ILLINOIS POLLUTION CONTROL BOARD
October
6,
1988
BORDEN CHEMICAL AND
)
PLASTICS OPERATING
)
LIMITED PARTNERSHIP,
Petitioner,
)
V.
)
PCB 88—90
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MARION P. HERRINGTON OF SIDLEY AND AUSTIN APPEARED ON BEHALF OF
PETITIONER;
JOHN J.
BRESLIN APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board
on
a May 18,
1988 petition
for variance filed by Borden Chemicals and Plastics Operating
Limited Partnership (Borden).
Borden seeks variance from 35
Ill.
Adm. Code 302.208 “Chemical Constituents” and from 35 Iii. Mm.
Code 304.105 “Violations of Water Quality Standards”,
as these
rules pertain to the water quality standards for total dissolved
solids
(TDS)
(1000
mg/i)
and chloride
(500 mg/i.)
On May 19,
1988,
the Board
found
the petition deficient
for lack
of
sufficient information,
and on June 15,
1988 Borden filed an
amended petition.
The Illinois Environmental Protection Agency
(Agency)
filed
its recommendation
in support of grant of
variance, subject
to conditions,
on July 29,
i9aS.
Hearing was
held
in Springfield on August
2,
1988.
No members
of the public
were present at hearing.
Borden requests an extension of the TOS and chloride
variance granted by the Board
on December
5,
1985,
in Borden
Chemical Company
v.
Illinois Environmental Protection, PCB 82—
82.
That variance, which expired July 1,
1988, allowed Borden to
discharge effluent which would not cause
the water quality of the
receiving body
to exceed
a monthly average concentration of 2200
mg/i TDS
or 700 mg/i chloride.
The variance granted in PCB 82—82
also required Borden to file
a request
for site—specific rule
change from the TDS and chloride water quality standards on or
before April
1,
1986, because Borden had identified
a site—
specific rule
as one of
its compliance options.
Borden filed
its
petition
for site—specific rule change (R86—l4)
on March 31,
1986, and hearing was held
on December
10, 1986.
Borden made
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supplemental submissions of
information on January
30, 1987 and
March
31,
1987.
On January 27,
1988,
the Board received
notification from the Department of Energy and Natural Resources
(ENR)
that ENR had decided
to prepare an economic impact study
fEdS)
on the requested site—specific rule.
According
to the
instant petition for variance, ENR has indicated that the EcIS
is
expected to be completed this fall.
The Board can take no
further action on the site—specific request until the EcIS is
completed.
Because the prior variance
(PCB 82—82)
expired on
July 1,
1988 without final action on the site—specific, Borden
now seeks an extension of the variance.
The Borden plant
is located
in a rural area one mile west of
Illiopolis,
Illinois.
The facility employs about 280 people, and
produces polyvinyl chloride
(PVC)
suspension and dispersion resin
and PVC plastic
films and molding compounds.
Plant wastewater
originates from three separate waste streams, which combine prior
to a serpentine
final polishing stream and discharge
through a
common point, Outfall 001.
Discharge
is to an unnamed tributary
to Long Point Slough,
a stream which
flows into Old River, which
is tributary to the Sangamon River.
Design average flow of the
treatment plant
is 1.0
MGD.
Most wastewater from the facility
originates from two manufacturing areas, PVC Plant
I
and PVC
Plant II,
and from
a boiler house.
In 1987, Borden sold its
Polyco polyvinyl acetate manufacturing facility to another
firm,
Rohmhaas.
The Rohmhaas facility is still located on the grounds
of the site,
and Rohmhaas wastewater
is treated by Borden.
According to testimony from Jack Kirby,
a process engineer for
Borden,
the plant’s effluent contains levels
of TDS and chloride
due largely
to two sources:
1)
plant
intake water obtained from
area wells, which
is then softened;
and
2)
waste water from air
pollution control technology.
(Tr.
at 10—il.)
Borden asks that the instant variance be granted to allow,
as did the prior variance,
the discharge of effluent which will
not cause
the water quality
in the unnamed ditch
to exceed
a
monthly average concentration of 2200 mg/i of TDS and 700 mg/i of
chloride.
In the PCB 82—82 variance, Borden did not request a
variance from the TDS
and chloride standards for Long Point
Slough and Old River.
The record
in the site—specific proceeding
(R86—l4)
indicates that Long Point Slough and Old River may
exceed the TDS and chloride standards during low flow periods,
however.
Therefore, Borden requests that this variance extend to
those receiving waters.
Borden seeks variance until such time as
the Board
issues
a final order
in the site—specific proceeding.
COMPLIANCE PLAN
Borden has not proposed
a specific compliance plan outside
of its pending
request for site—specific regulation.
That site—
specific rule would,
if adopted,
grant permanent relief from the
TDS and chloride water quality standards.
If
the Board denies
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Borden’s site—specific request, Borden asks that the variance
extend eighteen months after
the entry of the Board’s final order
“to allow adequate time for Borden
to implement any necessary
corrective measures.”
(Petition at 4.)
Although Borden,
in
its
amended petition, states that it would undertake construction of
control methods “in accordance with the schedule contained in
the)
original petition for extension”
(Amended Petition at 4),
the original petition does not contain any “schedule”.
ENVIRONMENTAL IMPACT
Borden hired the Academy of Natural Sciences of Philadelphia
to conduct an environmental impact study
in support of
its
petition
for site—specific rule change.
(The relevant parts of
the rulemaking docket
(R86—14)
have been incorporated into the
record of this variance proceeding.)
The Academy conducted
chemical, physical,
and biological studies
in July, September,
and October 1984 along
the unnamed ditch which receives Borden’s
effluent and along Long Point Slough.
These studies found that
the chemical composition and physical characteristics
of the
water in the unnamed ditch and Long Point Slough are altered by
the discharged effluent.
However,
the Academy concluded that
“tihere
is no indication that the concentrations of chloride and
total dissolved solids observed at the time of the study would
alter
the biota of the receiving bodies.”
(Petition
for Rule
Change
(R86—14), Exhibit A.)
Mr. Kirby testified at hearing that
based upon these findings, Borden believes that extension of its
variance will have negligible environmental impact.
(Tr. at 16.)
In
its recommendation the Agency cites the Academy’s 1984
study, and concludes that since the requested limits
in the
variance extension are the same as those limits studied by the
Academy,
no adverse environmental impact
is expected.
HARDSHIP
Borden contends that it would be unreasonable to require
installation of equipment
to reduce the amount of TDS and
chloride
in its effluent pending the outcome of the site—specific
rulemaking.
(Tr. at 19.)
Borden states that to meet the
existing water quality standards for TDS and chloride
it would
have to install add—on treatment technology such as
reverse
osmosis or deionization.
Borden maintains that the Board and the
Agency have repeatedly recognized that these treatment
alternatives are neither technologically or economically
feasible.
(Tr.
at 17.)
Borden states that design and
construction of either alternative would cost between $2.7 to
$5.3 million, with annual operating and maintenance costs between
$270,000 and $500,000.
In sum, Borden argues that given the
minimal environmental effect of continued discharge at present
levels, combined with the expense of treatment technology,
compliance with
the existing water quality standards would work
93—35
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an undue hardship while the petition
for site—specific rule
change
is pending.
The Agency agrees with Borden’s statement that compliance
with the water quality standards
for TDS and chloride would
impose an arbitrary and unreasonable hardship since there
is
rio
proven conventional technology which
is also economically
feasible.
The Agency states that the treatment methods
(reverse
osmosis,
electrodialysis, distillation, and ion exchange)
are
costly and have their own environmental problems associated with
them.
Finally,
the Agency notes that Borden has stated that the
reason for the requested variance extension
is to allow time for
the Board to take action on Borden’s proposed site—specific rule.
FEDERAL LAW
The Agency notes
that Borden’s process
falls under
a new
federal pretreatment categorical regulation
(Organic Chemical and
Plastic Synthetic Fibers), with a compliance date of March 31,
1989.
However,
the regulations do not contain limits
for TDS and
chloride.
Therefore,
the Agency states that there are
rio federal
laws which preclude the granting of this variance.
CONCLUSIONS
As previously stated
in PCB 82—82,
the Board
finds that
immediate compliance with the water quality standards
for TDS and
chloride would impose an arbitrary and unreasonable hardship.
Based
on this finding, and what appears
to be a minimal short—
term adverse environmental impact,
the Board will grant Borden a
variance from those water quality standards.
The Board stresses,
however,
that its finding of
an arbitrary or unreasonable
hardship
is based upon the unique circumstances surrounding the
progress of Borden’s petition for site—specific rule change.
Although Borden has made statements regarding the economic
reasonableness and technical feasibility of treatment technology,
the Board points out that the issue
in
a variance case
is whether
immediate compliance with
a particular standard would
impose an
arbitrary or unreasonable hardship.
The issues of economic
reasonableness and technical feasibility will be addressed
in the
rulemaking:
the Board specifically makes no findings on those
issues
today.
The Agency has
recommended that Borden be given
a five year
variance,
or until the Board takes final action in the site-
specific proceeding,
or until
the development of new technology
to treat wastewater
in an economically feasible manner,
whichever
occurs first.
The Board
feels that
a five year variance
is not
necessary,
and will grant
a variance
for
2 years,
or
until
the
Board takes
final action on the rulemaking, whichever occurs
first.
The two—year period
is sufficient
for the Board
to take
final action on the site—specific, assuming that the EcIS
is not
93—36
—5—
further delayed.
If the Board denies the petition
for site—
specific relief,
the variance will extend
for an additional
eighteen months,
as requested by Borden
to allow installation of
treatment technology.
The
Board
notes that Borden has failed to
identify any specific compliance plan to be used
if site—specific
relief is denied.
Thus,
the variance conditions will include
a
schedule for submission
of plans
to the Agency.
The Board will
not include the Agency’s suggestion that the variance terminate
upon the development of new technology to treat wastewater
in an
economically feasible manner because such
a criterion
is too
subjective to be included as
an automatic termination of the
variance.
This Opinion constitutes
the Board’s findings of fact and
conclusions
of law.
ORDER
Borden Chemical and Plastics Operating Limited Partnership
(Borden)
is hereby granted a variance from 35 Ill. Adm.
Code
302.208 “Chemical Constituents” and
35
Ill. Adm. Code 304.105
“Violation of Water Quality Standards”,
but only as they relate
to the total dissolved solids
(TDS)
and chloride standards.
This
variance applies only to Borden’s Illiopolis,
Illinois
facility.
The variance is subject to the following conditions:
1.
Borden’s discharge shall not cause the water quality
in
the unnamed ditch, Long Point Slough,
or Old River
to
exceed
a monthly average concentration level of 2200
mg/i TDS
or 700 mg/i
chloride, based upon the sampling
frequency contained
in Borden’s NPDES permit.
2.
This variance will expire on October
6,
1990,
or upon
adoption by the Board of
a final order
in the site—
specific rulemaking
(R86—l4), whichever occurs
first.
3.
If Borden is denied relief in the site—specific
proceeding, this variance will extend for an additional
eighteen months from the date of decision of the site—
specific
if Borden complies with the following schedule:
4.
Items
Completion Date
Submit compliance plan and
4 months
from date of
specifications to the
final Board Order
in the
Agency for permit review,
site—specific proceeding
R86—14.
Receive permits.
7 months from date of
final Board Order
in
R86—l4.
93—37
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Complete construction
of
18 months from date of
improvements and be
in
final Board Order
compliance,
in R86—14.
4.
Borden shall monitor the TDS and chloride levels
in its
effluent and in the unnamed ditch
above and below
Borden’s discharge.
5.
Within 45 days after
the date of this Opinion and Order
Borden shall execute and send to:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section
2200 Churchill Road, P.O. Box 19276
Springfield, Illinois 62794—9276
a certificate of acceptance of this variance by which it
agrees
to be bound by the terms and conditions contained
herein.
This variance will
be void
if the County fails
to execute and forward
the certificate within the
45 day
period.
The 45 day period shall
be
in abeyance for any
period during which the matter
is appealed.
The form of
the certification shall
be as follows:
CERTIFICATION
I,
(We), ________________________________, having read the
Opinion and Order
of the Illinois Pollution Control Board,
in PCB
88—90, dated October
6,
1988, understand and accept
the said
Opinion and Order, realizing that such acceptance renders all
terms and conditions thereto binding and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
13.
Section
41
of the Environmental Protection Act
(Ill.
Rev.
Stat.
1987,
ch.
1111/2,
par.
1041)
provides
for
appeal of final Orders of
the Board within
35
days.
The
93—38
—7—
Rules of the Supreme Court of Illinois establish filing
requirements.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the aboy~Opinionand Order was
adopted on the
~
day of
t~.-6—t~-ti
,
1988, by a vote
of
7-0
~
~.
Dorothy M.4unn, Clerk
Illinois P1dllution Control Board
93—39