ILLINOIS POLLUTION CONTROL BOARD
February 6, 1992
THE VILLAGE OF SAUGET,
)
Petitioner,
V.
)
PCB 91—252
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD (by J.C. Marlin):
This matter is before the Board on a petition for variance
and extension of variance1, filed by the Village of Sauget
(Sauget) on December 20, 1991. Sauget seeks a one—year extension
of the variance granted by the Board on January 24, 1991, in PCB
90-181. Sauget requests further variance from 35 Ill.Adm.Code
304.106 as it relates to the color of the effluent discharged
from Sauget’s American Bottoms Regional Treatment Facility (AB
Plant). Section 304.106 states:
In addition to the other requirements of this Part, no
effluent shall contain settleable solids, floating
debris, visible oil, grease, scum or. sludge solids.
Color, odor and turbidity must be reduced to below
obvious levels.
Sauget also requests relief from 35 Ill. Adm. Code 302.203,
the water quality standard for color. The Illinois Environmental
Protection Agency (Agency) filed its recommendation on January
17, 1992, recommending an extension of the variance from Section
304.106. The Agency recommended denial of the variance requested
from the water quality standard. On January 23, 1992 the
petitioner filed a response to variance recommendation. Hearing
was waived by the petitioner.
The petition also included a request for expedited decision
or retroactive variance to January 31, 1992. The Board notes with
some measure of impatience that Sauget filed its variance extension
petition a mere 40 days prior to expiration of variance when a full
120 days should be given the Board for consideration of the merits.
Nonetheless, by today’s action, •the Board grants the motion for
expedited consideration despite this fact.
1
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Background
Sauget was originally granted a variance from Section
304.106, as it relates to color, on September 8, 1988 in PCB 88—
18. That variance expired on September 8, 1989. The Board
granted an extension of the color variance on September 13, 1989,
in PCB 89—86. The variance was again extended in PCB 90-181
(January 24, 1992). That variance extension is to expire on
January 31, 1992, or upon final action in United States and the
State of Illinois v. The Village of Sauget. Illinois, Civil No.
88—5131 ‘(S.D. Ill., filed May 13, 1988), whichever is sooner. It
is this variance that Sauget seeks to extend.
The description and operation of the AB Plant was detailed
in the Board’s opinion in PCB 88-18, summarized in PCB 89-86, and
again in PCB 91-252. It is not necessary to reiterate the full
description here. In sum, the AB Plant is a regional wastewater
treatment plant located in Sauget, Illinois. The AB Plant was
designed to provide primary and secondary treatment to wastewater
from the City of East St. Louis, the Village of Cahokia, and the
Conimonfields of Cahokia Public Water District. The AB Plant also
provides secondary treatment to industrial flows from Sauget’s
Physical/Chemical (P/C) Plant. Several major industrial
facilities are served by the AB Plant, including Monsanto’s
Krummrich Plant, located in Sauget. (Pet. at 4-5; PCB 89-86 at
2.) Effluent from the AB Plant is discharged into the
Mississippi River. (Rec. at 3)
In addition to traditional biological treatment, the AB
Plant was designed to utilize a powdered activated carbon
treatment/wet air regeneration (PACT/WAR) system. On December 2,
1987, while Sauget was operating the PACT/WAR system, there was
an explosion and fire in one of the, six heat exchangers. The
fire and explosion rendered one of the two WAR units inoperable,
and Sauget has not operated the PACT/WAR system since that time.
Instead, pursuant to an interim consent decree in the pending
federal enforcement action, Sauget has been adding powdered
activated carbon (PAC) prior to the aeration tanks. (Pet. at 3;
Rec. at 3) Effluent discharge from the AB Plant to the
Mississippi River now occurs through a diffuser, which, according
to Sauget, became fully operational on December 12, 1991. (Pet.,
p. 8)
Pursuant to the terms of the variance granted in PCB 88-18,
Sauget investigated the origin of the color in the AB Plant’s
effluent. Sauget concluded that the wastestream from Monsanto’s
Kruxnmrich Plant was the most highly colored of the wastestreams.
Monsanto identified three compounds as the major contributors of
color to the AB Plant’s effluent: orthonitroaniline (ONA),
paranitroaniline (PNA), and 4-nitrodiphenylamine (4-NDPA). (Pet.
at 6; PCB 89—86 at 2—3) Sauget investigated compliance options,
and proposed the construction of an outfall extension and
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diffusion system. Additionally, Monsanto undertook extensive
actions designed to meet federal pretreatment limits for the
organic chemicals, plastics, and synthetic fibers (OCPSF)
category. Monsanto was required to meet these limits by November
5, 1990. Sauget and Monsanto anticipated that this program would
result in significant reductions in the color of the. Monsanto
plant’s wastestream. (PCB 89—86 at 4) On September 13, 1989, in
PCB 89-86, the Board granted Sauget an extension of the original
variance. During the term of this variance, the quality of the
AB Plant effluent regarding color has continued to improve.
Average monthly effluent color units appear to have stabilized,
generally in the range of 40-90 units, with monthly average of 68
units. (Pet. p. 5) Sauget intends to continue its efforts with
Monsanto to identify the source and nature of the remaining
color. (Pet. at 10) Sauget and Monsanto both believe that the
remaining color is due predominantly to a compound or compounds
other than ONA, PNA and 4-NDPA. Sauget reports that Monsanto has
recently indicated that it believes the compound(s) predominantly
causing the remaining color will be identified within the next
few weeks. Sauget now requests another extension of variance,
based upon unforeseen delays in diffuser installation, its
continuing efforts towards compliance and a delay in approval of
the federal enforcement settlement decree. (Pet. at ~6)
Compliance Plan
Sauget’s compliance plan, as articulated in the PCB 89-86
variance proceeding and updated in the instant proceeding, has
two distinct aspects. First, Sauget was to proceed to construct
an outfall extension and diffuser. The diffuser is intended to
reduce the impact of, color by causing rapid mixing of the
effluent into the receiving water--in this case, the Mississippi
River. Sauget completed the design for the diffuser system,
discussed the project with the Agency and the United States
Environmental Protection Agency (USEPA), and applied for permits
in 1989. The Agency granted a construction permit in January
1990, with the condition that Sauget conduct a biological and
habitat study of the area. During the field work, however, USEPA
expressed concern about the placement of the diffuser. USEPA
asked Sauget to evaluate an alternative.design——a single port
diffuser placed in the main channel of the river. (PCB 89-86 at
4—5)
As part of its re-evaluation, Sauget met with the Army Corps
of Engineers (Corps) in February 1990 to discuss placement of the
diffuser into the main channel of the river. The Corps told
Sauget that it would only grant a permit to place the diffuser to
the harbor line, not into the main channel. This contradiction
between the regulatory authorities resulted in negotiations
between Sauget, USEPA, the Agency, and the Corps. On May 18,
1990, Sauget was notified that the Corps would grant Sauget a
construction permit for the outfall extension and diffuser
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system. In June 1990, S~ugetwas awarded a Build Illinois grant
for 70 of the estimated $1.5 million cost of the diffuser
system. Sauget then advertised for and evaluated construction
bids. On August 27, 1990, Sauget transmitted bid documents to
the Agency. Construction of the outfall extension and diffuser
began on October 22, 1990. The contract completion date is April
20, 1991, except as extended due to high water levels in the
river. (PCB 90—181 at 3)
The second aspect of Sauget’s compliance plan involves
Nonsanto~s$25 million program to meet ±ederalpretreatment
limits for the OCPSF category. That work was completed by early
November 1990. Sauget and Monsanto had expected that this work
would significantly reduce the discharge of ONA, PNA, and 4-NDPA
(the major color-causing chemicals) from the Monsanto plant to
the AB Plant. However, while color has been reduced, the
reduction has not been as great as Sauget and Monsanto had
anticipated. PNA and 4-NDPA have been reduced to below
detectable levels, and ONA has been reduced to levels lower than
predicted in the PCB 89-86 variance proceeding. Sauget believes
that an additional, as yet unidentified, constituent or
constituents are causing the remaining color in the effluent, and
that this unidentified constituent is either not reducible by
OCPSF controls or is not part of a wastestream which is
controlled under that program. Monsanto and Sauget have
committed to, and have already begun, a new program to identify
the source of the remaining color and to determine further
control options. (Pet., p. 4)
As stated above, Sauget states that it intends to continue
its efforts with Monsanto to identify the source and nature of
the remaining color and is optimistic that the predominant source
of residual color will be identified in the near future. Once
that is accomplished, Sauget and Monsanto will direct their
efforts toward identifying and evaluating the technical
feasibility and economic reasonableness of reducing or
eliminating the remaining color. If no technically feasible and
economically reasonable option is identified, Sauget will pursue
an adjusted standard before the Board. If such relief is denied,
Sauget will take whatever actions are necessary to demonstrate
compliance. (Pet., p. 10)
Sauget does not present a specific timetable for these
efforts and states that it is incapable of doing do. While.
Sauget is optimistic that the predominant source of residual
color will be identified within the next few weeks, the timetable
for identifying and evaluating compliance options is unknown.
Once that is accomplished, however, Sauget anticipates that it
can prepare and submit a petition for an adjusted standard within
a few months, and the matter can be before the Board for decision
within six months thereafter. (Pet., pp. 10—11)
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Environmental Impact
Sauget contends that the environmental impact, if any, has
been lessened during the term of the previous variances.
Effluent color appears to have stabilized in a range around 70
platinum-cobalt color units. Further, the effluent is now being
discharged through a diffuser at the bottom of the Mississippi
River. No color is visible at the surface of the River, Sauget
•states, thus eliminating any aesthetic impact. Due to the
location of the flows, the now relatively faint color, and the
lesser thrbidity of Sauget’s effluent as compared to the river
water, there can be no measurable impact on photosynthetic
activity. The Agency agrees that the environmental impact
appears to be lessened from that shown at the time of grant of
variance in PCB 90—181. The Agency, however, cannot verify
Sauget’s claims regarding photosynthetic activity or surface
visibility since no field observations of the area have been made
since December 12, 1991. (Rec., pp. 5-6)
Hardship
Sauget argues that a denial of a variance extension would
constitute an arbitrary or unreasonable hardship. Sauget submits
that the variance extension would cause no adverse environmental
impact. Sauget further maintains that there is presently no
available means of assuring compliance by January 31, 1992 (the
expiration date of the variance), except refusing to accept the
influents from industries which contribute to the color of the AB
Plant’s effluent. Sauget contends that this would cause a major
hardship to those industries and to the economy of southwestern
Illinois. Saug~tnotes that in PCB 88—18, PCB 89-86 and PCB 90-
181 the Board found that immediate compliance would impose an
arbitrary or unreasonable hardship. Sauget states that this is
true today. (Pet.Resp.Br., p.3)
Until Sauget is able to identify the remaining color
compound or compounds, Sauget states that it cannot determine
whether technically feasible and economically reasonable controls
exist. Thus, Sauget remains unaware of any present means of
assuring compliance by January 31, 1992, other than refusing to
accept the influents from industries which contribute to the AB
Plant’s effluent color. The Agency agrees that immediate
compliance would, with the effluent limitation for color, impose
an arbitrary or unreasonable hardship. (Rec., p. 6)
Consistency With Federal Law
Sauget has not stated whether this variance and variance
extension may be granted consistent with federal law. The Board
notes that Sauget has, in contrast to prior variance requests,
requested variance from a water quality standard in addition to
the effluent limitation on color. The Agency states that because
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there are no federal laws specifically limiting color in
effluent, the Board may grant the recommended relief from the
effluent limitation consistent with federal law. (Rec. at 8)
The Agency however recommends denial of variance from the water
quality standard. (Rec. pp. 7-8)
Board Determination~
Based upon the facts in the record, the Board finds that
immediate compliance with 35 Il1.Adm.Code 304.106, as it pertains
to color’, would impose an arbitrary or unreasonable hardship on
sauget. The Board also finds that Sauget has demonstrated that
satisfactory progress has been madá towards compliance during the
term of the present ,variance. The construction of the outfall
extension and diffuser system were delayed by a conflict between
regulatory authorities, and construction was recently completed.
Additionally, Monsanto completed its OCPSF pretreatment program
in a timely manner, although the reduction in color of the
effluent was not as great as anticipated by Sauget and Monsanto.
An additional variance term is necessary to examine ways to
further reduce color of the effluent and to prepare a plan to do
so. The Board grants extension of Sauget’s existing variance.
The petitioner has not shown, however, that grant of
variance from the water quality standard found at 35 Ill. Adm.
Code 302.203 is warranted or consistent with federal law. Prior
variances granted to Sauget did not include this term. Sauget
believes grant of variance from the water quality standard is
proper since recent amendments to 35 Ill. Adm. Code 302.203
preclude the use of the allowed mixing zone provisions of 302.102
to comply with the water quality standard for color. (Pet. at 2)
The Agency states that variance from the standard is unnecessary
as Sauget’s petition claims that no color is present at’ the
surface of the Mississippi. If so, no arbitrary or unreasonable
hardship has been shown. (Rec. 7-8) Sauget counters that its
statements did not imply that no violation of the standard was
occurring and, should the Board not determine that Sauget’s
effluent is not causing a violation of the standard, Sauget has
shown arbitrary or unreasonable hardship through its
demonstration concerning its effluent. As an alternative, Sauget
states that it could accept the Board’s determination that lack
of color at the surface of the Mississippi demonstrates
compliance with the water quality standard. (Pet.Resp., pp. 2-3)
Relief from water quality standards could be considered a ~
facto water quality standard revision. Revision requires certain
standards under the Federal Water Pollution Control Act be met.
Petitioner’s request for variance extension does not contain the
necessary information that would be required before the Board
could consider a change in the standard. No numerical water
quality standard is suggested. Sauget merely requests that the
standard not apply to it as it does to other sources. (See
-
130—76
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NutraSweet Company v. IEPA, PCB 88—84, 94 PCB 47 (December 15,
1988) at 8)) The Board has granted variance from the standards
in the past. The Board has also occasionally granted variance
from the regulatory provision (35 Ill.Adm.Code 304.105) which
prohibits effluents from causing violation of the related water
quality standard. (citing Citizens Utilities Co. v. IEPA, PCB
78-313, 41 PCB 11 (March 5, 1981)). Here, however, Sauget has
not made the requisite showing for the Board to conclude that
such relief would be consistent with federal law. The Board also
believes that it would be inappropriate to give an advisory
opinion ‘to Sauget regarding enforcement of the water quality
standard relating to color. We therefore deny this portion of
petitioner’ s request.
The Board does not believe that a pending enforcement
action, before this Board or before a court, is sufficient reason
to grant a variance. The Board emphasizes that the instant
variance extension is granted because the Board finds arbitrary
or unreasonable hardship, coupled with minimal environmental
impact, not because other action would interfere with the pending
federal enforcement action.
The Agency recommends that this variance extension be
granted, with conditions, until August 1, 1992, or until the
pending federal enforcement action’ is resolved, whichever comes
first.. Sauget does not object to the conditions the Agency
recommends for variance extension. The Board will grant the term
of the variance as proposed by Sauget and the Agency subject to
the Agency’s proposed conditions.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants the Village of Sauget extension of
the variance from 35 Ill.Adm.Code 304.106, as it relates to color
only. The variance extension is subject to the following
conditions:
1. This variance extension will begin on February 1, 1992
(upon expiration of the previous variance granted to Sauget
in PCB 89-86, September 13, 1989), and continue until August
1, 1992 or until final action by the district court in
United States of America and the State of Illinois v. The
Village of Sauget, Civil No. 88—5131. (S.D. Ill., filed May
13, 1988), whichever is sooner.
2. Sauget shall submit to the Agency the results of the
program to be conducted by Monsanto (as provided for in PCB
90-181 and as described in the instant variance petition,
PCB 91-252) for identifying the principal causes of
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remaining color and assessing possible controls. Results of
this program shall be provided as progress reports. Each
report shall include available sampling results, and to the
extent reasonably feasible at the time of reporting, an
assessment of the effectiveness and implementability of any
further color controls identified as a result of this
program.
3. Within 45 days of the date of this order, Sauget shall
execute and forward to Bruce L. Carlson, Division of Legal
Couhsel, Illinois Environmental Protection Agency, 2200
Churchill Road, P.O. Box 19276, Springfield, Illinois 62794—
9276, a Certificate of Acceptance and Agreement to be bound
to all terms and conditions of this variance. The 45-day
period will be held in abeyance during any period that this
matter is being appealed. Failure to execute and forward
this Certificate within 45 days renders this variance null
and void. The form of the Certificate shall be as follows:
CERTIFICATION
I (We), ____________________________________
hereby accept and agree to be bound by all terms and
conditions of the Pollution Control Board’s February 6, 1992
order in PCB 91-252.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat. 1989, 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.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopt~don the ~
day of
~
,
1992, by a vote
of &~‘
‘-‘Dorothy M.,,~unn, Clerk
Illinois P~’llutionControl Board
130—79
