BACKGROUND

ILLINOIS POLLUTION CONTROL BOARD

November

2,

1989

ALLIED SIGNAL,

 INC.

Petitioner,

)

 PCB 88—172

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

 (by M. Nardulli):

This matter comes before the Board on a petition for variance

filed October

 21, 1988,

 as amended on December

19,

 1988 and as

amended again on February

21,

 1989 by petitioner Allied—Signal,

Inc.

 (“Allied”).

 Allied seeks a one—year variance from

35

 Ill.

Adm. Code 304.102 governing dilution of effluent

 in wastewater

or,

 in the alternative,

 a one—year variance from 35

 Ill.

 Adm.

Code 304.124 governing the allowable concentration of arsenic

in

an effluent.

 On April 18,

 1989, Allied filed

 its response to the

Agency’s Recommendation.

 A hearing was held on April

20,

 1989 at

which a member of the public attended and gave testimony.

Jan

Thomas of the Association of Concerned Environmentalist

 (“ACE”)

expressed ACE’s objection to the variance and also raised

objections as

 to the propriety of the hearing based on

 allegations of lack

 of notice.

 By order

 of the Board, ACE was

allowed to submit written questions for Allied’s witnesses who

were present at the April

20,

 1989 hearing.

 Allied submitted

written responses to these questions.

 A second hearing was held

on August

25,

 1989 to accommodate members of the public’s

concerns.

 No members of the public attended this hearing.

On

August

21,

 1989,

 the Agency filed an Amended Recommendation

altering two of the conditions which the Agency recommended as

part of the variance.

BACKGROUND

Allied owns and operates

 a facility

 in Metropolis,

 Illinois

which is engaged

 in the production of uranium hexafluoride

 (UF6)

and other fluoride compounds.

 (Pet.

 at par.

1.)

 Allied

 is one

of only two producers of UF6

 in the country.

 (Id.

 at par.

3.)

UF6

 is an essential element of the nuclear

 fuel cycle which

supplies nuclear power plants

 in the United States.

 (Id.)

Allied employs approximately 365 persons and has

 a total annual

payroll

 in excess of $13 million.

1(~5 fl7

2

UF6

is

 produced

 from

 uranium

ore

 concentrates

 which

are

received at the Metropolis

 plant from various suppliers.

 (Pet.

Exh.

A.)

 Allied uses a unique fluoride volatility process in its

manufacture of UF6.

 (Pet. at par.

4.)

 An important part of this

process

 involves

 the reaction of

 a prepared uranium

 feed with

fluorine gas.

 (Id.)

 The fluorine gas is produced at the facility

by electrolyzing hydrofluoric acid

 (HF).

(a.)

 The HF used in

this

 process

is

 produced

at

a

 separate

 Allied

 facility

 from

fluorspar,

 a naturally occurring mineral rich in calcium fluoride.

(Id.)

The

 naturally

 occurring

 element

 arsenic

is

 present

in

fluorspar.

(~.

 at par.

5.)

 The arsenic remains as a contaminant

of the HF when the fluorspar is processed and enters the Metropolis

facility with the raw material HF.

(a.)

 Arsenic also enters the

facility

as

a

 component

of

 the uranium

ore

 concentrates

 which

customers deliver to the plant for processing.

 (j~.)

 The level

of arsenic varies depending on the source of uranium ore.

(u.)

Additionally,

 other

raw

 materials

and

 treating

 agents

 used

by

petitioner contain small amounts of arsenic.

 (.i?~.)

The electrolyzation of the arthydrous hydrofluoric acid takes

place

in

 closed

 vessels

in

the

 presence

of

an

 electrolyte

or

“melt.”

 (Id. at par.

6.)

 Periodically,

 it is necessary to replace

the

 spent

 melt.

 (Id.)

 Allied

 directs

 spent

 melt

to

its

Environmental Protection Facility

 (“EPF”).

(~.)

 The treated

effluent is discharged into the Ohio River under NPDES Permit No.

1L0004421.

 (Id.)

 Allied’s

 current

 NPDES

 permit

 contains

no

effluent limitation for arsenic, but requires Allied to monitor and

report arsenic concentrations to the Agency monthly.

(~.

 at 8.)1

Sampling for arsenic is

 performed at

 a point before mixing with

Allied’s other wastestreams occurs.

 (Id.)

The

 results

 of this

monitoring typically indicated arsenic concentrations in the range

of 0.02 to 0.30 mg/l,

 a range acceptable under

35

 Ill.

 Adm.

 Code

 304.124(a).

 (Id.

 at par.

9.)

In the

 summer

of

 1988,

 after

 submitting

 its NPDES

 renewal

application,

 Allied performed arsenic

 tests

in

 its wastestream.

(Id. at par.

 9; Presubmitted testimony of Larry Bruce at par.

 5 and

J.E.

 Honey

at

 par.

9.)

 These

 test

 results

 indicated

 arsenic

concentrations

 significantly

 greater

 than

the

 typical

 range

previously found by Allied and those levels found by the Agency in

its own compliance monitoring of Allied’s wastewater discharge.

(~.)

 This

 discrepancy

 resulted

 from

 Allied’s

use

of

a

 more

aggressive wastewater testing procedure than that used by Allied’s

previous independent labs testing and by the Agency.

(u.)

 Allied

reported the results

 of this testing

 to the Agency

 and began

a

1Although Allied’s permit was due to expire on July

1,

 1988,

the

 permit

 remains

in

 effect

 because

 Allied

 made

a

 timely

application for renewal.

 (Ill.

 Rev. Stat. 1987,

 ch. 111 1/2, par.

 1012(f).)

3

program

of

 continued

 analysis and evaluation

 of arsenic

in

its

wastestream.

(u.)

Additional

 investigations

 established

the

 presence

cf

an

extremely

 rare

 and highly

 stable

 form

of

 arsenic,

 (AsF6)

or

hexafluoroarsenate.

 (Id.

 at par.

10;

 Bruce

 at par.

7;

 Honey

at

par.

 10.)

On

 September

30,

 1988,

 the Agency

 issued

 Allied

an

 NPDES

permit containing an effluent limitation for arsenic and requiring

Allied to monitor arsenic at a point upstream from other controlled

parameters.

The

 levels

of

 arsenic

 present

in

the

 form

of

hexafluoroarsenate

 in Allied’s discharge result

 in violations

of

the new permit standard for arsenic.

(~.

 at par.

 11.)

 Allied’s

NPDES permit became effective December 31, 1988.

 (Pet. attachment

F.)

RELIEF REQUESTED

Allied

 seeks

a

 one-year variance

 from

35

 Ill.

 Adin.

 Code

304.102

 which

 provides that

 dilution

 of the

 effluent

 from

any

wastewater

 source

 is not acceptable

as

 a method of treatment

of

wastes in order to meet the arsenic standard set forth in 35

 Ill.

Adrn.

 Code

 304.124.

 “Rather,

it

 shall

be

 the obligation

 of any

persons discharging contaminants of any kind

 in to the waters of

the state to provide the best degree

 of treatment of wastewater

consistent with technological feasibility, economic reasonableness

and sound engineering judgment.”

 (35 Ill. Adm.

 Code 304.102(a).)

Section

 304.102(b)

 further

 provides

 that

 “measurement

of

contaminant

 concentrations

to

 determine

 compliance

 with

the

effluent standards shall be made at the point immediately following

the final treatment process and before mixture with other waters,

unless another point is designated by the Agency in an individual

permit

...

.“

 (35 Ill.

 Adm.

 Code

304.102(b).)

 Allied requests

that

 it be allowed to comply with the 0.25

 ing/l

 arsenic effluent

limitation

by

 measuring

the

 concentration

of

 arsenic

at

the

facility’s final outfall

 (002),

 or by allowing Allied to monitor

compliance by calculating the arsenic effluent concentration at the

EPF which takes into account the mixing of Allied’s EPF wastestream

with other wastewaters before discharge into the Ohio River.

 (Pet.

at par.

6.)

 Alternatively, Allied seeks a one—year variance from

the 0.25 mg/l arsenic effluent limitation set forth in

35 Ill. Adm.

Code 304.124

 as measured at the EPF outfall,

 before mixing with

other wastewaters,

 to allow Allied to meet, a 4.5 mg/l limitation.

COMPLIANCE

PLAN

Allied

 maintains

 that

 information

 about

the

 chemistry

or

treatability

of

the

 hexafluoroarsenate

ion

is

 virtually

 non-

existent

 since

few

 other

 manufacturing

 processes

 result

in

generation of this ion.

 (Pet.

 at par.

 12; presubinitted testimony

of

Dr.

 William

 E. Rinehart

 at par.

3.)

 Dr. Howell

R.

 Clark,

a

105—09

4

chemist

 retained

by

 Allied

to

 assess,

 inter

 alia,

 whether

hexafluoroarsenate could be removed by the application of current

technology (without regard to economic feasibility) testified that

very

 little

 hexafluoroarsenate

was

 being

 removed

 from

the

wastewater

at

 either EPF

 outfall.

 (Presubmitted

 testimony

of

Howell R. Clark at par.

 6(D).)

 According to Clark, the only means

of decomposing hexafluoroarsenate is to apply a combination of high

heat and concentrated acid.

 (Id. at par. 7(A).)

 After discussing

this

 theoretical

 treatment

 system,

 Clark

 testified

 that

the

compound resulting from such treatment

 (Ca3

 (ASO4)2) would be

far

more toxic than the hexafluoroarsenate itself.

 (id. at par.

9.)

Allied

 believes

 that

 there

is

no

 existing

 demonstrated

technology

for

the

 practical

 treatment

of

 hexafluoroarsenate.

Therefore,

 Allied’s

 compliance plan

is,

in

 essence,

a

 plan to

research and investigate methods of dealing effectively with the

 hexafluoroarsenate.

 Allied has instituted

 a two-phase

 study to

address this contamination.

 (Pet. at par. 13.)

 Phase one consists

of an arsenic material balance investigation to adequately confirm

the source of the hexafluoroarsenate.

 (Id.)

 Phase two consists

of

 a treatability

 study

 to assess

 the technical feasibility and

economic reasonableness

 of treatment of the

 contaminant.

 (Id.)

In

an

 effort to minimize the arsenic

 concentration,

 Allied has

identified

a

 source

of

low

 arsenic

 hydrofluoric

 acid

and

is

obtaining all of the hydrofluoric acid needed at the facility from

this facility.

(Ic~.

at par.

 14.)

The Agency recognizes that Allied has not submitted a concrete

compliance plan but suggests that the unique circumstances of this

cause warrant an exception from the compliance plan requirement (35

Ill.

 Adm. Code 104.121(f)).

 The Agency agrees that further

study

is needed.

 (Agency Rec.

 at par.

 19.)

 In particular,

 the Agency

seeks

 to determine the

 best degree

 of treatment for

 arsenic

at

Allied’s facility.

(la.)

The

 Board

has

 recognized

 that

 some

 factual

 circumstances

prompt some flexibility regarding the compliance plan requirement.

(Anderson Clayton Foods v.

 IEPA,

 PCB 84—147

 (January 24,

 1985).)

The

 Board

 has granted

 a variance

in

 the absence of

a

 concrete

compliance plan where more information regarding new technology

needed to be gathered in order to recommend methods of compliance.

(u.)

 Similarly,

the

 Board

has

 found

 that

 research

 aimed

at

finding

a

 means

 of compliance may justify a

 short—term variance

(Mobil Oil

Co.

v.

 IEPA,

 PCB 84—37

 (September 20,

 1984).)

The Board

 concludes

 that,

 under

the

 instant circumstances

where

a

new

 permit

 condition

has

 been

 imposed

and

 where

no

demonstrated

 technology

 exists

for

 achieving

 compliance,

the

granting a short-term variance is justified.

 Allied has submitted

ample evidence of the unique nature of hexafluoroarsenate and the

lack of available data and literature on means

 of removing the

contaminant from wastewater.

 Moreover, the parties agree that it

105”10

5

is not reasonable to expect Allied to immediately comply with the

arsenic effluent limitation.

HARDSHIP

AND

ENVIRONMENTAL

IMPACT

Allied asserts that it will incur an arbitrary or unreasonable

hardship

 if it

 is required to immediately comply with the arsenic

effluent limitation

 (35 Ill.

 Adm.

 Code 304.124) at its EPF outfall

because

 Allied

 would

be

 required

to

 substantially

 curtail

or

possibly

 cease

its

 manufacturing

 activity

at

the

 Metropolis

facility.

 (Pet. at par.

 19.)

 Allied also notes that,

 if it ceases

operations,

 the community

 of Metropolis

and

the

 nuclear

 energy

industry would also suffer hardship.

(~.)

The Agency agrees that the facility’s fluorine process would

have to shut down in order to achieve immediate compliance with the

arsenic

 effluent

 limitation.

 (Agency

 Rec.

at

 par.

 21.)2

The

Agency states that,

 in the absence of a presently known treatment

technology

 to control

 the amount of

 arsenic discharged

 from the

facility, there is no alternative to compliance other than shutting

down the

 operation.

(~.)

 Therefore,

 the Agency

 agrees

 that

immediate

 compliance

 would

 impose

an

 arbitrary

 or unreasonable

hardship on Allied.

(~.)

According

to

 Allied,

the

 concentration

of

 arsenic

in

its

discharge to the Ohio River from its 002 outfall would consistently

fall below

0.25 mg/l as provided for in 35 Ill. Adm. Code 304.124.

(Pet. at par.

 9; presubmitted testimony of Larry Bruce at par.

 22.)

Because

of

 the very

 high

 level

of

 flow

of

the

 Ohio

 River

at

Metropolis, Allied asserts that allowing its discharge to continue

at current levels for the period of the variance will not result

in a violation of the Board’s arsenic water quality standards

(35

Ill.

 Adm.

 Code 302.2089).~

 In support of

 its assertion that the

requested variance would result in minimal adverse

 environmental

impact, Allied introduced the testimony of Dr. William E. Rinehart,

a toxicologist.

 Rinehart testified that hexafluoroarsenate does

 not exhibit the level of toxicity noted for other arsenic compounds

because the former ion is so stable that it is not converted by the

body to the more toxic oxygenated forms of arsenic.

 (Presubmitted

testimony at par.

 5~)4 Rinehart concluded that the presence of

2The Agency notes that Allied has appealed the NPDES permit

conditions and that Section 16(b)

 of the Administrative Procedure

Act stays the contested condition pending resolution of the appeal.

3Allied also notes that it would also be in compliance with

the Board’s proposed amendment to 302.208

 (see R88—2l).

4Dr.

 Howell

R.

 Clark,

 a chemist-consultant,

 testified

 as to

the unique stability of the hexafluoroarsenate ion.

 (Presubmitted

testimony at par.

 7(A).)

1q5-11

hexafluoroarsenate in Allied’s effluent should not be equated with

concerns over the presence

of

 other

 arsenic

 ions

 and that

the

presence

of

 hexafluoroarsenate

in

 the concentrations

 indicated

would not lead to an appreciable toxic hazard to the environment.

(~.

 at par.

 10.)

The Agency states in its Recommendation that the high dilution

ratio

 of Allied’s

 discharge

 to the Ohio River,

the

 short

 time

period

the

requested

variance

and

the

absence

any

public

water

 supply

 intakes

 until

40

 miles

 downstream

of

 Allied’s

Metropolis facility support the conclusion that the variance will

not

 result

in

any

 significant

 adverse

 environmental

 impact.

(Agency Rec.

 at par.

 16.)

Based upon

the

 foregoing,

 the Board

 finds that Allied

has

presented adequate proof that immediate compliance with the arsenic

effluent

 limitation

 would

 impose

an

 arbitrary

and

 unreasonable

hardship upon Allied and that granting the variance will not result

in any significant adverse environmental impact.

COMPLIANCE WITH

FEDERAL

LAW

The Agency states that there are no federal arsenic effluent

limitations governing Allied’s discharge

 and that the requested

variance may be granted consistent with federal law.

CONCLUSION

In view of the hardship demonstrated,

 as well as the minimal

environmental

 impact expected during the

 term of

 the requested

variance, the Board finds that adequate proof has been demonstrated

 that

 immediate

 compliance

 with

the

 arsenic

 effluent

 limitation

would

 impose

an

 arbitrary or unreasonable hardship upon Allied.

The

 Agency

 recommends

 that

 Allied

be

 granted

the

 requested

alternate variance from the arsenic effluent limitation

 (35 Ill.

Adm.

 Code 304.124)

 subject to certain conditions. The Agency does

not recommend that Allied be granted a variance from the dilution

rule

 (35 Ill. Adm. Code 304.102) because the information submitted

by Allied does not establish that Allied’s treatment works provides

the “best degree

of

 treatment”

 for meeting the arsenic effluent

standard.

 (See,

 35 Ill. Adni. Code 304.102(a).)

 Indeed,

 it appears

that data concerning the unique hexafluoroarsenate ion is scarce.

The Board agrees with the Agency

 and conclude that the variance

will

 be granted

 from

35

 Ill.

 Adm.

 Code

 304.124

 subject

to

the

conditions

 recommended

by

the

 Agency,

 including

 those

two

conditions subsequently

 amended,

 as outlined in the Order below.

We note that this variance

 is retroactive to June

22,

 1989,

the

date which the Board would have had to render its decision if their

had not been improper notice of hearing.

 Additionally, the Board

has extended the length of the variance an additional 120 days with

the requirement that Allied submit its engineering evaluation and

105-42

7

petition for extension of variance no later than 120 days prior to

the expiration of this variance.

This

 Opinion

 constitutes

the

 Board’s

 findings

of

 fact

and

conclusions of law

 in this matter.

ORDER

Allied

 Signal,

 Inc.

is

 hereby granted

 a variance

 from the

arsenic effluent limitation set forth at 35 Ill. Adm. Code 304.124

for its Metropolis

 facility subject to the following conditions:

1.

 This variance begins June 22,

 1989 and expires

February 17,

 1991;

2.

 Allied

 shall

 conduct

a

 comprehensive

engineering evaluation of the treatability of

arsenic from its facility including the effect

of process changes, improved housekeeping, and

waste

 component

 recovery

and

 reuse

 with

economic

 estimates

for

 each

 option.

 This

evaluation

 shall be due

 120 days before the

end of the variance granted herein;

3.

 Together

 with

the

 engineering

 evaluation,

Allied shall submit a

 petition to extend the

variance which includes a complete compliance

plan as required by Section 104.121(f);

4.

 Allied shall

 make interim quarterly progress

reports to the Agency during the term of this

variance;

These interim progress reports should be sent

to:

Illinois Environmental Protection Agency

Compliance Assurance Section

Division of Water Pollution Control

ATTN:

 Ms. Barb Conner

2200 Churchill Road

Springfield,

 IL 62794—9276

5.

 Allied shall conduct the following two-phase

bioassay test:

a.

As

a

 first

 phase,

 Allied

 shall

perform

a

96

 hour

 acute

 static

bioassay

on

 minnows

 with

 samples

that

 contain

 several

 concentration

levels

of

 potassium

hexafluoroarsenate.

 The purpose of

105-13

8

this

test

should

statistically

determine

the

LC5O

for

the

hexafluoroarsenate

ion.

the

LC5O

this

ion

greater

than

equal

times

higher

than

the

LCSO

for

pentavalent arsenic oxide

 as shown

in

the

 literature,

no

 further

chronic

bioaccumulation

testing

should

required.

the

LC5O

hexafluoroarsenate

less

than

 times higher than the

LC5O

pentavalent

arsenic

oxide

determined

under

(a)

above,

petitioner shall perform a Phase II

early

 life

 stage

(28

 days

 post—

hatch)

 bioassay

of

the

 chronic

toxicity

and

 bioaccumulations

potential

of

 hexafluoroarsenate.

The test

 should be performed

as

a

single,

 combined test

 of both

the

chronic and bioaccumulative effects

of

a

 prepared

 effluent

 sample

on

 minnows.

The

 prepared

 effluent

sample

 should

be

 made

up

of

concentrations

of

 potassium

hexafluoroarsenate

 and pentavalent

arsenic

 oxide

in

a

 ratio

 that

is

consistent

 with

the

 ratio

of

hexafluoroarsenate and conventional

arsenic forms

 in the effluent from

Allied’s

 final

 outfall

 002.

 These

samples

 should

 include

one

at

the

arsenic levels

 found

 in the actual

effluent

 from

 002,

and

at

5

 times

that level, and one at 10 times that

level.

6.

 During the variance period, Allied shall limit

its discharge

of

 arsenic

as

 measured by the

aggressive

 digestion

 protocol

at

its

EPF

outfall

to

8.1

 lbs/day

 monthly

 average

and

16.2

 lbs/day

 maximum

 daily

 average.

The

combined discharge shall not exceed 0.25 mg/l;

7.

 All other uncontested provisions of the NPDES

permit shall be followed,

 including reporting

of load and concentration units;

8.

 Allied must execute and send a certification

of acceptance within

45

 days of the date

of

this Order to the following address:

105.-IA

9

Illinois

Environmental

Protection

Agency

ATTN:

Pat

Lindsay

Division

Water

Pollution

Control

Compliance Assurance Section

2200 Churchill Road

P.O. Box 19276

Springfield,

 IL 62794—9276

IT IS SO ORDERED.

Section

41

of

the

 Illinois

 Environmental

 Protection

Act

provides for appeal of final orders of the Board within 35 days.

(Ill.

 Rev. Stat.

 1987,

ch.

 111 1/2,

 par.

 1041.)

 The Rules of the

Supreme Court of Illinois establish filing requirements.

I,

 Dorothy N.

 Gunn,

 Clerk of the Illinois Pollution

 Control

Board

 hereby’ certify th~ the above Opinion and Order was adopted

on the ~

 day of

 1989 by a vote of

~‘°

Dorothy M.Aunn,

 Clerk

Illinois Pollution Control Board

10515