ILLINOIS POLLUTION CONTROL BOARD

February 17, 1971

TEXACO, INC.

)

)

v.

)

4PCB7O—29

)

ENVIRONMENTAL PROTECTION

AGENCY)

Opinion of the Board (by Mr. Currie):

Texaco requests the extension until October 1, 1971, of a

variance granted by the old Air Pollution Control Board to permit

further work toward controlling hydrogen sulfide emissions from a

brine lagoon near Salem, Illinois. We grant the extension under

stated conditions and delineate further proof requirements for any

additional extension.

This is a most distressing case in which the record fails to

reveal in any satisfactory way how serious a nuisance is caused by

the operations in question. He strongly suspect, from the Agency’s

recommendation, that the nuisance may be serious indeed. But there is

little evidence in the record to support this suspicion, and on the

record itself, which is all we can rely on, we think Texaco has

shown that to require immediate compliance would impose an arbitrary

or unreasonable hardship.

Texaco pumps water into the ground in order to push to the sur-

face petroleum that would otherwise be unrecoverable CR. 3). The

water is separated from the oil and recycled (R.3—4). But in its

subterranean course it picks up hydrogen sulfide and barium sulfate,

both of which must be re’toved before the water is returned to the

ground. Hydrogen sulfide would corrode the steel pipes if not re—

noved, and barium sulfate would plug them up (R.61, 90, 175). In

order to remove these contaminants the water is turned into an

uncovered lagoon where the sulfate settles out and much of the

hydrogen sulfide escapes to the air (R.4).

Texaco has tried and found wanting a number of possible methods

for controlling hydrogen sulfide emissions from the lagoon (R.89—93),

pursuant to a program approved by the old Air Board (R.12). In lath

1970 the company reported that a pilot facility had been operated to

remove “as much as 50~”of the gas by electrolysis (Progress Report

#2, attached to EPA Reccmmendation). The application of this process

to oil field wastes under present circumstances is said to be unique

(R.97-98, 114, 117-18) and Texaco has applied for a patent (R.l15).

The company’s plan is to proceed “immediately” to seek an installation

permit from the EPA Pt.l20-121, 123) to install an electrolytic

unit

1-249

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for one of the four lines feeding the pond (containing 10 of the

water and 20 of the hydrogen sulfide,R.l18)

,

at a purchase and

installation cost totalling some $57,000 (R~l19, 132), and then to

determine the unites success and the necessity for additional fac-

ilities (R,121,124,127,13l,l36). Delivery of the equipment is expected

to take two to three months after the order is placed, and installation

one month thereafter (R,123), Although 50 removal efficiency was

the target of research (R,74), it is “hoped” that virtually all

the gas will be removed (R.122),

It is clear that to forbid the emissions today would require

the closing of Texaco~s342 wells, (R,175) throw up to 90 people out

of work, reduce the $950,000 in goods and services supplied by local

companies to Texaco each year, and eliminate $1,300,000 in annual

royalties to the landowners (R.169—70), Once the wells were shut off,

it would be questionable whether they could ever be economically

restored, because of oil movements in the ground during shutdown

(R.176-77). The prospect of such hardship we cannot contemplate

without serious concern,

What is unclear, however, is the degree of injury that Texaco~s

continued operation would have on the neighboring public. No one

has a right to destroy his neighbors simply because he makes piles

of money in doing it, The statutory variance test of unreasonable

hardship is not satisfied by proof of hardship alone; it must be

demonstrated that the hardships of complying with the law are dis-

proportionately large in comparison to the benefits to the oublic

of so doing, (See EPA v. Lindgren Foundry Co., #70-1

,

decided

September 25, 1970), And this is not a case involving a dozen or

so pounds of inert dust, as in Owens-Illinois Corp. v. EPA (#70-31,

decided January 27, 1971) or TANMSCO v, EPA (#70-28, decided February

17,1971), This case involves hydrogen sulfide, a gas not only

highly toxic in high concentrations but also known for its discolor-

ation of paint and for its rotten-egg stench,

The record shows we are not talking here of toxic concentrations,

which can cause eye irritation above about 20 ppm, and worse problems

at higher levels (EPA Recommendation, P.4), But the Agency found

that the emissions “cause a considerable nuisance to residents in

the area, both with respect to odor and paint discoloration,” Complaints

have been received from up to four or five miles away; the company~s

insurer has paid three claims for paint damage in the area; several

people contacted by the Agency described hydrogen sulfide emissions

as “heavy” and opposed any extension of the variance; petitions

containing 88 signatures were received in opposition to the variance

(id,, pp. 3—4),

But the Agency~srecommendation is in the nature of a pleading;

it cannot stand as conclusive evidence of the matters alleged, The

250

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Agency presented neither witnesses nor other evidence as to either

the adverse effects of Texaco~s emissions or the gas concentrations

found in the vicinity. None of the citizens who allegedly opposed

the variance petition appeared at the hearing; so far as the record

shows, no attempt was made to tell them when or where the hearing

was to be held (R.9), This is indeed a case in which the carefully.

contrived machinery for ascertaining the effect of a variance on

the public seems to have broken down. The difficulty is that variance

proceedings are typically non-adversary; the public, which may be

adversely affected if emissions continue, must be notified and

encouraged to participate. The statute (Section 37) places the

burden of stimulating public participation on the Agency as a sort

of public defender. In our view this function requires affirmative

efforts to put evidence in the record, in troublesome cases such

as the present one, as to the exient of adverse effects on the public.

The present record is lacking on that score.

Apart from the Agency~s unproved allegations, the record contains

only Texaco~s assessment of the extent of the nuisance, which quite

naturally minimizes the problem. One Texaco witness offered the

flabbergasting observation that he found the odor of hydrogen

sulfide “not really” objectionable (R,l3l). Others testified that

the odor was not always very strong even right beside the lagoon and

that the nearest homes were half a mile away, in an upwind direction

with regard to the “prevailing” winds (R,38,82,84); that no complaints

had been heard from the nearest neighbors (R,36); that the paint

damage in question probably was attributable to other sources because

of wind direction and other possible H2S sources in the area

(R,23-26, 32-35)

;

and that its settlement of paint damage claims did

not constitute an admission of liability (R,33,l80). Texaco thus

testified that its emissions had no significant adverse effects (R,33).

At the same time Texaco testified that perhaps 3,000 pounds of

hydrogen sulfide were emitted from the lagoon daily (R,36); that the

odor could sometimes be detected in the company~s Salem office,

five miles away (R,23,3l,44); that H2S could be smelled at concentra-

tions ranging from less than one to fifteen parts per billion (R.66);

that an unsatisfactory study done by a reputable Texaco consultant

had originally discovered ambient concentrations at least as high

as 0,17 ppm (R,159), but that the consultant had since retracted

its opinion that such readings were attributable to the lagoon (R.l46),

in light of the company~s discoveries as to wind direction and low

readings at closer sampling points at the times in question (R.l58,l59)

All this leaves us in great doubt as to the seriousness of the

nuisance caused by Texaco~s operations. We have no numerical air

quality or emission standards for hydrogen sulfide; an air quality

standard of 0.03 ppm was proposed by the staff of the old Air

Pollution Board, but no action was taken on the proposal because no

1 -~

251

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evidence was presented in its support. Hydrogen sulfide emissions

of course could violate the statutory ban on “air pollution”

(Environmental Protection Act, section 9 (a)), which requires proof

that emissions be “injurious to human, plant, or animal life, or

to property” or “unreasonably interfere with the enjoyment of life

or property” (section 3 (b)),1 The evidence, however, is not sufficient

to permit a determination whether Texaco is in violation of this

provision.

The burden of proof is on the petitioner to prove unreasonable

hardship. Texaco~s evidence, unrebutted except by allegations in

the Agency~spleading, is that the emissions do not cause serious

problems, We have grave suspicions that an adequate record would

show something quite different; the company itself concedes the odor

can sometimes be detected for five miles, But the proof of hardship

far outweighs the injury to the public as described by Texaco in the

present record, especially since a temporary shutdown might destroy

the productive capacity of Texaco~s wells forever,

We are also persuaded that Texaco has made strenuous and good

faith efforts during the past year or so to discover a means of

reducing its emissions, and that it has come up with a promising new

solution for at least part of the problem. If the proof of nuisance

were greater, we might consider requiring Texaco to install the

new device at once on its entire facility, rather than only on

one of its four lines as scheduled. But, as in Owens—Illinois Corp.

v~ EPA, #70-31 (decided January 27, 1971)

,

we recognize the risk

of failure involved in the application of new technology and will

allow the first unit to be evaluated before others are required.

Because the record is so incomplete, we are tempted to grant

an extremely brief variance in order that we might base further action

on more adequate evidence, for if it should prove that continuing

emissions will condemn much of the county to the sickening stench of

rotten eggs, it would take an overpowering showing of hardship

to justify it, if it could be justified at all, But another three

months would in all likelihood be consumed in hearing and deciding

the new petition, and we still would not know the efficiency or

feasibility of the new process, Therefore it seems preferable to

grant the variance for the full time requested, in order that we can

resolve all questions relevant to any further variance request or

1, Whether Rule 3-3,284 of the Rules and Regulations Governing

the Control of Air Pollution prescribes an additional test

for odors of all kinds or merely relates to rendering plants

we need not. decide, since there is no proof that the odor

thresholds there specified were exceeded,

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enforcement proceeding on the basis of a full record,

As a condition of the variance we shall require not only the

statutorily required bond, and monthly reports, to assure progress

toward emission control but a study of atmospheric H2S concentrations

attributable to Texaco and adherence to a specific timetable, based

largely on Texaco time estimates, to achieve reduction of emissions

as rapidly as can be, If an extension of this variance is sought, a

hearing will be held as expeditiously as possible and we shall expect

detailed proof, from both the company and the Agency, as to the

concentrations of hydrogen sulfide attributable to Texaco at various

inhabited points affected by the lagoon, as to the seriousness of

the odors perceived by the neighboring citizens, as to the concentrations

at which adverse effects are noted in the literatu~e, and as to the

degree of control required to reduce emissions to an acceptable level,

Texaco will be required at that time to produce a firm plan for

achieving the necessary reductionsj it v~illnot be enough to say,

as presently, that further study will be made,

It should be noted that the company agreed to waive the section

38 requirement that we act within ninety days after receipt of the

petition.

This opinion constitutes the Board’s findings of fact and

conclusions of law,

ORDER

1, Texaco, Inc. is hereby granted a variance from section 9(a)

of the Environmental Protection Act to permit the emission

of approximately 3,000 pounds per day of hydrogen sulfide

from its brine lagoon near Salem, Illinois, until October 1, 1971,

on condition that the following requirements are met,

2. Production at the facilities in question shall not be in-

creased during the period of this variance,

3, Texaco, Inc. shall within 30 days after this order post with

the Environmental Protection Agency a bond or other sufficient

security in the amount of $10,000, which shall be forfeited

in the event that the terms of this order are violated, or

that emissions in violation of section 9 (a) of ,the Environ-

mental Protection Act occur after October 1, 1971, without

an extension of this variance,

4, Texaco, Inc. shall proceed immediately to install the

electrolytic facility described in the record to control

hydrogen sulfide emissions, in accord with the following

schedule:

(a) Firm order to be placed for purchase and delivery by

March 1, 1971;

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(b) Delivery

Cc) Installation

(d) Evaluation of efficiency and adequacy

and submission

of petition for variance

containing

firm plan for

controlling

remaining

emissions, by August 1, 1971.

5. Texaco, Inc. shall file

monthly progress reports with

the

Agency,

from ~tarch 15, 1971, until October

15,

6. Texaco, Inc. shall comply with the permit requirements of

Rule 3—2.110 of the Rules

and

Regulations

Governing

the

Control of

Air

Pollution in regard to control equipment at

the lagoon in question.

7. Texaco,

Inc

•

shall Eile with

the

Agency on or before April

15, 1971 the results of a competent and thorough study of

ambient

air

concentrations attributable to its Salem

facilities at various inhabited points in the vicinity,

and

a statement of

the

marimum degree to which production

could be curtailed, if necessary, without Jeopardizing

the ultimate productivity of its wells.

8. Texaco,

Inc

•

shall pay reasonable compensation for

any

paint

discoloration caused by emissions from

Texaco’s

facilities

daring

9. If a petition for extension of this variance is filed par—

suant to paragraph 1~ (d) of this order, a hearing shall be

held upon notice but without further authorization, in

order to facilitate decision on such petition by October

~,

1971. Failure to comply with the conditions of this order•

shall

terminate,

10. Notwithstanding paragraph 1 of this order, this variance

shall be

terminated

whenever it is shown, after hearing,

that hydrogen sulfide emissions permitted by this variance

create a hazard to

human

health.

I, Regina E. Ryan, do hereby certify that the

Board

has approved the

above opinions this / 7tZ

day

ocç4~t1

Cl kofthesard

1-254

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I Dissent

oncurs with the supplemental opinion attached