ILLINOIS POLLUTION CONTROL BOARD
September 8, 1988
VILLAGE OF SAtJGET,
Petitioner,
v.
)
PCB 88—18
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
RICHARD J. KISSEL, SUSAN M. FRANZETTI, AND LEE R. CUNNINGHAM
APPEARED ON BEHALF OF THE PETITIONER.
RICHARD WARRINGTON APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by 3. Marlin):
This matter comes before the Board on a Petition for
Variance filed by the Village of Sauget (Sauget) on January 19,
1988. Sauget requests variance from several effluent standards
which apply to the discharge from the American Bottoms Regional
Treatment Facility (ABRTF). ABRTF is a publicly owned treatment
works (POTW) that is owned and operated by Sauget. An objection
to Sauget’s petition was filed on February 11, 1988.
On March 10, 1988 the Board granted a motion by the Illinois
Environmental Protection Agency (Agency) to file its
Recommendation instanter. In its Recommendation, the Agency
requested that the Board deny Sauget a variance.
Hearing was held in this matter on June 14, 1988 in Sauget;
members of the public were present. Two members of the public as
well as State Representative Wyvetter Younge testified in
opposition to the variance request. At hearing, Sauget modified
its variance request. First, Sauget narrowed its request for
relief as to the number of effluent parameters. Presently Sauget
requests relief from the following effluent standards:
biochemical oxygen demand (BODç) and suspended solids (SS)
standards imposed by 35 Ill. k~m.Code 304.120; pH standards
imposed by 35 Ill. Adm. Code 304.125; iron, zinc, and phenol
standards imposed by 35 Ill Adm. Code 304.124; and the color
standard imposed by 35 Ill. Adm. Code 304.106. Sauget states
that it would accept interim limitations for BODç and SS, during
the variance period, of 30 milligrams per liter ~(rng/l)monthly
average and 45 mg/l weekly average. Also, Sauget would accept pH
range limits of 6 to 9. (Pet., p.4)
Secondly, at hearing Sauget requested a four year
variance. In its Petition Sauget had only requested a one year
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variance to allow Sauget to investigate compliance
alternatives. Once it selected an alternative, Sauget would then
petition the Board for a variance extension to implement that
alternative. In its four—year request, the four year period will
be expended by Sauget’s investigating, selecting, and
implementing a compliance alternative. However, in its July 18,
1988 Brief, Sauget states that a one year variance as
contemplated by the Petition would be acceptable. (Sauget
Response Brief, p.8)
By its Order of June 30, 1988, the Board allowed the Agency
to supplement its Recommendation with further effluent data and a
U.S. EPA report on the toxicity of ABRTF’s effluent. Pursuant to
the June 30th Order, Sauget filed comments upon these items along
with its post—hearing brief on July 11, 1988.
Motions
On July 18, 1988, Sauget filed a Motion for Leave to
Supplement its July 11th Response to the Agency’s Recommendation
Supplement which was accepted by the Board’s June 30th Order.
Specifically, Sauget seeks to supplement its Response with a
letter received by Sauget from its engineering consultants, 1PM—
North Central. The letter written by Clement Vath and Elsie
Millard comments upon the USEPA’s toxicity report contained in
the Agency’s Recommendation Supplement. On July 25, 1988 Clement
Vath filed an affidavit attesting to the accuracy of the facts
contained in the ERM letter. The Board grants Sauget’s motions
and accepts the letter as a supplement to Sauget’s July 11th
Response. As similarly noted in the Board’s June 30th Order
concerning the Agency’s Supplement, Sauget’s Supplement has been
accepted without the opportunity for the Agency to cross—examine
the authors of the ERM letter concerning the letter’s contents.
Accordingly, the Board has given Sauget’s Supplement the proper
weight in its deliberations.
On July 11, 1988, the Agency filed a “Brief and
Recommendation”. The Board construes the Agency filing as a
post—hearing brief filed pursuant to the Hearing Officer’s Order.
(R. 177)
Attached to the July 11th Agency brief are two letters. In
its brief, the Agency explains that it had moved for admission of
these two letters at hearing but that the Hearing Officer
excluded the letters. The letters, one from the Agency to the
U.S. EPA and one from the U.S. EPA to Sauget, dated May 6, 1988
and May 11, 1988 respectively, purport to comment upon the
specifics of Sauget’s compliance plan. Sauget’s compliance plan
was admitted at hearing as Petitioner’s Exhibit #7. CR. 95) The
Agency states that “its opinion as well as that of US EPA is
necessary to the Compliance Plan
. . .
and would have been submitted
in its the Agency’s) original Recommendation if the original
Petition had been complete with a Compliance Plan”
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3
On July 18th, Sauget also filed a Motion to Strike the two
letters attached to the Agency’s July 11th brief. Sauget objects
to the letters on several grounds. Sauget states that the Agency
could have, but did not, appeal to the Board the Hearing
Officer’s ruling to exclude the letters. As Sauget points out,
the Hearing Officer allowed the Agency to make an offer of proof
concerning the letters at hearing. The Agency made no such
offer. (R. 139) Instead, the Agency claimed that it could
submit the letters as a part of another amended recommendation,
apart from the Agency Recommendation Supplement admitted by the
Board’s June 30th Order. (R. 140)
Sauget asserts that the Agency should not be allowed to
amend its Recommendation, subsequent to the hearing. Citing
Section 104.180, Sauget claims that the procedural rules do not
even comtemplate post—hearing Recommendations.
Sauget also states that to the extent the Agency’s July 11th
filing is a post—hearing brief (rather than Recommendation), the
letters should still be stricken because they constitute new
information being entered into the record at a point when the
parties may only argue from evidence already in the record.
On this issue, the Board generally agrees with Sauget. As
stated by the Board’s June 30th Order, the intent behind Board
procedure is to provide for the filing of the Agency’s
Recommendation prior to the hearing process. Any information
supplied by the Agency in its Recommendation can then be further
explored at hearing. Consequently, the Board does not view the
Agency’s July 11th filing as an amended Recommendation; rather,
as stated before the Agency’s July 11th filing is construed as a
post—hearing brief.
Post—hearing briefs are to argue from facts previously
admitted into the record. It is the general rule that post—
hearing briefs may not introduce new evidence. By attaching the
two letters to its brief the Agency is seeking to present-new
information to the Board without utilizing the appropriate
procedures.
If the Agency desired the admission of the two letters, it
could have made an offer of proof at hearing and appealed the
Hearing Officer’s ruling which denied admission of the two
letters. However, the Agency did not take that tack. Instead,
the Agency attempted to circumvent the Hearing Officer’s Order by
attaching the letters to its brief. If the Board allowed
evidence to be entered by such a method, the Board would be
undercutting the role of the Hearing Officer. It is the Hearing
Officer’s function to build a record for the Board’s review. If
any party has a problem with the way the Hearing Officer
accomplishes that task, then that party can appeal directly to
the Board to reverse the Hearing Officer. Deviation from this
orderly process would only result in a chaotic and unfair
system.
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4
Sauget’s Motion to Strike is granted to the extent that the
Board has not considered the two letters attached to the Agency’s
brief.
After addressing the attachments to the Agency’s July 11th
brief, as a matter of fairness, the Board can not ignore the
attachment to Sauget’s July 11th brief. Attached to Sauget’s
brief is a copy of a two page policy paper signed by William D.
Ruckelshaus dated January 2, 1984. Sauget uses this attachment
to argue that it may be granted variance past July 1, 1988, the
deadline pursuant to Section 301(i) of the Federal Clean Water
Act, because its situation constitutes an extraordinary
circumstance pursuant to U.S. EPA policy. This document was not
previously introduced into the record. Consequently, it is new
information that Sauget is attempting to introduce in an
attachment to its brief.
While parties can certainly cite legal authorities in
briefs, a U.S. EPA policy paper is not the type of authority
which may be presented for the first time in a brief. Unlike
statutes, regulations, and reported cases, the Board has no
readiliy available method, consistent with ex parte
considerations, for determining the viability of such a policy
paper. Consequently, such a source should have been introduced
prior to the briefing stage. This would have allowed closer
examination and evaluation of the source by the Board or other
persons on the record. A need for such scrutiny becomes even
more obvious when one considers that the policy paper is over
four years old and was issued by a person who is not the current
U.S. EPA Administrator.
Therefore, as the Board has not considered the two
attachments to the Agency’s brief, the Board has similarly not
considered the attachment to Sauget’s brief. Sauget stated in
its Motion to Strike the Agency’s attachments that a brief
“should not contain new evidence or information not before the
Board.” The Board agrees, and out of fairness, that maxim should
apply to Sauget as well as the Agency.
At hearing, Sauget moved to incorporate by reference a
number of previous Board cases concerning the wastewater
treatment plants which predated ABRTF. Sauget requested that the
records of those cases be a part of this proceeding. The Agency
did not object. The Hearing Officer, after noting that many of
the physical documents which make up the records of those
previous cases may not be available, granted Sauget’s motion (R.
6—8, 132)
The Board may incorporate parts of a record from a previous
case into the record of current case when the Board is presented
with a copy of the material to be incorporated. Generally,
though, the Board will not incorporate, merely by reference,
parts of a previous record. The Board does allow the
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5
incorporation by reference of previous Board Opinions and
Orders. However, formal incorporation by reference of Opinions
and Orders is not always necessary because the Board may, on its
own, turn to its previous decisions as it evaluates Board
precedent. Consequently, the Board affirms the Hearing Officer
only in so far as the Board allows the incorporation by reference
of previous Opinions and Orders. Specifica1ly~ as requested by
Sauget, relevant previous cases are PCB 71—287k, PCB 72-396, PCB
72—407, PCB 77—136, PCB 79—87, PCB 79—88, PCB 80—67, and P76—
21. However, the information contained in these opinions and
orders was not determinative of the Board’s decision today.
On August 17, 1988, the Agency filed a Motion for Leave to
File Instanter a Supplemental Brief. In that motion, the Agency
states that it had not received Sauget’s. initial brief in time to
allow the filing of a response brief in accordance with the
Hearing Officer’s briefing schedule. Evidently, the Agency’s
“Closing Argument” filed on July 18, 1988 was not in response to
Sauget’s July 11th brief. Sauget has not filed a response to the
motion.
The Board notes that the Agency filed its motion on August
17, 1988. The motion states that Sauget had waived its decision
deadline until August 18, 1988. Subsequent to the drafting of
the motion, Sauget extended the decision deadline until September
8, 1988. However, if Sauget had not extended the decision date,
the Board would have had little time to consider the Agency’s
Supplemental Brief before rendering a decision. The Agency’s
motion does not state when the Agency did receive Sauget’s July
11th brief. Consequently, the Board does not know how reasonable
it would have been for the Agency to file its Supplemental Brief
before August 17, 1988. Such last—minute filings do not enhance
the decision making process and should be discouraged. A more
appropriate course of action would have been for the Agency to
ask the Board for leave to file a late brief at the time the
Agency discovered that it would not be able tocomply withy the
Hearing Officer’s briefing schedule. This would have given the
Board earlier notice that an additional brief was to be filed.
Notwithstanding these concerns, the Board grants the Agency’s
mo t ion.
1 The hearing transcript lists PCB 1—287; however, this is a
typographical error since no such case number exists. Also, at
hearing Sauget requested that PCB 79—80 be incorporated. (R. 132)
The Board notes that that case concerns the City of Spring
Valley, not Sauget.
92—71
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Background Information
In its Petition, Sauget describes ABRTF as follows:
ABRTF is a regional wastewater treatment
plant located at #1 American Bottoms Road in
Sauget, Illinois, on the east bank of the
Mississippi River in St. Clair County. ABRTF
was designed to provide primary and secondary
treatment to the untreated flows from the
City of East St. Louis, the Village of
Cahokia, and the Commonfields of Cahokia
Public Water District, and secondary
treatment to Sauget’s flows. The communities
which discharge into this new regional system
contain several major industrial facilities
that are now being served by ABRTF.
Two of the three pre—existing POTWs in
treatment region (East St. Louis and Metro
East) have been closed and have been replaced
by ABRTF. The third, Sauget’s own physical—
chemical wastewater treatment plant (P/C
plant), still provides primary treatment and
metal removal for Sauget’s wastes which then
receive further secondary treatment at the
ABRTF. The P/C plant is located on Mobile
Avenue between Illinois Route 3 and the
Mississippi River levee, in Sauget, Illinois.
The ABRTF treatment consists of grit removal,
trash skimming and clarifiers to perform
primary treatment on non—Sauget effluent and
an activated sludge unit to perform secondary
treatment on all effluent. The activated
sludge unit consists of both a biological
treatment system, which remains operational,
and the use of Zimpro’s proprietary WAR/PACT
process involving the addition of activated
carbon to the sludge and its subsequent
recovery and regeneration, which is not
presently operational and is being
bypassed. The design maximum flow is 52
MGD.
“PAC” stands for “powdered activated carbon”
and “PACT” stands for “powdered activated
carbon treatment.”
“WAR” stands for “wet air regeneration.”
Implicit in the Zimpro process as designed
for ABRTF is the capability of cleansing and
then reusing carbon.
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(Pet. p.5—6.5O)
The ABRTF discharges its effluent to the Mississippi
River. There are two separate outfalls through which ABRTF is
able to discharge. However, outfall 002 is the primary one
designated in the Natural Pollutant Discharge Elimination System
(NPDES) permit for ABRTF.
Sauget’s Petition also describes the history behind the
construction of ABRTF.
Beginning in the early 1970’s, regional
planning agencies in the East St. Louis
metropolitan
area
recommended
the
construction of a regional treatment plant to
replace a number of site—specific POTWs. In
1977 certain units of local government (being
Sauget, East St. Louis, Cahokia and the
Commonfields of Cahokia Public Water
District, each of which owned and operated a
sewer system within its own corporate
boundaries) executed the American Bottoms
Regional Wastewater Treatment Agreement.
Under the provisions of that Agreement,
Sauget was designated the “lead agency” to
retain an engineer; to design, construct and
operate a new regional plant; and to provide
the funding therefor. This Agreement had
been preceeded by treatability and other
engineering studies which were subsequently
confirmed as part of the new regional
engineer’s duties.
The consulting firm of Russell and Axon
performed treatability and pilot plant
studies and investigated pumping and
treatment alternatives. In February 1980, it
issued a design report recommending that the
regional treatment plant consist of 1) grit
moval; 2) primary clarification; 3) powdered
activated carbon/activated sludge treatment;
4) secondary clarification; and 5)
disinfection.
Primary sludge would be
gravity thickened, conditioned with lime and
ferric chloride, dewatered and ultimately
landfilled. Secondary sludge, consisting of
a mixture of biomass and carbon, would be
gravity thickened prior to undergoing wet air
regeneration.
The wet air process was
designed to reduce the biomass to an ash and
the carbon would be reactivated and returned
to the process. This process was ultimately
selected after approval by IEPA.
Sauget issued $42 million of its own revenue
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bonds in December, 1982 to design and
construct ABRTF and to establish certain
financial reserves.
Construction began
shortly thereafter and was substantially
completed in July of 1986.
(Pet. p.lO—ll; R.50)
Also in July of 1986, Sauget was informed by Zimpro, the
manufacturers of the PACT/WAR system, that the wet air
regeneration process would likely not be able to reclaim the
carbon as effectively as what was previously estimated.
According to George Schillinger, ABRTF’s plant manager and a
Sauget witness, such operation of the PACT/WAR process would
cause “an unacceptable buildup of ash in the treatment system” as
well as “deteriorating effluent quality and excessive wastage of
carbon, thereby greatly increasing the operating costs of the
treatment system”. As a result of these concerns, “the Zirnpro
system was...mothballed while a solution to that problem was
sought.” (R. 54—55)
Meanwhile, by the end of 1986, ABRTF was providing primary
and conventional secondary treatment for the flows from East St.
Louis, Cahokia, and the Commonfields of Cahokia. ABRTF was not
yet accepting any flow from the Sauget P/C plant. (R. 54—55)
Schillinger further recounted efforts to solve the PACT/WAR
problem:
Beginning in January of 1987, plant personnel
worked with Zimpro and the Federal and State
Environmental Agencies on a pilot plant study
of a differential sedimentation and
elutriation system, or DSE system, to remove
the ash while regenerating the carbon.
Based on the results of that study as
reported in July of 1987, Zimpro concluded
that the DSE system was an effective and
workable solution.
Sauget did not and does not agree. The test
data demonstrates that even with the DSE
system, the PACT/WAR process will not be able
to operate at even double the design rate for
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aAt virginthe
samecarbontime,addition.the DSE2 system would be a
major new capital cost, and greatly raise the
operation and maintenance costs for the
American Bottoms Plant.
On June 24, 1987, the U.S. EPA, Region V, issued Finding of
Violation and Compliance Order against Sauget concerning the
operation of ABRTF. As a part of its Findings, the U.S. EPA
concluded: “Information available to U.S. EPA indicated that the
startup and effective functioning of the ABRTF’s ZIMPRO PACT ~
WAR and sludge handling processes are required if ABRTF is to
achieve compliance with the FELS final effluent limitations
contained in its ABRTF permit.” In addition, U.S. EPA held:
“Information available to U.S. EPA indicates that implementation
of a Pretreatment Program is also required if the ABRTF is to
achieve compliance with the FELS in its permit.” (Pet. Exh. #1,
p. 7—8)
As a result of these findings, the U.S. EPA ordered Sauget
to
1) initiate startup of the PACT/WAR and ash
separation processes, at ABRTF
2) begin diversion of the P/C plant
effluent to ABRTF
3) to submit an approveable pretreatment
program and implement the program once
it is approved.
(Pet. Exh.#6, p.16, 18—
19)
By the end of October, 1987 Sauget began using the PACT/WAR
system. On November 4, 1987, Sauget began treating the
P/c Plant
effluent. (R. 56) On December 2, 1987 a fire or explosion
occurred in one of the six heat exchangers, which rendered one of
the two WAR units inoperable. There is controversy between
Sauget’s insurance carriers as to whether the December 2nd
incident was a fire or explosion; the Board will refer to it as
an accident.
2Even if the PAC/WAR system were to function as designed, a
certain amoutn (2377 pounds/per day) of new, “virgin”, carbon
would have to be added to the system despite the regeneration of
the already used carbon. That is, the system is not designed as
a completely closed 1oop. (R. 78).
9 2—75
10
Schillinger stated at hearing that the accident in the one
WAR unit raised “a significant question as to the safety of
operation of the other WAR unit.” He also explained how ABRTF
was run subsequent to the accident.
All components of the Zimpro process were
shut down. Several other steps were then
taken to optimize the treatment capabilities
of the conventional secondary treatment
portion of the plant which was still
operational.
This included utilization of two aeration
basins which had not previously been in
service, reducing the return sludge flows,
and increasing the mean cell residence time,
or MCRT, all of which enhanced the treatment
capabilities of the plant.
We also went to a high wasting rate of carbon
and ash to clear those materials from the
system, and were able to return to relatively
stable operation of the plant as a
conventional primary and secondary treatment
plant.
(R. 57)
In addition, Sauget began to add polymers to the settling
basins to help improve the effluent quality with respect to SS.
(R. 58)
The Agency has suggested that Sauget could continue to add
virgin carbon to the treatment system because only the WAR
portion of the Zimpro process has been rendered unusable due to
the accident. Since the WAR process would notbe available to
recover the added carbon, any carbon added would be removed for
disposal with the secondary sludge. (Ag. Rec., p.3)
In response, Schillinger states that neither the Agency, the
U.S. EPA, nor Sauget know how much carbon would be required to be
added. According to Schillinger, ABRTF was designed to receive
2377 pounds of virgin carbon per day. The WAR system was to
regenerate, or reclaim, 34,299 pounds per day. If Sauget were
required to add carbon on a daily basis equivalent to the
designed daily regenerated amount plus the designated daily
virgin amount, Schillinger asserts that such a task would be cost
prohibitive even assuming that that amount of carbon was
available. Schillinger testified that its regular carbon
Supplier could only provide, on a regular basis, one fifth of
that amount of carbon. If Sauget utilized 40,000 pounds of
carbon per day, Schillinger estimated Sauget would spend
approximately $6 million per year to purchase the carbon. (R.
79).
92—76
11
Arbitrary or Unreasonable Hardship
Sauget centers its Variance request around the December 2,
1987 accident. Sauget’s July 11th Brief states:
Sauget, as lead agency for the design,
construction and operation of the AB Plant,
proceeded in good faith to build a plant that
was represented to meet all then—applicable
effluent standards. Little less than one
month after the plant became fully
operational, a fire and/or explosion occurred
which rendered an integral portion of the
plant inoperable.
* **
Sauget is requesting this Board to grant it a
variance so that it will not be subject to
enforcement while it studies the cause of the
fire and/or explosion and carries out an
appropriate plan for achieving compliance
with the applicable effluent standards.
Sauget believes it is entitled to protection
from enforcement for violations of the
effluent standards applicable to the AB
American Bottoms Plant since it has made a
good faith effort to build a plant to achieve
such compliance, it has taken all reasonable
steps to operate the plant in the most
effective manner possible despite the
explosion and/or fire, the plant has been
producing a good effluent which should have
minimal adverse environmental impact, and
Sauget is committed to achieving consistent
and long—term compliance.
(Sauget Brief, p.1—3)
Sauget reiterated its claim of hardship in its July 18th
Brief
Now, due to an unforeseeable explosion and/or
fire and the apparent inability of the plant
to fully function as intended, Sauget faces
an enforcement action filed by U.S. EPA
seeking millions of dollars in penalties.
Furthermore, it faces these penalties despite
the fact that, since the fire and/or
92—7 7
12
explosion, it has taken all reasonable
actions to operate the AB Plant in the most
effective manner possible.
The residents, the remaining industries, and
the politicians of this regional area have
acted in good faith and should not be further
penalized for the explosion and/or fire of
the new Zimpro system (which Zimpro designed,
built and supervised the operation of at the
time of the incident), nor the current
inability of the plant to function as
originally designed.
(Sauget Response Brief,
p. 5—6)
However, an interesting insight is gained when one views
treatment
capabilities of the PACT/WAR process in the context of
the contaminants which are the subject of Sauget’s variance
request. Sauget at hearing modified its request to include
variance only from state standards for BOD, TSS, pH, iron, zinc,
phenols, and color instead of “all of the effluent standards
applicable.” (R.
9). Each of these will be discussed separately
below.
The possible onset of nitrification at the ABRTF has a
bearing on several parameters. The plant’s influent is high in
ammonia nitrogen which is oxidized to nitrates by bacteria when
nitrification occurs. The plant was beginning to show signs of
nitrification in May and the process was expected to increase
during the summer. (R. 70). According to Sauget’s consultant,
the use of the PACT/WAR process would “actually promote the
conditions which favor the onset of nitrification” (R. 98). He
also said that ni.trification can occur in the absence of PACT and
the “PACT/WAR system is not the answer to the nitrification
problem, and some other solution must be found.” (R. 99 and 100).
The effluent data presented in the record shows that the
plant is complying with the BOD standard. Sauget’s consultant
pointed out that most BOD removal occurs as a result of the
biotreatment process, but that the presence of carbon helps
remove additional compounds not amenable to biodegradation. The
absence of carbon should result in lower BOD removal
efficiencies, but the operating conditions for the activated
sludge process can be adjusted to offset some of this loss in
efficiency (R. 101, 102). Under certain circumstances, BOD could
increase if nitrjficatj.on becomes established (P. 70, 97 and
100). The Agency takes the position that:
There are no unexplained violations of the
BOD5 or TSS monthly standard and hence no
need for a variance. The plant is apparently
capable of meeting the Board limits for
9 2—78
13
deoxygenating wastes without carbon
addition. Any significant influent variation
(slug loads) should be controlled through
enforcement by Petitioner under Section
3.2.1.1 of Petitioner’s Pretreatment
Ordinance....
(Supplement to Ag. Rec., p.2)
It is apparent
that the ability of the ABRT to meet the BOD
standard is not dependent upon the PACT/WAR system.
The Agency position regarding suspended solids is identical
to its position on BOD. The Sauget consultant believes that TSS
will increase if nitrification occurs (P. 97). He also said:
The absence of the operation of the PACT
system should actually improve effluent
suspended solids over what probably would
have resulted had the PACT system continued
to operate. Thus, once again, PACT is not
the answer to this problem. (R. 103).
It is apparent that the ability of the ABRTF to meet the TSS
standard is not dependent upon the PACT/WAR system. In fact the
system, if operating, is expected to encourage nitrification and
increase the amount of TSS in the effluent.
Like TSS and BOD, the standard for pH was met before and
after the accident (Supplement to Ag. Rec., p.4; Pet.Exh.#4 & 5)
The level of pH can be lowered by nitrification to the point
where a violation may occur (R. 71, 97, and 99).
It is apparent that the ability of the ABRTF to meet the pH
standard is not dependent upon the PACT/WAR system. In fact, the
system, if operating, is expected to encourage nitrification
and
increase the likelihood of an excursion.
The iron and zinc standards were occasionally exceeded both
before and after the accident. According to Sauget’s consultant,
the PACT process would likely increase the metals concentration
of the effluent.
As a consequence, if the PACT process were operating, it is
highly likely that, as has been experienced elsewhere, the
absorbed metals present on the ash which carry over into the
effluent, could cause increased effluent metals concentrations
due to suspended metals. (R. 104).
It is apparent that the ability of the ABRTF to meet the
iron and zinc standards is not dependent upon the operation of
the PACT/WAR system. In fact, the system would probably
contribute to excursions.
92—79
14
The phenol standard was occasionally violated before and
apparently after the accident. (Supplement to Ag. Rec., p.4; P.
64 and 65; Pet.Exh.#4 & 5). A laboratory testing problem led to
high phenol results. During the months since the explosion, the
phenol standard was met, except for four excursions in May (P.
63—64). The exact nature of the phenols has not been determined
(P. 106). According to Sauget:
The term “phenols” encompasses a wide variety
of compounds, some of which are susceptible
to conventional secondary treatment, and some
of which are not.
It appears that what we are seeing is an
influent
containing
non—biodegradable
phenolic compounds which are, therefore,
simply passing through our system, and which
we cannot treat under present operating
conditions.
However, these are precisely the sorts of
compounds for which the PACT/WAR process
would have provided effective treatment.
The American Bottoms Plant’s Pretreatment
Coordinator has been directed to investigate
what has caused the change in the effluent.
(P. 69)
While the operation of the PACT/WAR system should lower the
phenol level of the effluent, the plant met the standard for
several months after the explosion. The system does not appear
to be the determining factor for this parameter.
Sauget testified that “color has been, and continues to be,
a problem.” The cause of the color and its source are not known,
but it is in the effluent from the P/C Plant. The color becomes
indiscernible five feet from where the effluent from the ABRTF
enters the Mississippi River. The PACT/WAR process “did
significantly reduce the degree of color” according to Sauget (R.
71—72, 105—106). Sauget believes the color standard is
ambiguous. The Sauget plant manager stated that, “We are asking
for a variance as prudent and cautious managers that our waste
would be exempt from that particular regulation.” The record
does indicate that the PACT/WAR system would help reduce the
color.
In short, it does not appear the accident and shutdown of
the PACT/WAR system is the determining factor for Sauget’s
claimed non—compliance for most parameters. Testimony by Clement
A. Vath, an engineering consultant and Sauget witness, bears out
this conclusion.
92—80
15
From this discussion, it should be clear that
the impact of the failure of the PACT/WAR
system and its subsequent shutdown decreases
the likelihood of excursions for some
constituents of concern, has little effect on
others, and may actually increase the
likelihood of excursions for the remainder.
In turn, it should be clear that while some
of the present concerns have been brought on
by the failure of the PACT/WAR system, even
if it were possible to successfully
recommission that system, it would not ensure
consistent
compliance
with
applicable
effluent standards.
***
Many factors have likely changed, and Sauget
has become aware of many problems inherent to
the PACT/WAR process since the early 1980’s
when PACT/WAR was selected for treating the
American Bottoms Plant’s wastewaters.
There have been reductions in wastewater
contributors and corresponding flows and
loads from those existing at the time of the
PACT/WAR process selection.
Plant flows are approximately two—thirds, and
loads are approximately one—third to one—half
of their design values.
The wastewater treatability characteristics
have likely changed as well. These changes
call for a re—examination of the premise upon
which the original engineering decisions were
made, especially since the cost of
recommissioning the PACT/WAR process may be
quite high due to the explosion and/or fire,
and the likelihood that significant changes
in design and materials may have to be made.
The Village of Sauget has also learned much
about shortcomings in the PACT/WAR system
over the intervening eight years.
***
Demonstrated reliable and economically
reasonable solutions to these problems need
to be developed before the PACT/WAR process
92—8 1
16
can be considered safe, effective, and
reliable to operate.
Even then, other changes to the American
Bottoms Plant would have to be made to
achieve consistent compliance.
While the PACT/WAR process would provide some
treatment for some of the constituents of
concern, it does not adequately deal with the
metals, ammonia, and total suspended solids
effluent quality concerns, and, in fact,
could exacerbate those concerns.
CR. 107—110)
It appears then that if Sauget is indeed having problems
complying with effluent standards it is due to an inadequate
design of ABRTF and is not merely the result of the accident and
shut—down of the PACT/WAR process. This becomes even more clear
when reviewing Vath’s testimony concerning Sauget’s proposed
compliance plan.
Alternative approaches need to be
considered. Given the December explosion
and/or fire, the resultant likelihood of
significant new capital and operating and
maintenance costs to remedy the PACT/WAR
system, and the near certainty that even if
this is an economically reasonable and
technically feasible remedy to that system,
such remedy would still not result in
consistent compliance with standards, it
would be foolhardy not to re—examine the
options available to effectively deal with
all the pollutants of concern.
***
For these and other resons, I developed for
Sauget a Compliance Plan which includes and
looks beyond the PACT/WAR process.
It is my firm belief that, for the reasons
previously stated, as well as others
identified through an expensive and painful
learning process, other alternative
approaches in addition to PACT/WAR need to be
reconsidered before further investment is
made in the existing facilities.
The Village of Sauget’s Compliance Plan does
just
that,
in
that
it
will
allow
for
reconsideration
of
the
required
92—82
17
modifications, and upgrades necessary to
successfully reinitiate the PACT/WAR process
operations, while examining other physical,
chemical, and biological pre and post—
treatment options, and treatment process
modifications.
(R. 110—111)
Agency Position
The Agency recommends denial of the variance request. The
Agency asserts that a variance is not needed because Sauget is in
compliance for the majority of the parameters at issue. (Ag.
Brief, p.5) The Agency claims that only exceptions to compliance
concern the parameters color and phenol. (Ag. Brief, p.2)
Also, the Agency states that Sauget has not shown that no
environmental harm will result if Sauget if granted a variance.
According to the Agency, the potential environmental impact can
only be assessed after studies which define the mixing zone and
evaluate the toxicity of Sauget’s discharge are completed. (Ag.
Brief, p.2)
Clement Vath, a Sauget witness, did admit he has not yet
conducted a precise and detailed assessment of the impact of
ABRTF’s discharge upon the Mississippi. However, he does
maintain that the quantitative impact would be insignificant.
(R. 114—115)
The Agency also asserts that the Board may not grant a
variance as a matter of law. Apparently, it is the Agency’s
position that Section 301 (i) of the Clean Water Act (33
U.S.C.l3ll (i)) prohibits a variance which allows non—compliance
with effluent standard for a POTW beyond July 1, 1988. Sauget
argues that a variance would be consistent with federal law.
This issue is extensively addressed in Saugets June 11th 8rief.
The Agency’s legal argument is found in its Recommendation and
Supplemental Brief. The Agency Recommendation states:
Petitioner has indicated its ability to
meet the specific federal limits for
secondary treatment (i.e., 40 CFR 133.102 for
BOD, TSS and pH) but apparently believes that
the July 1, 1988 deadline is limited to these
conventional pollutants.
As cited by
Petitioner, Section 301(b)(l)(C) of the Clean
Water Act expands the compliance deadline to
more stringent state or federal standards
required to meet water quality standards.
However, Petitioner does not cite the
subsection in full:
(c) not later than July 1, 1977, any
92—83
18
more stringent limitation, including
those necessary to meet water quality
standards, treatment standards, or
schedule of compliance extablished
pursuant to any State law or
regulations, (under authority preserved
by section 510) or any other Federal law
or regulation, or required to implement
any applicable water quality standard
established pursuant to this Act.
The Agency believes that the federal deadline
of July 1, 1988 (extended from July 1, 1977
by CWA Amendment) extends to the treatment
standards (i.e., effluent limitations)
adopted by the Board and incorporated into
the NPDES permit. The Clean Water Act does
not allow the USEPA administrator or
delegated states to forgive compliance with
these more stringent limitations (e.g.,
freedom from unnatural color, iron, zinc, or
mercury) without a judicial order. (See
letter dated February 22, 1988 from the
Director, Water Division, USEPA attached as
Exhibit C)
(Ag. Rec., p.4)
The U.S. EPA letter is attached to the Agency’s March 2,
1988 Recommendation. The letter, written by Charles H. Sutfin,
who is the Director of U.S. EPA Water Division for Region V,
states:
The U.S. EPA will oppose any variance beyond
the July 1, 1988 deadline, as inconsistent
with the requirements of the CWA, Clean
Water Act in any NPDES permit issued,
reissued or modified by the NPDES delegated
States.
Also, the Agency states that if the Board were to grant a
variance, Sauget would not be able to enforce its recently
adopted pre—treatment program. The program controls discharges
tributary to ABRTF which may in turn cause violations of ABRTF’s
own effluent standards. The Agency claims that if ABRTF’s
discharge was not subject to enforceable permit limits, Sauget
would be unable to control discharges to its sewer system. (Ag.
Rec., p. 12). The Board notes, though, that Sauget is proposing
interim limits for many of the subject parameters.
The Agency’s Supplemental Brief states:
The deadline of July 1, 1988 applies to
Petitioner’s plant because it required
construction, as evidenced in the numerous
92—84
19
variance petitions and Orders incorporated
into this record and was a planned publically
owned treatment works.
The intent of the 30l(i)(1) deadline is
for the POTW to timely meet subsection
(b)(l)(B) or (b)(1)(C) of Section 301 of the
Clean Water Act requirements.
**
*
Petitioner’s arguement that subsection
(b)(l)(C) refers to only the secondary
treatment parameters of subsection (b)(1)(B),
would make (b)(l)(C) surplusage, an effect
not warranted by standard rules of statutory
construction. Taken on its face, subsection
(b)(l)(C) is a broad federal affirmation of
State power to establish limitations.
Together with Section 301(i) it gives an end
to extensions of compliance deadlines and
endless variances.
***
The only forum for such an extension now is a
court.
(Ag. Supp. Brief, p.3— 4)
The Board notes, though, that in City of Highland v.
I.E.P.A. (PCB 88—67, slip op. at 2, August 10, 1988) the Agency
maintained that:
The Clean Water Act at 301(i) does not
prohibit a variance for necessary maintenanlce
at a completed facility. There are no
federal laws or regulations that would
prohibit the grant of this variance.
In that proceeding the Board granted Highland a short variance
from SS and BOD5 for maintenance and inspection of components of
its Wastewater Treatment Plant.
Findings
Sauget’s variance request is in response to the accident of
December 2, 1987, after which the PACT/WAR system was rendered
inoperative. The requested relief from the BOD, TSS, pH, iron
and zinc standards clearly cannot be justified as being needed
because of the accident. The PACT/WAR process is not necessary
to meet these standards and may contribute to violations of some
of them. While the situation regarding phenols would be improved
by PACT/WAR operation, the record does not indicate that it is
92—85
20
necessary to achieve compliance.
The phenol standard has been
met for months at a time without the system.
The flow and to some extent the character of the influent to
the ABRTF has changed since
it was originally planned and these
changes may be contributing to the current perceived problem.
Sauget should have been aware of these changes and anticipated
their potential impacts. With the exception of color, the record
before the Board does not support the requested relief. The
ABRTF’s effluent consistently meets several of the standards from
which relief is sought. Periodic violations of other standards
are not clearly related to the accident and should be controlled
by Sauget through operation of its facilities or its pretreatment
program.
To a large extent, the relief sought is speculative.
Whether utilizing its one year plan or its four year plan, Sauget
intends to study possible solutions for its claimed non-
compliance for one year. That is, Sauget has still not
determined what it will do to remedy the conditions for which it
requests variance.
Given the circumstances of this case, any hardship relevant
for the purposes of a variance determination could only stem from
the inability to provide PACT/WAR treatment due to the
accident. Changes in ABRTF’s influent could have been reasonably
anticipated and dealt with by pretreatment or other means.
General design deficiencies in the treatment processes employed
by ABRTF due to such changes, while perhaps unfortunate, are not
a sufficient basis for an “arbitrary or unreasonable” hardship
determination.
The record indicates that the only parameter which could be
brought into compliance by a functioning PACT/WAR system is
color. The influent to ABRTF from the P/C plant is yellow in
color. Apparently, ABRTF’s effluent is also ye1low~.sh. This
supports the conclusion that the origin of the color is fr-om flow
that is tributary to the P/C plant. However, the record does not
indicate whether Sauget knows or has even investigated the origin
of the colored wastewater. (R. 71). While the record shows that
adding powdered activated carbon (PAC) and washing the carbon may
take care of the color problem (R. 118—119), the amount of PAC
necessary to accomplish this task has not been clearly
presented. It appears that if PAC were added merely at the
design rate for the virgin carbon addition, such an amount of
carbon would be insufficient to address the color situation CR.
75). The record also suggests that if PAC were added at the
design rate for virgin carbon addition plus the design amount of
regenerated carbon, enormous expenditures and operational
problems would ensue. (P. 119—120). Unfortunately, the record
does not clearly indicate whether there is an effective middle
ground for PAC addition with respect to color.
The record shows that color could be significantly reduced
92—8 6
21
by the PACT/WAR system. Granting variance from color is
consistent with the position taken by the Board and Agency in
City of Highland given the accident and obvious need for repair
at the ARBTF. The Board does not distinguish between the need
for maintenance at the completed City of Highland facility and
the need for repair at the completed Sauget facility.
The Board also notes that the color standard is derived from
a Board rule and is not based on a federal standard. The Board
will grant Sauget a one year variance from color. During this
time Sauget i.s to investigate the cause of the color violation
and achieve compliance.
The implication of the Agency’s interpretation of the Clean
Water Act as presented in this proceeding is that a State may not
grant variances from its own more stringent standards. If this
position is accepted, any state with regulations that attempt to
protect the environment to a greater degree than federal
standards will be at a competitive disadvantage in relation to
states which merely adopt federal standards. If the states
cannot grant a variance from their own standards with compliance
required by a date certain, regardless of the circumstances, the
states will have a strong incentive to adopt only the minimum
required standards. The Board has difficulty believing that the
intent of the Clean Water Act is to penalize states which choose
to lead by adopting standards which are more than the federal
minimums.
The Board notes that the Agency states in its Brief that a
federal enforcement case has already been brought against Sauget
relating to the operations of the ABRTF. This statement has had
no bearing on the Board’s decision today.
Given the reasons articulated in this Opinion, the Board
finds that Sauget will not suffer an arbitrary or unreasonable
hardship if denied the requested variance for all parameters
except color. Consequently, the Board grants Sauget a vadance
from 35 Ill. Adm. Code 304.106 only as it relates to color. The
variance period will begin on the date of the accident, December
2, 1987, and expire one year from today.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board hereby grants the Village of Sauget (Sauget)
variance from 35 Ill. Adm. Code 304.106, as it relates to color,
subject to the following conditions:
1) This variance shall begin on December 2, 1987 and shall
terminate on September 9, 1989 or when Sauget achieves
compliance with the color standard of Section 304.106,
whichever occurs first.
92—87
22
2) During the term of this variance, Sauget shall do the
following:
a) Investigate and determine the origin of the color
that appears in the ABRTF effluent. Sauget shall
investigate methods by which it can achieve
compliance with the color standard of Section
304.106. Pre—treatment requirements and controls
shall be included in Sauget’s investigation;
b) Sauget shall select a method by which it can
achieve compliance with the color standard of
Section 304.106;
c) Sauget shall implement the method selected pursuant
to paragraph 2(b) so that it achieves compliance by
September 8, 1989.
3) Within 45 days of the date of the Board’s Order, Sauget shall
execute a Certificate of Acceptance and send that Certificate
to:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
This Variance shall be void if Sauget fails to execute and
forward the Certificate within the 45—day period. The 45—day
period shall be held in abeyance during any period that this
matter is being appealed. The form of the Certificate of
Acceptance shall be as follows:
Certificate of Acceptance
The Village of Sauget, having received the September 8, 1988
Order of the Illinois Pollution Control Board in PCB 88—18,
hereby accepts that Order and agrees to be bound by all the
terms and conditions thereof.
The Village of Sauget
By:_________________
Authorized Agent
Title
Date
IT IS SO ORDERED.
92—88
23
B. Forcade dissented.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 111 1/2 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.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif~thatthe a ye 0 inion and Order was
adopted on the ~Y~-~’day of
, ,
1988, by a vote
of
-
.‘
Dorothy M. G#n, Clerk
Illinois PolLrution Control Board
92—89
