ILLINOIS POLLUTION CONTROL BOARD
October 7,
1993
MARATHON
OIL COMPANY,
)
Petitioner,
)
v.
)
PCB 91—173
)
(Variance on Remand)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
JOSEPH W. WRIGHT, OF MCBRIDE BAKER
& COLES, APPEARED ON BEHALF OF
PETITIONER;
ROBB
LAYMAN
APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This ~mattercomes before the Board on remand from the
appellate court,
fifth district,
issued June 29,
1993.’
The court
reversed and remanded a July
9,
1992 order of the Board that
denied variance to Marathon Oil Company (Marathon).
(Marathon
Oil Company
V.
IEPA and PCB
(5th Dist.
1993),
242 I11.App.3d 200,
610 N.E.2d 789,
182 Iii. Dec.
920.)
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.
(1992).)
The Board is charged therein with the responsibility to “grant
individual variances beyond the limitations prescribed in this
Act, whenever it is found upon presentation of adequate proof,
that compliance with any rule or
regulation,
requirement or order
of the Board would impose an arbitrary or unreasonable
hardship’”.
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,
and the Illinois
Environmental Protection Agency
(Agency)
is responsible for
carrying out the principal administrative duties.
Based on the record before it,
the Board finds that Marathon
has met its burden of demonstrating that denial of variance would
impose an arbitrary or unreasonable hardship.
Accordingly, the
variance request will be granted.
Act at Section 35(a).
—2—
PROCEDURAL HISTORY
This matter initially came before the Board upon a petition
for variance (Pet.)
filed by Marathon on September
17,
1991.
The
petition sets out a request for variance from Marathon’s own
site-specific water quality standard for chloride found at
35
Ill.
Adm. Code
303.323.
Variance is requested for the time
period necessary for resolution of a related rulemaking
proposal2.
In the rulemaking Marathon seeks to make permanent
the relief requested in the instant variance proceeding.
Hearing was held before hearing officer Stephen Davis on
November 13,
1991 in Robinson, Illinois, site of the facility at
issue.
Marathon presented the only witness and no members of the
public attended the hearing.
No further hearings have been held.
By order dated January
9,
1992 the Board found that although
compliance might be difficult for Marathon,
no demonstration of
hardship had been made.
The Board had largely based this finding
on the fact that Marathon did not violate the regulations in the
previous year and that Marathon could comply with the present
regulations.
The Board did not proceed to weigh the hardship
against environmental impact due to its finding that no hardship
exists.
The appellate court reversed the Board on the finding of
hardship.
Further, the court articulated the relationship
between simple hardship and arbitrary or unreasonable hardship:
The petitioner must
~
show that the hardship it will
encounter from the denial of the variance will outweigh
any injury to the public or environment from the grant
of the variance.
Only if the hardship outweighs the
injury does the evidence rise to the level of an
arbitrary or unreasonable hardship.
(Marathon,
610
N.E.2d 789,793;
182 Ill. Dec.
920,924.)
The court therefore remanded the matter to the Board for a
determination of whether the hardship outweighs injury to the
public or environment.
This is as the matter currently stands3.
2
In the Matter of: Petition of Marathon Oil Company for
Site—Specific Water Regulation,
R91—23.
See opinion and order of
this same day.
~ The Board notes that at one place
in its opinion the court
states that it “finds that the evidence presented was ‘adequate
proof’ that continued compliance
***
will impose an arbitrary or
unreasonable hardship upon Marathon”
(Marathon 610 N.E.2d
789,793;
182 Ill.
Dec. 920,924).
This statement notwithstanding,
given the court’s articulation of the relationship of hardship to
arbitrary and unreasonable hardship, read
in combination with the
—3—
On July 22,
1993 the Board requested that the parties file
statements indicating whether they wished to update the record in
this matter.
On August
9,
1993 Marathon filed its statement.
Also on August
9,
the Agency filed a request to file a brief.
On
August 31,
1993 Marathon filed its statement indicating that it
wished to stand on the record.
On September 16,
1993 the Agency
filed a supplemental brief
(Resp.
Supp. Br.).
In that document,
the Agency reaffirms its recommendation that the variance be
denied.
However,
the Agency further states that should the Board
grant the variance it urges that conditions be imposed.
BACKGROUND
Marathon operates a petroleum refinery located on the
outskirts of the City of Robinson, Crawford County,
Illinois.
The refinery processes some 180,000 barrels of oil per day and
employs approximately 650 persons
(Tr.
at 11).
Part of the refining process consists of removing water from
the crude oil.
The water contains chloride, the quantity of
which varies depending upon the nature of the pore fluids in the
source rocks of the crude oil and the history of recovery,
transportation, and storage of the crude oil.
Because the
Marathon facility receives crude oil from different sources, the
chloride content of the crude oil processed at the facility
likewise differs.
Since 1988 the chloride content has varied on
a monthly-average basis from a low of 29.2 pounds per million
barrels to 104.5 pounds per million barrels;
in the first ten
months of 1991 chloride contents ranged from an average of 48.5
to 88.7 pounds per million barrels
(Exh.
8).
Marathon treats its wastewaters prior to discharging them.
However, the treatment is not capable of producing significant
reduction in chlorides.
Marathon is in the process of designing
an upgraded treatment facility that would allow it to increase
treatment capacity, but this too would have only marginal effect
on chloride discharge concentrations (Tr.
at 25—27).
Current
management techniques for high—chloride effluent involve storing
effluent in storm water retention facilities before it can be
discharged in amounts that meet the current 700 mi/L standard.
The capacity to catch and manage storm flows is diminished when
the facilities are being used to store high—chloride effluent.
The chances of overflow becomes greater during storm events.
(Tr. at 35—38.)
court’s instruction to the Board to weigh Marathon’s hardship
against environmental impact,
leads the Board
to believe that the
court intends the Board to make
a decision on whether Marathon’s
hardship rises to the level of arbitrary or unreasonable hardship
(i.e., whether denial of the variance would outweigh any injury
to the public or environment).
—4—
Discharge of the wastewaters
is to an unnamed4 tributary of
Sugar Creek at approximately mile 5.0 of the unnamed tributary;
Sugar Creek thence flows approximately five miles more to its
mouth on the Wabash River
(Pet.
Exh.
1,
p.
8).
The unnamed tributary at the Marathon discharge has a
drainage area of approximately eight square miles
(Tr. at
15)
and
a natural 7—day 10-year low flow of
zero (Tr. at 22).
However,
actual low flow in the unnamed tributary is controlled by
wastewater and other manmade discharges.
These include
discharges located upstream from Marathon’s discharge that
aggregate an average of approximately 1.4 million gallons per day
(MGD5)
(Tr. at 15-6),
of which the discharge of the City of
Robinson’s sewage treatment plant at 1.2 MGD is the largest.
Marathon itself discharges an average of another 1.4 MGD, such
that the low flow is approximately doubled due to Marathon’s
discharge.
REGULATORY FRAMEWORK
The Board’s general effluent regulations do not include a
specific limitation for chloride.
However, they do prohibit any
discharge that would cause or contribute to a violation of a
water quality standard.
(35 Ill. Adm. Code 304.105.)
The
pertinent water quality standard for chloride is the 500 mg/L
General Use Water Quality Standard found at 35
Ill.
Adm. Code
302.304.
Marathon initially petitioned this Board for exemption of
its receiving waters from the 500 mg/L water quality standard in
PCB 80-102.
On October
2,
1980 the Board granted this petition,
under condition that chloride effluent concentrations not exceed
700 mg/L,
effective through October
2,
1985.
In PCB 85-83 Marathon petitioned for extension of the PCB
80-102 variance with respect to chloride.
On January 23,
1986
this petition was granted effective for the period October
2,
1985 through October
2,
1990.
On January 28,
1987 Marathon filed a site—specific
rulemaking petition seeking, among other matters, to make
permanent its exemption from causing or contributing to
violations of the 500 mg/L water quality standard under the
continuing provision that its effluent discharge not exceed 700
mg/L.
On September 13,
1989 the Board responded to Marathon’s
~ Although not officially named,
the creek is sometimes
referred to as Robinson Creek
(e.g.,
Pet. Exh.,
p.
6).
~ One MGD equals 0.04381 cubic meters per second or 1.55
cubic feet per second
(cfs).
—5—
petition by proinulgatingO
a new rule at
35 Ill. Adm. Code
303.323.
The new rule generally tracked Marathon’s proposal,
except that the Board added
a 550 mg/L limit on in-stream
chloride concentrations as recommended by the Agency.
This is
the rule to which Marathon
is. currently subject,
and from which
it today requests variance:
Section 303.323
Sugar Creek and Its Unnamed
Tributary
a)
This Section applies only to Sugar Creek and
its unnamed tributary from the point at which
Marathon Petroleum7 Company’s outfall 001
discharges into the unnamed tributary to the
confluence of Sugar Creek and the Wabash
River.
b)
35 Iii. Adm.
Code 304.105 shall not apply to
total dissolved solids and chlorides
discharged by Marathon Petroleum Company’s
Outfall 001, so long as both of the following
conditions are true:
1)
Effluent from Marathon Petroleum
Company’s Outfall 001 does not exceed
3,000 mg/l total dissolved solids or 700
mg/i chlorides,
2)
The water
in the unnamed tributary does
not exceed 2,000 mg/l total dissolved
solids or 550 mg/l chlorides.
On August 19,
1991 Marathon filed a new site-specific
rulemaking proposal, R91-23,
seeking to amend the chloride
provisions of Section 303.323.
The new proposal would increase
the effluent chloride limitation from 700 mg/L to 1000 mg/L and
the chloride water quality standard from 550 mg/L to 700 mg/L.
Hearing in R91-23 was held on September 10,
1992.
The Board
today also proposes amendments
in proceeding R91-23.
On September
17,
1991 Marathon filed the instant proposal.
In it Marathon requests as variance conditions the same 1000 mg/L
and 700 mg/L effluent and water quality limitations that it
proposes as amendments to Section 303.323.
Thus,
favorable
consideration of Marathon’s variance request would have the
effect of establishing as interim standards the same standards
6
In the Matter of: Marathon Petroleum Company Site-
~p~cific, R87—2,
103 PCB 133.
~Marathon Oil Company is the successor in interest to
Marathon Petroleum Company.
(Marathon brief at
1.)
—6—
Marathon’s seeks to have made permanent via its site—specific
petition.
HARDSHIP
The court has found that denial of variance would constitute
a hardship upon Marathon.
(Marathon 610 N.E.2d 789,793;
182 Ill.
Dec. 920,924.)
The Board will accordingly not again determine
the hardship issue.
Rather, the Board confines itself to the
instruction of the court “to decide if the hardship to Marathon
outweighs the environmental &mpact,
if any, of the requested
variance”
(~.
610 N.E.2d 789,794; 182 Ill. Dec. 920,925).
(See
footnote 3.)
The court observed that facts presented in the record
indicate that Marathon has no control over the increasing levels
of chloride in its crude oil,
and that Marathon has come close to
violating the current standard, especially during rain events.
(~.
at 792.)
The court cited testimony that indicated that it
will be virtually impossible for Marathon not to violate the
chloride limits in the future.
The court thereby found that “the
virtual certainty of future violation of the Board’s rule is
a
hardship on Marathon”
(~.
at 793).
As a further element of the presence of hardship, the court
reviewed the record of compliance options available to Marathon.
The court observed:
In 1985, Marathon considered alternate methods of
controlling the chloride discharge from the Marathon
plant.
Although three alternate methods of treatment
and disposal were considered feasible, none were found
to benefit the environment of the stream sufficiently
to justify the cost.
None of the alternate methods
were found to decrease the amount of chlorides Marathon
discharges into the stream.
In 1989,
the Board
concluded that Marathon has no viable alternatives to
their current chloride—management system.
(j~.
at
791.)
ENVIRONMENTAL
IMPACT
The unnamed tributary in question has been the subject of
several environmental studies.
Marathon’s consultant,
Radian
Corporation, performed a study in 1986,
finding that, while there
were no fish for a distance below the Marathon outfall, the water
quality and stream sediment quality had improved since a study
done in 1976 by the Agency.
(Tr. at 47; Pet.
Exhs.
1,2.)
A study was also undertaken by the Agency
in 1986 and
published in
1988.
(Pet.
Exh.
1.)
Marathon believes that the
—7—
Agency’s study reaches the same basic conclusions as the Radian
Corporation study.
There are differences between the studies,
mainly in scope,
as the Agency study encompassed general stream
quality while the Marathon study was limited to the Marathon
discharge.
(Tr. at 45-46.)
In 1991,
the Agency performed a
survey of the fishes of the Sugar Creek Basin in the proximity of
the Marathon discharge and found some improvement in the fish
population since the two 1986 studies,
as well as a lack of
toxicity in the stream sediment.
(Resp.
Exh.
1.)
The Agency
reported fishless conditions for four
(4)
miles downstream of the
Marathon outfall and concluded that “it seems very likely that
the continued effluent toxicity from Marathon is the cause of
impacts on the fish community”.
(u.)
The 1991 study as well as the 1986 studies show that there
continues to be an effect downstream of the Marathon discharge
that is limiting or reducing the number of fish in the Sugar
Creek Basin area.
(Tr.
at 49-50; Resp. Exh.
1.)
As Robert
Wallace, of Radian Corporation testified:
TJhe
Agency)
and,
for that matter, Marathon, are at a
loss to explain the stream degradation that is apparent
from observation of the biological community in the
stream, and there is some frustration on both sides
because it can’t be clearly shown what’s causing it.
Whether it’s something in the discharge or not, we
don’t have identification of a chemical that’s causing
the observed toxicity.
(Tr.
at 50.)
The Agency agrees with Marathon that the present chloride
discharge is not causing appreciable stream degradation
(R87—
2Tr8.
at 104;
Resp.
Supp.
Br.
at 2.)
However, the Agency
essentially argues that it
is unknown whether chlorides
discharged at the higher level requested here would contribute to
the toxic condition of the stream immediately downstream from the
outfall.
(Resp.
Supp.
Br. at 2.)
Marathon also observes that the currently—employed storage
option of controlling chloride levels in the plant effluent has a
potential negative environmental impact on the stream due to the
greater chance of overflow during certain storm events.
Marathon
urges that this effect also be considered in evaluation of the
environmental impact on the stream.
~ On November 19,
1991 Marathon filed a motion to
incorporate the transcript of hearing from In re: Marathon
Petroleum Company to Amend Regulations Regarding Water Use
Designation and Site Specific Water quality Standards, R87—2,
103
PCB 133,
a copy of which is provided.
The Agency has not
contested this motion.
At this juncture the Board grants the
motion.
This transcript will be cited “R87-2Tr. at
“.
—8—
DISCUSSION
The Board’s charge in the instant remand is to determine
whether the environmental impact of the proposed chloride
discharge limits would outweigh the hardship already determined
by the court to exist if the proposed chloride limits are not
allowed.
The Board finds that there is little in the record
that speaks directly to the matter of the in-stream environmental
impact of chloride at the concentrations at issue.
Instead, the
environmental impact information
is of a broad character,
addressing principally the undisputed presence of toxicity.
Such evidence of environmental impact of chloride as does
exist in the record focuses mainly on the probable consequences
of Marathon’s current chloride management program.
It
is not
contested that this chloride management program presents a
significant risk of overflow, and thereby production of in-stream
chloride concentrations that at the best are erratic and at the
worst are higher than the maximums that would occur
if Marathon
managed its chloride discharges under the limits requested in
this variance.
The Board finds no basis to believe that either
erratic or episodic high in-stream chloride levels are likely to
be environmentally preferable to the levels Marathon here
requests.
Neither does the Board have basis to believe that the
chloride levels here proposed, and for the short term of the
variance, constitute a limiting factor in the quality of the
receiving waterway.
Based upon these considerations, the Board finds that the
hardship that Marathon would incur if the variance request is
denied outweighs the environmental impact that may be reasonably
expected to occur under the terms and limits of the variance.
The Board shares the concerns of the Agency regarding
toxicity in the unnamed tributary.
This toxicity does need to be
characterized and eliminated.
However, the Board is unconvinced that the toxicity testing
that the Agency would have Marathon conduct is proper as a
condition to the instant variance.
Today’s variance deals solely
with the discharge of chloride,
and with such hardship and
environmental impact as may be associated with this discharge.
There is nothing in the record,
including observations on the
chemistry of chloride or any studies or literature regarding
chloride’s biological roles,
that today implicates chloride in
the type of toxicity present in the unnamed tributary.
The Board
therefore believes that
it is inappropriate to reach out to the
toxicity issue in this instant matter.
The toxicity issue would seem to be appropriately addressed
in the NPDES permitting process.
There the nature of the
—9—
effluent in all its water quality aspects
(including its possible
toxicity)
is a germane concern9.
The variance is requested for the time necessary to complete
the pending site—specific rulemaking.
The Board finds that a
period of one year should be sufficient for completion of that
proceeding.
Therefore,
the Board order reflects the expiration
of this variance one year from today,
or upon completion of the
site—specific rulemaking, whichever is sooner.
Lastly, the Board notes that the conclusions it reaches
based upon the record of the instant variance proceeding do not
necessarily reflect on the merits of Marathon’s site—specific
rulemaking proposal currently under consideration in Board docket
R91-23, and proposed today for first notice.
The burdens of
proof and the standards of review in a rulemaking
(a quasi—
legislative action)
and a variance proceeding
(a quasi—judicial
action) are distinctly different
(cf. Titles VII and IX of the
Act; see also Willowbrook Development
V.
IPCB
(1981),
92
I11.App.3d,
1074),
as are the records
in the two proceedings.
Moreover, the Board cannot lawfully prejudge the outcome of a
pending regulatory proposal in considering a petition for
variance.
(City of Casey v.
IEPA
(May 14,
1981),
PCB 81-16,
41
PCB 427,428.)
Conversely,
the pendency of a rulemaking does not
stand by itself as grounds for grant of a variance.
(Section
35(a)
of the Act; Citizens Utilities Company of Illinois v. IPCB
(1985),
134 Ill.App.3d,
111,115; City of Lockport v. IEPA
(September
11,
1986), PCB 85—50,
72 PCB 256,260; General Motors
Corporation, Electro-Motive Division v.
IEPA (February 19,
1987),
PCB 86—195,
76 PCB 54,58; Alton Packaging Corp.
v. IEPA (February
25,
1988), PCB 83—49,
86 PCB 289,299.)
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Marathon Oil Company is hereby granted variance from the
requirements of
35 Ill.
Adm. Code 303.323 as these requirements
apply to chloride, subject to the conditions listed below.
1)
This variance expires on October 7,
1994, or upon final
disposition by the Board of the rulemaking proposal
docketed as R91-23, whichever occurs first.
2)
During the term of variance the chloride effluent limit
of 700 mg/L found at 35
Ill. Adm. Code 303.323(b) (1)
~ The Board notes that it is not prejudging the imposition
of TRE’s
in the pending permit appeal, PCB 92—166, but only
states that the issues are better raised in the permit context.
—10—
does not apply;
in its stead a chloride effluent limit
of 1,000 mg/L applies.
3)
During the term of variance the chloride water quality
limit of 550 mg/L found at 35
Ill. Adm. Code
303.323(b) (2) does not apply;
in its stead a chloride
water quality limit of 750 mg/L applies.
Within 45 days of the date of this order, Petitioner shall
execute and forward to Robb Layman, Division of Legal Counsel,
Illinois Environmental Protection Agency,
2200 Churchill Road,
Poet Office Box 19276,
Springfield,
Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45-day period shall
be held in abeyance during any period that this matter is being
appealed.
Failure to execute and forward the Certificate within
45 days renders this variance void and of no i~orceand effect as
a shield against enforcement of rules from which variance was
granted.
The form of said Certification shall be as follows:
CERTIFICATION
I
(We),
hereby accept and agree to be bound by all terms and conditions
of the order of the Pollution Control Board
in PCB 91-173,
October 7,
1993.
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.
The Rules of the Supreme Court of Illinois establish
• filing requirements.
(See also 35 Ill.Adm.Code 101.246 “Motions
for Reconsideration”.)
—11—
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opj~nionand order was
adopted on the
7~Z
day of
___________________,
1993,
by
avoteof
__________
Dorothy M.,~unn,Clerk
Illinois ~6l1ution Control Board
