ILLINOIS POLLUTION CONTROL BOARD
January
9,
1992
MARATHON
OIL COMPANY,
)
)
Petitioner,
)
v.
)
PCB 91—173
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
JOSEPH W. WRIGHT,
OF MCBRIDE BAKER
& COLES, APPEARED ON BEHALF OF
PETITIONER;
ROBB
LAYMAN
APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board on the September 17,
1991
filing by petitioner, Marathon Oil Company
(“Marathon”),
of a
petition for variance (“Pet.”).
Marathon seeks variance from its
own site-specific water quality standard for chloride found at 35
Ill.
Adm. Code 303.323.
Variance is requested for the time
period necessary -for resolution of a related rulemaking
proposal’.
In the rulemaking Marathon seeks to make permanent
the relief requested in the instant variance proceeding.
On July 15,
1991, the Illinois Environmental Protection
Agency (“Agency”)
filed its variance recommendation
(“Rec.”).
The Agency recommends that variance be denied based on the
contentions that Marathon can and does comply
with the current
regulations and that Marathon has not met its burden of
demonstrating that compliance with the current regulation would
constitute an arbitrary or unreasonable hardship.
Hearing was held November 13,
1991 in Robinson,
Illinois,
site of the facility at issue.
Marathon presented the only
witness and no members of the public attended the hearing.
As presented below,
the Board finds that Marathon has not
met its burden of demonstrating that denial of variance would
impose an arbitrary or unreasonable hardship.
Accordingly, the
variance request is denied.
1
~
Matter ~
Petition p1 Marathon ~
Company Z.p~
Site—Specific Water Regulation, R9l—23.
129—5 1
—2—
BACKGROUND
Marathon operates a petroleum refinery located- on the
outskirts of the City of Robinson, Crawford County,
Illinois.
The refinery processes some 180,000 barrels of oil per day and
employs approximately 650 persons
(Tr.
11).
Part of the refining process consists of removing water from
the crude oil.
The water contains chloride, the quantity of
-which varies depending upon the nature of the pore fluids in the
source rocks of the crude oil and the history of recovery,
transportation, and storage of the crude oil.
Because the
Marathon’ facility receives crude oil from different sources,, the
chloride content of the crude processed at the facility likewise
differs.
Since 1988 the chloride content has varied on a
monthly-average basis from a low of 29.2 pounds per million
barrels to 104.5 pounds per million barrels; in the first ten
months of 1991 chloride contents ranged from an average of 48.5
to 88.7 pounds per million barrels
(Exh.
8).
Marathon treats its wastewaters prior to discharging them.
However, the treatment is not capable of producing significant
reduction in chlorides.
Marathon is in the process of designing
an upgraded treatment facility that would allow it to increase
treatment capacity, but this too would have only marginal effect
on chloride discharge concentrations (Tr.
25—27).
Discharge of the wastéwaters is to an unnamed2 tributary of
Sugar Creek at approximately mile 5.0 of the unnamed tributary;
Sugar Creek thence flows approximately five mile-s more to its
mouth on the Wabash River
(Pet.
Exh.
1,
p.
8).
The unnamed tributary at the Marathon discharge has a
drainage area of approximately eight square miles
(Tr.
15)
and a
natural 7-day 10-year
(“7Q10”) low flow of zero
(Tr.
22).
However, actual low flow in the unnamed tributary is controlled
by wastewater and other manmade discharges.
These include
discharges located upstream from Marathon’s discharge that
aggreg~tean average of approximately 1.4 million gallons per day
(“MGD”
)
(Tr.
15-6),
of which the discharge of the City of
Robinson’s sewage treatment plant at 1.2 MGD is the largest.
Marathon itself discharges an average of another 1.4 MGD, such
that the low flow is approximately doubled due to Marathon’s
discharge.
2 Although not officially named, the creek is sometimes
referred to as Robinson Creek
(e.g., Pet.
Exh.,
p.
6).
One MGD equals 0.04381 cubic meters per second or 1.55
cubic feet per second
(“cfs”).
129—52
—3—
PROCEDURAL BACKGROUND
The Board’s general effluent regulations do not include a
specific limitation for chloride.
However, they do prohibit any
discharge that would cause or contribute to
a violation of a
water quality standard.
(35 Ill. Adm. Code 304.105.)
The
pertinent water quality standard for chloride is the 500 xng/L
General Use Water Quality Standard found at 35 Ill.
Adm. Code
302.304.
Marathon initially petitioned this Board for exemption of
its receiving waters from the 500 mg/L water quality standard in
PCB 80-1’02.
On October
2,
1985 the Board granted this petition,
under condition that chloride effluent concentrations not exceed
700 mg/L,
effective through October
2,
1985.
In PCB 85-83 Marathon petitioned for extension of the PCB
80-102 variance with respect to chloride.
On January 23,
1986
this petition was granted effective for the period October
2,
1985 through October
2,
1990.
On January 28,
1987 Marathon filed a site-specific
rulemaking petition seeking, among other matters, to make
permanent its exemption from causing or contributing to
violations of the 500 mg/L water quality standard under the
continuing provision that its effluent discharge not exceed 700
mg/L.
On September 13, 1989~the Board responded to Marathon’s
petition by promulgating a new rule at 35 Ill. Adm. Code 303.323.
The new rule generally tracks Marathon’s proposal, except that
the Board added a 550 mg/L limit on in-stream chloride
concentrations as recommended by the Agency.
Accordingly, the
pertinent rule now
is as follows:
Section 303.323
Sugar Creek and Its Unnamed Tributary
a)
This Section applies only to Sugar Creek and its
unnamed tributary from the point at which Marathon
Petroleum5 Company’s outfall 001 discharges into
the unnamed tributary to the confluence of Sugar
Creek and the Wabash River.
b)
35 Ill.
Adm. Code 304.105 shall not apply to total
dissolved solids and chlorides discharged by
Marathon Petroleum Company’s Outfall 001,
so long
as both of the following conditions are true:
In the Matter of: Marathon Petroleum Company Site-
Specific, R87—2,
103 PCB 133.
Marathon Oil Company is the successor in interest to
Marathon Petroleum Company (Marathon brief at 1).
129—53
—4—
1)
Effluent from Marathon Petroleum Company’s
Outfall 001 does not exceed 3,000 mg/i total
dissolved solids or 700 mg/l chlorides,
2)
The water in the unnamed tributary does not
exceed 2,000 mg/i total dissolved solids or
550 mg/i chlorides.
On August 19,
1991 Marathon filed
a new site-specific
rulemaking proposal, R9l—23,
seeking to amend the chloride
provisions of Section 303.323.
The new proposal would increase
the effluent chloride limitation from 700 mg/L to 1000 mg/L and
the chlo~ridewater quality standard from 550 mg/L to 700 mg/L.
Hearing in R91-23 is scheduled for January 16,
1992.
On September 17,
1991 Marathon filed the instant proposal.
In it Marathon requests as variance conditions the same 1000 mg/L
and 700 mg/L effluent and water quality limitations that it
proposes as amendments to Section 303.323.
Thus, favorable
consideration of Marathon’s variance request would have the
effect of establishing as interim standards the same standards
Marathon’s seeks to have made permanent via its site-specific
petition.
HARDSHIP
The Agency and Marathon agree
tt’iat
Marathon is not now
violating the applicable chloride limits
(Tr. 62;
Resp. Brief
at
4).
Marathon has been able to meet the current limits in part
due to its employing a program of water management, which
consists of storage and controlled release of wastewaters
(Tr.
35—36).
Marathon contends, however, that there have been some
“some close calls” where its ability to store more high—chloride
wastewaters had nearly been exhausted
(Tr.
37).
Marathon also
observes that use of its stormwater facilities to store
wastewater reduces
it ability to manage stormwater discharges
(Tr.
38—39)
Marathon further contends that its ability to achieve
compliance with its existing chloride limits will worsen due to
increasing content of chloride in crude oils and prospective
plant additions
(Tr. 35).
As basis for the former contention,
Marathon observes that salt contents of crudes received at the
Marathon facility have shown a general increase of
3 to 5 percent
per year over the last several years
(Tr. 39—40).
The
presumption is that this trend would continue.
The Agency points to the past ability of Marathon to comply
with the chloride standard as evidence that Marathon does not
need variance and that therefore Marathon is not experiencing an
arbitrary or unreasonable hardship.
129—54
—5—
DISCUSSION
Marathon does not argue that maintaining compliance with the
current standards has been impossible.
It only argues that
maintaining compliance has been achieved with difficulty, and
that continued compliance will likely face lesser assurity of
success as time goes on.
The Board finds this to be an insufficient basis for grant
of variance.
A requirement to maintain compliance is not
arbitrary or unreasonable solely because it is difficult; this
Board is empowered to grant variance only where compliance is
shown
to’
constitute an arbitrary or unreasonable hardship.
(Ill.
Rev.
Stat.
1989,
ch.
111½,
pars.
1035(a)
(“Act”); Monsanto Co.
v.
IPCB (1977),
10 Ill.Dec.
231,
367 N.E.2d 684,
67 Ill.2d 276,289.)
Marathon fails to meet this burden.
The Board also finds that-
Marathon’s projection of increased chloride loads is too
speculative to form grounds for variance.
We know neither that
the “upward trend” in chloride concentrations will actually cause
the current limits to be exceeded, nor that productions increases
will actually cause total chloride loadings to rise to
unmanageable levels.
Additionally, the Board does not grant variance where there
is no need for variance,
as for example where there is no
demonstration that the petitioner is out of compliance With the
standard at issue.
(Village of Wheeling v. IEPA (July 10,
1980),
PCB 80-59,
39 PCB 53,55; City of Rolling Meadows v. IEPA (July
10,
1980), PCB 80—60,
39 PCB 62,63; The Village of Elk Grove
Village v. IEPA (January 10,
1985), PCB 84—15&,
62 PCB 295,296;
City of West Chicago v. IEPA (June 13,
1985), PCB 85—2,
64 PCB
249,251; Village of Ninooka v. IEPA (September 20,
1985), PCB 85-
100,
65 PCB 527,529; City of Spring Valley v.
IEPA (January
5,
1989), PCB 88—181, 95 PCB 57,63; Village of North Aurora v. IEPA
(February 8,
1990), PCB 89—66,
108 PCB 25,33.)
This precedent
notwithstanding, Marathon relies on City of Geneva v. IEPA (March
22,
1990), PCB 89-107,
109 PCB 507),
for the premise that under
certain circumstances a variance should be granted even when a
violation has not been demonstrated.
However,
in Geneva there
was good reason to believe that exceedence of the standard was
occurring even though a violation had not been technically
demonstrated
.
In the case at bar,
however, there is good reason
to believe that violations are fl~occurring.
Thus, the
circumstances in the two cases differ in a significant way.
6 The regulation at issue in Geneva was a regulation
pursuant to which violation could be. shown only if -the average of
samples collected over a period of a year exceeded the specified
standard.
Geneva had collected enough samples to indicate that
the annual average would very likely be exceeded, even though a
full annual cycle of sampling had not yet been completed.
129—55
—6—
Perhaps more on point is Sonoco Products Company v.
IEPA,
PCB 88—60
(92 PCB 97, September
8,
1988).
There the petitioner
was in compliance at the time of the variance request, but would
have been in noncompliance at anticipated increased production
levels.
The Board found that in light of this and other factors
the petitioner would suffer arbitrary or unreasonable hardship if
denied its requested variance
(~.
at 92 PCB 102).
Sonoco
is
nevertheless distinguishable from the case at bar in that Sonoco
had definite programs for both increased production and
achievement of compliance during the variance period.
The Board notes that it does not today make any new findings
regardint~the environmental impact of Marathon’s existing or
proposed chloride discharge program.
Neither does it address the
adequacy of Marathon’s compliance plan.
Inasmuch as the issue of
hardship is dispositive,
it is not necessary for the Board to
proceed to these additional issues.
The Board does observe,
however, that the appropriate conduct at this juncture is for
Marathon to continue to control its chloride discharges under the
system currently employed,
at least for the short time until the
site-specific rule is resolved.
This strategy can do nothing
other than serve the betterment of the environment by maintaining
lower chloride concentrations to the receiving waters during the
interim and until there is full resolution of the matter of
whether higher chloride concentrations would be environmentally
acceptable.
Moreover, once the site—specific matter is decided,
Marathon will presumably be in a position to more definitively
commit to such compliance plan as may remain necessary.
For these reasons, Marathon’s request for variance relief
is
denied.
Lastly, the Board notes that the conclusions it reaches
based upon the record of the instant variance proceeding do not
necessarily reflect on the merits of Marathon’s site—specific
rulemaking proposal currently under consideration in Board docket
R91-23.
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
(cf.
Titles
VII and IX of the Act;
see also Willowbrook Development v. IPCB
(1981),
92 Ill.App. 3d,
1074), as are the records in the two
proceedings.
Moreover, the Board cannot lawfully prejudge the
outcome of a pending regulatory proposal in considering a
petition for variance.
(City of Casey v. IEPA
(May 14,
1981),
PCB 81-16, 41 PCB 427,428.)
Conversely,
the pendency of a
rulemaking does not stand by itself as grounds for grant of a
variance.
Section 35(a)
of the Act; Citizens Utilities Company
of Illinois
V.
IPCB (1985),
134 I1l.App.3d,
111,115; City of
Lockport v.
IEPA (September 11,
1986), PCB 85—50,
72 PCB 256,260;
General Motors Corporation, Electro-Motive Division v. IEPA
(February 19,
1987), PCB 86—195, 76 PCB 54,58; Alton Packaging
Corp.
v. IEPA (February 25,
1988), PCB 83—49,
86 PCB 289,299.
129—56