ILL
NOU5
POLLUTION
CONTROL
BOARD
June
12,
1980
DEPARTMENT
OF
ENERGY,
Petitioner
v.
)
POB
80—61
ENVIRONMENTAL
PROTECT ID~~
AGE~1CY
Respondent.
OPIUION
AND
ORDER
OF
THE
BOARD
(by
3.
Anderson):
On April
7,
1980,
the Department
of Energy
(DOE)
tiled
a
petition
for
variance
from
certain
portions
of
Board rules and
regulations
Chapter
3:
Water Pollution
(Chapter
3).
On
~ay
9,
1980,
the
Environmental
Protection
Agency
(Agency)
filed
its
Recommendation
in.
support
of
this
petition.
Hearing was waived
in
this
matter,
and
none
was
held.
The
DOE
seeks
this
variance
on
behalf
of
a
wastewater
treatment
plant
which
it
operates
to
serve
the
Argonne
National
Laboratory
in
DuPage
County.
Specifically,
DOE
requests
relief
from
Rules
203(d),
402
and
962(a)
as
they
relate
to
dissolved
oxygen,
Rule
404(f)
as
it:
relates
to
ROD5
and.
Suspended
Solids,
Ru~e 902(1)
(1)
as
it
applies
to
NPDES
Permit:
renewal
prerequisites,
and
Rules
910 (a)
(4)
and
910(h)
as
they
appl~r
to
terms
and
Condtt..)ns
of
NPDES
permits.
This
pet:it:iori
for
variance
was
prompted
by
the
response
of
the
Agency
to
DOE ‘s
request
for
renewal
of
its
then—
current.
NPDES
permit,
due
to
expire
May
10,
1980.
By
letter
of
March
6,
1980
(attached
to
the
petition
as
Exhibit
B),
the
Agency
advised
DOE
that
action
on
its
permit
application
would
he
withheld
pending
receipt
of
a
variance
from
the
above
listed
rules.
(Ex.
B,
p.3).
The
Aqency
then
noted
that
rE?lleL
of
bhe
sort
needed
by
DOE
had
been
sought
by
the
Agency
for
some
280
area
disehargers
(Ex,
B,
p.
2).
This
variance
relief
had
been
granted
by
the
Board
in
Villacjeof_Bloom~da1e
v.
E.P.A,
PCB
78—124,
31
PCB
34—121
(Order,
October
19,
1978),
32
PCB
32—23
(Opinion,
November
2,
1978);
‘~~unfortunately,
the
subject
facility
was
among
the
few
existing
dischargers
that
were
inadvertently
omitted
from
the
list
of
joined parties....”
(Ex.
B,
p.
2).
In
its
petition,
DOE
requests
that
the
record
in
Bloomt~le,
~ra,
he
incorporated
into
the
record.
in
this
proceeding.
DOE
argues
that
to
hold
it
to
the
4
mg/l
BOO
and
5
mg/i
suspended
solids
requirements
of
Rule
404(f),
and
~he
dissolved
oxygen
standards
of Rules 203(d),
402,
and 962(a),
would
create
an
arbitrary
and unreasonable hardship,
as
it would
necessitate
a
plant
shutdown and closing
of Argonne during
likely unsuccessful.
attempts
to upgrade treatment facilities
(Pet,
p.
7).
DOE further
argues that
it would be unreasonable
for
the Board
to refuse
to
grant
it
the
same
relief
granted
to
operators
who
were
fortunate
enough
to
be
joined
in
Bloomincjdale.
The
Agency
recommendations
of
May
9
in
support
of
the petition
apprised
the Board of essentially
the same
facts as were contained
in
the
petition
and
its
exhibits.
The
Agency
was
also
verified
that
1)OE
had
not
tlio
10 mg/I
BODE
and
12
mg/i
Suspended So
icls
li mu ts
01
ts n ‘cent:
porni
t..
‘Phd
Agency
s
Latod
that
this
permi
t
condition
could
rI~t
ho
renewed
because
of
the
4
/
5
lint
t:a
tion
cont.-i~ned
li
Rule
404
(
f
The
Agency
noted
that
it
believed
its
proposed amendment to
the
Rule,
R77—12,
Docket
C,
was
still
pending
before
the
Board.
However,
a
final
order
of
the
Board
was
entered
in
R77-12,
Docket
C,
on
May
1,
1980,
deleting
Rule
404(f)
from
Chapter
3.
This
rule change was filed with the Secretary of State on May
7,
and
the deletion became effective on that date.
Accordingly, variance
relief as to ROD5
and. suspended solids
levels
is unnecessary.
The Board. has
not
previously and does not now accept the
argument
that
denial
of
variance
is
the equivalent
of a “shutdown
order”; the variance petitioner
is liable
to an enforcement
action absent relief, but nonetheless cemains able to continue
operations.
The
Board
does
agree
that
petitioner
DOE
should
have
been
one
of
the
parties
joined
in
the
nriqlnal
Bloomingdale
proceedinq
,
and
fi~nds
that
den
i aT
of
variance
from
dissolved
oxygen
requirements
would
impose
an
arbitrary
and.
unreasonable
hardship
on
petitioner
DOE.
Accordingly,
a
variance
similar
to
that
ordered.
in
Bo~nd~e,
as
described
in
the
attached
order,
is
granted.
Variance
relief
from
Rules
901
et.
~
of
Chapter
3,
which
deal
with
Agency
procedures,
need
not
he
granted
to
petitioner.
This
Opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions of law
in this matter.
ORDER
It
is
the
Order
of the Pollution Control Board
that:
1) The Petitioner,
the Department
of Energy,
is granted a
variance from Chapter
3:
Water Pollution Rules 203(d)
and 402 as
they apply
to dissolved oxygen,
until October 19,
1983;
2)
The
Petitioner’s request
for
a variance from Rule 404(f),
902(a)(1),
910(a)(4),
910(b)
and 962(a)
is dismissed.
3)
Petitioner shall operate and maintain its wastewater
treatment plant so as
to minimize violations
of
the
dissolved
oxygen
standards.
3
4)
The Agency, pursuant to Rule 914 of Chapter 3, shall
reissue an ?4PDES permit to Petitioner consistent with this
Order including such effluent limitations as
may
reasonably
be achieved through application of best practicable operation
and maintenance practices in petitioner’s facilities.
5)
Within 45 days of the date of this Order, the Department
of Energy shall execute and forward to the Illinois Environmental
Protection Agency, Division of Water Pollution Control, Variance
Unit,
2200 Churchill Road, Springfield,
IL
62706, an executed
Certification of Acceptance and Agreement to be bound by all
conditions of the variance.
The forty—five
clay period herein
shall be stayed during judicial review of this variance pursuant
to section 41 of the Environmental Protection Act.
The form of
said certification shall be as follows:
CERTIF C ATION
I,
(We),
_______________—
,
having read the
Order of the Illinois Pollution Control Board in P03 80—61 dated
____________—,
understand
arid accept the said Order, realizing
that sii~hacceptance renders all terms and conditions thereto
binding and enforceable.
Petitioner
By:
___
______________—
Authorized Agent
TITLE
DATE
____
________________
I, Christan
T~.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby c~rtifythat the above Opinion and Order
çeadoPted on the
J~
day of
1980, by a vote of
Control Board
