ILLINOIS POLLUTION CONTROL BOARD
September 15, 1994
CABOT CORPORATION,
)
Petitioner,
v.
)
PCB 94—155
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on Cabot Corporation’s May
18, 1994 petition for variance. Cabot seeks a variance from a
condition of the Board’s March 25, 1993 order in PCB 92—179. The
condition at issue required Cabot to “replace the tubing for well
number 2 either within sixty (60) days after well number 3 is
operational or during the 1994 facility shutdown, whichever is
earlier.” Cabot seeks to postpone the removal of the tubing in
well number 2 until after its new underground injection control
(UIC) well (known as well number 3) is operating. For the
reasons set forth below, the variance is granted.
AGENCY RECOMMENDATION AND MOTION
The Illinois Environmental Protection Agency (Agency) filed
its recommendation on September 6, 1994, recommending that the
variance be granted subject to conditions. The recommendation
was accompanied by a motion for leave to file
instanter.
The
Agency states that because the permit reviewer familiar with this
case is on an extended leave of absence, other Agency personnel
not as familiar with the site have been assigned to this case,
leading in part to delay in filing the recommendation. The
Agency further states that the press of other business prevented
the filing of the recommendation any earlier, and alleges that no
undue prejudice will result from a grant of the motion for leave
to file
instanter.
The Board is aware that personnel matters are a practical
problem, and indeed deals with those problems itself. However,
we also note that the variance recommendation was due 30 days
after the filing of the petition, or on June 17, 1994. (35 Ill.
Adm. Code 104.180.) We received the recommendation on September
6, 1994, just 9 days before the required decision deadline.
Thus, we cannot accept the Agency’s allegation that there is no
undue prejudice from a grant of the motion. Nevertheless,
because the Agency is required by statute to file a
recommendation (415 ILCS 5/37(a) (1992)), the motion for leave to
file
instanter
is granted.
2
BACKGROUND
Cabot’s facility at Tuscola, Douglas County, Illinois, is an
inorganic chemical manufacturing plant. The facility
manufactures fumed silicon dioxide marketed under the registered
trademark of Cab-O-Sil. The facility has operated from 1958 to
the present and employs approximately 175 persons. The facility
is located three miles west of Tuscola and occupies 100 acres.
(Pet. at 2)
On site at the facility are two UIC wells permitted by the
Agency. (Pet. at 2.) Cabot currently disposes of
approximately 200 gallons of hazardous waste per minute (gpm),
with maximum injection rates of 100 gpm at well number 1 and 250
gpm at well number 2. (Pet. at 2-3.)
REQUESTED VARIANCE
Cabot requests a variance from condition III of the Board’s
March 25, 1993 order in PCB 92—179.’ Condition III states:
Cabot shall replace the tubing for well number 2 either
within sixty (60) days after well number 3 is
operational or during the 1994 facility shutdown,
whichever is earlier.
Cabot seeks to postpone the removal of the tubing in well number
2 until sixty days after its new UIC well (known as well number
3) is operating. Cabot states that it filed a permit application
for well number 3 with the Agency and the United States
Environmental Protection Agency (USEPA) in September 1992, but
that as of the date of filing of this petition for variance (May
18, 1994), no permit had been issued. Cabot states that the
tubing for well number 2 should not be removed until well number
3 is operational, because well number 2 will have to be shut down
for approximately two weeks in order to remove the tubing to
perform the test, and then replace the tubing. Since well number
1 does not have sufficient capacity to meet the facility’s waste
disposal needs alone, the entire facility would have to be shut
down for the period needed to perform the tests and replace the
tubing. (Pet. at 3-5.) Thus, Cabot asks for an extension of the
time in which to perform the required tests.
The Agency notes that it generally agrees with the facts set
That order granted Cabot’s request for variance from
the requirement that casing inspection logs be run every five
years. (35 Ill. Adm. Code 730.l68(d)(4).) That variance
continues in effect, and expires on March 25, 1995. Cabot has
not requested an extension of that expiration date.
3
forth in Cabot’s variance petition, with the exception of the
allegation that no permit for well number 3 has been issued. The
Agency states that it issued a final permit on May 13, 1994, and
that the permit was mailed to Cabot under a cover letter dated
May 20, 1994. Thus, Cabot has now received a permit for well
number 3.
CONSISTENCY WITH FEDERAL LAW
Cabot contends that the requested variance is consistent
with both federal and state law. Cabot states that on October 7,
1992, USEPA amended its rules so that a casting inspection log is
no longer required every five years. Instead, the amended
federal regulation now requires that casting inspection logs be
run whenever the owner or operator conducts a workover in which
the injection string is pulled. The rule does allow USEPA to
require the test every five years, if it has reason to believe
that integrity may be adversely affected by naturally-occurring
or man-made events. (40 C.F.R. §146.68(d)(4).) Cabot also notes
that on September 13, 1993 the Board updated the corresponding
Illinois rules to reflect the change. (35 Ill. Adm. Code
730.168(d)(4).) Thus, Cabot concludes that the variance is
consistent with the amended federal and state regulations.
The Agency agrees with Cabot’s discussion of the amended
federal rules, and states that the requested variance apparently
violates no federal laws or regulations.
HARDSHIP
Cabot maintains that requiring it to remove the tubing in
well number 2 before well number 3 is operational would create an
arbitrary and unreasonable hardship, because: 1) shutting down
the well to perform the tests would require that the facility
itself be closed, at great cost to Cabot; 2) Cabot has recently
demonstrated, through mechanical integrity testing procedures
that there is no evidence of fluid movement along the bore hole;
3) USEPA has recognized, when amending the federal regulation,
that it is possible to adequately test for mechanical integrity
without removing the tubing; 4) USEPA and the Board have amended
the federal and state regulations so that they no longer require
a casing inspection log every five years; and 5) the unnecessary
removal of the tubing can place undue stress on the well
components. Cabot also contends that postponing the removal of
the tubing will pose no danger to the human, plant, or animal
life in the affected area, since mechanical integrity tests
performed in October 1992 show no evidence that well number 2
lacks mechanical integrity. Finally, Cabot concludes that it
should not be penalized because well number 3 is not yet
permitted and operational, because it has done what it can to
ensure that the well is operational as quickly as possible.
4
The Agency accepts Cabot’s statement that immediate
compliance with condition III would require a shut-down of the
entire facility, at “great cost” to Cabot, although the Agency
states that it does not have knowledge of the actual costs. The
Agency believes that these kinds of costs are insufficient to
excuse immediate compliance if there was a significant risk of
harm to the environment. However, given the present facts, the
Agency believes that there is no significant risk of harm to the
public or the environment if the requested variance is granted.
CONCLUSIONS
After considering the record and the arguments of both Cabot
and the Agency, the Board finds that immediate compliance with
condition III of the Board’s March 25, 1993 order in PCB 92—179
would impose an arbitrary or unreasonable hardship on Cabot.
Cabot has made efforts towards ensuring that well number 3 is
operational soon, and those efforts have resulted in the issuance
of the permit for well number 3. Those efforts, in combination
with the fact that neither the federal nor the state rules
currently require that the casing inspection log be performed
every five years, persuade the Board that the requested variance
should be granted.
Cabot has requested that it be allowed to postpone action on
well number 2 until sixty days after well number 3 is allowed to
operate, and contended in its petition that action on well number
2 should not be linked to an arbitrary date in the future because
the permit for well number 3 had not yet been issued.2 In the
alternative, Cabot requests that the date for action on well
number 2 should be 21 months after the variance is issued, which
was the length of the variance issued in PCB 92—179. The Agency
contends that there should be “some reasonable outer time limit”
beyond which Cabot cannot postpone action on well number 2,
irrespective of the status of well number 3.
The Board notes 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.3 The record
lacks any information on the current status of construction of
well number 3, so that we do not know when well number 3 might be
operational. Additionally, the Agency has not indicated what it
2
As noted above, the permit for well number 3 was issued
on May 13, 1994, and mailed to Cabot on May 20, 1994.
For example, extension of a variance requires proof of
satisfactory progress. (415 ILCS 5/36(b) (1992).)
5
considers to be a “reasonable outer time limit”. Therefore, the
Board will impose a time limit for action on well number 2 of
sixty days after well number 3 is operational, or March 24, 1995,
whichever is earlier. We have chosen the March 24, 1995 deadline
because it is the day before the variance expires. As noted
above, Cabot has not requested an extension of the variance
itself.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
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 24, 1995, 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, 1995.
Within forty-five days of the date of this order, Cabot
shall execute and forward to:
Daniel P. Merriman
Division of Legal Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
2200 Churchill Road
Springfield, Illinois 62794—9276
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
September 15, 1994.
6
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
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 N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
/~54
day of
_______________,
1994, by a vote
of ~
V
/2L /~J
Dorothy N. G~?c1, Clerk
Illinois Poi(~ationControl Board