ILLINOIS POLLUTION CONTROL BOARD
April
8,
1993
IN THE MATTER OF:
)
)
GRANITE CITY DIVISION OF
)
NATIONAL STEEL PETITION FOR
)
ADJUSTED STANDARD FROM
)
AS 90-4
35 ILL.ADM.CODE 302.208:
)
(Adjusted Standard)
NUMERIC
STANDARD
FOR
FLUORIDE
)
DAVID
L. RIESER,
of ROSS
& HARDIES, APPEARED ON BEHALF OF
PETITIONER;
and
LISA MORENO APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on petitioner Granite City
Division of National Steel Corporation
(GCD)’s March
5,
1990
petition for adjusted standard.
Hearing was held
in Granite
City,
Illinois,
on July 21,
1992.
No members of the public
attended the hearing.
Briefing was completed on September 10,
1992.
RELIEF REQUESTED
GCD filed this petition on March
5,
1990,
in response to the
water toxics standards adopted by the Board on January 25,
1990.
(Amendments to Title 35, Subtitle C
(Toxics Control)
(January 25,
1990), R88-21(A).)
GCD originally sought adjusted standards from
35 Ill.Adm.Code 302.102
(mixing zones),
302.208
(numeric
standards for cyanide, copper,
and fluoride),
302.210
(the
narrative standard),
and Subpart F (procedures for determining
water quality criteria--narrative standard).
(Pet.
at 1.)
At
hearing on July 21,
1992, however, GCD orally amended its request
for relief.
GCD withdrew its request for adjusted standard from
the numeric standards for cyanide and copper, and with regard to
the provisions of Subpart F.
GCD now seeks only an adjusted
standard from the numeric standard for fluoride in this
proceeding.1
GCD requests an adjusted standard raising the water
quality standard for fluoride
in Horseshoe Lake from 1.4 mg/L to
4.0 mg/L.
(Tr.
at 6-11.)
Respondent the Illinois Environmental
Protection Agency (Agency)
supports GCD’s request.
(Tr.
at 89;
Agency Br. at
1.)
BACKGROUND
The caption of this proceeding has been amended to
reflect this change.
I
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1
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2
GCD is an integrated steel mill located in Granite City,
Illinois, and presently employs approximately 3,500 people.
The
various wastewater streams generated by the mill are treated in a
central wastewater treatment system, with the exception of the
cokemaking by—product wastewater.
That wastewater is treated by
a dedicated activated sludge facility.
The wastewaters from the
mill are from essentially two sources:
steelluaking and blast
furnaces.
The wastewaters from these two sources are segregated,
and each goes through primary treatment consisting of scale pits,
sedimentation ponds, and oil skimmers.
The wastewaters then
receive secondary treatment in separate stabilization lagoons.
(The effluent from the cokemaking sludge facility is also
directed to the blast furnace lagoon.)
Tertiary treatment for a
25 MGD discharge is located adjacent to the lagoons.
The
discharge from the tertiary treatment plant
is directed to
Horseshoe Lake.
(Tr. at 13-16; Pet. at 2-3.)
Horseshoe Lake is the largest natural lake in the St.
Louis
metropolitan area, covering just over 2,100 acres.
The lake has
a mean depth of about four feet.
The lake has
a number of
recreational uses,
and Horseshoe Lake State Recreation Area
allows public access for fishing and boating.
(Tr. at 17,
22.)
The highest fluoride concentration in GCD’s discharge was 3.95
mg/L,
with a corresponding fluoride concentration in the lake of
2.23
ing/L.
(Pet.
Exh.
1, Table 2.)
There are no other point
source discharges into Horseshoe Lake.
(Tr. at 18)
GCD has identified three compliance options for meeting the
fluoride standard.
First,
GCD could install additional treatment
at a cost of $7.8 million, and operating expenses of
$1.1
million.
This treatment would treat the fluoride in the
wastewater, using activated alumina adsorption.
Second, GCD
could recycle 100
of the tertiary wastewater.
The estimated
cost of this second option is $10- $15 million,
and would
substantially reduce the flow of water into the lake.
Third,
GCD
could divert the discharge from Horseshoe Lake to the Mississippi
River, where a mixing zone might be available.
This option would
cost approximately $2.3 million to pipe the discharge four miles
to the river, and would also reduce the flow of water into
Horseshoe Lake.
(Tr. at 19—20.)
Mr. Carl Cannon, Manager of Environmental Control for GCD,
testified that the last two options would have a negative impact
on Horseshoe Lake.
Mr. Cannon stated that without the 20 MGD of
water and the associated oxygen, the aquatic species would
essentially perish.
He also testified that GCD’s discharge is
the only significant source of water to prevent the lake from
drying up during extended drought conditions.
For example,
during 1954—55, portions of the lake bed were converted to
farmland.
(Tr. at 20.)
Mr. Cannon also presented a letter from
the Illinois Department of Conservation, stating that GCD’s
discharge into Horseshoe Lake is beneficial, because is sustains
U
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3
a constant normal pool for the lake.
(Pet.
Exh.
2.)
Ms.
Donna Hall,
a biologist with Environmental Science
&
Engineering,
Inc.
(ESE), also testified on behalf of GCD.
Ms.
Hall presented the findings of a biological study performed by
ESE in 1990.
(Pet.
Exh.
5.)
The 1990 study included toxicity
testing,
and fishery and macroinvertebrate community evaluation.
Ms. Hall testified that GCD’s discharge does not appear to
adversely affect the current aquatic uses of Horseshoe Lake based
on the physical, chemical, and biological characteristics of the
lake.
(Tr. at 34.)
Ms. Hall concluded that the current GCD
practices provide greater areas of open water in Horseshoe Lake,
which support heron and egret populations,
as well as migratory
waterfowl who feed in the lake.
(Tr. at 36.)
Ms. Hall is of the
opinion that the community distribution and diversity have
demonstrated that the GCD facility has not degraded water
quality.
(Tr.
at 50.)
Ms. Hall testified that a revised
fluoride standard of 4.0 mg/L would not adversely affect current
or future aquatic communities in Horseshoe Lake.
(Tr.
at 52.)
ADJUSTED STANDARD JUSTIFICATION
Section 28.1 of the Environmental Protection Act
(Act)
allows the Board to grant adjusted standards modifying the effect
of general rules
in specific cases.
(415 ILCS 5/28.1
(l992).)2
Procedural rules for adjusted standards are found at 35
Ill.Adm.Code 106.Subpart G.
Where the Board specifies a “level
of justification” at the time that it adopts a rule of general
applicability, that level of justification is applied to any
adjusted standard request filed pursuant to that rule.
Absent a
specified level of justification, the provisions of Section
28.1(c)
of the Act apply to a request for adjusted standard.
GCD seeks an adjusted standard from 35 Il1.Adm.Code 302.208
as that section applies to fluoride.
Section 302.208 does not
specify a level of justification.
Therefore, an adjusted
standard from Section 302.208 must meet the criteria in Section
28.1(c).
That subsection states:
c)
If a regulation of general applicability does not
specify a level of justification required of a
petitioner to qualify for an adjusted standard, the
Board may grant individual adjusted standards whenever
the Board determines, upon adequate proof by
petitioner,
that:
1.
factors relating to that petitioner are
2
The Act was formerly codified at Ill.Rev.Stat.
1991,
ch.
111½, par.
1001 ~
sect.
(11
L~.
1-0155
4
substantially and significantly different from the
factors relied upon by the Board in adopting the
general regulation applicable to the petitioner;
2.
the existence of those factors justifies an
adjusted standard;
3.
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 applicability; and
4.
the adjusted standard is consistent with any
applicable federal law.
(415 ILCS 5/28.1(c)
(1992).)
PROPOSED STANDARD
As noted above,
GCD asks for an adjusted standard from 35
Il1.Adm.Code 302.208, as that section applies to fluoride.
Section 302.208(e) provides that the concentration of fluoride
shall not exceed
1.4 mg/L.
GCD proposes the following language
for its adjusted standard:
The fluoride standard of 35 I11.Adm.Code 302.208 shall not
apply to Horseshoe Lake,
located in Madison County.
The
fluoride water quality standard (Storet
#
00950)for
Horseshoe Lake shall be 4.0 mg/L.
AGENCY RESPONSE
The Agency supports GCD’s request for an adjusted standard
for fluoride.
At hearing, Dean Studer, an environmental
protection engineer with the Agency’s Water Quality Planning
Section, testified that GCD’s request is justified and
reasonable.
Mr. Studer stated that treatment for the removal of
fluoride would be expensive and present additional problems in
disposing of treatment waste, and that diversion of GCD’s
effluent from Horseshoe Lake would have a negative impact on the
lake.
(Tr. at 88-91.)
Mr. Studer concluded that “the
Agency
believes that adjusting the water quality standard for fluoride
is the simplest economically achievable and environmentally sound
solution for Granite City Steel.”
(Tr.
at 89.)
The Agency is
satisfied that a water quality standard of 4.0 mg/L for fluoride
will have no adverse effects on the biological community of
Horseshoe Lake.
(Tr. at 90; Agency Br.
at
1.)
DISCUSSION
The Board initially notes that our decision in this case has
01141-0156
5
been complicated by GCD’s failure to explicitly address the level
of justification of Section 28.1(c)
as those factors apply to
GCD’s request for an adjusted standard for fluoride.
Although
GCD’s original petition addressed the issue of justification in
broad terms, that discussion focused on GCD’s original request
for an adjusted standard from the mixing zone and narrative
standard provisions, not on its request for an adjusted standard
for fluoride.
(Pet.
at 10-11.)
In its brief,
GCD simply states
that the record provides ample justification to support the
requested relief, and that its request
is economically reasonable
and environmentally sound.
(Pet.
Br. at 4,
5.)
Both the statute
and the Board’s procedural rules clearly delineate the level of
justification which must be met by
a petitioner.
The petitioner
is under a obligation to address the factors included in that
level of justification.
The 1.4 mg/L water quality standard for fluoride was
originally adopted by the Board in 1972.
(Water Quality
Standards Revision (March
7,
1972), R71—14.)
The 1.4 mg/L
standard was recodified
in 1990,
in the water toxics rulemaking.
In that rulemaking, however, the Board specifically stated that
there was no substantive change in that standard.
(Amendments to
Title 35,
Subtitle C
(Toxics Control)
(January 25,
1990),
107 PCB
267,
291, R88—21(A).)
The 1972 opinion does not specifically
articulate the factors relied in adopting the fluoride standard.
Therefore,
it is difficult to analyze GCD’s request in light of
the Section 28.1(c) requirement that factors relating to the
petitioner are substantially and significantly different from the
factors relied upon by the Board in adopting the rule of general
applicability.
The evidence in this case indicates that without
the flows from GCD, the water level in Horseshoe Lake would not
be stable,
and that in extreme situations,
the lake might dry up.
We believe that it is safe to assume that when adopting the
fluoride standard, the Board did not contemplate a situation
where the receiving water might disappear.
Thus,
the Board finds
that GCD has shown factors that are substantially and
significantly different from those considered in adopting the 1.4
mg/L fluoride standard.
A petitioner must also show that those substantially and
significantly different factors justify an adjusted standard.
As
we have noted,
the evidence indicates that the flows from GCD are
the only significant source of water to maintain a constant
normal pool for the lake,
and to prevent the lake from drying up
during extended drought conditions.
The Board finds that these
factors do justify an adjusted standard.
Third,
a petitioner must demonstrate that 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
applicability.
Again,
it is difficult to directly assess this
01141-0157
6
factor because of the lack of specific information on the effects
originally considered by the Board.
However, the evidence shows
that the discharge does not adversely affect the current aquatic
uses and communities of Horseshoe Lake,
and that current GCD
practices provide greater areas of open water to support heron,
egret,
and migratory waterfowl populations.
Both GCD and the
Agency believe that a fluoride standard of 4.0 mg/L would not
have an adverse affect on the biological community of Horseshoe
Lake.
The Board finds that the requested standard will not
result in environmental or health effects substantially and
significantly more adverse that those considered
in adopting the
rule of general applicability.
Finally, Section 28.1(c) requires that a petitioner
demonstrate that the adjusted standard is consistent with any
applicable federal law.
In its petition, GCD contends that its
requested relief is consistent with federal
law, and points to
Section 303 of the Clean Water Act.
(33 U.S.C.
§1313(c).)
Section 303(c) (2) requires that water quality standards take into
account the designated uses of the water involved.
The Board
finds that the evidence in this case indicates that the requested
adjusted standard is consistent with federal law.
CONCLUSION
After a careful review of the record, the Board will grant
GCD an adjusted standard from the fluoride standard of Section
302.208.
We find that the requirements of Section 28.1(c) have
been met.
GCD’s discharges are the only significant source of
water into Horseshoe Lake, and sustain a constant normal pool for
the
lake.
Horseshoe Lake has a number of recreational uses,
and
supports a diverse fishery and macroinvertebrate community.
The
toxicity testing indicates that the effluent from the GCD
facility should have little to no impact on the aquatic biota in
the lake.
Both GCD and the Agency presented testimony that a
revised fluoride standard of 4.0 mg/L would not adversely affect
current or future aquatic communities in Horseshoe Lake.
Based
upon our determination that the level of justification in Section
28.1(c)
has been met, we grant an adjusted standard for fluoride
in Horseshoe Lake.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby grants an adjusted standard from 35
Ill.Adm.Code 302.208(e), as that section applies to fluoride, for
Horseshoe Lake in Madison County,
Illinois.
The following
standard becomes effective on the date of this order:
The fluoride standard of
35 Ill.Adm.Code 302.208(e)
shall
J1141-0158
7
not apply to Horseshoe Lake,
located in Madison County,
Illinois.
The fluoride water quality standard
(Storet
#
00950)
for Horseshoe Lake shall be 4.0 mg/L.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41) provides for the appeal of final Board orders.
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 ce~~fythat the abQve opinion and order was
adopted on the
~
day of
~
,
1993,
by a vote
of
~
-C
.
//
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~_—
~-~DorothyH.
G,t?tn,
Clerk
Illinois Pollution Control Board
01141-0159