ILLINOIS POLLUTION CONTROL BOARD
    March
    20,
    1980
    ARMAK
    COMPANY,
    Petitioner,
    v.
    )
    PCB
    79—153
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    MR.
    RICHARD
    J.
    KISSEL,
    MARTIN,
    CRAIG, CHESTER
    & SONNENSCHE:EN,
    APPEARED ON BEHALF OF THE PETITIONER.
    MR. JOHN VANVRANKEN, ASSISTANT ATTORNEY
    GENERAL,
    APPEARED ON
    BEHALF
    OF THE RESPONDENT.
    OPINION
    AND
    ORDER OF THE
    BOARD
    (by Dr.
    Satchell)
    This matter comes before the Board upon an NPDES permit aupeal
    filed August
    1,
    1979 by
    Armak
    Company
    (Armak).
    The petition seeks
    review of certain conditions of NPDES permit ~IL 0026069
    issued by
    the Environmental Protection Agency
    (Agency)
    on July
    6,
    1979.
    The
    permit authorizes discharges from Armak’s bulk fatty amines plant
    which is
    located near Morris,
    Grundy County
    (R.
    23)
    .
    Pursuant
    to
    Order of the Hearing Officer a hearing was held in Chicago, Cook
    County,
    on January
    14,
    1980.
    A stipulation of facts as well
    as
    testimony was presented.
    Members of the public attended but did
    not comment,
    Arrnak~splant utilizes tallow,
    soybean oil and coconut oil
    as
    raw materials.
    The oils are hydrolyzed to form fatty acids
    and
    glycerin.
    The fatty acids are further reacted with ammonia and
    hydrogen to form various amines and diamines containing chains
    of
    eight to eighteen carbon atoms.
    These are sold to other manufactur-
    ers either for direct use or for use
    as chemical intermediates
    (R.
    24)
    The plant has two discharges.
    Boiler blowdown, water softener
    regenerate and uncontaminated storm water discharge
    at outfall
    002
    (R.
    18).
    This
    is not directly involved in this permit appeal.
    Treated’process
    and sanitary wastewater are discharged via 001,
    Process waste receives two stages of gravity separation to remove
    free floating fat and two stage biological treatment with aerated
    lagoons.
    Sanitary waste receives separate treatment before
    it
    is
    mixed with treated process waste and sprayed on a sixty-five acre
    (26 hectare)
    field planted in reed canarygrass
    (Stip.
    5: Sti~.
    Ex.
    E,
    F),
    Excess water
    is collected in field tiles which are
    collected along the western edge of the spray field and discharged
    at the southwest corner via 001.
    Pollutants
    in the discharge in-
    clude suspended solids, oxygen demanding waste and ammonia.
    Armak~s original treatment facilities were constructed in 1973
    (F.
    10).
    At that time it employed less treatment and a sixteen
    acre
    (6.5 hectare) spray field which has now been conveited to a
    winter storage pond to contain the waste while the sixty-five acre
    spray field is non-functional
    CR.
    11).
    The sixteen acre field dis-
    charged to
    a drainage ditch
    (Ditch
    1) which discharges to Aux Sable
    Creek,
    Discharge
    002 presently discharges to that ditch.
    However,
    the sixty-five acre field drainage
    is
    to another ditch
    (Ditch
    2)
    which is also tributary to Aux Sable Creek
    CR.
    17).
    Ditch
    1 has
    for some time been classified by the Agency as an outfall sewer
    and not
    a water of the state,
    Therefore Armak need not maintain
    water quality in Ditch
    1 at the levels required by Part II of
    Chapter
    3:
    Water Pollution,
    The Agency has refused to grant
    Ditch
    2 a similar status.
    The principal issue in this case is
    whether Ditch
    2
    is
    a water of the state or should be classified
    as
    either an outfall sewer or an industrial effluent ditch,
    In other cases industries have sought to have similar ditches
    classified
    as secondary contact rather than general use water under
    Rule 302 of Chapter
    3.
    The Appellate Courts have held that such
    reclassification must proceed by way of regulatory change.
    (Modine
    Manufacturing
    v. PCB&
    EPA,
    2d Dist,,
    July 20,
    1976; Olin Corp.
    V.
    EPA
    & PCB,
    5th Dist., October 18,
    1977; Marathon Oil Co.
    v. EPA
    &
    PCB,
    5th Dist., August
    13,
    1979,)
    In this case Armak
    seeks not
    a
    reclassification but a finding that the ditch
    is not and never has
    been
    a water of the state,
    The Armak plant
    is an irregular tract of about 263 acres lo-
    cated near the point where Aux Sable Creek,
    flowing east,
    turns
    south to cross the Illinois
    and Michigan Canal, about one mile
    north of the confluence of Aux Sable Creek with the Illinois River
    (F.
    23, Petitioner~sEx.
    1,
    3)
    .
    The tract
    is bounded on the south
    by Aux Sable Creek and the canal.
    Ditch
    2
    is shown
    on the map as
    arising on Armak’s western boundary at the southwest corner of the
    spray
    field,
    It meanders east across the southern part of Armakvs
    tract to join Aux Sable Creek, upstream of Ditch
    1 and the canal.
    Ditch
    2 is approximately 3000 feet in lenoth
    (F.
    36)
    .
    From
    its meandering character the Board concludes that it is a
    natural
    drainage way even though it is necessary
    to periodically maintain
    it by digging and removing vegetation
    CR.
    36,
    40),
    Armak controls
    access to the ditch and the water is used for no purpose prior to
    its confluence with Aux Sable Creek
    (F.
    26),
    It carries
    only
    the
    spray field discharge
    and. surface runoff
    (F.
    27)
    .
    It drains not
    only Armak~sproperty, but also an unspecified area of
    farmland
    to the west
    (F.
    52).
    It. appears that this area is less
    than
    160
    acres
    (Petitioner~sEx.
    1).
    Armak
    contends that the ditch does
    not exist as
    a recognizable channel west of its property line.
    However, photographs show a depression in the ground containing
    water
    (Petitioner~sEx.
    10).
    An Agency witness testified that
    the
    channel continued about
    150 yards upstream
    (F.
    81).
    He
    was
    anle
    to identify it as
    a. water course because
    of the relative depression
    in
    the land and the nature of the vegetation and ground cover
    in
    the area
    (F,
    96, 99).
    The
    industrial
    effluent
    ditch
    exception
    originated
    in
    Allied
    Chemical
    Corp.
    v.
    EPA,
    PCB
    73-382,
    Ii
    PCB
    379,
    February
    28,
    1973,
    That
    case
    involved
    a
    2500
    foot
    channel
    which
    was
    entirely
    o.n
    A1lied~s
    prooerty from its origin to its point
    of
    discharge
    in the Ohio River.
    It carried only Al1ied~seffluent and natural drainage from forty~
    five acres.
    From the olant to the river there
    was
    a
    drop of
    eighty
    feet
    in
    3000.
    Al1:Led~sbiologist,
    a lifelong resident
    of
    the
    area,
    testified
    that
    he
    had
    never
    known
    the
    ditch
    to
    accumulate
    water
    and
    that
    it
    had never supported aquatic life before Allieds
    discharge
    commenced.
    The Board found that Allied should not be required to
    meet water quality standards which would protect aquatic 1~fewhich
    would not be present if the discharge were discontinued.
    Armak1s tract appears
    to
    be
    very
    flat, showing no changes
    :Ln
    elevation on a ten foot contour, exceot immediately adjacent to
    water courses.
    The change
    in
    e1e~rationbetween the plant and Aux
    Sable Creek is less than thirty feet
    (Petitioner~sEx,
    I),
    In the
    spring or following rainfall, water accumulates
    in pools
    in the
    ditch
    CR.
    69,
    72; Petitioner~sEx.
    10,
    12).
    No evidence was offer-
    ed as
    to whether aquatic life utilizes the area during flooding or
    exists
    in these pools.
    Armak’s ditch resembles Allied~s in many respects.
    However,
    A1lied~swas located entirely on its property and was
    a
    steen
    channel which had no pooling and did not naturally support aquatic
    life.
    ArmakTs ditch by contrast is
    flat and subject to neriodic
    —~1—
    natural flooding with pooling of water.
    Armak has offered no
    evidence as to whether aquatic life exists
    in the ditch.
    The
    burden of proof is on Armak under Procedural Rule 502(b) (8).
    The
    Board therefore presumes that aquatic
    life worthy of protectior.
    naturally exists
    in the ditch.
    Armak also contends
    that
    the
    difference
    in classification
    between the two ditches
    is inconsistent and discriminatory.
    However, there is inadequate evidence in the record on which to
    base a finding as
    to the correctness of the classification of
    Ditch
    I.
    The parties have ignored the effect of Rule 401(a)
    of
    Chapter
    3,
    This
    Opinion
    should
    not
    be
    construed
    as
    a
    finding
    that
    the
    di-
    lution
    and
    designation
    of
    point
    of
    discharge
    provisions
    of Rule
    401(a)
    are
    not applicable to this case.
    The petition contains an additional objection to
    the
    permit
    concerning the discharge of contaminants not specifically
    named
    in
    the
    permit.
    Based
    on
    the
    record
    before
    it the Board finds
    that
    the Agency did not abuse
    its discretion by not including
    the requested permit term,
    This Opinion constitutes the Board~s findings of fact and
    conclusions
    of law in this matter.
    ORDER
    The permit is affirmed with conditions
    as written.
    IT
    IS
    SO
    ORDERED.
    Mr. Goodman Dissented.
    I, Christan L.
    Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinion and Order were
    adopted on the
    ~
    day of
    ~
    ,
    1980 by a vote of
    3~.
    ~
    ~.
    ~
    Christan
    L.
    Noffett,
    ~erk
    Illinois Pollution Control Board

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