfate, at the proposed levels discharged, will not impact the

aquatic community in the Chicago Sanitary and Ship Canal or in the Des Plaines River” and that

there is “no adverse effect on aquatic life due to TDS and sulfate levels.” Tr. at 37-38.

Petitioners maintain that there would be no “significant injury to the public or the environment”

from the requested variance. Pet. Br. at 7; Tr. at 37-38.

 

On the other hand, according to petitioners, their over-$120 million investment in the

Lemont Refinery under the Consent Decree is projected to “reduce SO2 emissions by 15,300

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14

tons/year, NOX emissions by 1,100 tons/year, and PM emissions by 80 tons/year.” Exh. 4 at 9;

see also

Exh. 1; Tr. at 20.

 

CONSISTENCY WITH FEDERAL LAW

 

Under Section 35 of the Act (415 ILCS 5/35 (2002)), the Board may grant a variance

only to the extent that doing so is consistent with applicable provisions of federal law. In its

original recommendation, the Agency stated that if petitioners filed with the Board the

information shared informally with the Agency, then “granting the requested variance would not

be inconsistent with the Clean Water Act or any other federal standard.” Agency Rec. at 7. In

its post-hearing brief recommending that the Board grant the requested variance, the Agency

states that petitioners, at hearing, “offered all the documents and testimony it had previously

discussed informally with the Illinois EPA.” Agency Br. at 2.

 

BOARD FINDINGS AND CONDITIONS

 

The Board has balanced the hardship petitioners would face in immediately complying

with the TDS water quality standards against the impact that granting the requested variance

would have on the public and the environment, all as described in detail above. Based on this

record, and considering the conditions to which the variance would be subject, the Board finds

that petitioners have established that the hardship they would experience outweighs any injury to

the public or the environment from granting the relief. The Board finds that petitioners have

presented adequate proof that they would suffer an arbitrary or unreasonable hardship if required

to comply immediately with the Board regulations at issue. The Board further finds that the

requested variance is not inconsistent with federal law.

      

As provided in Section 36(a) of the Act (415 ILCS 5/36(a) (2002)), “[i]n granting a

variance the Board may impose such conditions as the policies of this Act may require.” With

minor clarifying language changes, the Board will impose as conditions on the variance those

conditions agreed to by petitioners and the Agency and set forth as petitioners’ compliance plan

in Exhibit 7. The Board will impose additional conditions, however, specifically regarding

sampling the wastewater effluent for TDS and reporting TDS sampling results. After discussing

those new additional conditions, the Board will discuss when the variance terminates.

 

Effluent

 

The Board will require petitioners to monitor the effluent of Outfall 001 for TDS as a

condition of the variance.

See

Condition 4. The Board finds this

condition necessary given that

petitioners have agreed to attempt to identify any relationship between TDS levels in the effluent

of Outfall 001 and TDS levels in the Des Plaines River at the I-55 Bridge.

See

Condition 5. This

data may also help to verify that the incremental TDS impacts from the Lemont Refinery will be

as petitioners estimated. Further, the information may aid petitioners in identifying the time

period that may be needed to hold the FCCU wet gas scrubber bleed.

See

Condition 5.

 

The Board will require this TDS effluent sampling twice per week, which is consistent

with petitioners’ current NPDES permit sampling protocol for other parameters.

See

Exh. 12.

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15

Also, to be in accordance with the agreed-upon winter time frame for TDS sampling in the Des

Plaines River at the I-55 Bridge, the Board will require the TDS effluent sampling only during

the winter months,

i.e.

, December through March.

See

Condition 3.

 

Reporting

 

Section 36(b) of the Act provides that if the Board grants a variance, the Board must do

so “upon the condition that the person who receives such variance shall make such periodic

progress reports as the Board shall specify.” 415 ILCS 5/36(b) (2002). Accordingly, as a

condition of the variance, the Board will require petitioners to submit their in-stream and effluent

TDS sampling results to the Agency on a monthly basis.

See

Conditions 3 and 4.

 

Duration

 

The record appears to contain conflicting statements on the duration of variance relief

that petitioners seek. The petition itself, filed in November 2004, requests a “Variance for a

period of 5 years from the date of granting this Variance on the conditions proposed herein.”

Pet. at 13. The subsequently-filed compliance plan, however, requires petitioners to “[a]chieve

final compliance with 35 IAC 302.208(g) and 302.407” by December 15, 2009. Exh. 7. As the

Board is today, April 21, 2005, granting the variance, the difference in duration would be

roughly four months. Those four months could be significant because they are winter months,

i.e.

, the deicing and snow-melt runoff season.

 

For several reasons, the Board uses the earlier date (

i.e.

, December 15, 2009) for

expiration of the variance relief. First, the compliance plan was prepared

after

the petition.

Second, at hearing, the parties agreed on the record to the conditions set forth in the compliance

plan. Third, petitioners do not repeat in their post-hearing brief a request for a “5-year variance.”

Fourth, the compliance plan provides not merely a time frame, but a date-certain, December 15,

2009.

 

Most importantly, under the compliance plan agreed to by petitioners and the Agency,

petitioners have committed to begin operating, as necessary, the FCCU wet gas scrubber bleed

retention system on December 1, 2009. As proposed, if the Des Plaines River is experiencing

TDS exceedences at the I-55 Bridge, the retention system would hold the FCCU wet gas

scrubber bleed,

i.e.

, the effluent expected to elevate TDS levels in Outfall 001. In other words,

once the retention system is operational, the primary reason proffered by petitioners for needing

the variance is eliminated. As Huff testified: “The requested compliance time frame is for the

collection of the necessary data to properly size this holding basin/tankage.” Tr. at 45-46.

Moreover, under the compliance plan, petitioners have committed to be in compliance by

December 15, 2009, with the TDS water quality standards from which they seek relief. It is

unclear on this record why then, after that date, petitioners would be entitled to relief from those

very standards.

 

The Board notes that, as provided in the compliance plan, the Board is requiring

petitioners to monitor TDS in the Des Plaines River during the 2009 and 2010 winter season.

This will therefore include sampling

after

the variance relief from the TDS water quality

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16

standards has expired. This is simply a condition of the variance relief, and is in no way

inconsistent with petitioners avoiding being subject to the general rules from April 21, 2005

through December 15, 2009.

 

If the Board’s decision on the expiration of the variance relief does not effectuate the

intent of the parties, or if any condition imposed by the Board is objectionable, petitioners may

decline to execute the certificate of acceptance set forth below, and either or both parties may file

a motion to reconsider.

See

35 Ill. Adm. Code 101.520, 101.902, 104.240, 104.248.

CONCLUSION

 

The Board finds that if this petition for a variance from the TDS general use and

secondary contact water quality standards (35 Ill. Adm. Code 302.208(g) and 302.407) is not

granted, petitioners will incur an arbitrary or unreasonable hardship. The Board finds that

issuance of the variance is not inconsistent with federal law and will not significantly impact

public health or the environment. Therefore, the Board grants the requested variance to

petitioners, subject to the conditions set forth in this order. The variance relief begins today and

runs through December 15, 2009.

 

This opinion constitutes the Board’s findings of fact and conclusions of law.

 

ORDER

 

The Board grants CITGO and PDVMR a variance from the TDS water quality standards

of 35 Ill. Adm. Code 302.208(g) and 302.407, subject to the following conditions:

 

1. The duration of the variance relief from the identified TDS water quality

standards is from April 21, 2005 through December 15, 2009.

 

2. This variance applies only to petitioners’ Lemont Refinery at 135th Street and

New Avenue in Lemont, Will County, regarding elevated TDS levels in the

effluent of Outfall 001 due to operation of the wet gas scrubber under the Consent

Decree entered January 26, 2005, in the United States District Court for the

Southern District of Texas, Case No. H-04-3883.

 

3. By October 1, 2006, petitioners must identify a location near the I-55 Bridge for

collecting water samples from the Des Plaines River and secure access for the

sampling. By November 1, 2006, petitioners must retain a contractor to collect

TDS samples at that location. From December 1, 2006 through March 30, 2008,

petitioners must collect TDS samples from the Des Plaines River three times per

week during the winter months (December 1 to March 30). Petitioners must

submit the TDS sample results monthly to the Agency.

 

4. From December 1, 2006 through March 30, 2008, the effluent of Outfall 001 must

be monitored for TDS two times per week during the winter months (December 1

---

 

17

to March 30). Petitioners must submit the TDS sample results monthly to the

Agency.

 

5. Petitioners must diligently attempt to identify any relationship between TDS

levels in the effluent of Outfall 001 and TDS levels in the Des Plaines River at the

I-55 Bridge. Petitioners must use any resulting relevant information to identify

the time period that may be needed to hold the FCCU wet gas scrubber bleed.

 

6. By May 1, 2008, petitioners must begin to size the system needed to retain the

FCCU wet gas scrubber bleed for the maximum number of days that the TDS

level in the Des Plaines River at the I-55 Bridge exceeds 1,000 mg/L.

 

7. By June 1, 2008, petitioners must begin to design the system needed to retain the

FCCU wet gas scrubber bleed for the maximum number of days that the TDS

level in the Des Plaines River at the I-55 Bridge exceeds 1,000 mg/L.

 

8. By December 1, 2008, petitioners must submit to the Agency a wastewater

construction permit application for the FCCU wet gas scrubber bleed retention

system.

 

9. By March 1, 2009, petitioners must begin construction as needed on the FCCU

wet gas scrubber bleed retention system.

 

10. By December 1, 2009, petitioners must operate the FCCU wet gas scrubber bleed

retention system as needed. From December 1, 2009 through March 30, 2010,

petitioners must collect TDS samples from the Des Plaines River at the I-55

Bridge five days per week (excluding weekends and holidays). Petitioners must

submit the TDS sample results monthly to the Agency.

 

IT IS SO ORDERED.

 

If petitioners choose to accept this variance, they must, within 45 days after the date of

this opinion and order, file with the Board and serve on the Agency a certificate of acceptance

and agreement to be bound by all the terms and conditions of the granted variance. “A variance

and its conditions are not binding upon the petitioner until the executed certificate is filed with

the Board and served on the Agency. Failure to timely file the executed certificate with the

Board and serve the Agency renders the variance void.” 35 Ill. Adm. Code 104.240. The form

of the certificate follows:

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18

 

 

CERTIFICATE OF ACCEPTANCE

 

I (We), __________________________________________, having read the opinion and

order of the Illinois Pollution Control Board in docket PCB 05-85, dated April 21, 2005,

understand and accept the opinion and order, realizing that this acceptance renders all terms and

conditions of the variance set forth in that order binding and enforceable.

 

 

Petitioner CITGO PETROLEUM

CORPORATION

 

 

Petitioner PDV MIDWEST REFINING,

L.L.C.

 

By: _________________________________

Authorized Agent

 

 

By: _________________________________

Authorized Agent

 

Title: _______________________________

 

 

Title: _______________________________

 

Date: _______________________________

 

 

Date: _______________________________

     

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2002); see also 35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520; see also 35 Ill. Adm. Code 101.902, 102.700, 102.702.

 

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

adopted the above opinion and order on April 21, 2005, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board