First Draft 4/XX/01 (RCF/CFG)

PROCEDURAL HISTORY
NATURE OF THE SITE
1. _
  1. ADJUSTED STANDARD PROCEDURE
ARGUMENT
Substantially Different Factors
Justification
Environmental Effect
Consistency with Federal Law
FINDINGS
Environmental Effect
1. ORDER

ILLINOIS POLLUTION CONTROL BOARD

February 7, 2002

IN THE MATTER OF: )

)

PETITION OF BORDEN CHEMICALS ) AS 01-6

AND PLASTICS OPERATING ) (Adjusted Standard - Water)

LIMITED PARTNERSHIP FOR AN )

ADJUSTED STANDARD FROM )

35 ILL. ADM. CODE 304.105 AS IT )

APPLIES TO 35 ILL. ADM. CODE )

302.211(B)-(E) )

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

This matter comes before the Board upon a “Petition for Adjusted Standard” (Pet.) filed

on October 31, 2000, by the petitioner, Borden Chemical and Plastics (Borden). Borden requests

an adjusted standard that would allow for discharge of heated waters to the unnamed ditch which

currently receives Borden’s treated industrial effluent.

The Board’s responsibility in this matter arises from the Environmental Protection Act

(Act) (415 ILCS 5/1

et seq.

(2000)). The Board is charged to “determine, define and implement

the environmental control standards applicable in the State of Illinois” (415 ILCS 5/5(b) (2000)),

and to “grant . . . an adjusted standard for persons who can justify such an adjustment” (415

ILCS 5/28/1(a) (2000)). More generally, the Board’s responsibility in this matter is based on the

checks and balances integral to Illinois environmental governance: the Board is charged with the

rulemaking and principal adjudicatory functions, and the Illinois Environmental Protection

Agency (Agency) is responsible for carrying out the principal administrative duties.

The Act also provides that “the Agency shall participate in [adjusted standard]

proceedings.” 415 ILCS 5/28.1(d)(3) (2000). On January 29, 2001, the Agency filed a

recommendation. On October 25, 2001, the Agency filed an amended recommendation. The

Agency supports grant of an adjusted standard.

Based upon the record before it and upon review of the factors involved in the

consideration of adjusted standards, the Board finds that Borden has demonstrated that grant of

an adjusted standard is warranted.

PROCEDURAL HISTORY

In 1997 Borden petitioned the Board for a variance to allow discharge of heated effluent

to its receiving waterway. On November 6, 1997, the Board granted that request as a 5-year

variance from 35 Ill. Adm. Code 302.211(b)-(e) and 35 Ill. Adm. Code 304.105, subject to

certain conditions. Borden Chemicals and Plastics Operating Limited Partnership, PCB 97-102

(Nov. 6, 1997). The conditions included conducting a fish survey, temperature monitoring, and

assessing compliance options including technical and economic feasibility. The Board’s order

also included a timeline for achieving compliance with Sections 302.211(b)-(e) and 304.105.

On October 7, 1999, the Board granted Borden’s request to modify the variance schedule.

The schedule, in part, provided that Borden install equipment to implement its chosen

compliance option and/or file an adjusted standard petition by August 30, 2000. Borden filed an

adjusted standard petition on August 30, 2000, but failed to cause timely publication of the

notice in accordance with Section 28.1(c) of the Act. 415 ILCS 5/28.1(c)(2000). The Board

dismissed the petition on October 19, 2000. Consequently, Borden filed the instant petition on

October 31, 2000.

On January 29, 2001, the Agency filed its initial recommendation. The Agency

recommended grant of an adjusted standard, including temperature caps on both effluent and in-

stream temperatures. The Agency also recommended that procedurally the adjusted standard be

to the General Use Water Quality Standards for temperature at Section 302.211(b)-(e) and not

include the provision relating to violations of water quality standards at Section 304.105.

In its October 25, 2001 amended recommendation, the Agency continued to support grant

of relief, with some modification in the particulars in which that relief be fashioned.

On October 30, 2001, Borden filed a response (Resp.) to the amended recommendation. In its

response, Borden states that it accepts the Agency amended recommendation, and waives

hearing in this matter.

NATURE OF THE SITE

Borden’s plant is located in a rural area one mile west of Illiopolis, Sangamon County.

Pet. at 4. It produces polyvinyl chloride (PVC) suspension and dispersion resin for the vinyl

film, fabric, flooring, plastic pipe and wire insulation industries. Pet. at 4. The plant has

operated since 1949 and employs approximately 240 people. Pet. at 4.

The plant discharges its wastewater pursuant to a National Pollutant Discharge

Elimination System (NPDES) permit. Pet. at 4, Exh. C.

The discharge enters an unnamed ditch

that has a seven-day, ten-year low flow of zero. Pet. at 4. Because of the low flow, a mixing

zone is prohibited and the plant’s effluent must comply with the water quality standards for

temperature. Pet. at 5.

The unnamed ditch drains into Long Point Slough (slough). Pet. at 5. The slough flows

into a portion of Old River, which drains into the Sangamon River. Pet. at 5. No water is

withdrawn from the unnamed ditch or the slough for drinking water, or for agricultural or

industrial purposes. Pet. at 5. Various aquatic species live in the unnamed ditch and the slough,

but the waters are not used for recreational or other purposes because of the low and variable

flows. Pet. at 5.

Exhibits attached to Borden’s petition will be cited as “Exh. __ at __.”

The slough, like the unnamed ditch, receives a significant quantity of its dry weather flow

from effluent discharges. Pet. at 6. The Illiopolis sewage treatment plant discharges into the

slough several miles upstream of the confluence of the slough with the unnamed ditch. Pet. at 6.

Also, the slough received permitted discharges from four other sources. Pet. at 6.

The plant’s wastewater results from three main waste streams that the plant generates.

Pet. at 7. Some of the streams are provided treatment for suspended solids, biochemical oxygen

demand (BOD), and ammonia. Pet. at 7. Each stream carries an elevated heat load because of

the nature of the plant’s production process, and in winter, due to the need to maintain the

temperature of the wastewater in its biological treatment system at approximately 30ºC (86ºF) to

assure optimum treatment for ammonia nitrogen. Pet. at 7, 12.

The first waste stream includes wastewaters from the PVC plants, paste plant

wastewaters, vinyl chloride air pollution control wastewater stripper effluent, and boiler

blowdown. Pet. at 8. Among the treatment processes applied to this waste stream is

equalization, primary clarification, and activated sludge treatment. Pet. at 8-9. For optimum

nitrification, the plant maintains an average temperature between 28ºC and 32ºC in the activated

sludge system. Pet. at 9. The plant’s effluent exceeds winter temperatures standards because of

the need to maintain the biologically-treated wastewater at a temperature approximately 30ºC.

Pet. at 9.

The second waste stream consists of wastewater from PVC Plant No. 2. Pet. at 11. The

wastewater is routed to a tank for suspended solids reduction. Pet. at 11. The supernatant is

pumped to a reactor clarifier where lime and polymer are added to coagulate and settle turbidity.

Pet. at 11. The flow of this stream is seasonably variable, but averages 0.184 million gallons/day

(mgd). Pet. at 11.

The third waste stream sources include the vinyl chloride afterburner control

scrubber/neutralizer, discharges from the boiler plant water treatment process, including filter

backwash water, Zeolite regeneration and rinse waters and demineralizer regeneration and rinse

waters and boiler plant lime softening sludges. Pet. at 11. The waters are collected in a pond for

pH stabilization and suspended solids reduction. Pet. at 11. The steam’s flow averages 0.193

mgd. Pet. at 11.

Borden acknowledges that in the winter some wastewater cooling occurs in the serpentine

stream before discharge, but notes that the cooling does not sufficiently bring the wastewater

below the 16ºC (60ºF) standard. Pet. at 12. During the summer, little cooling of the final

effluent occurs, and temperatures may increase depending on ambient temperature and cloud

cover. Pet. at 12.

Borden argues that the data submitted in Borden Chemicals and Plastics Operating

Limited Partnership, PCB 97-102 (Nov. 6, 1997), indicated that there were large natural

variations in the temperature in portions of the unnamed ditch and slough that are unaffected by

Borden’s discharge. Pet. at 13. Some of the variations were greater than the 2.8ºC (5ºF)

temperature rise standard. Pet. at 13. Borden notes that for the variance petition, it compiled all

of its historical temperature data (from November 1985 through September 1996) for the

discharge and the unnamed ditch. Pet. at 13. Although the data could not be validated, Borden

asserts that this data, together with more recent data is useful to determine whether there have

been any trends in effluent and receiving stream temperatures over the years. Pet. at 14.

Borden compiled a table that compares the winter and summer average temperatures in

both the unnamed ditch and the effluent from 1986-1996. Pet. at 14. The data reveals, among

other things, that the average temperatures at all the sampling points were well below the

summer maximum and absolute standards of 32ºC (90ºF). Pet. at 14. The effluent exceeded the

summer maximum standard 24% of the time. Pet. at 15. The downstream temperature exceeded

the summer maximum standard 5% of the time. The further downstream temperature exceeded

the summer maximum standard less than 1% of the time. Pet. at 15. The temperature rise

standard was exceeded by the difference between downstream and upstream temperatures 70%

of the time. Pet. at 15.

Pursuant to a condition of the variance, Borden collected one year of temperature data for

its effluent and six monitoring stations on the unnamed ditch and slough. Pet. at 16. The

locations of the monitoring stations are found at Exhibit M. Borden contends that among the

conclusions that can be drawn from the collected data is that the impact of Borden’s discharge on

compliance with the maximum and absolute temperature standards in winter is limited to a short

distance between Borden’s outfall, and that the discharge causes exceedences at this station

infrequently. Pet. at 16. Also, although the exceedences of the temperature rise standard are

substantially more frequent, the impact is generally confined to the unnamed ditch. Pet. at 19-

20.

STATUTORY AND REGULATORY FRAMEWORK

In determining whether to grant an adjusted standard, Section 28.1 of the Act (415 ILCS

5/28.1 (2000)) requires the Board to determine whether a petitioner has presented adequate proof

that: factors relating to the petitioner are substantially and significantly different from the factors

relied upon by the Board in adopting the general regulations applicable to that petition; the

existence of these factors justifies an adjusted standard; the requested standard will not result in

environmental or health effects substantially more adverse than the effects considered by the

Board in adopting the rule of general applicability; and the adjusted standard is consistent with

federal law. 415 ILCS 5/28.1(c) (2000). In granting an adjusted standard, the Board may

impose such conditions as may be necessary to accomplish the purposes of the Act. 415 ILCS

5/28.1(a) (2000).

Borden seeks an adjusted standard that provides that:

35 Ill. Adm. Code 302.211(b)-(e), shall not apply to the unnamed ditch

which receives wastewater from Borden Chemicals & Plastics Operating

Limited Partnership’s chemical manufacturing facility located near

Illiopolis, Sangamon County, Illinois from the point of the wastewater

discharge to the confluence of the unnamed ditch with Long Point Slough.

In addition, 35 Ill. Adm. Code 302.211(d) shall not apply to the impact of

the temperature of unnamed ditch on the temperature of Long Point

Slough. In lieu of these provisions, the temperature of the wastewater

discharge from Borden Chemicals & Plastics Operating Limited

Partnership’s chemical manufacturing facility shall not exceed the

maximum limitations in the following table more than 2% of the hours in

each calendar year. Compliance with these standards shall be determined

based on the average of two temperature readings per day. Temperature

readings shall be taken on three days of each calendar week. Pet. at 48.

Section 302.211(b)-(e) states that:

b) There shall be no abnormal temperature changes that may

adversely affect aquatic life unless caused by natural conditions.

c) The normal daily and seasonal temperature fluctuations which

existed before the addition of heat due to other than natural causes

shall be maintained.

d) The maximum temperature rise above natural temperatures shall

not exceed 2.8

C (5

F).

e) In addition, the water temperature at representative locations in the

main river shall not exceed the maximum limits in the following

table during more than one percent of the hours in the 12-month

period ending with any month. Moreover, at no time shall the

water temperature at such locations exceed the maximum limits in

the following table by more than 1.7

Borden also seeks an adjusted standard from Section 304.105 of the Board's

regulations (35 Ill. Adm. Code 304.105) which provides:

In addition to the other requirements of this Part, no effluent shall, alone

or in combination with other sources, cause a violation of any applicable water

quality standard. When the Agency finds that a discharge which would

comply with effluent standards contained in this Part would cause or is causing

a violation of water quality standards, the Agency shall take appropriate action

under Section 31 or Section 39 of the Act to require the discharge to meet

whatever effluent limits are necessary to ensure compliance with the water

quality standards. When such a violation is caused by the cumulative effect of

more than one source, several sources may be joined in an enforcement or

variance proceeding, and measures for necessary effluent reductions will be

determined on the basis of technical feasibility, economic reasonableness and

fairness to all dischargers.

ADJUSTED STANDARD PROCEDURE

In both a general rulemaking and a site-specific rulemaking, the Board is required to take

the following factors into consideration: the existing physical conditions, the character of the

area involved, including the character of the surrounding land uses, zoning classifications, the

nature of the receiving body of water, and the technical reasonability and economic

reasonableness of measuring or reducing a particular type of pollution. 415 ILCS 5/27(a) (2000).

The general procedures that govern an adjusted standard proceeding are found at

Section 28.1 of the Act and the Board's procedural rules at 35 Ill. Adm. Code

104. Section 28.1 also requires that the adjusted standard procedure be consistent with Section

27(a).

Borden seeks an adjusted standard from rules of general applicability. In determining

whether an adjusted standard should be granted from a rule of general applicability, the Board

must consider, and Borden has the burden to prove, the factors at Section 28.1(c) of the Act (415

ILCS 5/28.1(c) (2000)):

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. 35 Ill. Adm.

Code 104.426(a) and 415 ILCS 5/28.1.

ARGUMENT

Substantially Different Factors

Borden believes that the factors relating to it are substantially and significantly different

from those factors relied upon by the Board in adopting Sections 302.211(b)-(e). Pet. at 24.

Borden argues that the temperature standard was established to ensure the protection of fish from

harmful rapid increases in water temperature, to avoid large unnatural day-to-day fluctuations in

temperature, to maintain a natural seasonal cycle, and to assure that the annual spring and fall

temperature changes were gradual. Pet. at 24.

Borden contends that because of the nature of the plant’s receiving stream, it is not

necessary for the protection of aquatic life that the general use water quality standards for

temperature apply to the unnamed ditch or Borden’s discharge. Pet. at 24. Borden argues that an

extensive review of the scientific literature and three fish and habitat assessments conducted over

13 years show that Borden’s effluent is not having any significant adverse effects on fish

communities in the unnamed ditch and slough. Pet. at 24-25. Borden attaches Exhibit N as a

summary of the fish known to occur in the unnamed ditch or slough and their corresponding

upper and lower lethal threshold thermal limits or avoidance temperatures for three separate

acclimation temperatures. Pet. at 27, Exh. N. Borden further argues that the Agency sponsored

a study that indicates Borden’s effluent is not having a significant adverse impact on fish

communities in the unnamed ditch and slough. Pet. at 33, Exh. J.

The Agency agrees that the general water quality use standards for temperature are

designed to protect native ecosystems from harmful rapid increases in water temperature, to

avoid large unnatural day-to-day fluctuations in temperature, to maintain a natural seasonal cycle

and to assure that annual spring and fall temperatures are gradual. Rec. at 12. The Agency

agrees that the fish and habitat assessments and the data from the fisheries show that Borden’s

discharge has no significant adverse effects on the native ecosystem. Rec. at 12. The Agency

also agrees that the receiving water is an unnamed tributary that is neither used as a source of

irrigation water nor drinking water. Rec. at 12. The Agency concludes that this is a

fundamentally different fact than what the Board considered in adopting Section 302.211(b)-(e).

Rec. at 12.

Justification

Borden contends it cannot comply with the temperature standards in winter and argues

there are no economically reasonable treatment technologies that would allow Borden to attain

the maximum and absolute temperature standards and the temperature rise standard in the final

effluent. Pet. at 36. Borden also argues that Borden exceeds the maximum temperature

standards in the summer because of heat sources that are integral to the plant’s manufacturing

and pollution control activities. Pet. at 36.

Borden considered eight alternatives to attain the maximum and absolute temperature

standards and the temperature rise standard in the final effluent, but they are either technically

infeasible or would have adverse environmental consequences. Pet. at 36-37. Among the

options Borden considered were: aeration of the serpentine stream; installation of a final effluent

heat exchanger with cooling tower and chiller; installation of an effluent chiller system with a

heat exchanger system; installation of an effluent cooling or holding pond; expansion of the

existing wastewater treatment plant; flow augmentation using groundwater; utility stream

cooling; and methods to achieve compliance with the temperature rise standard. Pet. at 37.

Additionally, Borden contends that the alternatives that are technically feasible and

without environmental consequences are costly. Pet. 36-37. Namely, the two options that

involve cooling the plant’s final effluent using a cooling tower and/or water chiller, although

technically feasible and environmentally acceptable would incur capital costs of $2,200,000 or

$1,810,000. Annually, it would cost $240,000 or $220,000 to operate and maintain one of the

two alternatives. Pet. at 47, Exh. R and S.

The Agency agrees that the lack of a technically feasible and economically reasonable

alternative justifies granting the adjusted standard. Rec. a 12.

Environmental Effect

As mentioned previously, Borden contends that an extensive review of the scientific

literature and three fish and habitat assessments conducted over 13 years show that Borden’s

effluent is not having any significant adverse effects on fish communities in the unnamed ditch

and slough. Pet. at 24-25. Furthermore, neither the ditch nor the slough are used for drinking

water, or agricultural or industrial purposes. Pet. at 5.

The Agency concurs with Borden’s contention that the fish and habitat assessments show

that Borden’s discharge has no significant adverse effects on the native fish communities in the

unnamed tributary and Long Point Slough. Rec. at 9. Also, the Agency generally agrees with

Borden’s conclusion that no substantial or significant adverse effects on the environment or

native fish communities would occur in the unnamed ditch and the slough if the adjusted

standard is granted. Rec. at 9.

Consistency with Federal Law

Borden argues the proposed adjusted standard is consistent with federal law. Pet. at 51.

Borden contends that because the ditch and slough’s temperature would be maintained under the

adjusted standard, and would not interfere with any of the existing or reasonably likely future

uses of the waters, the adjusted standard would not alter the ditch or slough’s classification as

general use waters. Pet. at 52.

The Agency states that the portion of the adjusted standard requested for temperature

standards at 35 Ill. Adm. Code 302.211(b)-(e) is consistent with federal law. Rec. at 13. The

Agency contends, however, that the relief from 35 Ill. Adm. Code 304.105 is both unnecessary

and contrary to federal law. Rec. at 13.

FINDINGS

Based on its review of the record in this matter, and the showings requisite for grant of

an adjusted standard, the Board finds that grant of an adjusted standard in the instant case is

warranted.

Substantially Different Factors

The Board first finds that Borden has shown that the factors relating to the site are

substantially and significantly different from those factors relied upon by the Board in adopting

35 Ill. Adm. Code 302.211(b)-(e). The studies presented by Borden show that Borden’s

wastewater temperatures are not adversely affecting the aquatic life in the unnamed ditch and

slough. The Agency agrees.

Justification

The Board finds that Borden has sufficiently shown that there are no economically

reasonable treatment technologies that would allow Borden to attain the maximum and absolute

temperature standards and the temperature rise standard in the final effluent.

Environmental Effect

The Board finds that Borden has adequately shown that an adjusted standard from

302.211(b)-(e) would not adversely impact the aquatic community.

Consistency with Federal Law

The Board agrees with the Agency that granting an adjusted standard from 302.211(b)-(e)

is consistent with federal law.

Scope of Relief

The specific relief the Board will grant is that which the Agency recommends in its

Amended Recommendation of October 25, 2001 and which Borden accepted in its response of

October 30, 2001.

The Board notes that this relief focuses on the water quality standard for temperature at

35 Ill. Adm. Code 302.211(b)-(e). The Board finds that this focus is consistent with Board

precedent in adjusted standards applicable to small, sole-discharge waterways.

In re

Petition of

Abbott Laboratories for an Adjusted Standard From 35 Ill. Adm. Code 302.208 and 304.105, AS

99-5 (July 8, 1999). In this circumstance, adjustment of the standard at 35 Ill. Adm. Code

304.105 is unnecessary.

In re

Petition of Abbott Laboratories for an Adjusted Standard From 35

Ill. Adm. Code 302.208 and 304.105, AS 99-5 (July 8, 1999).

SUMMARY

For the reasons detailed above, the Board grants Borden an adjusted standard from 35 Ill.

Adm. Code 302.211(b)-(e) for the unnamed ditch with flows into Long Point Slough.

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

ORDER

The Board grants an adjusted standard to Borden Chemicals & Plastics Operating

Limited Partnership from 35 Ill. Adm. Code 302.211(b)-(e), subject to the following conditions:

1) 35 Ill. Adm. Code 302.211(b), (c), (d), and (e) do not apply to the unnamed ditch

from the Borden discharge point to the confluence of Long Point Slough;

2) The water temperature at representative locations in the unnamed ditch tributary

to Long Point Slough from the discharge of Borden Chemicals & Plastics

Operating Limited Partnership’s Chemical manufacturing facility located near

Illiopolis, Sangamon County, Illinois, to the confluence of Long Point Slough,

may not exceed the maximum limits in the following table during more than 2%

of the hours in the 12-month period ending with any month. Moreover, at no time

will the water temperature at such locations exceed the maximum limits in the

following table by more than 1.7ºC (3ºF)

JAN.

24.5 76.1 JUL. 36.0 96.8

3) The water temperature of the Borden discharge may not exceed the maximum

limits in the following table during more than two percent of the hours in the 12-

month period ending with any month. Moreover, at no time may the water

temperatures of the Borden discharge exceed the maximum limits in the following

table by more than 1.7ºC (3ºF):

ºF

JAN.

24.5 76.1 JUL. 36.0 96.8

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) (2000);

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, hereby certify that the

Board adopted the above opinion and order on February 7, 2002, by a vote of 7-0.