ILLINOIS POLLUTION CONTROL BOARD

January 9,

1992

AMEROCK CORPORATION,

)

Petitioner,

)

v.

)

PCB87—131

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

MARK

J.

STEGER,

McBRIDE BAKER

AND

COLES,

APPEARED ON BEHALF OF

PETITIONER;

and

THOMAS DAVIS APPEARED ON

BEHALF

OF RESPONDENT.

OPINION

AND

ORDER

OF THE

BOARD

(by J. Theodore Meyer):

This

matter

is

before

the Board

on

Amerock

Corporation’s

(Aiuerock)

August

24, 1987 petition for variance extension.

Amerock

seeks extension of its variance from the effluent limitations for

hexavalent chromium,

total

chromium,

copper,

cyanide,

zinc,

and

total

suspended solids

(TSS).

(35 Ill.Adm.Code

304.124.)

The

Board previously granted Ainerock a variance for those pollutants

on September 20,

1985, as modified on November 21,

1985.

(PCB 84-

62.)

That variance expired on September 1,

1987.

The Board received two letters~ofobjection to the grant of

the instant requested variance.

On January

4,

1988, the Illinois

Environmental Protection Agency (Agency)

filed its recommendation

that the requested variance be

denied.

A hearing was held

in

Rockford,

Illinois on March

31,

1988.

One member of the public

attended

the

hearing

and

presented

testimony.

Several

post-

hearing motions were raised by both Amerock and the Agency.

All

of those motions have been previously ruled

upon,

and the only

issue

remaining

before

the

Board

is

the

merits

of

Amerock’s

requested variance.

Background

Amerock owns and operates

a

facility in Rockford,

Illinois

which manufactures high—quality decorative hardware products.

The

facility

includes

a

wide

variety

of

manufacturing

operations

necessary to convert alloys of steel,

zinc,

and copper, as well as

plastics,

into

finished products

for

the

home.

Manufacturing

operations

at the

plant

include

sheet

metal

fabrication,

zinc

diecasting,

plastic

molding,

burnishing,

buffing,

cleaning,

129—05

---

2

electroplating,

coloring,

painting

and

lacquering,

assembling,

packaging, and shipping.

Amerock employs approximately 1600 people

at its Rockford facility.

(Pet.

at

2; pet. brief at 1.)

Most work areas

in which.dust or metal—containing particles

are generated are vented to the outside air.

Amerock states that

this venting is done to comply with the requirements of the federal

Occupational

Safety

and

Health

Act,

and

to

otherwise

ensure

employee health and safety.

(Pet.

brief

at

1.)

Amerock states

that all of its air emission sources are in compliance with the

Board’s ‘air pollutionregulations.

However, some of the material

exhausted

to

the

atmosphere

(primarily

metal-containing

particulate) settles on the roof of the facility and is washed into

the roof drainage system by rain and snow melt.

The roof drainage

system is routed to eight separate outfalls (numbered 000-007

in

Amerock’s NPDES

permit)

which discharge into North

Kent Creek.

(Pet.

brief at 1-2.)

In May 1984 Amerock discovered that effluent discharges from

the eight stormwater outfalls exceed,

from time to time,

effluent

limitations

for

chromium

(both

hexavalent

and

total),

copper,

cyanide,

zinc,

and

TSS.

Amerock petitioned

this

Board

for

a

variance for those parameters,

and the Board granted variance on

September 20,

1985,

in PCB

84—62.

As modified on November

21,

1985,

the

variance expired

on September

1,

1987.

It

is

that

variance which Amerock seeks to extend.

Compliance Plan

As a condition of the previous variance, Amerock was required

to

investigate

possible means

of

compliance with the

effluent

standards.

(PCB 84-62, September 20,

1985,

p.

5.)

Amerock hired

Lancy

International,

Inc.

to

study

the

problem

and

recommend

control

options.

Lancy’s report

gave five

alternative

control

options:

collection

and treatment,

abatement

at

the

source,

sanitary sewer discharge, combination with cooling water discharge,

and retention after colleOtion for slow release into the cooling

water discharge.

(Pet.,

Ex.

1,

App.

B.)

Amerock evaluated the

options,

and

concluded that

the

two

options which

involve the

mixture of the roof run—off with the cooling water discharges would

violate the non-dilution principle of the Board’s regulations.

(35

Ill.Adm.Code

304.102.)

After

further

evaluating

the

three

remaining control

options, Amerock felt that those options were

economically unreasonable in light of Amerock’s conclusion that the

discharges

have

a

minimal

environmental

impact.

(Pet.

at

3.)

Therefore, Amerock prepared and filed a petition for site-specific

rulemaking which would raise the applicable effluent limitations

and

change

the

limitations

from

concentration—based

to mass-

loading

in

pounds

discharged

per

month.

That

site-specific

petition,

docketed

as

R87-33,

is

currently

pending

before

the

Board.

129—06

---

3

Amerock states that its proposed compliance plan is to pursue

the site—specific rulemaking petition.

Therefore,

Amerock seeks

a variance until the Board grants the site—specific rule.

In the

event that the Board denies the site—specific rulemaking request,

kmerock asks that the variance continue for one year after final

action on the site-specific, in order to implement one of the three

control options.

(Pet.

at 3—4; pet. briet at 4-5.)

If the site-

specific rule request is denied, Amerock originally stated that ft

will undertake one or a combination of the three control options.

Amerock states that these options range

in cost from $140,000 to

$1.4

million.

(Response to more information order

at

1.)

At

hearing,

and

in

its post-hearing brief,

Amerock

stated that

it

anticipates implementing the sanitary sewer discharge option if the

site—specific rule is denied, and estimated that one year would be

necessary to construct the necessary retention pond.

(Tr.

at

5—

6; pet. brief at 5—6.)

Environmental Impact

Amerock contends that the environmental

impact of granting

this variance will be minimal.

Amerock states that it has analyzed

upstream and downstream water quality

in North Kent Creek since

September

1984,

and

maintains

that

this

data

indicates

that

Amerock’s

stormwater

discharges

are

not

causing

water

quality

violations.

Amerock

also

contends

that

biological

studies

performed by Huff

& Huff,

Inc.

indicate that Amerock’s discharges

have no effect whatsoever on downstream biota.

Ainerock concludes

that the observed differences

in variety

and number

of aquatic

species

are

attributable

to

the

channelization

of

the

creek

downstream.1

(Pet. at 3;

Ex.

1,

App.

D;

Exs.

2

&

3.)

In

its

recommendation,

the

Agency

questions

Amerock’s

statements on environmental

impact.

As to Amerock’s contention

that its discharges

do not cause

water quality

violations,

the

Agency contends that because of the limited number of samples, few

conclusions can be drawn as to the impacts on water quality.

The

Agency

concedes

that

Amerock’s

claim

that

there

have

been

no

adverse biological impacts is better documented.

However, although

the Agency admits that it has no data to support or refute that

finding, the Agency believes it is surprising that a more diverse

aquatic community is found downstream,

since the upstream portion

of the creek is not channelized.

(Rec.

at 9-10.)

Additionally,

Mrs. Betty Johnson,

a resident of Rockford, presented testimony in

which

she

expressed

concerns

about

the

impact

of

Amerock’s

discharges on the creek.

(Tr. at 15—25.)

1

A portion of North Kent Creek, beginning inside Amerock’s

property line from the east (downstream), was channelized by the

U.S. Army Corps of Engineers in 1984 as part of a flood prevention

project.

129—07

---

4

Consistency With Federal Law

The

Agency

states

that

the

Board may

grant

the

variance

consistent with federal regulations.

(Rec.

at 11.)

Hardship

Amerock

contends

that

it

will

suffer

an

arbitrary

or

unreasonable hardship

if

its request

for variance

extension

is

denied,

especially

in

light

of

its

position

that

Amerock’s

stormwat~erdischarges cause no significant adverse impact on water

quality.

(Pet. at 4)

Amerock notes that during the course of the

proceeding both the hearing officer and the Agency expressed the

view that the record was deficient because Amerock had not provided

sufficient economic information.

In response, Ainerock states that

economic hardship

is

not an

issue

in this

proceeding,

because

Amerock can in fact “afford” to implement its alternative control

strategy.

(Pet. brief at 6.)

Instead, Amerock asks the Board to

balance the

“significant” cost of the retention pond,

Amerock’s

diligence in attempting to achieve compliance with the regulations,

and Ainerock’s two viable compliance plans,

against the “virtually,

unmeasurable” impact of Amerock’s stormwater discharges on North

Kent Creek.

Amerock maintains that the arbitrary or unreasonable

hardship which would be imposed by denial of the variance would be

exacerbated if.the Board grants the site—specific rule, rendering

control equipment unnecessary.

(Pet. brief at 8.)

The

Agency

apparently

questions

whether

denial

of

the

requested

variance

would

impose

an

arbitrary

or

unreasonable

hardship.

The Agency contends that without some discussion of the

direct

economic

impacts

of

the

compliance

options

and

the

affordability of those options, it is difficult to prove hardship.

The Agency states

that several industrial facilities

in Illinois

presently collect and treat roof and. surface water runoff.

(Rec.

at

10.)

The Agency characterizes Amerock’s position as

a belief

that Amerock

should

be allowed to discharge the runoff without

treatment as long as water quality standards are maintained.

The

Agency cites several Board decisions in site-specific rulemakings

for the proposition that compliance with effluent standards may not

be

excused merely

because

there

is

compliance

with

the

water

quality standards.

(Agency brief at 2—5.)

Conclusions

After a review of the record, the Board finds that immediate

compliance with the effluent standards for hexavalent chromium,

total chromium, copper, cyanide,

zinc, and total suspended solids,

found at

35

Ill.Adm.Code

304.124,

would

impose an arbitrary

or

unreasonable

hardship.

Although

there

is not

a

great deal

of

sampling information in the record of this proceeding,

the Board

believes that the information which does exist indicates that any

impact of Ainerock’s current discharges on water quality and biota

129—08

---

5

is

minimal.

The

Board

finds

that

Amerock

has

demonstrated

satisfactory progress towards compliance, although compliance has

not yet been obtained.

The minimal environmental impact, together

with Amerock’s satisfactory progress towards compliance and the

fact that compliance expenditures may not be necessary if a site-

specific rule is granted, lead the Board to conclude that immediate

compliance with the applicable effluent standards would result in

an arbitrary or unreasonable hardship.

The Agency’s arguments on

the issue of hardship are applicable to the issues in a rulemaking,

not the criteria for a variance.

Simply because a variance request

and

a

petition

for

site—specific

rulemaking

involve

the

same

facility and the same facts does not mean that the criteria

for

decision

are

the

same.

Therefore,

the

Board

will

grant

the

variance.

However,

the

Board

cannot

grant

the

variance

until

the

conclusion of the site-specific rulemaking,

or,

in the event the

site—specific rule is denied, for one year after the final decision

on the rulemaking,

as Amerock

requests.

Section

36(b)

of

the

Environmental Protection

Act

(Act)

(Ill.Rev.Stat.

1989,

ch.

111

1/2, par.

1036(b))

limits the length of a variance to five years.

Therefore, the Board will grant the variance for a five—year period

beginning on December

21,

1987.

The December date is

120 days

after

the

instant petition for

variance was filed

(August

24,

1987).

Section 38 of the Act requires the Board to make decisions

on variance petitions within 120 days.

Although Amerock asks that

this variance begin

on September

1,

1987

(the date the original

variance expired), it did not file its petition in sufficient time

to

allow

for

the

Board’s

decisionmaking

process

before

the

expiration of the first variance.

This variance begins on December

21,

1987,

and expires on December 21,

1992.

Additionally,

the

Board will impose conditions on the variance which are intended to

assure that more complete information on the environmental impact

of the discharges will be gathered.

Finally, the Board notes that the conclusions it reaches based

upon the record

of this variance proceeding do not necessarily

reflect

on

the

merits

of

Amerock’s

site—specific

rulemaking

proposal,

currently

pending

before

the

Board

in

R87-33.

The

burdens of proof and the standards of review in

a rulemaking

(a

quasi—legislative

action)

and

a

variance

proceeding

(a

quasi—

judicial action) are distinctly different.

~

Titles VII arid IX

of the Act; see also Willowbrook Development v. Pollution Control

Board

(2d Dist.

1981),

92 Ill.App.3d 1074,

416 N.E.2d 385.)

The

Board cannot lawfully prejudge the outcome of a pending regulatory

proposal in considering a petition for variance.

(City of Casey

v. IEPA,

41 PCB 427, 428

(PCB 81—16, May 14,

1981).)

This opinion constitutes

the Board’s findings

of

fact and

conclusions of law.

129—09

---

6

ORDER

Amerock

Corporation

(Ainer.ock)

is hereby granted

a variance

from the following effluent standards located at

35

Ill.Adin.Code

304.124:

hexavalent chromium,

total

chromium,

copper,

cyanide,

zinc,

and

total

suspended

solids.

This

variance

applies

to

Amerock’s

facility

located

at

4000

Auburn

Street,

Rockford,

Illinois, and is subject to the following conditions:

1.

This variance begins on December

21,

1987,

and expires

on the earlier of:

December

21,

1992,

or the date of

final action on any grant

of Amerock’s requested site-

specific rule, currently pending before the Board in R87-

33.

2.

During the period of the variance, Amerock’s discharges

shall not exceed the following limits:

Constituent

Limitation (lbs/month)

chromium (hexavalent)

1.0

chromium (total)

4.0

copper

20.0

cyanide

(total)

3.0

zinc

60.0

total suspended solids

300.0

3.

In addition to the sampling required by Amerock’s NPDES

permit,

Amerock

shall

inspect each discharge

location

during and shortly after periods

of rainfall.

Amerock

shall obtain one sample from each discharge per month.

The samples from Outfalls 001,

002,

004, and 005 shall

be

analyzed for

the parameters

required

by the NPDES

permit,

and

the

samples

from

the

three

unpermitted

outfalls shall be analyzed for the parameters listed in

the NPDES permit for Outfalls 001 and 004.

The results

of these analyses shall

be attached to Ainerock’s

DMR’s

and submitted to the Agency.

4.

Amerock shall take a grab sample the water of North Kent

Creek,

and a sediment sample,

once each month upstream

and downstream of each of its discharges, at a time when

discharges are occurring.

However, even if no discharges

occur

in a given month,

Amerock shall take the monthly

samples.

These

samples

shall

undergo

a

complete

biological and chemical analysis.

The results of the

analyses

shall

be

attached

to

Amerock’s

DMR’s

and

submitted to the Agency.

5.

Amerock

shall

continue

to

conduct

a

biological

examination of the bottom of North Kent Creek, upstream

129—10

---

7

and downstream of each of its discharges, twice a year.

The results of these examinations shall be submitted to

the

Agency’s

Compliance

Assurance

Section,

Water

Pollution Control Division, 2200 Churchill Road, P.O. Box

19276, Springfield, Illinois 62794—9276.

6.

Within forty-five days of the date of this order, Amerock

shall execute and forward to:

Lisa Moreno

Division of Legal Counsel

Illinois Environmental Protection Agency

P.O. Box 19276

2200 Churchill Road

Springfield, Illinois 62794—9276

a certificate of acceptance and agreement to be bound to

all terms and conditions of the granted variance.

The

45-day period shall be held in abeyance during any period

that this matter is

appealed.

Failure to execute and

forward

the

certificate

within

45-days

renders

this

variance void.

The form of certificate is as follows.

Certificate of Acceptance

I

(We),

hereby accept and agree to be bound by all terms and conditions of

the Order of the Pollution Control Board in PCB 87-131, January 9,

1992.

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 appeal

of

final

orders of the Board within 35 days.

The Rules of the Supreme Court

12 9—11

---

8

of Illinois establish filing requirements.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, he~~ycertify that

e above Opinion and Order was adopted

on

the

~f~—

day

of

.

,

1992,

by

a

vote

of

~o.

V

~—~DorothyM,/~unn, Cle~’rk

Illinois Pbflution Control Board

129—12