ILLINOIS POLLUTION CONTROL BOARD
August 21,
1980
E.
I. DU PONT DE NEMOURS
& COMPANY,
)
Petitioner,
)
v.
)
PCB 79—106
ENVIRONMENTAL PROTECTION AGENCY,
)
)
Respondent.
MESSRS.
RICHARD
J. KISSEL
AND
THOMAS
H.
DONOHOE, MARTIN, CRAIG,
CHESTER & SONNENSCHEIN,
AND CARL B. EVERETT,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF
THE
PETITIONER.
MR.
WILLIAM
E.
BLAXNEY,
ASSISTANT
ATTORNEX
GENERAL,
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION
AND
ORDER
OF
ThE
BOARD
(by
D.
Satchell):
This matter comes before the Board upon a petition for vari-
ance filed May 14,
1979 by E.
I.
du Pont de Nemours and Company
(Du Pont).
The petition requests a variance from Rule 406 of
Chapter
3:
Water Pollution
(Rules)
and a declaration that the
rule is applicable to Du Pont’s Seneca Works.
The petition was
orally amended at the hearing so that it requests a variance for
one year from the date of the Board Order
(R.
8).
On June 29,
1979 and February 14,
1980 the Environmental Protection Agency
(Agency)
recommended that the variance be denied.
On May 9, 1980
a hearing was held in Morris.
There is no indication of public
participation in the hearing and the Board has received no public
comment.
The requested variance is from the second sentence of Rule 406:
“Sources discharging to
f
the Illinois River
and
whose untreated
wasteload cannot be computed on a population equivalent basis com-
parable
to that used for municipal waste treatment plants and whose
ammonia nitrogen discharge exceeds 100 pounds per day shall not
discharge an effluent of more than 3.0 mg/l of ammonia nitrogen.”
The Board previously granted Du Pont
a variance from Rule 406
(PCB
76—30,
30 PCB 353, June
8, 1978).
The record in that variance pro-
ceeding
is
incorporated
by
reference
(R.
9).
Du Pont operates a chemical plant known as the Seneca Works
on a 1083 acre site four miles east of Seneca, largely in Secs.
29 and 30,
T.
33 N.,
R.
6 E,
3 PM, Grundy County
(Ex.
1).
Du Pont
originally purchased the facility in 1928.
At that time a dynamite
—2—
factory existed on the site.
The Seneca Works now primarily
produces Elvace
(an adhesive), nitric acid, Tovex
(a water gel
explosive)
and
industrial grade ammoniuni nitrate prills.
During
1979 the Seneca Works produced over 700 million pounds of the
named products
(R.
18).
The plant is situated on bluffs soüth~of the Illinois River.
Various discharges from the plant are directed toward a ditch which
follows the natural contour of the ground.
This ditch flows about
4000. feet to the base of the bluffs
CR.
19, 47).
There it enters
a system of five ponds prior to discharge into the
(R.
23).
The following sources discharging to the
identified
(R.
63; Exs.
13, 14).
Prill manufacture area:
runoff storage lagoon
Prill plant:
sewer treatment
plant
(STP)
Nitric acid plant:
cooling
tower blowdown
Elvace adhesive:
equipment
washings
and
cooling tower
blowdown
Powerhouse:
boiler blowdown,
cooling water, reservoir overflow,
water softener blowdown
Tovex explosive plant:
STP
Tovex explosive plant:
recycle system overflow
Total
Total Discharge
(Ex.
13)
1Ml/day
~
0.05
0.02
2.04
0.76
0.83
3
0.012
Nitrogen
0.004
0.540
Chromium,
Nitrogen, Zinc
0.200
Oxygen demand,
suspended solids,
chromium, zinc
0.220
Suspended solids
1Megaliters
(106 liters) per day
2Million gallons per day
3Volume
not
given
Illinois River
ditch are
COntaminants
0.10
0.026
3.80
4.46
1.00
1.18
—3—
The details of the production processes are more fully dis-
cussed in the previous Opinion.
In the two years before the
previous variance,
Du Pont had reduced its ammonia nitrogen dis-
charges from 4700 to less than 500 pounds per day on a monthly
average.
As
a condition of that variance, Du Pont was not to
exceed 350 pounds per day on a monthly average nor more than 700
pounds of ammonia nitrogen on a daily maximum,
flu Pont complied
with this and the other terms
and
conditions of the variance with
the exception of an ammonia nitrogen excursion during April 1979
(R.
82).
The annual average during 1978—1979 was 135 pounds per
day
(R.
83).
flu Pont now requests a one year variance with limita-
tions of 200 pounds per day on a monthly average and 400 pounds
per day on a daily maximum.
After that Du Pont expects to meet
the 100 pound per day limitation
(R.
84).
Additional steps Du Pont proposes to take include the follow-
ing:
1.
Final selection of the prill north ditch pretreatment
containment method.
2.
Installation of additional diking to reduce backflow of
the Illinois River into the lagoon outfall.
3.
improvement of spill containment facilities and pro-
óedures to provide additional diversion and retention
of ammonia~nitrogenleaks in the prill plant nitric
acid plant and water gel plant.
The Seneca Works operates under an NPDES permit
(R.
6).
At
the time of the hearing the renewed permit was in the draft
stage.
This permit provides for seven outfalls to the lagoon system rather
than a single outfall from the lagoons to the I11ix~o±s
River.
The
draft permit would require that Du Pont meet the water quality
standards within the lagoon system.
Rule 406
is applicable only
to discharges to the Illinois and certain other rivers.
The Agency
therefore opposes
a declaration that Rule 406 is applicable and re-
commends denial of the variance.
The record is clear that in 1973 through 1975 the Agency re-
garded the lagoons and ditch as an “industrial ditch” and not as
waters of the State
(R. 94).
The original NPDES permit and the
variance in PCB 76-30 were based on this assumption.
In 1978 the
Agency decided that the lagoons and ditch were waters of the State
(R.
95).
This was not brought about by any change in the law or
the physical condition of the lagoons
(R..
99).
There was instead
a reinterpretation of the topography.
The original Agency decision
was based on the assumption that the ditch and lagoons were man-
made.
The Agency decided that they were rather a natural drainage
—4—
course and depressions
in the ground which had been modified to
form a ditch and lagoon system
(R.
97).
There was also a change
i~1 Agency policy toward broadening the definition of waters of the
State
(R.
99).
The Agency is not in a position to say whether the
reclassification would improve water quality in the Illinois River
(R.
100).
The Board has held that reclassification of streams as second-
ary contact rather than general use water under Rule 302 of Chapter
3 must proceed by way of regulatory change
(Olin Corporation v.
EPA,
PCB 73—509,
510;
22 PCB
3, June
3,
1976;
5th Diet.,
54
Ill. App.
3d
481, October 18,
1977).
flu Pont requests not a reclassification of its system, but a
finding that it
is and always has been an “industrial ditch.”
In
a recent permit appeal
the Board declined to broaden the “industri-
al ditch” exception
(Armak Company v.
EPA,
PCB 79—153, March 20,
1980;
Allied Chemical Corporation v.
EPA, PCB 73—382,
11 PCB 379,
February 28, 1973).
Du Pont contends that its facility meets the “industrial
ditch” exception of the Allied Chemical and Armak Cases.
The
Board will not
reach this
issue
but instead will address the
arguement that the Agency is preculded from reclassifying the
stream where the permitee has expended money in reliance on the
Agency’s previous classification.
The earlier classification of this stream was unequivocal and
was communicated to Du Pont.
Since that time Du Pont has spend
$2.3 million on pollution control
(R.
39).
Had the ditch and la-
goons been classified as waters of the State in 1972,
Du Pont would
have built a single large treatment facility and routed all the
discharges to that facility.
Only two projects representing
$500,000 of the $2.3 million would have been undertaken had this
option been followed.
$1.8 million of that money would be wasted
if the waters were now classified as waters of the State.
Du Pont
contends that it would cost $7 million to come into compliance with
the water quality standards in the lagoons and that no environmental
improvement would ensue.
In addition Du Pont states
it will c1o~e
the Seneca Works, thus removing some 300 employees from employment
in Illinois
(R.
13).
The Board finds that Du Pont invested a substantial amount
of money in reliance on the Agency’s earlier classification that
the ditch and lagoons were not waters of the State.
The Board
holds that the Agency is precluded in this case from
making
such
a reclassification where no environmental improvement will result,
where there has been no change in the facility or regulations and
where the permittee has expended money in reliance on the previous
classification.
—5—
The Agency does not contend that Du Pont has failed to comply
with the terms of the previous variance.
The Board finds
flu Pont’s
performance satisfactory and further finds that
flu Pont would
suffer arbitrary or unreasonable hardship
if
not given another
year to come into complete compliance with Rule 406.
The variance
will be granted subject to conditions.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner E.
I.
du Pont de Nemours and Company
is
granted
a variance from Rule 406 of Chapter 3:
Water Pollution,
subject
to the following conditions:
1.
This variance will expire on August 21, 1981.
2.
Petitioner’s discharge of ammonia nitrogen into the
Illinois River shall, not exceed 200 pounds per day
on a monthly average.
3.
Petitioner’s discharge of ammonia nitrogen into the
Illinois River shall not exceed 400 pounds on a given
day.
.
4
Petitioner shall record daily and report monthly to the
Environmental Protection Agency the volume of flow
generated in the north prill ditch as runoff from the
ammonia—nitrate production area
That report shall also
contain measurements of the ammonia concentration of
that flow.
.
5.
Petitioner’s August
1,
1980 motion
to
strike is denied.
6.
Wihtin forty-five days of the date of this Order, Peti-
tioner shall execute and forward to the Illinois Environ-
mental Protection Agency,
Variance Section,
2200 Churchill
Road, Springfield, Illinois 62706, a Certificate of
Acceptance and Agreement to be bound to all terms and
conditions of this variance
This forty—five day period
shall be held in abeyance for any period this matter is
being appealed.
The form of the Certificate shall be as
follows:
—6—
CERTIFICATION
I,
(We),
,
having read
and fully understanding the Order in PCB 79-106, hereby
accept that Order and agree to be bound by all of its
terms
and conditions..
SIGNED
TI
TLE
DATE
6.
The motion to amend the variance petition found on page
eight of the transcript is granted.
7.
The entire record in PCB 76-30
is incorporated by
reference.
IT IS SO
ORDERED.
I, Christan L, Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the abov~Order was
dopted
on the
~)
$~
day of
____________,
1980 by a vote of
.~g
Illinois Pollution
