ILLINOIS POLLUTION CONTROL BOARD
    July 27, 1989
    THE NUTRASWEET COMPANY AND
    CONSUMERS ILLINOIS WATER
    COMPANY,
    Petitioners,
    v.
    )
    PCB 88—84
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by J. Marlin):
    On June 20, 1989 NutraSweet Company (NutraSweet) and
    Consumers Illinois Water Company (CIWC) filed a motion requesting
    that the Board either clarify or modify its Order of December 15,
    1988. On July 25, 1989, the Illinois Environmental Protection
    Agency (Agency) filed a Response to that motion.
    In that Order, the Board granted CIWC a variance from
    Section 304.105, Violation of Water Quality Standards, as it
    applies to the total disolved (TDS) water quality standard
    prescribed by Section 302.208. The variance expires on December
    29, 1993. NutraSweet discharges to CIWC which is a privately
    owned treatment works. CIWC in turn discharges to waters of the
    State.
    In the variance request, disposed of by the December 15,
    1988 Order, NutraSweet requested variance from Section 304.105 as
    it applies to the TDS standard, if the Board found that Section
    304.105 applies to NutraSweet. However, neither NutraSweet nor
    the Agency took a position as to whether Section 304.105 would
    apply to NutraSweet’s discharge to CIWC. The Board found that
    Section 304.105 did not apply to NutraSweet since it discharged
    to a sewer tributary to a treatment works. The Board’s rationale
    was as follows:
    The petitioners and the Agency all take no
    position as to whether Section 304.105 is
    applicable to NutraSweet’s discharges to the CIWC
    sewer system.
    Section 304.105 provides in part:
    In addition to the other requirements of
    this Part, no effluent shall, alone or in
    combination with other sources cause a
    violation of any applicable water quality
    standard. (emphasis added)
    101—249
    2
    The term “effluent” is defined by Section 301.275
    as:
    Any wastewater discharged, directly or
    indirectly, to the waters of the State or to
    any storm sewer, and the runoff from land
    used for the disposition of wastewater of
    sludges, but does not otherwise include
    nonpoint source discharges such as runoff
    from land or any livestock management
    facility or livestock wastehandling facility
    subject to regulation under Subtitle E.
    (emphasis added)
    Although NutraSweet discharges to a sewer
    tributary to CIWC which in turn discharges to
    waters of the State, the Board does not believe
    that NutraSweet’s discharge to CIWC would fall
    under the prohibition of Section 304.105.
    Section 304.105 utilizes the term “source”. That
    term, though, is not defined under the Board’s
    water regulations.
    Yet, the definition of
    “effluent” includes any “wastewater discharged,
    directly or indirectly, to waters of the
    State”. The term “wastewater source” is defined
    by Section 301.430. That Section defines the
    term as:
    Any equipment, facility, or other source of
    any type whatsoever which discharges
    wastewater, directly or indirectly
    (~ç~pt
    throuch a sewer tr~
    aiy~_to
    a treatment
    work~,to
    eaters
    of the
    State.
    (emphasis added).
    Reading the above regulatory language together,
    the Board finds that NutraSweet would not be
    subject to Section 304.105 since it discharges to
    a sewer tributary to the treatment works of CIWC.
    NutraSweet, PCB 88—84, slip
    op. at 9 (December 15, 1988).
    In the instant motion NutraSweet and CIWC claim that
    amendments adopted by the Board in In re: Miscellaneous
    Amendments to 35 Iii. Adm. Code, Subtite C: Water Pol1ut~n,
    R88—l, (April 6, 1989), cast doubt on the Board’s decision rh~t
    Section 304.105 does not apply to NutraSweet. Specifical~’:,
    t~he
    amendments adopted under R88—1 (which became effective April 18,
    1989) altered the definition of Section 301.430, Wastewater
    Source, to delete the words “except through a sewer tributary to
    a treatment works”. That is, with this change, a plain reading
    101—250
    3
    of Section 301.430 suggests that sources which discharge to
    sewers are “wastewater sources”. Incorporating this modified
    definition of “wastewater source” into the Board’s rationale set
    forth in its December 15, 1988 decision could support a
    conclusion that Section 304.105 applies to sources which do not
    discharge directly to waters of the State but rather discharge to
    wastewater treatment works.
    In R88-l, the Board stated that it was altering Section
    301.430 “to provide consistency between Section 301.430 and the
    regulations of Parts 307 and 310”. Parts 307 and 310 set forth
    pretreatment requirements. The pretreatment requirements only
    apply to sources which discharge to publicly owned treatment
    works (POTW). Therefore, sources which discharge to privately
    owned treatment works, such as NutraSweet, are not subject to the
    pretreatment requirements.
    NutraSweet and CIWC contend that the pretreatment rationale
    shows that the Board’s amendment to Section 301.430 was never
    intended to have the effect of subjecting NutraSweet to Section
    304.105. If the Board agrees with that position, NutraSweet and
    CIWC request that the Board not alter the variance previously
    granted.
    However, if the Board finds that Section 304.105 is now
    applicable to NutraSweet, then the petitioners request that
    NutraSweet be granted a variance from Section 304.105.
    The petitioners file their motion pursuant to Section
    103.241(b) and (c) and assert that the “newly discovered
    evidence”, which is the basis for the motion, is the recent
    amendment to Section 301.430.
    In its Response, the Agency states that it “takes no
    position on the issue raised” by the petitioners’ motion.
    The R88—1 docket was opened by the Board in order to provide
    “a vehicle for making minor amendments to the Board’s rules and
    regulations”. In re: Miscellaneous Amendments to 35
    Ill.
    Adm.
    Code, Subtitle C: Water Pollution, R88—l, slip op. at 1 (April 6,
    1989). After considering the petitioners’ arguments, it appears
    that the amendment to Section 301.430 has had a greater
    substantive impact upon the regulatory scheme than previously
    anticipated.
    The language of the relevant regulatory passages is clear
    and unambiguous. A plain reading of those Sections, after the
    amendments of R88—l, indicate that NutraSweet is subject to
    Section 304.105. As a result, the Board will consider whether
    NutraSweet is entitled to a variance from Section 304.105 as
    it
    relates to the TDS water quality standard of Section 302.208.
    In its Opinion of December 15, 1988, the Board noted that
    the Agency stated that it was “not...likely that a significant
    101—251
    4
    environmental impact (would result” from granting a variance.
    The Board discussed the hardship which would be suffered by the
    petitioners if the variance request were denied:
    NutraSweet is considering significant process
    changes to its University Park plant. These
    changes, if made, would involve large capital
    investment (Am. Pet., p. 9) and will likely
    change the TDS concentration of NutraSweet’s
    discharge. The Agency points out in its
    Recommendation:
    hf the contemplated process changes
    are made, NutraSweet will no longer
    routinely produce various listed
    hazardous wastes. Other RCRA process
    wastes would be burned as fuel in a
    boiler which the Company would install
    on site to produce steam for process
    heating.
    These developments would
    eliminate the need for the hauling of
    most hazardous wastes from the
    facility. The Agency agrees that the
    reduction
    or
    elimination
    of
    transpor tat ion incidents involving
    hazardous materials is beneficial and
    desirable.
    (Ag. Rec., p. 12).
    Reducing the production and transportation of
    hazardous waste are commendable goals for any
    ~:i
    y
    ,
    a:~d ~u ~~Swce ~ub
    be
    encourocj~d
    to pursue process changes which would
    effectuate such goals.
    During the term of the previous variance
    NutraSweet has expended large sums in
    modifying its processes to improve the
    quality of its discharge. The Board notes
    that NutraSweet’s wastewater has improved to
    the extent that CIWC no longer needs a
    variance from Section 304.105 as it applies
    to chloride and sulfate. The remaining
    compliance problem now centers around TDS.
    Given the cost to achieve compliance through
    control techniques and the distinct
    possibility of a major process change which
    would alter NutraSweet’s discharge, the Board
    finds it reasonable to give NutraSweet
    additional time to seek site—specific
    relief. The additional time will allow
    101—2 52
    5
    NutraSweet to investigate further options for
    compliance which may involve treatment in
    addition to a degree of regulatory relief.
    Given the unique circumstances of this
    particular case, the Board finds that the
    petitioners would suffer an arbitrary or
    unreasonable hardship if a variance were
    denied.
    Id. at 9—10.
    Consequently, in its December 15th Opinion the Board found
    that NutraSweet, as well as CIWC, would suffer an arbitrary or
    unreasonable hardship if a variance were denied. However, the
    Board did not grant NutraSweet a variance from Section 304.105,
    because it found that that Section was not applicable to
    NutraSweet. Since the Board today has held that Section 304.105
    applies to NutraSweet, it will grant NutraSweet a variance.
    NutraSweet’s variance will expire on the same date as CIWC’s
    variance. However, the variance period for NutraSweet will begin
    on April 18, 1989, the effective date of the R88—l amendments.
    Today’s Order simply amends the Order of December 15,
    1988. NutraSweet’s variance is subject to the terms and
    conditions of the variance as set forth in the December 15th
    Order.
    This Supplemental Opinion and the Opinion of December 15,
    1988 constitute the Board’s findings of fact and conclusions of
    law in this matter.
    ORDER
    The Board hereby amends its Order dated December 15, 1988 to
    add the following provisions:
    The NutraSweet Company (NutraSweet) is hereby
    granted variance from 35 Ill. Adm. Code 304.105 as
    it applies to the standard for total dissolved
    solids imposed by 35 Ill. Adm. Code 302.208 for
    NutraSweet’s discharge to Consumers Illinois Water
    Company’s (CIWC) sewer system. This variance
    shall begin on April 18, 1989 and expire on
    December 29, 1993 or when NutraSweet achieves
    compliance, whichever occurs first. The variance
    is subject to conditions imposed by the Board’s
    Order of December 15, 1988 and by this Order,
    dated July 27, 1989.
    Within 45 days after the date of this Order, dated
    July 27, 1989, NutraSweet and CIWC shall execute
    and send to the Agency a Certificate of Acceptance
    by which it agrees to be bound by the terms and
    101—2 53
    6
    conditions of the variance as set forth in the
    Board’s Orders of December 15, 1988 and as amended
    by this Order, dated July 27, 1989. The executed
    Certificate shall be sent to:
    Illinois Environmental Protection Agency
    Attention:
    Jose Gonzalez
    Enforcement Programs
    2200 Churchill Road
    P.O. Box 19276
    Springfield,
    IL 62794—9276
    The 45—day period shall be held in abeyance for
    any period during
    which this matter is appealed.
    Failure to execute and forward the Certificate
    within 45 days renders this Variance void and of
    no force and effect.
    The form of the
    certification shall be as follows:
    CERTIFICATION
    I, (We) ____________________________
    ,
    having read
    the Orders of the Illinois Pollution Control Board
    in PCB 88—84, dated December 15, 1988 and July 27,
    1989, understand and accept the Orders, realizing
    that such acceptance renders all terms and
    conditions thereto binding and enforceable.
    The NutraSweet Company
    Consumers Illinois Water
    Company
    ~uLIor~ze~i
    ~
    TL~c~:
    Title
    Title
    Date
    Date
    Section 41 of the Environmental Protection Act, Ill. Rev.
    Stat. 1987 ch. 111 ~ par. 1041, provides for appeal of final
    Orders of the Board within 35 days. The Rules of the Supreme
    Court of Illinois establish filing requirements.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois
    Pollution Control
    Board, hereby certify that the above Supplemei~ta1 Opinion and
    Order was adopted on the
    ?7~7~-
    day of
    _______________
    1989,
    by a vote of
    -
    0
    .
    /
    101—254
    7
    Dorothy M. ~inn,
    Clerk
    Illinois Pdilution Control Board
    101—2 55

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