ILLINOIS POLLUTION CONTROL BOARD
September
1,
1994
IN THE MATTER OF:
)
PETITION OF AKZO CHEMICALS,
)
INC. FOR AN ADJUSTED STANDARD
)
AS 93-8
FROM 35 Iii. Adm.
Code 304.105
)
(Adjusted Standard)
and 302.208.
MARI
LATHAM
AND ROY HARSCH OF GARDNER, CARTON & DOUGLAS APPEARED
ON BEHALF OF THE PETITIONER;
MARGARET P. HOWARD APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by G.
T. Girard):
This matter
is before the Board on
a request by AKZO
Chemicals
(AKZO)
for an adjusted standard from the Board’s water
regulations at 35
Ill. Adm. Code 304.105 and 302.208.
AKZO is
seeking an adjusted standard for discharges of total dissolved
solids
(TDS), chloride,
sulfate,
and boron into the Aux Sable
Creek from the AKZO facility located in Morris, Grundy County,
Illinois.
AKZO
filed the original petition
in this matter on August
20,
1993.
On November 12,
1993,
an amended petition was filed,
and on February 2,
1994,
a second amended petition was filed.
The Illinois Environmental Protection Agency
(Agency)
filed a
response to the November 11 petition on January 12,
1994,
and to
the February
2 petition on March 17,
1994.
Hearing was held on
this matter on May 5,
1994,
in Morris, Grundy County,
Illinois,
before the Board’s
hearing officer, Philip Van Ness.
One member
of the public, Mr. Lawrence Dunbar, made a statement on the
record.
The parties filed no briefs
in this proceeding.
For the reasons discussed below,
the Board will grant the
adjusted standard as requested in the second amended petition.
ADJUSTED STANDARD PROCEDURE
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.).
The
Board is charged therein to “determine, define and implement the
environmental control standards applicable in the State of
Illinois”
(415 ILCS 5/5(b))
and to “grant
**~
an adjusted
standard for persons who can justify such an adjustment”
(415
ILCS 5/28/1(a)).
More generally,
the Board’s responsibility in
this matter is based on the system of checks and balances
integral to Illinois environmental governance:
the Board
is
charged with the rulemaking and principal adjudicatory functions,
2
and the Agency is responsible for carrying out the principal
administrative duties.
The Act provides that
a petitioner may request,
and the
Board may impose,
an environmental standard that is different
from the standard that would otherwise apply to the petitioner as
the consequence of the operation of
a rule of general
applicability.
Such a standard is called an adjusted standard.
The general procedures that govern an adjusted standard
proceeding are found at Section 28.1 of the Act and within the
Board’s procedural rules at 35 Ill.
Adrn.
Code Part 106.
Where,
as here,
the regulations of general applicability
does not specify a level of justification required for a
petitioner to qualify for an adjusted standard,
the Act at
Section 28.1(c)
specifies four demonstrations that must be made
by a successful petitioner:
1)
Factors relating to that petitioner are substantially
and significantly different from the factors relied
upon by the Board
in adopting the general regulation
applicable to that petitioner;
2)
The existence of those factors justifies an adjusted
standard;
3)
The requested standard
will not result in environmental
or
health
effects substantially
or significantly more
adverse than the effects considered by the Board in
adopting the rule of general applicability; and
4)
The adjusted standard is consistent with any applicable
federal
law.
FACILITY DESCRIPTION
AND
DISCHARGE LEVELS
AKZO produces fatty acid nitrogen derivatives that are used
primarily as surfactants
in agricultural products, personal care
products and detergents.
(Am.Pet.
at
4.)i
The AKZO facility at
issue is located
in a rural area at Table Road,
P.O.
Box 310,
Morris,
Illinois.
Constructed in
1973, the AKZO facility
currently employs
129 people.
(u.)
The petition will be cited as “Pet.
at
“;
the November
12,
1993, amended petition will be cited as “Am.Pet.
at
“;
the
February
2,
1994,
amended petition will be cited as “2Am.Pet. at
“;
the Agency’s response to the November
12,
1993, amended
petition will be cited as
“Res.
at
“;
the Agency’s response to
the February
2,
1994,
amended petition will be cited as “2Res. at
3
The production process at the AKZO facility results
in the
generation of several wastewater streams which are treated by
differing means prior to discharge.
(Atn.Pet. at 4.)
Main
process wastewater is collected, biologically treated and stored
in a concrete reservoir for use in crop irrigation.
(u.)
The
excess from this process is discharged through outfall 001 to Aux
Sable Creek.
Outfall 002
is the discharge of wastewater from the
steam generating boilers, water softener regeneration operations
and stormwater runoff.
(u.)
A pH adjustment station was
installed on the discharge line from the boiler house to outfall
002 in 1984 to adjust the pH to within the limits imposed by
AXZO’s NPDES permit.
(Id.)
The boron contained in AKZO’s discharge is naturally
occurring with no boron added
in the process.
(Am.Pet.
at 5.)
The process does add TDS,
chloride,
and sulfate to that which
is
naturally occurring
in the water.
(u.)
The process at AKZO’s
facility concentrates these constituents
in the discharge..
The
average daily
level of boron discharged over the last 28 months
has been 0.78 Ing/L, with a maximum of
1.4 mg/L,
and eight
readings of 1.0 mg/L or more.
(Am.Pet.
at 5.)
The average daily
TDS discharge concentration over the same period was 3,000 mg/L,
with a maximum of 6,180 mg/L,
and
15 readings of greater than
3,000 xng/L.
(j~.)
According to the petition, recent samples show the levels of
chloride and sulfate averaged at 1,566
rng/L and 286 mg/L,
respectively,
and maximum levels of 2,960 mg/L of chloride and
574 mg/L of sulfate.
(Am.Pet.
at
5.)
Further,
samples also
indicate that the downstream and upstream levels of both chloride
and sulfate are well below the stream standard of 500 mg/L.
(Am.Pet.
at 5-6.)
RULES OF GENERAL APPLICABILITY
The Board’s general effluent regulations do not include
specific limitations for either TDS2 or sulfate.
However, they
do prohibit any discharge that would cause or contribute to
a
violation of any water quality standard
(35 Ill.
Adm.
Code
304.105); there are water quality standards for both TDS and
sulfate.
2
The Board at one time adopted an effluent standard of
3,500 mg/L for TDS
(P70—18,
3 PCB 419, January
7,
1972), but
later repealed it after recognition that the treatment processes
for TDS are expensive, consume large amounts of energy,
and
produce dry solids or brines,
that themselves require disposal.
(see Board’s opinion in P76-21,
43 PCB 367, September 24,
1981,
with final action at 44 PCB 203, December
3,
1981.)
4
In the instant case, the pertinent water quality standards
are in the Board’s General Use Water Quality Standards found at
35 Ill. Adm. Code 302.208.
The General Use Water Quality
Standard for TDS is 1000 mg/L and for sulfate is 500
ing/L.
The
General Use Water Quality Standard for boron is 1.0 mg/L and for
chloride is 500 mg/L.
The intent of these standards
is to
protect aquatic life and to safeguard the quality of water of the
state for consumptive uses,
including public water supply.
These
standards apply in Aux Sable Creek.
RELIEF REOUESTED
AXZO is requesting an adjusted standard from Sections
304.105 and 302.208 of the Board’s water quality regulations.
Specifically those regulations apply to the discharge of total
dissolved solids
(TDS),
chloride, sulfate and boron from AKZO’s
Morris,
Illinois, facility into Aux Sable Creek.
(Am.Pet. at 1.)
AKZO in the second amended petition proposed the following
adjusted standard language for adoption by the Board to
effectuate the requested relief:
1)
This rule shall apply to discharges from an
existing facility owned and operated by AKZO
Chemicals Inc.
and located on Table Road,
P.O. Box
310, Morris,
Illinois.
2)
This rule shall apply to discharges from outfall
002 to Aux Sable Creek.
Such discharges shall not
be subject to Section 304.105 as
it applies to the
water quality standards of 35
Ill.
Adm. Code
302.208 for boron,
chloride, sulfate and total
dissolved solids.
3)
Instead of the standards set forth in 35
Ill. Adm.
Code 302.208 for those constituents in
(2)
above,
the discharge from outfall 002 shall not exceed
the following limitations:
CONSTITUENTS
STORET NUMBER
CONCENTRATION
mg
/
L
Boron
01022
2.0
Chloride
00940
1000.
Sulfate
00945
1000.
Total Dissolved
Solids
70300
3000.
4)
AKZO Chemicals Inc.
shall conduct a chronic whole
effluent toxicity test on the discharge from
outfall 002 within six
(6) months of the effective
5
date of this rule and shall report the results to
the Agency.
5)
AKZO Chemicals Inc.
shall conduct a stream survey
in the vicinity of outfall 002.
The stream survey
shall sample aquatic macroinvertebrates to
evaluate biological communities and evaluate water
quality upstream and downstream of AKZO’s
discharge.
The stream survey shall be conducted
within six
(6) months of the effective date of
this rule and repeated in five
(5)
years.
The
results of the stream surveys shall be reported to
the Agency.
The adjusted standard shall apply from outfall 002 to the
confluence of Aux Sable Creek and the Illinois River.
(2Am.Pet.
at 3-4.)
COMPLIANCE ALTERNATIVES
AKZO
has investigated numerous alternatives for compliance
with Sections 304.105 and 302.208.
Specifically, AKZO
investigated operating the boiler at an abnormally high blowdown
rate.
(Arn.Pet.
at
6.)
This alternative would increase
consumption
of natural gas by the rate of 0.14 cubic feet per day
or
51 million cubic feet per year in order to compensate for the
heat lost in the excessive blowdown water.
(u.)
As a result,
operating cost would increase due to the added costs
of fuel and
boiler wear which would require additional maintenance on the
boiler.
(Id.)
AKZO also investigated installation of
a reverse osmosis
treatment system with offsite disposal.
The installed cost for
the system would be $140,000 for boiler blowdown alone and would
be an additional $500,000 to $700,000 for softening the larger
boiler feed water stream.
(Am.Pet.
at 7.)
This system would
result in 25
to 33
of the discharge containing concentrated
dissolved solids which would require offsite disposal and the
levels of TDS,
chloride, sulfate and boron would be even more
elevated.
(i~..)
The cost of disposal offsite annually would
range from $4.4 to $5.8 million for boiler blowdown and $16.4 to
$21.5 million for boiler feed water.
(j~.) AKZO also reviewed
the possibility of evaporation instead of offsite disposal with
the reverse osmosis system.
(~.)
An evaporator would cost
“approximately $500,000 to $1.0 million installed”.
(Id.)
AKZO evaluated the possibility of combining outfalls 001 and
002 and discharging the combined steam to the concrete reservoir
for irrigation onto the spray field.
(Am.Pet.
at 8.)
The
additional wastewater would,
however, overload the system and
threaten the long term viability of the spray field because of
the increased volume of salt and TDS.
(Id.)
6
AKZO also reviewed modifying the existing softener
regeneration system to allow isolation of the stream to recycle a
portion of the brine rinse and slow rinse streams to reduce salt.
(Am.Pet.
at 9.)
The capital costs for this option would be
$90,000 with an annual operating cost of $65,000.
(Am.Pet.
at
10.)
Also a possibility would be to allow for evaporation.
(a.)
This option would have a capital cost of approximately
$300,000 and annual operating costs of $115,000.
(Am.Pet.
at
11.)
AKZO examined two potential options for discharge to the
Illinois River.
The first involved using a pipeline to the river
owned by a neighboring chemical plant at a cost of $100,000.
(Am.Pet.
at 11.)
However, the chemical plant will not allow any
outside facilities to use its discharge pipes.
(~.)
The second
option involved AKZO building a discharge line to the Illinois
river at a cost of $400,000 and annual operating costs of
$35,000.
(~.)
AKZO’s final option discussed was the demineralization of
boiler feed water which would introduce additional hazards to the
operation and would require piping of the regenerant streams to
the existing pH neutralization system.
(Am.Pet.
at 12-13.)
The
cost of demineralization is approximately $600,000 to $750,000
plus annual operating costs on the order of $50,000 to $140,000.
(Am.Pet.
at
13.)
In support of its request AKZO argues that the cost of
compliance
is unreasonable.
As indicated above, AKZO has studied
numerous alternatives for compliance.
Akzo argues that the
alternatives are economically unreasonable and that some are also
technically infeasible.
(Am.Pet. at 6-13.)
The Agency indicated that it agrees that compliance with
Sections 304.105 and 302.208
is “not technically feasible nor
economically reasonable”.
(Res.
at 1.)
The Agency points out
that
AXZO
has
committed
to
recycling
a
portion
of
the
high
TDS
waste stream from the water softener resin regeneration and will
dispose of the highest TDS wastewater offsite.
(Res.
at 2.)
However, despite AKZO’s efforts at waste reduction and recycling
the water quality standards may be exceeded.
(Id.)
HEALTH
AND
ENVIRONMENTAL
EFFECTS
In
1986,
the
Agency
performed
a
biological
survey
on
Aux
Sable Creek.
The survey entitled
Intensive Survey of Aux Sable
Creek
(DW) in the Vicinity of
AKZO
Chemie
America
Morris,
Illinois
(Agency biosurvey) was performed in July of 1986.
The
survey indicates that “there was no apparent adverse impact in
the vicinity of AKZO’s discharge” to Aux Sable Creek.
(Am.Pet.
attachment 10 at
4.)
Further,
according to the survey, the
stream has been classified by the Illinois Department of
7
Conservation
“as a highly valued aquatic resource
(Class B
stream)” based on the fish data.
(Id.)
The 1993 discharge rates from AKZO are higher than in 1986
(96,000 gallons per day versus 64,000 gallons per day); however,
the average 1993 TDS concentrations and mass loadings are
presently less than the 1986 levels because of a lower
level of
salt discharge.
(Am.Pet.
at 23.)
AKZO indicates that there
is
no data on the discharge of sulfate, boron and chloride from its
facility in 1986.
However, AKZO also states that the process has
not changed.
Thus,
it is unlikely that the discharge rate for
those constituents would be significantly different.
(u.)
A1(ZO
also noted that based on historical sampling by the Agency from a
sampling station located on Aux Sable Creek upstream of AKZO and
samples collected by AKZO downstream,
“the stream standards for
TDS, Chloride, sulfate and boron should not be exceeded under
normal creek flow.”
(Am.Pet.
at 23.)
In further support, AKZO reviewed extensive scientific
literature,
including the Agency biosurvey,
which demonstrates
that the requested adjusted standard would have “little or no
adverse environmental impact”.
(Am.Pet.
at 24.)
Specifically
AKZO found that bluegill,
carp,
fathead minnows and certain types
of bass are present in Aux Sable Creek and are among the fish for
which toxicity information is available.
(Ant.Pet. at
14.)
One
study reviewed by AKZO is authored by Paula Reed and Ralph Evans
entitled
Acute Toxicity of Chlorides,
Sulfates and Total
Dissolved Solids to Some Fishes in Illinois.
That study
concludes that:
Maximum permissible concentrations of 800 mg/L chloride
and 1,000 ing/L sulfate
(TL5O concentrations divided by
10)
are more reasonable standards than the 500 mg/L
Illinois stream standard.
In addition, the study
suggested that the maximum permissible concentration of
TDS was 1,300 mg/L to 1,500 ing/L where chloride was the
principal constituent and 1,400 mg/L to 1,750 mg/L
where sulfate was the principal constituent.
(Ain.Pet at 15.)
AKZO argues that based on the results of the literature search
it
has performed,
sufficient data exists to support the conclusion
that the adjusted standard for TDS, chloride and sulfate
requested will not harm aquatic life.
(Am.Pet.
at 20.)
The Agency agrees that the literature reviewed by AKZO
indicates that the requested adjusted standard will not be toxic
to most fishes.
(Res.
at 2.)
The Agency also agrees that the
adjusted standard will not have an adverse impact on the
environment.
(Res.
at 3.)
The Agency states that AKZO’s
effluent has not had a discernible impact on the receiving stream
8
over the years of operation prior to the 1986 survey.
(Res.
at
5.)
Further, the requested adjusted standard is a decrease in
the discharge from the past and
is supported by the Agency.
(a.)
The Agency recommends that chronic toxicity testing be a
condition of the adjusted standard as well as a requirement that
AXZO ~,erformstudies similar to the Agency biosurvey.
(Res. at
5—6.)
CONSISTENCY WITH FEDERAL LAW
Both the Agency and petitioners agree that the Board’s water
quality standards have been approved by U.S.
EPA and are
consistent with the requirements of the Clean Water Act.
Thus,
the Board’s standards exist pursuant to Section 303(a)
of the
Clean Water Act.
(Am.Pet.
at
3; Res. at 1.)
AKZO does not
believe that the granting of the requested adjusted standard
would be violative of any provisions of the Clean Water Act.
The
requested relief is predicated solely upon potential violations
of the TDS water quality standard and the standard for sulfate.
There are no applicable federal or state TDS or sulfate effluent
standards.
(Am.Pet at 25.)
The adjusted standard
is also consistent with federal law
in
that under 40 C.F.R.
131.4,
“states are responsible for
reviewing,
establishing and revising water quality standards”.
In turn, pursuant to 40 C.F.R.
131.5,
“EPA is to review and to
approve and disapprove the State-adopted water quality
standards”.
These standards are to be protective of the
designated uses
(~13l.5(b)) and, where those uses are not
protected, this must be supported by “appropriate technical and
scientific data and analyses”.
(S131.5(d).)
A state
is allowed
to remove a designated use, which
is not an existing use,
if
it
“can demonstrate that attaining the designated use is not
feasible” because of several enumerated causes.
(40 CFR
131.10(g).)
Petitioners believe that the granting of this
adjusted standard will not impair any beneficial use of the
receiving stream.
This,
they believe,
has been established by
the Agency biosurvey.
(Am.Pet.
at 25.)
Federal Procedural Requirements
The Board’s grant of the adjusted standard requested herein
arguably requires some mechanism for public participation
pursuant to 40 C.F.R.
§131.20(b).
However, AKZO does not believe
that a hearing is necessary and agrees with the U.S. EPA’s
~
The second amended petition amended the request for
adjusted standard to include the chronic toxicity testing
condition and the condition requiring studies be performed.
9
current position that if authorized states follow approved state
procedures,
those procedures are federally acceptable.
Under federal law, public participation includes a public
hearing for the purpose of reviewing the proposed standard in
accordance with the provisions of state law, the U.S. EPA’s water
quality management regulation
(40 C.F.R.
130.6(b))
and the U.S.
EPA’s public participation regulation
(40 C.F.R.
Part 25).
Notice of such hearing must be well-publicized and must be given
at least forty-five
(45)
days prior to the date of the hearing.
The notice must identify the matters to be discussed and should
include a discussion of the Board’s tentative determination on
information.
Reports, documents and data relevant to the
discussion at the public hearing must be available to the public
at least thirty
(30)
days before the hearing.
40 C.F.R.
S25.5(b).
At the hearing, the Board must inform the audience of
the issues involved,
considerations the Board will take into
account, and information which is particularly solicited from the
public.
40 C.F.R.
§25.5(e).
AXZO understands that the U.S.
EPA has recently changed its
position regarding the federal requirement for a hearing in state
proceedings involving the potential amendment of water quality
standards.
The U.S. EPA formerly took the position that hearings
were required in all such proceedings.
AKZO understands,
however, that U.S. EPA’s present position
is that the fulfillment
of the state requirements for notice and hearing is all that is
required and that if the state allows for waiver of the hearing
requirement, hearing can be waived without conflict with the
federal laws.
35
Ill.
Adm. Code 106.705(j)
allows for waiver of
hearing.
Finally, AKZO argues that requested adjusted standard will
not violate federal law and
is consistent with federal law.
(Am.Pet. at 30-31.)
The Agency agrees that the requested relief
is consistent with federal
law.
(Res.
at
5.)
CONCLUSION
AXZO
is requesting that the Board grant an adjusted standard
from the Board’s water quality standards for discharge of TDS,
chloride, sulfate and boron from outfall 002 to Aux Sable Creek
at AXZO’s facility.
AKZO has presented in its amended petition a
literature review of related studies including the
1986 Agency
biosurvey.
The literature review indicates that the levels of
discharge requested would not adversely impact the receiving
stream.
Most significantly, AKZO has submitted the Agency
biosurvey, which is an ecological study of the receiving stream
which demonstrated no adverse environmental impact from the
AXZO’s discharge.
AKZO has also lowered its discharge rate for
salt from the rate of discharge in effect when the Agency
biosurvey was conducted.
10
AKZO
has demonstrated that of the possible compliance
alternatives available to AKZO,
none are technically feasible or
economically reasonable.
AKZO also established that the adjusted
standard is consistent with federal
law.
The Agency supports
granting the adjusted standard.
The Agency agrees with the
statements made by AKZO in the amended petition in all
substantive areas and supports granting the adjusted standard.
The Board finds that petitioner,
in cooperation with the
Agency, has demonstrated that grant of the adjusted standard is
warranted.
The Board accordingly will grant the adjusted
standard consistent with this opinion.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the following adjusted standard to
AKZO
Chemical:
1)
This rule shall apply to discharges from an
existing facility owned and operated by AKZO
Chemicals Inc. and located on Table Road,
P.O.
Box
310, Morris,
Illinois.
2)
This rule applies to discharges from outfall 002
to Aux Sable Creek.
Such discharges are not
subject to Section 304.105 as
it applies to the
water quality standards of 35
Ill.
Adni.
Code
302.208 for boron,
chloride, sulfate and total
dissolved solids.
3)
Instead of the standards set forth
in
35
Ill. Adm.
Code 302.208 for those constituents in
(2)
above,
the discharge from outfall 002 shall not exceed
the following limitations:
CONSTITUENTS
STORET NUMBER
CONCENTRATION
mg/L
Boron
01022
2.0
Chloride
00940
1000.
Sulfate
00945
1000.
Total Dissolved
Solids
70300
3000.
4)
AKZO Chemicals Inc.
shall conduct a chronic whole
effluent toxicity test on the discharge from
outfall 002 within six
(6) months of the effective
11
date of this rule and shall report the results to
the Agency.
5)
AKZO Chemicals Inc.
shall conduct
a stream survey
in the vicinity of outfall
002.
The stream survey
shall sample aquatic inacroinvertebrates to
evaluate biological
communities and evaluate water
quality upstream and downstream of AKZO’s
discharge.
The stream survey shall be conducted
within six
(6) months of the effective date of
this order and repeated in five
(5) years.
The
results of the stream surveys shall be reported to
the Agency.
The adjusted standard applies from outfall 002 to the
confluence of Aux Sable Creek and the Illinois River..
IT IS SO ORDERED.
Board Member Marili McFawn concurs.
Section 41 of the Environmental Protection Act
(415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision.
The Rules of the Supreme Court
of Illinois establish filing requirements.
(But see also,
35
Ill.
Adm. Code 101.246, Motions for Reconsideration.)
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~ythat the above opinion and order was
adopted on the
/.~—
day
of
~
,
1994,
by
a
vote of (~-C~
~
Dorothy M.
GUnn,
Clerk
Illinois Pollution Control Board
