ILLINOIS POLLUTION CONTROL BOARD
    October
    14,
    1971
    NATIONAL STARCH
    AND
    CHEMICAL
    CORPORATION
    v.
    )
    PCB 71—83
    ENVIRONMENTAL PROTECTION AGENCY
    Mr. James
    W. Kissel,
    Sidley
    & Austin for National Starch and
    Chemical Corporation
    Mr.
    Roger Ganobcik for the Environmental Protection Agency
    Opinion of the Board
    (by Mr.
    Dumelle):
    In this petition
    for variance National Starch and Chemical
    Corporation
    (National)
    sought to be allowed to discharge effluent
    from its chemical processing plant containing contaminants
    in con-
    centrations
    in excess of
    thoso. ~flowed by regulation for
    a period
    extending through 1972 during which
    they would be planning and in-
    stalling treatment facilities.
    National filed their petition
    for variance with
    the Board on
    April
    22,
    1971.
    A hearing was held on June 18
    at which
    the Environ-
    mental Protection Agency
    (EPA) was
    not, present.
    An order granting
    National
    a variance until October
    1 and requiring
    a further hearing
    was issued by this Board on July
    19,
    A second hearing was held
    on August
    31.
    The variance request
    is granted
    for
    a limited period
    subject
    to the several conditions discussed in this opinion.
    National
    is
    a multi-plant chemical producer.
    The plant which
    is the
    subject
    of
    this variance petition is located about one mile
    south of the town of Meredosia;
    about sixty miles west of Spring-
    field.
    The plant is on the Illinois River and primarily produces
    polyvinyl acetate polymers in emulsion
    form and several specialty
    products used generally
    in the adhesive, paper, paint and textile
    industries
    (R.8-9).
    The plant employs approximately 110 employees
    and operates on
    a
    3 shift,
    7-day~a—weekbasis
    (R.7).
    2
    611

    Water
    is obtained from
    6 deep wells which provide
    a flow of
    approximately 2,000 gallons per minute.
    The plant processes
    the
    following types of major raw materials: Monomers
    (mostly vinyl
    acetate, about 5,000,000 lbs./moj;
    solvents
    and plasticizers
    (about 400,000 lbs,/moj;
    inorganic chemicals
    (about 290,000 lbs./
    mo.);
    and organic chemicals
    (about 315,000 lbs,/mo,)
    (R.lO-l2).
    The waste water from the plant is ccmposed of two streams,
    water from cooling processes which
    is discharged at about
    2,000
    gallons per minute and contaminated waste water which
    is discharged
    at approximately 130 gallons per minute
    (R.l6-l7).
    This
    latter
    waste stream is discharged into
    two stabilization
    lagoons
    for
    a
    total retention time
    of approximately
    10 days.
    The combined
    effluent from both waste streams
    is then discharged to the Illinois
    River,
    In
    1967, National engaged
    a consultant
    to study the plant’s
    effluent,
    Certain major physical changes in
    the plant were made
    and the cooling water was separated from the contaminated waste
    water
    (R.46).
    With
    the changes the retention time in the
    stabiliza-
    tion
    lagoons
    was
    increased
    from
    approximately
    1
    day to more
    than
    10
    days
    (R.20).
    The
    chal)ges
    were
    completed
    in
    October,l969
    (R.46).
    Sometime thereafter,
    in September,
    1970,
    National
    engaged
    Monsanto Biodize Systems.
    Inc.
    to act as
    its consultant,
    and
    Monsanto
    made
    studies
    and
    analyzed
    samples
    from
    the
    plant
    (R.47,85).
    Monsanto made the following conclusions regarding the untreated
    wastes:
    (1)
    The wastes from the plant
    can be biologically treated
    to remove 97
    of
    the POD with
    a retention time
    in the oxidation
    basin of
    36 hours;
    (2)
    filtration probably will be required to
    reduce the effluent turbidity level
    to acceptable limi?s;
    and
    (3)
    an
    on-~sitestudy will be necessary to determine the effects of waste
    variation on the treatment system and
    the degree of treatment re~
    quired to meet the effluent standards.
    (Petition
    p.
    5).
    Mr.
    P.H. Woodruff,
    one of National’s present consulting
    engineers, outlined the program now proposed for the plant as
    follows:
    (1)
    Consultant to continue study
    and to begin on-site
    field studies to define the nature,
    character and
    volume of
    the discharge.
    (2)
    October,
    1971,
    consultant
    to have completed field
    studies,
    analysis,
    and recommendations
    for treat-
    ment methods
    to improve effluent quality.
    2
    612

    (3)
    February,
    1972, design plans and specifications
    for improved treatment process and procedures to
    be completed.
    (4)
    April,
    1972, begin construction.
    (5)
    End of 1972,
    construction
    to be completed. Ready
    to start up
    (R.6l-63,
    71,
    Pet.
    Ex.
    5).
    The effluent standard
    for POD in SWB-8
    is
    30 milligrams per
    liter
    (mg/l)
    and National’s effluent before dilution calculates
    to be
    at 104 mg/l
    as
    an average
    (R.34,
    75-76).
    EPA samples of
    the lagoon effluent showed BOD concentrations of 45 and 48 mg/l
    and combined effluent POD concentrations
    of 52 and
    54 mg/l.
    As
    for suspended solids,
    regulation SWB-8 limits effluents
    to
    35 mg/l.
    Mr.
    Peck.
    the plant manager testified that
    the
    plant’s suspended solids discharge was in the area of
    80 mg/l,
    as
    an average,or approximately twice that permitted by regulation
    (R.36,
    77-78).
    EPA samples showed
    a suspended solids concentration
    of 43 mg/i in the combined effluent and concentrations of 59 and
    79 mg/i in
    the lagoon effluent.
    National had an independent testing laboratory study made
    of the effect of its discharge on two different types of fish,
    The only effect noted was that the
    fish were more quiescent after
    exposure to
    the effluent
    (R.25-27).
    Mr.
    Peck expressed the
    opinion that the effluent had no detrimental effect on the fish
    life in the
    area
    (R.35).
    Additionally,
    a
    statement from Mr.
    H.
    Edlen,
    a long-time local fisherman, was put into
    the record and he
    expressed the opinion that Natiønal’s discharges had had no adverse
    effect on the availability of
    fish
    in the river
    (R.49-40).
    In each variance case which comes before us we must weigh
    the asserted arbitrary or unreasonable hardship on the petitioner
    against the harm to the citizenry as
    a whole; that
    is,
    the harm
    to the environment.
    In this case we must consider whether the
    harm done to
    the Illinois River is so great as to outweigh the
    hardship which the petitioner would suffer should the variance be
    denied.
    We
    find that the harm to the River in this
    case is not
    of such magnitude
    as to prevent our granting
    a license
    to pollute
    in this
    case.
    However,
    we cannot be as sanguine about the effect’
    on the River
    as petitioner’s witnesses.
    The, company president
    testified as
    to the monthly usage of 400,000 pounds of plasticizers
    and solvents,
    We do not know the identity or exact quantity of the
    2—613

    plasticizers
    and can only wonder if among
    them are any of the
    persistent and environmentally ubiquitous polychlorinated biphenyls
    (PCBS).
    If PCBS are being used and discharged
    -
    are they being
    controlled,
    or monitored?
    We know not
    and can comment no further
    with the present state of the record.
    The Environmental Protection Act states that any variance
    granted under the Act
    is limited to one year
    and then may be extended
    only if satisfactory progress has been shown.
    We grant this variance
    to terminate on October
    1,
    1972.
    If the petitioner will need
    a
    further exemption from prosecution beyond that time,
    it should take
    the precaution of filing
    a further petition some 90 days before the
    date
    of termination of the instant grant.
    The statute explicitly
    authorizes
    the Board
    to impose such conditions
    as the policies
    of
    this Act may require when granting a variance
    (Section 36(a)).
    Several
    conditions
    are required here to further the purposes of the statute,
    First, we shall require National to submit quarterly progress
    reports.
    Periodic progress reports are necessary
    as
    a means
    of
    checking compliance with program schedules.
    The reports should
    detail progress
    to date ~nd fully document and explain significant
    deviations from the
    program
    as
    originally
    planned.
    The
    first
    re-
    port
    shall
    cover
    the
    period
    from
    the
    present
    through
    December
    31,
    1971.
    National
    should
    submit
    such
    reports
    to
    the
    Environmental
    Protection
    Agency
    and
    the
    Board
    a
    reasonable
    time
    after
    the
    expira-
    tion of the calendar quarter but in no case shall this period
    extend
    beyond
    three
    weeks.
    We
    do
    not
    wish
    to
    be
    in
    the
    position
    a
    year
    from
    now
    of
    discovering
    for
    the
    first
    time
    that
    there
    have
    been
    further
    delays.
    For
    the
    same
    reason,
    we
    shall
    insist
    not
    only
    that
    the
    company
    aim
    toward
    ultimate
    compliance
    by
    the
    end
    of
    1972,
    but
    that
    it
    meet
    several
    interim
    deadlines,
    in
    accord
    with
    its
    proof
    at
    the
    hearing,
    in
    order
    to
    give
    us
    intermediate
    check-
    points
    against which to measure progress.
    We shall require that the
    engineering
    design
    be
    complete
    by
    February
    18,
    1972,
    and that
    construction
    be
    commenced
    by
    April
    14,
    1972.
    The
    primary
    cell
    of
    the
    lagoon is presently about one-third
    full
    (R.124, EPA Ex.
    1)
    and the separating dike between the pri-
    mary and secondary cell
    is almost completely submerged
    (R.l28).
    ~s of the date
    of the second hearing, National did not, know if
    the
    two-celled lagoon would be part of the proposed treatment
    3ystem
    (R.l32—l33).
    However,
    their consultant’s
    concept engineer—
    ing design was
    due to be submitted to National within
    a
    few days
    after
    the
    hearing
    (Pet,
    Ex,
    5).
    We
    are
    thus
    uninformed
    as
    to
    whether
    or
    not
    the
    lagoons
    will
    constitute
    an
    integral
    part
    of
    the
    2— 614

    proposed treatment system.
    Nonetheless,
    the
    fact
    that the new
    system will not be operational
    for well over
    a year,
    the
    fact that
    the present effluent contains suspended solids and POD greatly
    in excess of the regulation’s
    limits,
    the
    fact that presently dredg-
    ing the lagoons will increase the retention time very substan-
    tially,
    and the fact
    that the separation between the
    two treat-
    ment cells is perilously close to no separation compel us,
    as
    a
    further condition of this variance
    grant,
    to require National
    to
    proceed
    with
    all
    practicable haste
    to dredge
    the primary lagoon
    and
    thus
    improve
    the
    present
    waste
    treatment.
    National
    shall
    commence
    the
    work
    within
    sixty
    (60)
    days
    of
    the
    date
    of
    this
    opinion and order.
    Since
    this
    is
    a case
    in which the hardship is temporary and
    the sole reason for the variance is the need for time
    in which to
    install treatment
    facilities,
    the Act
    (Section 36(a))
    requires the
    posting of security to assure that the company meets
    the dates it
    has
    set.
    We have required security
    in comparable past cases
    (see
    Ozark-Mahoning v.
    EPA, PCB 70-19),
    and statutory bond requirements
    are
    in fact quite common and accepted
    in other
    fields.
    The pur-
    pose of the bond requirement is to provide an additional incentive
    to the variance holder to meet its deadlines, by imposing
    the
    threat of forfeiture if it does not.
    The amount must be high
    enough to make it more unattractive
    to default than to spend the
    money
    for control facilities,
    We think
    a security in the amount
    of $75,000 will be adequate in this
    case,
    to be forfeited pro rata
    if the interim deadlines
    of
    (1) February
    8,
    1972, by which engineer-
    ing design is to be complete
    and
    (2) April 14,
    1972, by which con-
    struction is to have commenced,
    are
    not met.
    There
    is
    a period in
    the recent past in which at least eleven
    months went by with no significant activity by National in cleaning
    up its contaminated discharges
    (R.47).
    We deem this lapse to be
    inexcusable and,as
    a further condition
    to
    the grant of this variance,
    we will require National to pay the sum of Two Thousand Dollars
    ($2,000)
    as
    a money penalty for the inordinate delay in complying
    with
    an abatement program whose deadline was
    July,
    1969.
    From
    October of 1969 to September of 1970,
    the company did virtually
    nothing to further its clean-up program.
    In September of 1970,
    it
    retained
    a consultant and several months
    later, perhaps eight or
    nine,
    it dropped that consultant and retained their present con-
    sulting engineers,
    all the while seemingly oblivious
    to the firm
    requirement of SWB-8 to be in compliance by July,
    1969.
    There
    is
    no testimony
    of any departures asked
    for
    and’ permitted from com-
    pliance with
    the July,
    1969 date by which construction
    of treat-
    ment facilities was
    to be complete.
    We are now two years beyond
    2—
    615

    the date by which construction was
    to be complete.
    National
    is
    contemplating December,
    1972 as the date by which
    the treatment
    facilities
    are finally to be installed.
    Some may consider this
    Two
    Thousand Dollar money penalty for missing
    a treatment deadline
    by three and
    one half years
    an inadequate way of dealing with
    such
    a delay.
    We devoutly hope, however,
    that
    it will serve to impress
    the company of this Board’s commitment
    to hastening compliance with
    this state’s pollution regulations.
    This opinion constitutes the Board’s findings of
    fact and
    conclusions
    of law.
    ORDER
    The Board having considered the transcript
    and exhibits in
    this proceeding hereby grants
    a variance
    to the National Starch and
    Chemical Corporation
    (National) subject to the following conditions:
    1.
    Variance frgm the regulations
    in
    SWB-8 relating
    to
    effluent
    quality
    as
    regards
    BOD
    and
    suspended
    solids
    is granted until October
    1,
    1972.
    In no
    instance
    shall
    the
    suspended
    solids
    concentra-
    tion
    discharge
    leaving
    the lagoon exceed
    150 mg/l.
    2.
    National shall meet the following schedule dead-
    lines put forth
    at the hearing:
    (a)
    February 18,
    1972
    -
    complete engineer-
    ing design; and
    (b)
    April
    14,
    1972
    commence construction
    of treatment facilities.
    3.
    National shall dredge
    the primary settling lagoon and
    restore it to full capacity.
    The work shall commence
    within sixty
    (60)
    days.
    4.
    National shall submit to the Environmental Protec-
    tion Agency
    and
    the Board quarterly reports on
    the progress of their program to bring their plant
    effluent into compliance with
    the regulations.
    The first report shall cover the period from the
    present through December
    31,
    1971, with each
    subsequent report covering the calendar quarter.
    The reports shall be submitted
    a reasonable time,
    not to exceed three weeks after the last date
    reported.
    2
    616

    5.
    National shall post with the Environmental Pro-
    tection Agency,
    on or before November
    1,
    1971,
    and in such
    form as
    the Agency may
    find satis-
    factory,
    a bond or other adequate security
    in
    the amount of $75,000, which sum shall be for-
    feited to the State of Illinois pro rata in the event
    that the interim deadlines of February
    18,
    1972
    and April
    14,
    1972
    are not met.
    6.
    National shall pay within
    30 days
    of date,
    to
    the State
    of Illinois general revenue
    fund the
    sum
    of Two Thousand Dollars
    ($2,000)
    as
    a money
    penalty
    for
    the undue delay incurred to date
    in complying with
    the regulations of SWB-8.
    7.
    During the period that this variance is in effect
    National shall not increase
    the pollutional nature
    of
    its discharges either in strength or in volume,
    8.
    Failure
    to adhere
    to any of the conditions of
    this variance shall be grounds for revocation
    of the variance.
    I,
    Regina E.
    Ryan, Clerk of
    the Illinois Pollution Control
    Board, hereby certify that
    the Board adopted the above Opinion and
    Order
    on the
    14
    day of October,
    1971.
    2— 617

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