ILLINOIS POLLUTION CONTROL BOARD
May 5,
1994
AXZO CHEMICALS,
INC.,
)
)
Petitioner,
)
V.
)
PCB 94—76
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by R.C.
Fleinal):
This matter comes before the Board on the filing by AXZO
Chemicals,
Inc.
(AXZO), on February 25,
1994 of a petition for
variance.
AKZO seeks variance from requirements of the Board’s
water pollution control regulations found at
35 Ill. Adm. Code
302.208 and 304.105 as these sections apply to the discharge of
total dissolved solids
(TDS),
chloride, sulfate, and boron from
AXZO’s Morris,
Illinois,
facility.
AXZO requests that the
variance be retroactive to October 27,
1993 and terminate either
three years from the date of the variance or upon modification of
AKZO’s National Pollution Discharge Elimination System
(NPDES)
permit to include the adjusted standard relief sought in AS 93—8,
whichever is sooner.
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 there with the responsibility of granting
variance from Board regulations whenever it is found that
compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner.
(415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency
(Agency)
is required
to appear in hearings on variance petitions.
(415 ILCS 5/4(f).)
The Agency is also charged,
among other matters, with the
responsibility of investigating each variance petition and making
a recommendation to the Board as to the disposition of the
petition.
(415 ILCS 5/37(a).)
The Agency filed its variance recommendation
(Rec.)
on March
28,
1994.
The Agency contends that an arbitrary or unreasonable
hardship would be imposed on AKZO in the absence of the requested
relief.
(Rec.
at ¶6.)
Accordingly, the Agency recommends grant
of variance, subject to conditions.
AKZO
has waived hearing and no hearing has been held.
As presented below, the Board finds that AKZO has met its
burden of demonstrating that immediate compliance with the
—2—
regulations at issue would impose an arbitrary or unreasonable
hardship.
Accordingly, the variance request will be granted.
BACKGROUND
AXZO owns and operates a facility located near Morris,
Illinois, at which AKZO produces glycerine,
nitrile, amines and
other fatty acid nitrogen derivatives.
The products are used
primarily as surfactants in a variety of industrial processes and
in the production of agricultural, personal care,
food, and
chemical products.
(Pet.
at p.
2.)
The major raw materials used
include tallow, coconut oil, soybean oil, ammonia, hydrogen,
methyl chloride, acrylonitrile, isopropyl alcohol, ethanol,
formaldehyde, and water.
(Pet. at p.
3.)
AKZO
holds NPDES permit No. 1L0026069 for discharges from
its Morris facility’.
The permit was issued on September 27,
1990 and modified effective November 24,
1992; the permit expires
on October
1,
1994.
The instant variance petition addresses outfall 002, one of
the two external discharge points2 identified in AXZO’s NPDES
permit.
Discharge through outfall 002 is to Aux Sable Creek at a
point approximately one mile above the creek’s mouth at the
Illinois River.
Outfall 002
is the discharge point of wastewaters from
AXZO’s steam generating boilers, water softener regeneration, and
stormwater runoff.
The steam generation and water softener
wastestreams are the primary sources of the four contaminants at
issue.
(Pet.
at p.
3.)
The water softener wastestream, which is
approximately 2,000 gallons per day
(Pet. at p.7),
is the more
concentrated of the two wastestreams.
(Pet. at p.
9.)
TDS, chloride, sulfate, and boron are each increased in
concentration due to boiler steam loss and consumptive steam use.
In addition, TDS, chloride, and sulfate are added to the
wastestream waters as the result of pH adjustment and water
softening,
both of which are necessary for boiler operation.
(Pet.
at p.
4.)
1
The NPDES permit is Exhibit
1 attached to AXZO’s petition.
2
The second outfall,
001,
is from an underdrain system.
AKZO collects all process waters, which are then biologically
treated,
stored, and ultimately used for spray irrigation of
crops.
(Pet. at 3.)
The underdrain is located beneath the
irrigation field.
As with outfall 002, discharge through outfall
001 is to Aux Sable Creek.
—3—
AKZO reports that the average daily concentration of TDS
discharged over the 28 months preceding filing of its petition
was approximately 3,000 mg/L.
(Pet.
at p.
4)
Recent sample
results for chloride,
sulfate, and boron showed average
concentrations of 1,566,
286, and 0.78 mg/L,
respectively.
(~.)
The maximum observed concentration for TDS was 6,180 mg/L.
The
maximum observed concentrations for the other three parameters
were 2,960,
574, and 1.4 mg/L, respectively.
NPDES permit No. IL0026069 contains effluent limits for
outfall 002 of 1,000 mg/i for TDS and 1.0 mg/L for boron.
Both
limits are equal to the in-stream water quality standard for the
respective parameters as specified at 35 Ill.
Adin. Code 302.208.
NPDES permit No. IL0026069 does not contain effluent limits
for outfall 002 for either chloride or sulfate.
However,
pursuant to the operation of 35 Ill.
Adm. Code 304.1O5~,the
discharge through outfall 002 may not cause or contribute to a
violation of an in—stream water quality standard.
Water quality
standards of 500 mg/L each for chloride and sulfate, are
specified at 35 Ill.
Adm. Code 302.208, and these stand,
depending upon mixing conditions,
as effective limits on the
concentration of chloride and sulfate that AXZO may discharge.
The Agency proposes that there be imposed as a condition of
grant of variance a cap on the permissible discharges from
outfall 002 as follows:
Parameter
Ca~
Boron
2.0 mg/L
Chloride
1,000 mg/L
Sulfate
1,000 mg/L
TDS
3,000 ing/L
AKZO presently has before the Board a petition4 for adjusted
standard (AS 93—8)
in which it requests that these same caps be
determined to be the appropriate standards applicable at outfall
002.
The Agency has expressed support for the granting of the
adjusted standard.
~ In pertinent part,
Section 304.105 reads:
“...
no effluent
shall, alone or in combination with other sources, cause
violation of any applicable water quality standard.”
~‘
The original petition was filed on August
20,
1993.
Amended petitions were filed on November 12,
1993 and February 2,
1994.
The matter is currently being held for hearing.
—4—
HARDSHIP
AKZO is admittedly not now meeting the limits for TDS and
boron specified in its NPDES permit, and is discharging TDS,
chloride, sulfate, and boron at concentrations which arguably
cause the in—stream water quality standards for these parameters
to be exceeded.
AXZO contends that it cannot discharge at concentrations
that would assure compliance with the NPDES limits and water
quality standards without hardship.
Moreover, AXZO contends that
the environmental impact that would result from discharges at the
level here under consideration are such as to cause the hardship
to rise to the level of an arbitrary or unreasonable hardship.
AXZO
has evaluated ten compliance alternatives, which vary
in cost and ability to achieve compliance.
AXZO
notes the
following about the alternatives:
1.
Operation of the Boiler at an Abnormally High
Blowdown Rate: would greatly increase fuel
consumption and raise operating costs Ca.
$155,000 annually; maintenance and chemical
usage also expected to increase.
(Pet. at p.
6.)
2.
Installation of a Reverse Osmosis Treatment
System with Offsite Disposal of Brine:
capital cost would be $640,000 to $840,000,
with disposal costs ranging between $5.1
million and $27.3 million.
(Pet.
at p.
7.)
2a.
Offsite Disposal of Current Water Softener
Wastewater: cost of approximately $0.73
million per year.
(~4.)
3.
Reverse Osmosis System with Evaporation:
evaporator would add $500,000 to $1.0 million
to Capital costs.
(j~.)
4.
Combining Outfalls 001 and 002: volume and
content of outfall 002 effluent cannot be
disposed via spray field; outfall 001
discharge is too limited to allow dilution of
002 volumes.
(Pet. at p. 8—9.)
5.
Optimization of Existing Sodium Zeolite
System and Recycle of the Most Concentrated
Rinse Streams: this alternative allows for
compliance with the caps proposed by the
Agency, but not with the existing standards
for TDS, boron,
chloride, or sulfate; intent
is to recycle a portion of the brine rinse
—5—
and slow rinse streams and to truck the
remainder for offsite disposal at the Morris
POTW.
(Pet. at p.
9.)
6.
Isolation and Evaporation of High TDS
Streams: same as #5, except for evaporation
of water softener residual; cost of
evaporator $300,000 plus $115,000 annual
operating cost.
(Pet. at p.
10.)
7.
Discharge via Neighbor’s Outfall: permission
not attainable.
(Pet. at p.
11.)
8.
Pipeline to Illinois River: capital cost of
$400,000 and annual operating cost of
$35,000.
(~.)
9.
Reverse Osmosis of Boiler Feed Water Followed
by Direct Discharge:
capital cost of $500,000
to $700,000 and annual operating cost of
$90,000 to $100,000.
(Pet.
at p.
12.)
10.
Demineralization of Boiler Feed Water:
capital cost of $600,000 to $750,000 and
annual operating cost of $50,000 to $140,000;
no substantial reduction in TDS at outfall
002.
(Pet. at p.
12—13.)
ENVIRONMENTAL IMPACT
The mere showing that compliance with a Board regulation
would impose a hardship upon a petitioner is not sufficient for a
variance to be granted.
The petitioner must also demonstrate to
the Board’s satisfaction that the hardship outweighs any injury
that would result from grant of the variance.
This weighing of
the consequences of a variance was recently capsulized by the
appellate court in Marathon Oil Company v. IEPA and PCB (5th
Dist.
1993,
610 N.E.2d 789,793,
182 Ill. Dec. 920,924):
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.
In the instant matter, both AKZO and the Agency contend that
there is minimal impact of the existing discharges on the
receiving waterway, Aux Sable Creek.
As principal evidence
thereto, AXZO points to a study of Aux Sable Creek carried out by
—6—
the Agency in 1986~. AKZO contends that the conclusions of the
study remain valid today since operations and processes at the
Morris facility have not changed significantly since the Agency
study.
(Pet. at p.
5.)
The 1986 Agency study involved sampling of aquatic
macroinvertebrates, habitat evaluation, and water quality
sampling both above and below outfall 002.
Among findings of the
study were:
Macroinvertebrate communities were represented by a
fairly diverse assemblage both above and below outfall
002.
There was no apparent adverse environmental impact in
the vicinity of the AKZO outfall.
Macroinvertebrate results were similar to a study
conducted in 1976, which also found little discernable
impact.
Water quality was within acceptable limits for all
regulated parameters.
Effluent concentrations result in increased, although
not excess, downstream conductivity TDS).
Adequate pools, in—stream cover, substrates,
and canopy
were present to support forage and sport fishes.
AKZO also cites to the results of a literature search
conducted by it and submitted as part of the record in AS 93-8.
AXZO contends that the literature search shows
***
that sufficient data exists to support the
conclusion that the requested TDS, chloride and sulfate
will not harm aquatic life.
The literature search
revealed data demonstrating that fresh water fish
survived for several days to several weeks in levels of
chloride, sulfate and TDS at levels much higher than
those discharged by AXZO.
(Pet. at p.
5.)
However, the Board notes that although AKZO has requested that
the literature search in question be incorporated by reference
into the instant record
(Pet.
at p.
5),
AXZO
has not followed the
procedures necessary for that incorporation to take place
(see 35
Ill.
Adm. Code 101.106).
Accordingly, that literature search is
not in evidence before the Board.
~ The 1986 Agency study, entitled Intensive Survey of AUX
Sable Creek (DW~in the Vicinity of
AKZO
Cheinie America Morris.
Illinois, July 1986,
is Exhibit 5 to the Petition.
—7—
The Agency,
for its part,
“agrees with AXZO that granting
this variance would have little,
if any, adverse environmental
impact”
(Rec. at ¶7).
ADDITIONAL CONSIDERATIONS
The Board emphasizes that the conclusions it reaches based
upon the record of the instant variance proceeding do not
necessarily reflect on the merits of AKZO’s adjusted standard
proposal currently under consideration in Board docket AS 93—8.
The burdens of proof and the standards of review in an adjusted
standard and a variance are distinctly different
(cf.
Titles VII
and IX of the Act).
Moreover, the Board cannot lawfully prejudge
the outcome of a pending regulatory proposal in considering a
petition for variance.
Similarly, the Board is not required to
find that an arbitrary or unreasonable hardship exists
exclusively because a regulatory standard is under review in an
adjusted standard proceeding.
(Section 35(a)
of the Act.)
In addition to the two Sections of the Board’s regulations
for which AXZO specifically requests variance, the Agency
recommends that variance additionally be granted with respect to
35 Ill.
Adm. Code 304.141.
Section 304.141 specifies,
among
other matters, that no person may discharge any contaminant in
excess of the standards and limitations that are set in the NPDES
permit.
Inasmuch as today’s grant of variance provides for
discharges in excess of the NPDES limits, the Board agrees with
the Agency that variance from Section 304.141 is appropriate.
Lastly, the Board notes that it does not ordinarily grant
variance where petitioner has not submitted and committed to a
specific plan for attaining compliance with the regulations in
question.
However, the Board has entertained exception to this
principle where
(1) petitioner has exhausted compliance options,
(2) petitioner is actively pursuing permanent relief,
(3) the
term of variance is for the limited time necessary to resolve the
matter of permanent relief, and
(4) hardship of immediate
compliance clearly outweighs impact of grant of the variance.
CONCLUSION
Based upon its review of the hardship AKZO would encounter,
and the environmental impact that would result from grant of
variance, the Board finds that immediate compliance with the
regulations at issue would rise to the level of an arbitrary or
unreasonable hardship.
The variance will accordingly be granted,
subject to conditions consistent with this opinion.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
—8—
ORDER
Petitioner,
AKZO Chemicals,
Inc.
(AXZO),
is hereby granted
variance from 35 Ill.
Adju. Code 302.208,
304.105, and 304.141 as
these sections apply to discharge of total dissolved solids
(TDS), chloride,
sulfate, and boron from outfall 002 located at
AXZO’s Morris, Illinois, facility.
This grant of variance is
subject to the following conditions:
(1)
Variance is effective beginning October 27,
1993 and
terminating on the earlier of:
(a)
May 5,
1997; or
(b)
The date of modification of AXZO’s NPDES permit to
include any adjusted standard relief granted in
Board adjusted standard proceeding docketed as AS
93—8.
(2)
During the term of the variance, concentrations in the
effluent discharge from AKZO’s outfall 002 may not
exceed the following limits, measured as daily maximum
concentration:
Parameter
Limit
Boron
2.0 ing/L
Chloride
1,000 mg/L
Sulfate
1,000 mg/L
TDS
3,000 mg/L
(3)
AKZO shall continue during the term of variance to
conduct measures designed to reduce its TDS, chloride,
sulfate, and boron discharge levels.
(4)
AKZO shall continue during the term of variance to
comply with all provisions of its NPDES permit except
as explicitly provided herein.
(5)
If adjusted standard relief is denied in the AS 93-8
proceeding, AXZO shall submit a compliance plan to the
Agency within three months from the date of the Board’s
final opinion and order in that proceeding.
Within 45 days of the date of this order,
Petitioner shall
execute and forward to Margaret P. Howard, Division of Legal
Counsel, Illinois Environmental Protection Agency, 2200 Churchill
Road,
Post 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 force and effect as
—9—
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 94-76, May 5,
1994.
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 certjfy that the above opinion and order was
adopted on tI3e
~
day of
__________________,
1994 by a
vote of
_______________.
/1
7~
Dorothy N. G~4n,Clerk
Illinois Pollution Control Board