ILLINOIS POLLUTION CONTROL BOARD

May 24 

1971

Environmental Protection Agency

vs.

)

PCB 71—23

Borden Chemical Company

Mr. Thomas McMahon represented the Environmental Protection Agency

Mr. James W. Kissel represented the Borden Chemical Company

Opinion of the Board (by 

Mr. Kissel)~

On February 24, 1971, the :~ordenChemical Company (“Borden”) filed

a petition for Variance under 

the

Environmental Protection Act (the “Act”)

with the Pollution Control 

Board (the

“Board”) seeking a variance from

the provisions of SWB—14 (which is a regulation covering the water

quality

and

implementation plan for the intrastate

waters of the State

of Illinois)

from the

time 

schedule demands and t.he additional

reduction

requirements

as to biochemical oxygen demand (BOD) and total suspended

solids (TSS) outlined in a letter received from the Environmental

Protection Agency

(the 

“Agency”) dated December

3,

1970 (Borden~ s

Exhibit 

B) and

from 

any other possibly applicable regulations or

standards.

Borden requests that it be given until October 31, 1971.

to permit study of Borden~s present waste treatment facilities

to

determine whether BorderYs effluent

can meet the standard of 12.5

milligrams per liter (mg/i) for POD and TSS

with 

the efficient operation

the existing facilities, 

Further, Borden

w~il during this studv

period determine whether there is a practical

and feasible method for

any reduction below 12.

3

mg/I POD and TSS.

If so, Borden requests that

it be given until March 1, 1972, in order to prepare construction

plans

for the improvements to the facilities.

Then, Borden wishes that the

date

for

completion

of that 

construction be set

as

December 31, 1972.

The Agency~s initial

recommendation was that Borden must meet the

purported requirements

of SWB—14 which would mean that Borden would

have 

co construct facilities

by July 1, 1972, so that its effluent

would contain no more than

4

mg/l BOD and 5 :ng,~’l TSS.

At the close of

the proceeding the

attorney 

for the A~ency amended the Agency s

recommendation-~-trie new recommendation asks the Board to grant a

variance to Borden until October 31, 1971, to submit plans and

specifications

which will be for the construction

of facilities

July 1, 1972, to meet the effluent

standards of SWB—14,

The Borden facility

involved in this proceeding is located in a

rural area near i1iiopo1is, Illinois.

is a manufacturing 

facility

which 

produces polvvinylchloride,

(which

is

extruded to make clear

plastic bags), styrene~-butadiene emulsion (which is used for paint

and paper coatinç) and polyvinyl acetate emulsion (which is used for

adhesives,

such as Elmer s Clu—All)

The waste treatment system is

605

a three stage process. All the industrial waste is gathered into a

collection system and carried to the first stage of the treatment

system. In the first state, chemicals are added to coagulate and

flocculate the waste water. After the addition of the chemicals,

the water is discharged into a Dorr-Oliver flocculator cla±ifier

which settles the floc, an.d the supernatant liquid flows to the

second stage. This stage consists of the Oxygest system which

stabilizes the sludge, and more sludge is removed. The effluent

from the second stage flows, then, to two large polishing lagoons

which are the third stage of treatment. The effluent from the

polishing lagoons flow into an unnamed ditch which eventually finds

its way to Long Point Slough, and then the Sangamon River,

The unnamed ditch into which the Borden waste water flows is at

many times of the year completely dry, except for the effluent from

•the Borden plant. Even in the spring of the year the flow is 

low--

at

the time

of the hearinq a witness indicated that the water 

in the

ditch was about 4 to 

feet wide and 8 to 12 inches deep. 

The

ditch

receives the flow of 250,000 gallons per day from the Borden plant.

The chemical precipitation unit

was constructed by Borden 

in 1959,

and has been operating since that date,

During the next few years,

Borden admitted that there were ‘some complaints” about the turbidity

of the effluent discharged by Borden.

As a result,

Borden instaLLed

the two polishinc lacoons in 1965 to correct the problem~. Then began

the dealings with the technical staff of the Sanitary Water Board,

Apparently, some discussions were had between the technical ceeple

of SWB and Borden.

These discussions

culminated in a meeting on

April

26,

1968 in the offices of the Technical Secretary.

After

the raeetinq

Mr.

A. A. Brens:Ley, a sanitary engineering consultant to

Borden, confirmed the discussion which had taken place by sending a

letter to the Technical Secretary.

(Borden Exhibit 4).

This :Letter

was accompanied by a document entitled

“Basis for Design for Added

Treatment”. (Borden 

Exhibit A) Essentially,

Borden agreed to install

a Stage 2 facilit between the chemical precipitator and the

polishing lagoons, which 

when added would reduce the final POD

concentration

in the effluent from the Borden plant to 10 mg/i.

The

specific process 

was not described, but the

basic plan 

was approved

by the Technical Secretary in a letter dated 

May

6, 1968, in 

the

final paragraph of the letter which stated:

“We have 

reviewed the items listed

in your letter of April 26,

19681 and they are in accord with our requirements and 

the

discussions 

the April 26, 1968 meeting.” (Borden Exhibit 

5).

Borden proceeded with the plans and specifications and 

received a

permit from the 

Sanitary Water Board “to

install and 

operate Phase

II additions to the existing industrial waste treatment facilities,..

all in accordance with plans and performance specifications

~Borden

Exhibit A)

...

being made a part hereof,”

(Borden Exhibit B).

1-606

Borden selected, and built the 

Oxygest 

system under the permit,

The system was completed and operable, in October 1969.

Since the final system has been completed by Borden, the Agency

and Borden have sampled the effluent. The Agency averaged all samples

prior to the date of completion an~the results showed that the BOD was

72

mg/I and the TSS was 42 mg/l. (Borden Exhibit B) On October 21 and

22 samples were taken and tests of the samples were made by the Agency,

Smith and Loveless and the Decatur Sanitary District, These samples

showed POD to be measured as “insignificant” (by the Agency) to 7 mg/i

by the Smith and Loveless laboratory. TSS was measured as 14 by the

Agency. (See Borden Exhibits C and D)

On December 3, 1970, the Director of the Agency sent a letter to

Borden indicating that the effluent from the treatment facilities was

“not producing a satisfactory effluent at the time of sample collection,”

(Borden Exhibit E) The letter went on to say that in order that Borden

comply with present regulations it must, by July 1, 1972, not have an

effluent beyond 4 mg/l POD and 5 mg/I TSS, Plans and specifications for

the facilities were required by January 1971 and awarding of construction

contracts was required by July 1971, Subsequent to that date, the

Agency admitted that the effluent samples it had used as the basis for

figures in the December 3, 1970 letter “did not show the final effluent

sampling results 

which were more representative of the effluent

quality after the development of the procedures had been completed,”

(Borden Exhibit C)

The heart of this matter is the decision as to what level of

treatment Borden must provide to its effluent, On the one hand,

Borden argues that, as a result of the dealings with the Agency and

its predecessor group, Borden need only provide treatment facilities

which attain an effluent quality of 12,5 mg/l of POD and TSS, Borden

is, however, willing to study the problem to see if additional POD and

TSS reduction is technically and economically possible. The Agency,

on the other hand, argues that Borden, like others who discharge into

intrastate waters, must meet the requirements of SWB~l4, which would,

according to the Agency, require meeting an effluent BOD of 4 mg/I and

TSS of 5 mg/I by July 1972. Although the Agency presented no

witnesses, it did elicit on cross~examination that systems to accomplish

this are presently available, although some pilot studies’ must be done

to determine technical feasibility, An examination of the specific langua~

of SWBI4, as it applies to Borden, is imperative before a ruling can be

made by the Board, Section 1,08 of SWB-14, entitled “Im’olementation and

Enforcement Plan”, provides in paragraph l0a as follows:

“All municipal or industrial facilities for treatment of deoxygenating

waste shall provide at least secondary biological treatment, or

advanced waste treatment, adequate to reduce the organic pollution

load of the treatment works effluent at the final treatment structure

in accordance with effluent guidelines in paragraph 11, below,”

(-Emphasis supplied)

1

—

607

Paragraph 

11 of that Section provides that where the stream dilution

is less than 1 

to

1, Advanced Waste 

Treatment Facilities are

required to 

provide

an

effluent 

BOD of 4 mg/l and TSS of 

5

mg/l.

It

is

clear from 

the language of SWB-l4,

referred to above, that

Borden must provide Advanced waste 

treatment as stated in paragraph 

11

of Section 1.08. Since the testimony 

was that at periods of time 

there

is no flow in the unnamed ditch to 

which Borden’s effluent is discharged,

the dilution ratio obviously is less 

than 1 to 

1. The more difficult

question is trying to determine on what date Borden must meet that

requirements. Paragraph 14 of Section 1.08 provides that municipal

treatment works must meet the standards by July 1972, There is

however no specific date given as to 

when 

industrial discharges must

meet the standards, Rather, industries will be required to meet a time-

table “established by the Board subsequent to facility inspection and

progress conferences.” Paragraph 15, Section 1.08, SWB—l4, It seems

therefore, and this Board so holds, that Borden was and is required to

provide advanced waste treatment, but that until a determination of a

date is made as to when the facilities should be completed, Borden was

not under any timetable for said completinn. This means, then, that at

this point Borden was not violating any rule, or regulation, contained

in SWB—l4 from which a variance could be granted, This is the case even

though the Director of the Agency attempted to impose a July 1972 date on

Borden in the Director’s letter to Borden dated December 3, 1970,

(Borden Exhibit B) The Director, however, did not, and does not, have

the authority to set the timetables for industrial dischargers to intra-

state waters, This function is by regulation reserved exclusively to

the Board, See paragraph 15, Section 1,08, SWB~’l4.

Notwithstanding the previous omission to have this Board, or the

predecessor Board set a date for Borden to install advanced waste

treatment facilities, this Board can set the date at this time. Based

upon the recommendation of the Agency and upon the testimony of Borden’s

consulting engineer that two systems were available1 for Borden to attain

the required POD and TSS effluent concentrations of 4 and 5 mg/i

respectively, this Board believes that the 1972 date must be met by

Borden, With that date now set, this.Board hereby grants a variance to

Borden to October 31, 1972, to finalize its plans and specifications for

the installation and construction of facilities which will meet the

requirements of SWB-l4 which this Board has held applicable to Borden.

If Borden after study and research cannot meet the final deadline of

July 1972, it must seek another variance from this Board. The Variance

herein granted to Borden is from the project completion schedule of

~he

two~system~ere described by Er, A,A. Beasley, consulting

engineer

of Warren and Praag. 

(See B.

113-4) One is the system of

the Neptune Meter Company, but this is 

untried system, The other

is sold by Calgon and is known as the granular activated carbob

system, Beasley has worked with people from Calgon and the total

capital cost of the system would be between $175, and $180,000.

Some pilot plant work is needed, but at this time the record does

not contain enough facts on whether that will delay the project

beyond July 1972, That could be, as we have stated, the subject

of another variance proceeding when the facts are known,

—

608

Section 1.08, paragraph 12, SWB-l4. Under the Board~s ruling, Borden

shall submit its plans and specifications for the facilities by

October 31, 1971, and award construction contracts by February 1, 1972,

with the completion date of July 1, 1972.

We hope that other industrial dischargers covered by SWB-l4 have

already been given approved timetables from the prior Sanitary Water

Board. Without these timetables, actually approved by the Board, each

industrial discharger covered by SWB-l4 has in fact no timetable to

follow. Directions from the Technical Secretary, or the Director of

the Agency, as the case may be are not sufficient under paragraph 15,

Section 1,08 of SWB—l4 to create a legally enforceable timetable in

regard to those industries covered by SWB14. If those timetables

have not been properly approved, we expect that the Agency will seek

such approval from the Board as soon as possible.

Two other points must be discussed. First, Borden attempted to

show that its discharge had no effect on the stream because the stream

was probably polluted downstream from the plant. We regard this as

totallv irrelevant testimony. If.we were to allow each discharger

to present that argument before this Board, we could never do anything

about the pollution of the waters of the State. Second, the Agency

criticized the petition for variance because 

it

did not contain a list

of all chemical constituents being discharged from the plant. We feel

that 

contention is also without merit, The variance petition sought a

variance from BOB and TSS effluent standards, not standards for heavy

metals, or other constituents. If the Agency has information that

Borden or any other company is discharging harmful constituents into

the

waters of the state, it is required to file complaints before this

Board, No

such information was made available to the Board in this case.

This ominion constitutes findings of fact and conclusions of law of

the

Board in this case.

Based upon the testimony and the exhibits introduced into this

case 

the

Board hereby orders the following:

1.

Borden is hereby required to meet the following timetable

for the construction of advanced waste treatment facilities as required

by paragraph llb, Section 1.08, SWB14:

a. Completion of plans and specifications 

October 31, 1971;

b. Awarding of construction contracts 

February 1, 1972; and

c. Completion of construction 

July 1, 1972.

2. During the period before completion of construction of the

facilities outlined in paragrauh, Borden shall not increase its

production so as to increase the average strength, concentration

1-609

and volume of the waste water, as 

it

existed prior to the date of the

variance petition 

filed 

herein.

I, Regina E, Ryan, Clerk of 

the

Pollution Control Board, certify that

the above Opinion and Order was 

adp-pte’d”~b~i

the Board this 24 day of

MIy

1971.

—

610