ILLINOIS POLLUTION CONTROL BOARD
January 24,
1991
THE
VILLAGE
OF
SAUGET,
)
)
Petitioner,
)
v.
)
PCB 90—181
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
LEE R.
CUNNINGHAM
AND
RICHARD 3. KISSEL,
OF GARDNER,
CARTON,
AND
DOUGLAS, APPEARED ON BEHALF OF PETITIONER;
BRUCE L. CARLSON APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
3.
Theodore Meyer):
This matter
is before the Board on
a
petition for extension
of variance, filed by the Village of Sauget
(Sauget) on October 4,
1990.
Sauget seeks
a one—year extension of the variance granted
by the Board on September 13, 1989,
in PCB 89-86.
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.
The Illinois Environmental Protection Agency
(Agency)
filed
its recommendation on November 13, 1990, recommending an extension
of variance.
A public hearing was held on December 6,
1990.
No
members of the general public attended the hearing.
Both parties
subsequently filed briefs.
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.
That
variance extension is
to expire on January 31,
1991,
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.
As
Sauget
states
in
its
118—151
2
petition for extension, no final action will occur in the federal
court case until after January 31,
so the PCB 89—86 variance will
expire on January 31, 1991.
(Pet. at 1.)
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, and summarized in PCB 89-86.
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 Commonfields
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 Krunnnrjch 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 5; Rec. at 2.)
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
Krununrich 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 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.
(Pet.
at
7;
Tr.
at
28-30;
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 color
of the AB Plant effluent has continued on a
general downward
trend.
Measured
in platinum color
units,
the
monthly AB Plant effluent color readings have ranged
from
492
in
December 1989 to 112 in May 1990 to 237 in August 1990.
(Pet.
at
118—152
3
10-11.)
Sauget now requests another extension of variance,
based
upon unforeseen delays in construction and its continuing efforts
towards compliance.
(Pet.
at 7.)
Compliance Plan
Initially,
Sauget states that it is uncertain as to whether
it needs the requested extension of variance, since it states that
it does not know if the “significant” reduction in color achieved
during
the
current
variance
demonstrates
compliance
with
the
standard.
(Pet.
at 1—2;
Pet.
Brief at
2.)
In essence,
Sauget
states that because Section 304.106 requires that color be reduced
“to below obvious levels”,
it is unsure whether the color of
its
effluent constitutes “obvious” color.
The Agency does not address
this issue.
Based upon its review of the record, the Board finds
insufficient evidence to find that the reduction in the color of
Sauget’s effluent has reduced the color of that effluent to below
obvious levels.
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 is in the process of constructing
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.
(Pet.
at 13-14; 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 system.
In June
1990,
Sauget was 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, exôept as extended due
to high water levels in the river.
(Pet.
at 15-16; Tr. at 10.)
118—153
4
The
second
aspect
of
Sauget’s
compliance
plan
involves
Monsanto’s $25 million program to meet federal pretreatment 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
wastestreaxn which is controlled under that program.
(Tr.
at 11—
17,
30-35.)
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.
(Tr. at
35—39..)
Environmental Impact
Sauget contends that there will be no adverse environmental
impact during the requested variance extension, because the color
standard is solely an aesthetic standard.
Sauget states that the
color is apparent in the Mississippi only in an area at and within
five feet downstream of the present outfall, and notes that this
color has been reduced during the term of the present variance.
(Pet. at 12-13.)
In its recommendation, the Agency maintains that
the
color
at
the
outfall
can
have
two
effects:
a
possible
reduction
in
photosynthesis,
and
an
impact
on
the
public’s
perception of its use or enjoyment of the river.
The Agency states
that
it
is unable
to quantify this effects.
(Rec.
at
5.)
In
respc~nse, Sauget
contends
that because
of the very
small
area
impacted, any arguable increase or decrease in photosynthesis would
have an
“infinitesimal”
impact on the Mississippi.
Sauget
also
notes
that
the
outfall
is
located
so
that
it
would
be
very
difficult for the public to observe.
Thus,
Sauget maintains that
the only possible adverse environmental impact would be the view
of a very small area of the river
by
a
limited number of people.
(Response to Rec.
at 2.)
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,
1991
(the
expiration date of the variance),
except refusing to accept the
influents from industries which contribute to the color of the AB
118—154
5
Plant’s effluent.
Sauget contends that this would cause a major
hardship to those
industries and to the economy of southwestern
Illinois.
Sauget notes that in PCB 88-18 and PCB 89—86, the Board
found
that
immediate
compliance
would
impose
an
arbitrary
or
unreasonable
hardship.
Sauget states
that this
is true
today.
(Pet. at 19.)
In its recommendation, the Agency states that it is unable to
assess any hardship to Sauget.
Nevertheless, the Agency recommends
that this Board grant
this variance until January
31,
1992,
or
until the federal enforcement action is ruled upon, whichever comes
first.
The Agency recommends that “the Board take necessary action
to allow the resolution
of the variance to become part
of
the
enforcement action pending in Federal District Court.”
(Rec.
at
8.)
The Agency contends that any action taken by the Board “may
conflict with the much broader issues of toxicity and pretreatment
being addressed in the federal action.”
(Rec.
at 9.)
Consistency With Federal Law
Sauget believes that this variance may be granted consistent
with federal
law,
since
it has not requested variance from any
water quality standards.
(Pet.
at 19.)
The Agency also states
that because there are no federal laws specifically limiting color
in effluent, the Board may grant the relief consistent with federal
law.
(Rec. at 8.)
Board Determination
Based upon the
facts
in the
record,
the Board
finds
that
immediate compliance with 35 Ill.Adiu.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 made 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
has
now
begun.
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.
The Board
grants extension of Sauget’s existing variance.
The
Board must note that
it
is disturbed by the Agency’s
position in this proceeding.
Basically, the Agency states that it
is unable to assess hardship, but recommends that the Board grant
variance extension so that the request,
and the underlying color
problem,
do
not
interfere
in
the
pending
federal
enforcement
action.
The Board recognizes that color is related to the issues
of
toxicity
and
pretreatment,
and that
the
solution
to
these
problems may be complex.
However, 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
118—155
6
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
until January
31,
1992,
or until the pending federal enforcement
action
is resolved, whichever comes first.
The Board notes that
Sauget’s construction
is scheduled to be completed by April
20,
1991.
However,
because
the
construction
contract
allows
for
extension of that date if Mississippi River water levels are high,
and
because
Sauget
and
Monsanto
have
committed
to
further
exploration
of color—causing bodies
in Monsanto’s
influent,
the
Board
will grant
the
term
of the variance
as
proposed
by the
Agency.
In its post—hearing brief,
the Agency also recommended
several conditions relating to Monsanto’s program.
(Resp.
Brief
at 5—7.)
Sauget believes that no such conditions are necessary,
but suggests that the language of one condition be modified, if the
Board concludes that the conditions, are necessary.
(Pet.
Supp.
Brief
at
1-2.)
The
Board
finds
that
the
Agency’s
suggested
conditions,
as modified by Sauget, should be imposed.
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,
1991
(upon expiration
of the previous variance granted to Sauget
in PCB 89-86,
September 13,
1989), and continue until January
31,
1992 or until final action by the district court in United
States of America and the State of Illinois v. The Village of
Sauciet,
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 described
in the
testimony of Monsanto’s Environmental Superintendent,
Steven
D.
Smith
(Pet.
Ex.
13 at 9-10; Tr. at 36-38)
for identifying
the principal causes of remaining color and assessing possible
controls.
Results of this program shall be provided as an
initial
report
to
be
submitted
by
February
28,
1991,
and
supplemental progress reports shall be submitted quarterly
thereafter until Monsanto completes this program.
Each report
shall include available sampling results,
and to the extent
reasonably feasible at the time of reporting,
an assessment
of the effectiveness and iinplementability of any further color
controls identified as a result of this program.
118—156
7
3.
Within 45 days of the date of this order,
Sauget shall
execute and forward to Bruce
L.
Carlson,
Division of Legal
Counsel,
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 January
24,
1990 order
in PCB
90—181.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (Il1.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.
I, Dorothy N.
Gunn,
Clerk
of the Illinois Pollution Control
Board, hereb~certifythat
-
above Opinion and Order was adopted
on
the ~LC~~-’
day
of
,
1991,
by
a
vote
of
Dorothy N. ~~unn,Clerk
Illinois Poflution Control Board
118—157