ILLINOIS POLLUTION CONTROL BOARD
December 1, 1994
CABOT CORPORATION,
)
Petitioner,
)
V.
)
PCB 94—155
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on Cabot Corporation’s
October 14, 1994 motion for modification. Cabot seeks
modification of the Board’s September 15, 1994 opinion and order
granting Cabot’s petition for variance. On November 30, 1994,
the Illinois Environmental Protection Agency (Agency) filed its
response to Cabot’s motion, along with a motion for leave to file
that response
instanter.
The motion for leave to file
instanter
is granted.
Cabot asks that the Board modify conditions two and three of
our September 15, 1994 order granting Cabot’s request for
variance from a condition of its existing variance.1 Condition
two currently requires Cabot to replace the tubing for its
underground injection control (UIC) well number two either within
sixty days after Cabot’s new IUC well number three becomes
operational, or by March 24, 1995, whichever is earlier.
Condition three provides that the variance expires no later than
March 25, 1995. The Board stated in our September 15 order that:
although Cabot requests an ultimate compliance date of
21 months from grant of variance, 21 months would
extend far beyond the expiration of the existing
variance. Cabot has not requested, nor has it provided
information in support of, an extension of the
underlying variance. (Slip op. at 4.)
Therefore, the Board did not extend the expiration date of the
variance.
In the instant motion for modification, Cabot asks that
conditions two and three be modified to require that the tubing
in well number two need not be replaced until 60 days after well
number three becomes fully operational, or by December 31, 1996,
That existing variance was granted by the Board on
March 25, 1993, in docket PCB 92—179.
2
whichever is earlier. Cabot contends that its petition for
variance clearly contemplated that the expiration date of its
existing variance be extended. Cabot asserts that by asking for
an ultimate compliance date of 21 months after the grant of
variance, it clearly intended to obtain relief past the
expiration date of the original variance. Cabot further
maintains that it included sufficient information in its petition
regarding its progress to warrant an extension of the expiration
date. Finally, Cabot contends that failing to extend the
deadline would impose an arbitrary or unreasonable hardship.
In its response, the Agency states that Cabot’s best
opportunity to remove the tubing and run a casing inspection log
without exceeding injection capacity or cutting normal
production, during its 1994 annual fall shutdown, has come and
gone. The Agency contends that it seems as though the nearer in
time the operation of well number three approaches, the farther
away is the time when Cabot will finally be required to remove
and replace the tubing in well number two. In conclusion, the
Agency paraphrases its original recommendation, that there must
be some outer time limitation placed upon how long Cabot may
continue to postpone removing the tubing. The Agency points out
that the risk of corrosion and failure of the tubing, and
resultant release of hazardous constituents to the environment,
as minimal as it may now appear, will increase as time continues
to pass.
After considering the contentions presented in the motion
and in the Agency’s response, the Board will grant the motion for
modification in part. Initially, the Board reaffirms its
conclusion reached in our September 15, 1994 order: that Cabot
did not request an extension of the expiration date of the
variance. Cabot’s May 18, 1994 petition for variance
specifically states that Cabot seeks “a variance from Condition
No. III of the Board’s March 25, 1993 order.” (Petition at 5.)
No matter how much may be inferred or implied from Cabot’s
request that the deadline for removal of the tubing be extended
for 21 months, the Board believes that a variance petitioner has
an obligation to specifically request, and support, all necessary
relief.
Nevertheless, because Cabot has now specifically requested
and supported its request for extension of the compliance
deadline, and in the interests of administrative economy, the
Board grants the modification in part. Cabot has provided
sufficient information on the progress of construction of well
number three for the Board to find that Cabot has demonstrated
satisfactory progress. Cabot states that it expects to have
completed all activities for well number three within its control
by February 15, 1995. However, Cabot states that it then faces
regulatory obstacles to actual operation of well number three,
including action required by the Agency, the United States
3
Environmental Protection Agency (USEPA), and the Board, and that
the timing of those actions is out of Cabot’s control. (Motion
at 7-9.) Cabot concludes that because the Board originally
granted 21 months for the construction of well number three and
removal of tubing in well number two, an additional 21 months, or
until December 31, 1996, is reasonable.
The Board recognizes that the timing of final action by the
regulatory agencies is not within Cabot’s direct control.
However, we disagree that it is reasonable to allow the full 21
months originally granted for construction and all other
necessary activities for well number three, when, according to
Cabot’s own statements, the construction of well number three and
the preparation of the necessary petitions should be completed by
February 15, 1995. Therefore, we will extend the deadline for
replacement of the tubing until March 24, 1996, or until 60 days
after well number three is fully operational, whichever is
earlier. That date is one full year longer than the period
granted in our September 15 order, and should provide adequate
time for compliance.
The order set forth below supersedes and replaces the order
issued by the Board on September 15, 1994.
ORDER
The Board hereby grants Cabot Corporation (Cabot) a variance
for its Tuscola, Illinois facility from condition III of the
Board’s March 25, 1993 order in PCB 92—179. The variance is
subject to the following conditions:
1. Cabot shall continue to comply with the requirements of
conditions I and II of the March 25, 1993 order in PCB 92-179.
2. Cabot shall replace the tubing for well number 2 either
within sixty (60) days after well number 3 is operational, or by
March 25, 1996, whichever is earlier.
3. The terms of the variance granted on March 25, 1993, as
amended by this order, shall expire no later than March 25, 1996.
Within forty-five days of the date of this order, Cabot
shall execute and forward to:
Daniel P. Nerriman
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
4
a certificate of acceptance and agreement to be bound to all
terms and conditions of the granted variance. The 45-day period
shall be held in abeyance during any period that this matter is
appealed. Failure to execute and forward the certificate within
45—days renders this variance void. The form of certificate is
as follows.
I (We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board in PCB 94-155, dated
December 1, 1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Joseph C. Yi abstained.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order. The Rules of the
Supreme Court of Illinois establish filing requirements. (See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certjfy that the above order was adopted on the
/~“~ day of
~2~x-~z~’
,
1994, by a vote of
4
//
~ff
f2L.
~
Dorothy M.~øunn, Clerk
Illinois ~llution Control Board