ILLINOIS POLLUTION CONTROL BOARD
March 25, 1993
CABOT CORPORATION,
)
)
Petitioner,
V.
)
PCB 92—179
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
On November 13, 1992, Cabot Corporation (“Cabot”) filed a
petition for variance from 35 Ill. Adm. Code 730.168(d) (4) and
“from the related requirements contained in sections I.A(5),
I.H(30) (c) (iv), I.H(30)(f), and I.H.(30)(g) of Cabot’s
Underground Injection Control (“UIC”) Permit”. (Pet. at 1.)’ On
December 4, 1992, Cabot filed an amended petition with the Board.
On February 18, 1993, the parties filed a document entitled
“Joint Stipulation of Cabot Corporation and the Illinois
Environmental Protection Agency”.2 On March 8, 1993, the Agency
filed an amendment to the stipulation pursuant to a Board order
construing the stipulation as the Agency recommendation and
requesting more information. Hearing was waived in this
proceeding.
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. (Ain.Pet. at 2.) The facility has
operated from 1958 to the present and employs approximately 190
persons. (Am.Pet. at 2.) The facility is located three miles
west of Tuscola and occupies 100 acres (Am.Pet. at 2) of sparsely
populated rural area. (Am.Rec. at 2.)
On site with the facility are two UIC wells permitted by the
Agency. (Ain.Pet. at 3.) The facility currently generates
approximately 200 gallons of hazardous waste per minute, with
maximum injection rates of 100 gallons per minute at well 1 and
The original petition will be cited as “Pet. at
“;
the
amended petition will be cited as “Am.Pet. at
“.
2
The document filed as “Joint Stipulation of Cabot
Corporation and the Illinois Environmental Protection Agency”
will be cited as “Rec. at
“;
the amendment to that document will
be cited as “Am.Rec. at
“.
2
250 gallons per minute at well 2. (Am.Pet. at 3.)
REQUESTED VARIANCE
Cabot asks that a variance be granted from 35 Ill. Adm. Code
730. 168(d) (4), which provides that:
Casing inspection logs must be run at least once every five
years unless the permit specifies otherwise due to well
construction or other factors which limit the test’s
reliability.
Cabot also seeks a variance from permit conditions which
provide:
Section I.A(5) of the UIC Well No. 2 Permit, which requires
that the tubing be replaced in March 1993 with tubing that
is capable of withstanding annulus pressure testing at 500
psig;
Section I.H(30) (c) (iv) and its counterpart in Attachment B
of the UIC Well No. 2 Permit, which require that the tubing
be removed in March 1993 for the performance of a base
temperature log and three post injection temperature logs;
Section I.H(30) (f) and its counterpart in Attachment B of
the permit, which require that the tubing be removed in
March 1993 for the performance of a cement bond log;
Section I.H(30) (g) and its counterpart in Attachment B of
the permit, which require that the tubing be removed in
March 1993 for the performance of an electromagnetic log.
(Am.Pet. at 6.)
AGENCY RECOMMENDATION
As previously stated on February 18, 1993, the parties filed
a document entitled “Joint Stipulation of Cabot Corporation and
the Illinois Environmental Protection Agency”. The Board notes
that it does not accept “stipulations” in variance proceedings.
(See generally, Olin Corporation v. IEPA, 45 PCB 415 (PCB 81—117,
February 17, 1982) and Donnelley v. IEPA, 96 PCB 166, (PCB 88-79,
February 23, 1989).) Thus, the Board construed the filing as the
Agency’s recommendation and directed the Agency to file
additional information required pursuant to 35 Ill. Adm. Code
104.180. The Agency filed the additional information in a
document entitled “Agency Supplemental Response to Agreed
Stipulation in Lieu of Recommendation” on March 8, 1993.
I L~Q-O2IL4
3
The Agency agrees that a variance should be allowed by the
Board with certain additional conditions. Those conditions are:
I. That Cabot will submit a report on the first of each
month with the following information for well number 2
for the first fifteen (15) days of the previous month:
(a) chart of seal pot level fluctuations (including
both pressure and volume);
(b) injection rate information; and
(c) whether annulus fluid was added or deleted during
the time.
II. Cabot will provide representatives of the IEPA and the
U.S. EPA with a telephone notification if, in Cabot’s
judgment, annulus fluid is being lost in a manner
unrelated to normal temperature fluctua~tions.
III. Cabot will agree 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.
ARBITRARY AND UNREASONABLE HARDSHIP
Cabot puts forth several arguments as to why complying with
the general rule will create an arbitrary and unreasonable
hardship. First, Cabot states that the permit for well 2
requires that by March 16, 1993, “the tubing be removed for
certain mechanical integrity test, and replaced with tubing
capable of withstanding an annulus pressure test at 500 psig”.
(Am.Pet. at 4.) Cabot indicates that the shut-down of well 2
will prevent Cabot from having a like means of disposing of its
waste since the capacity of well 1 is insufficient to meet the
facility disposal requirements. (Am. Pet. at 3.) Thus, Cabot
maintains that unless Cabot receives a variance the whole
facility will have to shut down while the required tests and
replacement of tubing in well 2 takes place. (Am.Pet. at 4.)
The resulting two—week shut—down would be at “great cost” to
Cabot. (Am.Pet. at 10.) Cabot notes that after well 3 is fully
operational, it will be able to perform the required work on well
2 without shutting down the plant. (Ain.Pet. at 5.)
Second, Cabot argues that in October of 1992 mechanical
integrity tests were run on well 2. The tests included an
annulus pressure test, radioactive tracer survey, base
temperature log, post—injection temperature logs and a bottom
hole pressure test. (Am.Pet. at 5.) Cabot maintains that these
OI~O-O2l5
4
tests indicate that there is no evidence of fluid movement along
the bore hole. (Am.Pet. at 10.)
Next, Cabot states that the United States Environmental
Protection Agency (USEPA) amended its regulations on October 7,
1992, such that it is no longer necessary to run a casing
inspection log every five years. (Am.Pet. at 5-6.) Further,
Cabot argues that the amended language adopted by the USEPA
“recognized that it is possible to adequately test for mechanical
integrity without removing the tubing. (Am.Pet. at 10.)
In addition, Cabot argues that the “unnecessary removal of
the tubing can place undue stress on the well components”
(Am.Pet. at 10); while the postponing of the tests will pose “no
danger to the human, plant, or animal life in the area”.
(Ain.Pet. at 10.)
The Agency agrees that compliance with the rule of general
applicability would create an arbitrary and unreasonable hardship
for Cabot under these circumstances. (Am.Rec. at 4.) The Agency
stated that it “accepts Cabot’s representation that it would
require an entire plant shut-down” to do the testing of well 2;
and further, that Cabot’s shut—down would cause loss of business.
(Am. Rec. at 4.) The Agency also agrees that the postponing of
the tests will not pose a significant risk of harm to the public
or the environment if the variance is granted. (Am.Rec. at 5.)
CONSISTENCY WITH FEDERAL LAW
As previously indicated Cabot points out that Federal
regulations were amended on October 7, 1992. The amended
language states:
Casing inspection logs shall be run whenever the owner or
operator conducts a workover in which the injection string
is pulled, unless the Director waives this requirement due
to the well construction or other factors which limit the
test’s reliability, or based upon the satisfactory results
of a casing inspection log run within the previous five
years. The Director may require that a casing inspection
log be run every five years, if he has reason to believe
that the integrity of the long string casing of the well may
be adversely affected by naturally—occurring or man—made
events. (Ain.Pet. at 5-6.)
Thus, Cabot maintains that granting the variance is consistent
with federal law. (Am.Pet. at 8.) The Agency agrees that
granting th~variance is apparently consistent with federal law.
(Am.Rec. at 6.)
01 ~O-02I 6
5
DISCUSSION
Cabot and the Agency agree that, at this time, compliance
with Section 730.168(d) (4) would create an arbitrary and
unreasonable hardship. Cabot would be required to close down its
operations for at least two weeks. Further, Cabot as recently as
October 1992 tested well 2 and found no indications of a breach.
Thus, the Board finds that at this time compliance with Section
730.168(d) (4) would create arbitrary and unreasonable hardship
for Cabot.
A change in the federal regulations no longer requires a
casing inspection log to be completed every five years. Thus,
the variance request appears to be consistent with federal law.
In addition, the Agency agrees with Cabot that no significant
risk of harm to the public or environment exists. Therefore, the
Board will grant the variance from 35 Ill. Adm. Code
730.168(d) (4). The Board notes that Section 36(b) of the Act
limits the length of a variance to no longer than’ five years.
Therefore, the Board will include a date specific on which the
variance will expire.
The Board, however, cannot grant a variance from a permit
condition. (Illinois Power CompanY
V.
IEPA, 59 PCB 71 (PCB 84-
75, July 19, 1984) and City of Mount Olive v. IEPA, 63 PCB 191
(PCB 85-24, March 7, 1985).) Therefore, Cabot will have to seek
modification of its permit from the Agency.
ORDER
Cabot Corporation is hereby granted a variance for its
facility located in Tuscola, Illinois, from 35 Ill. Adm. Code
730.168(d) (4) subject to the following conditions:
I. That Cabot shall submit a report on the first of each
month with the following information for well number 2
for the first fifteen (15) days of the previous month:
(a) chart of seal pot level fluctuations (including
both pressure and volume);
(b) injection rate information; and
(C)
whether annulus fluid was added or deleted during
the time.
II. Cabot shall provide representatives of the IEPA and the
U~S. EPA with a telephone notification if, in Cabot’s
judgment, annulus fluid is being lost in a manner
unrelated to normal temperature fluctuations.
UI L~O-02I7
6
III. 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.
IV. The terms of this variance shall expire no later than
March 25, 1995.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (Ill. Rev.
Stat. 1991, ch. 111 1/2, par. 1041) provides for the appeal of
final orders of the Board within 35 days. The Rules of the
Supreme Court of Illinois establish filing requirements. (But
see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration,
and Castenada v. Illinois Human Rights Commission (1989), 132
Ill.2d 304, 547 N.E.2d 437; Strube v. Illinois Pollution control
Board, No. 3—92—0468, slip op. at 4—5 (3d Dist. March 15, 1993).)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the ~
day of ~
,
1993, by a vote
of c-C)
Dorothy M. G,4nn, Clerk
Illinois Pc4,&ution Control Board
‘-I
U I ~.0-O2I8