ILLINOIS POLLUTION CONTROL BOARD
November 18,
1993
IN THE MATTER OF:
)
)
THE PETITION OF BORDEN CHEMICALS
)
AS 93-2
& PLASTICS OPERATING LIMITED
)
(Adjusted Standard)
PARTNERSHIP FOR AN ADJUSTED
)
STANDARD FROM 35
ILL. ADM. CODE
)
302.208
)
JAMES
WARCHALL and DONNA KELLICK, SIDLEY and AUSTIN, APPEARED ON
BEHALF
OF
BORDEN
CHEMICALS
&
PLASTICS;
LISA
NORENO
APPEARED
ON
BEHALF
OF
THE
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY1.
OPINION
AND ORDER
OF THE
BOARD
(by G.
T. Girard):
On February 26,
1993, Borden Chemicals
& Plastics Operating
Limited Partnership
(BCP)
filed a petition for an adjusted
standard from the general use water quality standard for sulfate
in 35 Ill. Adm. Code 302.208 for its facility located in
Illiopolis,
Sangamon County,
Illinois.
On March 25,
1993, the
Board found that the petition filed by BCP was insufficient and
ordered an amended petition to be filed to cdrrect the
deZiciencies.
BCP filed an amended petition on June 4,
1993.
The Illinois Environmental Protection Agency
(Agency)
filed its
recommendation on the amended petition on July 2,
1993.
A hearing was held on September 17,
1993, in Illiopolis,
Illinois before hearing officer Allen Shoenberger.
Members of
the public attended the hearing.
No briefs were filed in this
matter.
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) (1992)) and to “grant
* * *
an adjusted
standard for persons who justify such an adjustment”
(415 ILCS
5/28.1(a) (1992)).
More generally the Board’s responsibility is
based on a system of checks and balances integral to Illinois
environmental governance: the Board is charged with the
rulemaking and principal adjudicatory functions,
and the Agency
1
The Board notes that Charles Feinen also appeared on
behalf of the Environmental Protection Agency.
Mr. Feinen is
presently an attorney with the Board.
Upon hire,
he withdrew his
appearance in this case and did not participate in the Board’s
decision or deliberation in this matter.
2
is responsible for carrying out the principal administrative
duties.
The Board finds that BC? has provided sufficient
justification for the granting of an adjusted standard.
The Board will explain the adjusted standard procedure and
present BCP’s justification for an adjusted standard.
ADJUSTED STANDARD PROCEDURE
The adjusted standard provision of the Act, at Section 28.1
(415 ILCS 5/28.1
(1992)), was created by
the
legislature to
provide an expedited alternative to site—specific rulemaking.
The result of either an adjusted standard or a site—specific rule
proceeding is the same (i.e.,
relief from a particular rule).
In both a general rulemaking proceeding and a site—specific
rulemaking proceeding, the Board, pursuant to Section 27 of the
Act, is required to take the following factors into
consideration:
the existing physical conditions, the character
of the area involved, including the character of surrounding land
uses, zoning classifications, the nature of the existing air
quality, or receiving body of water, as the case may be, and the
technical feasibility and economic reasonableness of measuring or
reducing the particular type of pollution.
(See specifically,
Section 27(a).)
Section 28.1 of the Act establishes the level of
justification required for an adjusted standard and also requires
the adjusted standard to be consistent with Section 27(a).
The
level of justification required, as set forth in Section 28.1(c),
is that the petitioner present adequate proof that:
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;
the existence of those factors justifies an
adjusted standard;
•
the requested standard will not result in
environmental or health effects substantially and
significantly more adverse than
the
effects
considered by the Board inadop+ing the rule of
general applicability; and
•
the adjusted standard is consistent with any
applicable federal law.
3
BACKGROUND
BCP’s chemical plant is located in a rural area one mile
west of Illiopolis,
Illinois.
(Pet. at 4.)
The plant has been in
operation since about 1960 and presently employs approximately
270 people.
(Pet.
at 4.)
The plant produces PVC suspension and
dispersion resin used by a variety of industries.
(Pet.
at 4.)
Treated wastewater from the plant is discharged into an
unnamed ditch which has a 7-day, 10 year low flow (7Q10)2 of
zero.
(Pet.
at 5.)
The ditch receives an average flow of 747,000
gallons a day from the BC? plant.
(Pet.
at 6.)
The unnamed ditch
drains into the Long Point Slough.
(Pet. at 5.)
The distance
along the ditch from BCP’s outfall to Long Point Slough is
approximately three miles.
(Pet. at 6.)
The Long Point Slough
enters the Sangamon River approximately two miles downstream of
its confluence with the unnamed ditch.
(Pet. at 7.)
The primary uses of the ditch and the Slough are as conduits
for agricultural run—off and wastewater treatment plant
discharges.
(Pet. at 5.)
No water is withdrawn from either the
ditch or the Long Point Slough for drinking water,
agricultural
or industrial purposes.
(Pet. at 7.)
The unnamed ditch and the
Slough have not been specifically classified; therefore these
waters are deemed as general use waters.
(Pet. at 28.)
A variety
of aquatic species inhabit the ditch and the Slough.
(Pet. at 5.)
The amount of water flowing in a stream may vary from
day to day.
The discharge of an effluent will be diluted to a
greater or lesser degree depending upon how much flow is in the
receiving stream at the time of discharge.
More importantly, the
downstream water quality concentration of a contaminant from an
effluent will vary depending upon the flow in the receiving
stream.
For planning purposes the United States Environmental
Protection Agency
(USEPA) and the Board have selected one
particular low flow condition called the 7Q10,
the average
minimum seven day low flow which occurs once in ten years.
Not
all low flows are 7Q10 flows.
The Board’s water regulations at
35 Ill. Ada Code 302.103 provide:
Except as otherwise provided in this Chapter,
the
water
quality standards in this Part shall apply at all times
except during periods when flows are less than the
•
average minimum seven day low flow which occurs once in
ten years.
The process of utilizing critical conditions for stream
flow,
loading and water quality parameters in the calculations is
effectively required by federal regulations.
See 40 C.F.R.
130.7(c) (1)
(1992).
4
Due to the low and variable flows, these waters are of little use
for recreational or other purposes.
(Pet. at 5.)
However, the
Slough may be used for trapping, swimming, rough fishing and game
fishing.
(Pet. at 28.)
In its water quality-setting process the Board selected the
“general use” designation for this type of waterway.
(35 Iii.
Ada. Code 303.201
(1992).)
The purpose of the General Use
Standards is stated at Section 302.202:
The general use standards will protect the State’s water
for aquatic life, wildlife, agricultural use, secondary
contact use
and most
industrial
uses
and.. ensure
the
aesthetic quality of the State’s aquatic
environment.
Primary contact uses are protected for all general use
waters whose physical configuration permits such use.
Inaddition,
pursuant to 35 Ill. Ada. Code 302.301, “..Waters of
the State are generally designated for public and food processing
use.”
Therefore, wildlife, agricultural use, and drinking water
are clearly designated uses for the receiving water of BCP’s
effluent.
The Board assigned “General Use” numeric criteria for
sulfate that would protect such uses in the waterway.
(35 Ill.
Ada. Code 302.208
(1992).)
It is the general use water quality
standard for sulfate from which BCP seeks an adjusted standard.
Section 302.208 of the Board’s regulations establishes a
water quality standard where the level of sulfate shall not
exceed 500 mg/i.
(35 Ill. Ada. 302.208(e).)
The sulfate level in
the receiving stream has consistently been below 500 mg/i,
although the level of sulfate in BCP’s effluent often exceeds 500
xng/l.
(Pet. at
1.)
Borden’s NPDES permit requires that the
amount of sulfate in the effluent not exceed 500 mg/i.3
On November 29,
1990, the Board adopted a site—specific rule
establishing a water quality standard for total dissolved solids
and chloride for the Long Point Slough and its unnamed tributary.
(In the Matter of: The Petition of Borden Chemicals
& Plastics
(November 19,
1990), R86—14.)
This rule adopted section 303.431
which imposes a water quality standard of 3,000 mg/i for total
dissolved solids and 900 mg/i for chloride for the Long Point
Slough and its unnamedtributary.
(35 Iii. Ada. Code 303.431.)
This rulemaking also adopted section 304.211 which establishes an
effluent standard for BCP’s effluent of 3,000 mg/i for total
~
BC? filed an appeal of the permit conditions including
the sulfate limitation on October 23,
1991.
(See Borden v.
Illinois Environmental Protection Agency PCB 91-200.)
BCP’s
permit appeal is currently pending before the Board.
5
dissolved solids and 900 mg/i for chloride.
(35 Ill. Ada. Code
304 .211.)
Borden proposes the following language for the adjusted
standard:
The general use water quality standard for sulfate
contained in Section 302.208 shall not apply to Long
Point Slough and its unnamed tributary, which receives
discharges from the Illiopoiis, Illinois facility of
Borden Chemicais
& Plastics Operating Limited
Partnership (“BC?”), from the point of discharge from
that facility downstream to the confluence of Long
Point Slough with the Sangamon River.
Instead, this
water shall comply with a sulfate standard of 1000
mg/i.
In addition, the suifate discharges from BCP’s
Illiopolis, Illinois facility into an unnamed tributary
of Long Point Slough shall comply with a daily maximum
effluent limitation of 1000 mg/i as measured at the
point of discharge to the unnamed tributary.
(Pet.
at 2.)
The Agency recommends the following language for the adjusted
standard:
The general use water quality standard for sulfate
contained in Section 302.208 shall not apply to Long
Point Slough and its unnamed tributary, which receives
discharges from the Illiopolis, Illinois facility of
Borden Chemicals
& Plastics Operating Limited
Partnership (“BC?”), from the point of discharge from
that facility downstream to the confluence of Long
Point Slough with the Sangamon River.
Instead, this
water shall comply with a sulfate standard of 1000
mg/i.
(Ag. Rec. at 6.)
The language recommended by the Agency does not include a
level for sulfate in the effluent discharge.
The primary
component of the requested relief is the change in water quality
standards that affect the water quality of the unnamed ditch and
Long Point Slough.
The Board must focus on these ntunerical
alternative water quality standards, and not simply the impact of
BCP’s current effluent, for three reasons.
First, the Act at
Section 28.1 requires the Board to focus on whether the requested
adjustment is consistent with the factors applied to general
rulemaking4 or will result in unexpected results.
Since BCP’s
~
Those factors,
set forth
in Section 27(a)
are: the
existing physical conditions, the charar~erof the area involved,
6
requested adjustment is numerical water quality values of 1000
mg/i of sulfate, this is the value the Board must determine to be
consistent with the factors in order to grant the adjusted
standard.
Second, Section 28.1 requires the Board to evaluate
consistency with federal law, and federal law places significant
emphasis on the numeric water quality values and use designations
of the waterway.
Third, water quality values represent an
official state determination that long-term exposure at such
levels will not cause harm or adverse environmental
consequences
.~
The Board finds that the language relating to the sulfate
level of the effluent is not appropriate for an adjusted standard
because the effluent level is not determined by regulation but is
contained in BCP’s permit.
While there is a relationship between
the sulfate level in the permit and the water quality standard,
the procedure to challenge permit conditions is a permit appeal
and not an adjusted standard.
Therefore, the Board will grant
the adjusted standard with the language as recommended by the
Agency.
Mr. Peter Guay, technical manager of the plant, testified on
the sources of sulfate in the plant.
(Tr. at 11—14.)
He also
identified the relevant wastestreams in the plant.
(Tr. at 14
&
15.)
Mr
•
Sam Shelby, an engineer
.
with the ADVENT Group, an
environmental consulting and engineering firm, testified on the
technologies that BC? considered to reduce sulfate.
(Tr. at 20-
30.)
He concluded that the options were extremely expensive or
were technically infeasible.
(Tr. at 30.)
Ms. Robin Garibay is
a
project scientist with the ADVENT Group.
(Tr. at 30.)
She
testified on the stream study and the effects of a sulfate level
of 1000 mg/i.
In support of its petition BCP provided a summary of
effluent sulfate data based on twenty—four hour composite samples
collected from May of 1991 through December of 1992.
(Pet. at
9,
including the character of surrounding land uses,
zoning
classifications, the nature of the.., receiving body of
water...and the technical feasibility and economic reasonableness
of measuring or reducing the particular type of pollution.
~ Promulgation
.1f water quality standards based upon
numbers which reflect a “worst case scenario” in actuality
represent a legal determination, governed largely by federally
required procedures, of the appropriateness of water quality at
that level to protect the designated uses.
Such promulgation
will,
in fact, allow the discharger subject to its limits to
routinely discharge at levels which achieve, but do not exceed,
that standard at all times.
7
Exh.
G.)
This data shows that the average sulfate concentration
of the effluent was 617 mg/l and the maximum sulfate
concentration was 880 mg/i.
(Pet. at
9, Exh. G.)
BC? contends
that the sources of sulfate in the effluent have remained
substantially the same over the past seventeen years and
therefore this data is representative of BCP’s long—term average
discharges of sulfate.
(Pet. at 10.)
Factors relating to BCP are substantially and sianificantiy
different from the factors relied uDon by the Board
in adoi,ting
the aeneral reaulation
In adopting the general eater quality standards the Board
stated that:
all waters should be protected against nuisances
and against health hazards to those near them; that all
waters naturally capable of supporting aquatic life,
should be protected to support such
life;
and that
waters that are used for public water supply should be
clean
enough
that
ordinary
treatment processes
will
assure their potability.
(In the Matter
of:
Effluent Criteria
(March
7,
1972),
R70—8,
3 PCB 755,
759.)
In adopting the water quality standard for sulfate, the
Board concluded that a limit was “desirable to protect stock
watering and fish.”
(In the Matter of: Effluent Criteria (March
7,
1972), R70-8,
3 PCB 755, 762.)
The Board found that a level
of 500 mg/i would provide adequate protection for fish and avoid
serious adverse effects on public water supplies.
(In the Matter
of: Effluent Criteria (March 7,
1972), R70—8,
3 PCB 755,
762.)
BCP contends that the stream study demonstrates that the
amount of BCP’s effluent does not adversely affect fish or other
aquatic life.
(Pet. at 16.)
BCP argues that there is no adverse
effect on livestock because there is no cattle in the area.
(Pet.
at 16.)
,
BCP claims that the unnamed ditch and Long
Point Slough are not used as sources of drinking water; therefore
the current discharges are protective of water supplies.
(Pet.
at
16.)
BCP argues that the receiving waters of BCP’s effluent are
uniquely suited to receive a higher concentration of sulfate.
(Pet. at 16.)
The Agency believes that BCP has shown that the factors of
this proceeding are substantially and significantly different
than those factors relied on by the Board in adopting the water
quality standard for sulfate.
(Ag. Rec. at 8.)
The Agency notes
that BC? has shown that the unnamed ditch and the Long Point
Slough are not sources for stock watering or for public water
supply.
(Ag. Rec.
at 7.)
In addition, the Agency notes that BC?
has provided evidence that the sulfate level will be protective
8
of livestock watering if the waterway were to be used for
livestock watering in the future.
(Ag. Rec. at 7.)
The Agency
also contends that the studies show that the sulfate level would
be protective of aquatic life of the unnamed tributary and Long
Point Slough.
(Ag. Rec. at 8.)
The existence of those factors lustifies an adlusted standard
Section 28.1(c) (2) requires the petitioner to prove that the
existence of the substantially different factors justifies an
adjusted standard.
BC? contends that the receiving waters of
BCP’s effluent are uniquely suited to receive a higher
concentration of sulfate than the water quality—based effluent
limitation.
(Pet at 16.)
BCP also contends that compliance with
the sulfate level would result in a substantial hardship to BC?
with no corresponding benefit.
(Pet.
at 40.)
The Agency believes that the factors justify an adjusted
standard.
(Ag. Rec. at 8.)
The Agency recommends that the Board
grant the adjusted standard at the level requested by BCP.
The requested standard will not result in environmental or health
effects substantially and significantly more adverse than the
effects considered by the Board in adopting the rule of general
arn,licabilitv
A stream study of the unnamed ditch and Long Point Slough,
performed in 1984,
found that the dissolved salts in BCP’s
effluent do not adversely affect fish.
(Pet. at 16.)
The study
found twenty-five species of fish, including six species
classified as sportfish.
(Pet. at 16, Exh D at 64.)
BC? also references a 1981 study that concluded that a
sulfate standard of 1000 mg/i would be protective of fish
species.
(Pet.
at 22.)
The study exposed fish species native to
Illinois to varying concentrations of sulfate.
(Pet. at 22, Exh.
K.)
BC? also references a 1976 study on cattle that showed that
heifers were able to tolerate 2500 mg/i of sulfate in their
drinking water without adverse effects.
(Pet. at 24, £xh. M.)
BC? also notes another study where two cows were fed water
containing 4546 to 7369 mg/i of salts for two years with no
adverse effects.
(Pet. at 25, Exh. N.)
The Board notes that
these studies observed the effect of sulfate concentrations in
general and did not consider the particular factors relating to
BCP’s f~ility.
The Agency believes that the proposed limit of 1000 mg/i of
sulfate will not result in environmental or health effects
significantly or substantially more adverse than the effects
considered by the Board in adopting the water standard.
(Ag. Rec.
at 9.)
9
The adiusted standard is consistent with any aDolicable federal
Section 28
•
1(c) (4) of the Act requires the petitioner to
show by adequate proof that the adjusted standard is consistent
with any applicable federal law.
BC? asserts that the adjusted
standard is consistent with federal law.
(Pet. at 27.)
BC?
contends that the adjusted standard does not interfere with any
of the existing or reasonably likely future uSes of these waters.
(Pet. at 28.)
The Agency believes that the adjusted standard would be
consistent with federal law.
(Ag. Rec. at 9.)
The Agency notes
that Section 303 of the Clean Water Act,
33 U.S.C. S1313,
granted
states the authority to promulgate water quality standards
subject to the approval of the USEPA.
(Ag. Rec.
at 9.)
The
Agency also notes that the states were authorized to revise the
adopted water quality standards.
(Ag. Rec. at 9.)
Alternate Technologies
BCP considered three end-of-pipe sulfate reduction options
and four pretreatment sulfate reduction options.
(Tr. at 20.)
BC? concluded that all the options considered were either
technically or economically infeasible.
(Tr. at 21.)
The three
end of pipe alternatives considered were reverse osmosis,
distillation and deionization.
(Tr. at 20.)
The use of reverse
osmosis and distillation were determined to present a greater
threat to the environment than the present system of discharge.
(Pet..
at 23
& 24.)
The use of deionization would increase the
effluent sulfate levái.
(Pet. at 25.)
Borden also investigated the following pretreatment options:
reverse osmosis; use of hydrochloric acid for ion exchange
regeneration; the use of sodium bicarbonate for ion exchange
regeneration;
and off—site disposal of spent sulfuric acid.
(Tr.
at 27.)
DC? found the use of reverse osmosis to be cost
prohibitive with capital costs of $5.2 million and annual
operating and maintenance costs of $199,000.
(Tr. at 27, Exh. W.)
The use of hydrochloric acid was found to be not environmentally
sound due to increases in the discharge of chloride.
(Pet. at
27.)
The use of sodium bicarbonate will not provide the water
quality needed in BCP’s production process.
(Pet. at 28.)
Annual
costs for off-site disposal were estimated to be between $5
million and $7.5 million.
(Tr. at 29.)
BC? found the option of
off-site disposal to be expensive and merely transfers the
sulfate to another location with no environmental benefit.
(Tr.
at 29.)
The Agency concludes that the options considered show that
treatment to remove sulfate is technically feasible but not
economically reasonable.
(Ag. Rec. at 4.)
The Agency contends
10
that the alternatives are economically unreasonable considering
the
lack
of
any associated environmental benefit.
(Ag. Rec. at
5.)
CONCLUSION
For all of the above reasons, the Board finds that BC? has
presented adequate proof of justification for the requested
standard as set forth in Section 28.1(c) of the Act and the
requested adjusted standard,
as presented in this proceeding,
is
consistent with the factors set forth in Section 27(a) of the
Act.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants Borden Chemicals & Plastics’ request
for an adjusted standard for its liliopolis plant from the
general use water quality standards for sulfate in 35 Iii. Ada.
Code 302.208(e).
Borden Chemical is hereby granted the following
adjusted standard:
The general use water quality standard for sulfate
contained in Section 302.208 shall not: apply to Long
Point Slough and its unnamed tributary, which receives
discharges from the Illiopolis, Illinois facility 4of
Borden Chemicals & Plastics Operating Limited
Partnership
(“BC?”), from the point of discharge from
that facility downstream to the confluence of Long
Point Slough with the Sangamon River.
Instead, this
water shall comply with a sulfate standard of 1000
mg/i.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill. Ada. Code
101.246, Motion for Reconsideration.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
th
the above opin
and order was
adopted on the ______________day of __________________________
1993, by a vote of
________.
~
A.
L~
~i~orothy M.
G93~(,Clerk
Illinois Poi(l tion Control Board
