ILLINOIS POLLUTION CONTROL BOARD
June 23, 1994
IN THE MATTER OF:
)
)
MARATHON OIL COMPANY’S PETITION
)
R91-23
FOR SITE-SPECIFIC RULE CHANGE TO
)
(Rulemaking)
35 ILL. ADN. CODE 303.323
)
Proposed Rule.
Second Notice.
OPINION AND ORDER OF THE BOARD
(by R. C.
Fleiual):
On August 19,
1991 Marathon Oil Company
(Marathon)
filed
this proposal for site-specific rulemaking.
Marathon seeks to
amend the limits contained in the current site—specific rule at
35 Ill.
Adm. Code 303.323 pertaining to chloride.
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 to “determine, define and implement
the environmental control standards applicable in the State of
Illinois”
(415 ILCS 5/5(b)).
More generally, the Board’s
rulemaking charge
is based on the system of checks and balances
integral to Illinois environmental governance: the Board bears
responsibility for the rulemaking and principal adjudicatory
functions, whereas the Illinois Environmental Protection Agency
(Agency)
is responsible for carrying out the principal
administrative duties.
The latter’s duties include administering
any regulation
that may result from action in the instant
proceeding.
Today the Board adopts Marathon’s proposal for second
notice.
The text of the proposal is unchanged from that proposed
for first notice.
REGULATORY
AND
PROCEDURAL HISTORY
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), and there are
water quality standards for chloride.
In the instant matter, 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.
—2—
Marathon initially petitioned this Board for temporary
exemption of its receiving waters from the 500
ing/L water quality
standard in PCB 80-102.
On October
2,
1980 the Board granted
this petition for variance, 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,
19891 the Board responded to Marathon’s
petition by promulgating 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.
Accordingly, the
currently applicable rule is as follows:
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 Petroleum2 Company’s outfall 001
discharges into the unnamed tributary to the
confluence of Sugar Creek and the Wabash
River.
b)
35 Ill. 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/i total dissolved solids or 700
mg/i chlorides,
1
In the Matter of: Marathon Petroleum ComDanv Site-Speci~jç,
R87—2,
103 PCB 133.
2
Marathon
Oil
Company
is
the
successor
in
interest
to
Marathon Petroleum Company (VResp. brief at 1).
—3—
2)
The water in the unnamed tributary does
not exceed 2,000 mg/i total dissolved
solids or 550 mg/i chlorides.
On August 19,
1991 Marathon filed this site—specific
rulemaking proposal, 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 rng/L to 700 mg/L.
Hearing was held before hearing officer Karen Rosenwinkel on
this site-specific petition on September 10,
1992 in Robinson,
Illinois.
No members of the public attended.
Briefs were filed
by petitioner on April 12,
1993 and respondent on May 17,
1993.
On October
7, 1993 the Board adopted this matter for first
notice.
Publication occurred at 17 Ill.
Reg. 18759, October 29,
1993.
In
it first notice opinion, the Board expressly observed:
The Board notes that pursuant to the Illinois
Administrative Procedure Act
(5 ILCS 100/1-1 et seq.
(1992))
interested persons will have 45 days from
publication of this proposed amendment in the Illinois
register to file public comments.
The Board further
notes that since it has been nearly one year since the
close of the hearing record, interested persons filing
comments should update the Board on developments that
have affected this matter since the closing of the
hearing record.3
In spite of this observation, neither Marathon nor the Agency
have filed first—notice public comments.
The Board must presume
that neither Marathon nor the Agency believes that there is need
to update the instant record.
The two first-notice public comments that have been filed
have been from the Illinois Department of Commerce and Community
Affairs, which notes that the proposal does not impact small
businesses
(PC #4), and from the Administrative Code Division of
the Office of the Secretary of State, which notes that the first
notice proposal complies with codification requirements
(PC #5).
During the early pendency of the instant regulatory
proposal, Marathon also had before the Board a related variance
petition.
In that petition Marathon requested as variance
~ In the Matter of: Marathon Oil Comn~any’sPetition for Site-
SDecific Rule Change to 35 Ill. Adm. Code 303.323, Docket R91-23,
PCB
—,
October
7,
1993; emphasis added.
—4—
conditions the same 1000 mg/L and 700 mg/L effluent and water
quality limitations that it here proposes as amendments to
Section 303.323.
The variance proposal was filed on September 17,
1991 and
docketed as PCB 91-173.
On December 19,
1991 the Board granted
Marathon’s motion to incorporate the record of the variance
proceeding into this proceeding4.
The Board initially denied the variance.
However, upon
appeal the Board’s denial was reversed5 and on October
7,
1993
the Board issued the variance6.
That variance is scheduled to
expire on October
7,
1994, or upon final disposition of the
instant rulemaking, whichever occurs first
FACILITY DESCRIPTION
Marathon operates a petroleum refinery located on the
outskirts of the City of Robinson, Crawford County, Illinois.
The refinery processes approximately 20O,000~barrels of oil per
day and employs approximately 650 persons
(SSPet.
1_2.)8
Part of the refining process consists of removing chloride
mixed with water from the crude oil.
The quantity of chloride in
the crude oil 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
‘~
In the Matter of:
Marathon Oil ComDanv Site SDecific, R91-
23,
128 PCB 899.
~ Marathon Oil ComDany v. IEPA and PCB
(5th Dist.
1993),
242
Ill.App.3d 200, 610 N.E.2d 789,
182 Ill.
Dec.
920.
6
Marathon Oil Conttanv v.
Illinois Environmental Protection
Agency, PCB 91-173,
—
PCB
~‘
The record
contains different
figures
for the amount
of
crude processed per day at this facility.
The figures range from
170,000 to 205,000 barrels per day.
(SSPet. 1—2; VTr.
11; SSTr.
6,
23,
36; SSPet. Exh. A—I)
8
Citations to the record will indicate transcript references
as
“Tr.”,
petition as
“Pet.”,
exhibits as
“Pet.
Exh.” or “Resp.
Exh.”, and briefs as “Pet.
Br.” or “Resp.
Br.”.
Citations to the
site-specific and variances records will be distinguished where
necessary
by
prefacing
the
citations
with
“SS”
for
the site-
specific record and
“V’1 for the variance record; e.g.,
“SSPet. at
xx.”
—5—
chloride content of the crude 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 (VPet.
Exh.
8.)
Marathon treats its wastewaters prior to discharging them.
However,
t1’ie 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 discharqe concentrations and does not contain any
specific technology to remove chlorides
(VTr. at 25-27.)
The
effluent chloride that the plant discharges is basically
dependent on the salt content in the crude oil and the amount of
water discharged to the creek.
(SSTr.
at 8.)
Discharge of the wastewaters
is to an unnamed9 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
(SSPet.
2, Attachment A; VPet.
Exh.
1
at 8.)
The unnamed tributary at the Marathon discharge has a
drainage area of approximately eight square miles
(VTr.
at 15)
and a natural 7—day 10—year low flow of zero
(VTr.
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
(MGD10)
(SSPet. Exh.
1 at A3, VTr. 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.
TECHNICAL FEASIBILITY
AND
ECONOMIC REASONABLENESS
Compliance Efforts
Over the years Marathon has examined different treatment
alternatives for chloride,
including concentrating the chloride,
removing it, and disposing of it underground by injection or in a
~ Although
not
officially
named,
the
creek
is
sometimes
referred to as Robinson Creek
(e.g., VPet.
Exh.,
p.
6).
10
One MGD equals 0.04381 cubic meters per second or 1.55 cubic
feet per second (cfs).
—6—
dried form in landfills.
Marathon has also examined transporting
the effluent to
a larger water body via pipeline and discharging
it there.
Marathon argues that none of these alternatives
is
technically feasible or economically reasonable.
(SSTr. at B—9.)
Marathon currently uses storing techniques employing storm
water impoundments.
The
storage process is described as total
diversion of the effluent from the wastewater plant to storm
water basins with later treatment of both collected stormwater
and already once—treated, diverted effluent.
Discharges from the
plant are resumed again during periods of higher flow.
(SSTr. at
10—11.)
Marathon maintains that the storage option, while
technically feasible, does not work during periods where high
chloride content in crude and storm events coincide.
Marathon
offers that preventing discharges that exceed the limits is
increasingly harder to achieve during such storm events.
Furthermore, Marathon presents that the potential for discharging
effluent that exceeds the limits will increase due to additional
planned changes in the operation of the storm water diversion
system.
Marathon intends to divert storm water out of the ponds,
close the ponds,
and replace them with tanks.
This would result
in a diminished amount of water to dilute the effluent from the
treatment plant.
The amount of dilution water is diminished
because certain storm water runoff is not considered contaminated
and no longer will be mixed with the contaminated storm water
runoff.
(SSTr.
at 11—13.)
The closure of the ponds may be
necessary due to potential groundwater contamination and cleanup
due to other contaminants present in the pond sediment (SSTr. at
67.)
ENVIRONMENTAL IMPACT
The environmental impact issues are twofold.
One question
involves Marathon’s position, acceded to by the Agency, that the
continued use of the current management practices, especially in
light of the planned changes to the treatment plant, may result
in a negative impact on the receiving waters.
The second
consideration consists of an unknown toxicity problem present in
Marathon’s effluent, and the Agency’s concerns that increased
chloride may additionally burden an already stressed aquatic
population.
Storage Impacts
Marathon presents that the storage option of controlling
chloride levels in the plant effluent, discussed above, has a
potential negative environmental impact on the stream due to the
—7—
greater chance of overflow during certain storm events.
Marathon
further states that the use of all the storm water retained in
the ponds to dilute the chloride has historically resulted in
greater swings in the concentration of chloride discharged,
which
Marathon believes is not beneficial to the fish population.
(SSTr. at 70.)
The Agency basically concurs with Marathon’s assessment of
the enviro:~mentalimpact of the currently—employed management
techniques, as described in the testimony of Dean Studer:
Although unable to determine at this time if
discharging a “more continuous but higher level of
chlorides in the stream”
is any less stressful (on the
fish population,
the Agency does believe that raising
the water quality standard for chlorides in the
receiving stream to allow Marathon to continually
discharge effluent from outfall #001 is environmentally
prudent.
Such a change in the chloride water quality
standard would minimize the potential stress from the
cyclic changes
in flow and water quality resulting from
the alternating cessation and commencing of discharge.
*
*
*
Given the nature of the receiving stream and ~the
unknown toxicity problem,
if an emergency bypass were
to occur,
it is possible that the discharge would
contribute to the degradation of the receiving stream.
(SSExh.
4 at 7.)
Unknown Toxicity Problem
The unnamed tributary in question has been the subject of
previous study.
Marathon’s environmental consultant, Radian
Corporation, performed a study of the receiving stream 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.
(VTr.
at
47; VPet.
Exhs.
1,2.)
A study was also undertaken by the Agency
in 1986 and published in 1988.
(VPet. Exh.
1.)
Marathon
believes that the 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.
(VTr.
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 some found improvement in the fish population since the two
1986 studies, as well as a lack of toxicity in the stream
sediment.
(Vresp.
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
—8—
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.
(VTr. at 49—50; VResp.
Exh.
1.)
As Robert
Wallace, of Radian Corporation testified:
(T)he
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.
(VTr.
at 50.)
Degradation was also attributed to the City of Robinson sewage
treatment plant effluent, but there has been improvement
downstream from that plant.
(SSPetition at C 1-4,
2-2.)
Effects ~f Higher Chloride Concentration
Marathon presented two recent studies prepared by its
consultant, Radian Corporation, Marathon Oil ComPanY Chloride
Study of Robinson Creek, August 1992
(SSExh.
3), and Marathon Oil
ComPany 7-Day Chronic Fathead Minnow-Larval Survival and Growth
Test, July 1992
(SSExh.
2.)
Based on these studies, Marathon’s
witness, Robert
C. Wallace concluded that “t)he
results of these
studies indicate that a chloride limitation of 1600 mg/L in the
effluent would result in an instream chloride concentration at
low flow of less than 1,000 mg/L,
a level shown to be non—toxic
to aquatic life”.
(SS.Exh.
1 at 1.)
The chronic toxicity test
results are summarized as follows:
A 7—day chronic fathead minnow test was conducted on
synthetic effluent chloride levels of 700,
800,
900,
and 1,000 mg/L while holding total dissolved solids
(TDS) constant at 2,000 mg/L.
Results of the chronic toxicity test indicated that
chloride concentrations up to 1,000 mg/L,
the highest
level tested, had no significant negative effect on
fish survival.
Larval survival in all chloride test
solutions was greater than or equal to 93 percent.
Biomass was higher in all chloride test solutions than
in control groups.
The no—observed effect
concentration (NOEC)
for the test was 1,000 mg/L
chloride and the percent impairment concentration
(1C25)
was greater than 1,000 mg/L chloride.
This
would indicate that 1,000 mg/L chloride and 2,000 mg/L
—9—
TDS do not produce toxicity to larval fathead minnows
and should not be toxic to aquatic life in Robinson
Creek.
(SSExh.
2 at 1—1.)
The Agency did not dispute the results of these studies,
per
Se, but rather continued to assert its position that the
chlorides may constitute a stress factor:
The Agency is concerned that raising the chloride water
quality standard too high will stress the aquatic biota
and exacerbate the existing toxicity problems in the
waters below Marathon’s outfall.
Further, with the
existing chronic toxicity problem in Marathon’s
effluent, any toxicity tests for chloride will be
biased.
Therefore,
the only way to measure the effects
due strictly to chloride is to use a synthetic effluent
in toxicity testing.
This technique, being the sole
option open to petitioner for chloride toxicity testing
at this time, was employed by petitioner in support of
this proposal.
This process, through its very nature,
ignores the interaction of elevated chloride levels
with the existing toxicity in Marathon’s effluent and
introduces a decree
(sic) of bias in the results.
(SSExh.
4 at 4.)
The Agency went on to state that it believes that in all
probability, this bias in the testing will increase as the
chloride levels go higher; therefore, the Agency is skeptical of
the toxicity results.
(SSExh.
4 at 4—5.)
Parties’ Positions
The Agency agrees that site-specific relief for chloride is
necessary.
However due to the toxicity problem, the Agency
expressed belief that the relief should be temporary,
and that a
toxicity reduction evaluation
(TRE)
should be required.
Marathon
is opposed to temporary relief in this site-specific rulemaking
because of the time and effort that would be needed to complete
another rulemaking in the future.
Marathon also disagrees that a
TRE should be required as a condition of the requested relief,
pointing out that TRE’s are usually imposed by the Agency in the
course of the grant of an NPDES permit.
(VPet. status report. at
3; see also, SSTr. at 50.)
CONCLUSIONS
In its first notice opinion, the Board concluded as follows:
The Board is persuaded,
based upon an analysis of
the record in this proceeding, that there is no
alternative treatment method for Marathon that is
—10—
simultaneously technically feasible and economically
reasonable.
The Board is also persuaded that the
increase in chloride in Marathon’s effluent as proposed
here,
is not a known limiting factor in the quality of
the receiving waterway.
Accordingly, the Board will
today propose for first notice a rule which would
provide the relief requested,
as modified to comport
with Administrative Code Division requirements.
The Board emphasizes that it shares the Agency’s
concern over the toxicity in the unnamed tributary.
This toxicity needs to be characterized and eliminated.
The toxicity issue would seem to be appropriately
addressed in the NPDES permitting process.
There the
nature of the effluent in all its water quality aspects
(including its possible toxicity)
is a relevant concern
(footnote: 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.).
The Board also notes that its support of
Marathon’s proposed amendment is predicated on the
belief that chloride at the concentrations proposed is
not a known notable contributor to degraded aquatic
conditions in the unnamed tributary.
Any
evidence that
would cause an opposite conclusion to be drawn at any
time in the future would be grounds to reverse this
support.
The Board today affirms its first-notice conclusions.
In
the face of these conclusions and the absence of any substantive
additions to the record since first notice, the Board believes
that this matter is now ripe for movement to second notice.
ORDER
The Board hereby directs that second notice of the following
proposed amendment to 35 Ill. Adm. Code 303.323 be submitted to
the Joint Committee on Administrative Rules.
PART 303
WATER USE DESIGNATIONS
AND
SITE SPECIFIC
WATER QUALITY STANDARDS
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
retrolcum
QJJ~
Company’s outfall 001 discharges into the
—11—
unnamed tributary to the confluence of Sugar Creek and
the Wabash River.
b)
35 Ill.
Adin. Code 304.105 shall not apply to total
dissolved solids and chlorides discharged by Marathon
Potroloum Qj~Company’s outfall 001, so long as both of
the following conditions are truc
~t~:
1)
Effluent from Marathon Potrolcum
Qfl
Company’s
outfall 001 does not exceed 3,000 mg/~total
dissolved solids or ~-G91.000 mg/~~
chlorides,
and
2)
The water in the named tributary does not exceed
2,000 mg/~total dissolved solids or 4~O
mg/li chlorides.
IT IS SO ORDERED.
I, Dorothy H.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a
ye opinion and order was
adopt d on the~~~
day of
______________,
1994, by a vote
of
_______.
Dorothy H. Gt~p~,Clerk
Illinois Po~
ion Control Board
