ILLINOIS POLLUTION CONTROL BOARD
May 28, 1987
MORTON THIOKOL, INC.,
)
MORTON CHEMICAL DIVISION,
)
)
Petitioner,
)
v.
)
PCB 86—223
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
RICHARD 3. KISSEL AND SUSAN M. FRANZETTI, (MARTIN, CRAIG, CHESTER
& SONNENSCHEIN) APPEARED FOR THE PETITIONER; AND
WAYNE WIEMERSLAGE APPEARED FOR THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by 3. Theodore Meyer):
This matter comes before the Board on the December 30, 19~6
petition and the February 3, 1987 amended petition for variance
filed by Morton Thiokol, Inc., Morton Chemical Division (“Morton
Chemical”). Morton Chemical requests a variance from 35 Ill.
Adm. Code 304.120(c) providing for a 10 mg/i effluent limitation
for BOD5 and from the BOD5 effluent limitation for outfall OO1A
contained in Morton Chemical’s current NPDES permit. The
variance is requested until June 30, 1988. Two objections to the
variance were filed: one by the McHenry County Defenders on
January 22, 1987 and one by Ms. Patricia Malo on February 5,
1987. On March 30, 1987, the Illinois Environmental Protection
Agency (“Agency”) filed its recommendation that variance be
denied with the caveat that should additional economic
information be provided sufficient to demonstrate an arbitrary or
unreasonable hardship that the variance should be granted.
Hearing was held on March 30, 1987 in the City of McHenry. On
April 16, 1987, Petitioner filed its Brief in Support of
Variance.
SAC KGROUND
Morton Chemical operates a specialty chemicals manufacturing
plant in Ringwood, Illinois. The plant is approximately 114
acres in size and employs approximately 300 employees. A variety
of water—based polymerization and dispersion products are
manufactured there, resulting in an average discharge of 1.3 MGD
of non—contact cooling water, boiler blowdown, and de—ionizer
backwash and a more recently added average discharge of 0.01 MGD
of treated polymer washwater. It is this additional discharge of
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the treated polymer washwater which is the subject of this
variance.
Polymer washwater is generated from the cleaning of reactors
and auxiliary equipment (e.g. filter presses, heat exchangers,
screeners) used in the “Serfene” and “Latex/Lytron” processes.
Previously, the polymer washwater had been disposed of in
permitted treatment facilities and sanitary landfills via outside
contractors. However, recently a polymer washwater concentrator
was added to the facility as a waste reduction measure, changing
the components of the wastestream and its disposal. The polymer
washwater contains approximately 3 percent solids. Through an
evaporation process the polymer washwater concentrator converts
this waste to solid form by removing approximately 15 percent of
the water and any low boiling components which may also be
present. The evaporated material is sent to a stripping column
where the low boiling components are separated out and the water
is then passed to activated carbon units. The resulting stream
is then combined with the plant’s wastestream of spent non—
contact cooling water, boiler blowdown and de—ionizer backwash.
The Agency issued a modified NPDES permit allowing the
addition of this distillate water to the existing wastestream on
October 31, 1985. However, over Morton Chemical’s objection, the
Agency denoted the polymer washwater discharge as a separate
outfall, #002, and the remaining plant discharge as #001.
According to Morton Chemical, this “outfall” is an internal
wastestrearn located approximately 700 feet from outfall 001, and
discharges into a spent cooling water sewer which then discharges
into the combined wastestream eventually discharged through
outfall 001 to Dutch Creek. Dutch Creek is classified as general
use and is tributary to the Fox River.
No effluent limitations were imposed on outfall 002 by the
Agency. Rather, Morton Chemical was required to perform a one-
time analysis of the polymer washwater discharge for priority
pollutants, heavy metals and organics. This analysis
demonstrated that with the exception of phenol, TOC and COD, the
levels of the remaining constituents were below detection
limits. Morton was successful in controlling the phenol
concentrations from levels of 150 mg/i to less than 0.05 mg/i.
The 30D5 concentration measured at outfall 002 during this
analysis was 193 mg/i; however, in retrospect, Morton Chemical
now believes that this result was in error because of the
presence of phenol in the wastewater discharge. The Agency
drafted a Reissued NPDES permit on March 20, 1986 for this
outfall (now designated as OOiA) containing an effluent
limitation for BOD5 of 10 mg/i for a 30 day average and a daily
maximum of 20 mg/i. Morton Chemical reasonably believed it could
comply with this limitation. However, analysis on a September 9,
1986 sample of the discharge resulted in a level of 320 mg/i. A
subsequent analysis on October 1, 1986 registered a BOD5 level of
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—3—
521 mg/l before treatment by activated carbon and a level of 193
mg/l after treatment. However, before these results were
received, the Agency issued the Reissued NPDES permit on
September 26, 1986 with the 10 mg/i limitation. Morton Chemical
was given the SOD5 analyses on October 8, 1986 and immediately
apprised the Agency. Morton Chemical believes that the source of
the BOD5 is alcohols detected in the washwater by laboratory
analysis. R. at 21.
COMPLIANCE OPTIONS
Fundamentally, Morton Chemical objects to the condition in
its permit requiring it to sample and monitor outfall OO1A prior
to the point at which it combines with outfall 001 before
discharge to Dutch Creek. Morton Chemical asserts that sampling
of the combined wastewater stream discharge at outfall 001 has
shown that the BOD5 level is less than the level of detection of
5 mg/i (Exh. 1), and that it is at this point, discharge to
Dutch Creek, which should be the focus of environmental concern.
However, Morton Chemical has retained the services of
Patterson Associates, Incorporated to provide consulting and
technical supervision services concerning the polymer wastewater
discharge. R. at 25. It was determined that either ozonation or
biological treatment would be effective. However, engineering
and economic data on the reliability and cost of installation and
operation of these technologies remains to be developed. Morton
Chemical requests additional time to complete these studies and
select an appropriate technology by approximately June 30,
1987. The system selected is expected to be fully operational by
June 30, 1988.
If the variance were to be denied, Morton Che’mical asserted
that it would have only two options. First, it could shut down
that part of the plant operations which generate the polymer
washwater discharge. However, this alternative would result in
the shutdown of approximately 80 percent of the Ringwood plant’s
production. Second, Morton Chemical could continue its disposal
of this liquid waste at a permitted sanitary landfill. Landfill
disposal costs are approximately $1000 per day, for a total cost
until final implementation of a treatment alternative of
approximately $550,000. R. at 29—31. Morton Chemical was
unsuccessful in its attempts to arrange for disposal through the
City of McHenry Wastewater Treatment Plant, the North Shore
Sanitary District or the Metropolitan Sanitary District of
Greater Chicago.
ENVIRONMENTAL IMPACT
The Agency states that it believes the environmental harm to
be minimal in this case but believes that Morton Chemical has
failed to show that the $1000 a day landfilling cost is an
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unreasonable hardship. The Agency argues that the amount of
hardship must be measured against some economic yardstick such as
the sales, earnings or profits of Morton Chemical. R. at 9.
A survey of Dutch Creek in the vicinity of Morton Chemical
was conducted in August of 1986 and submitted as Attachment A to
the Agency’s Recommendation. The survey found suitable habitat
for forage fish species. A 1976 electrofishing survey, conducted
approximately 2.3 miles downstream from the survey area, yielded
ten fish species including large mouth bass, northern pike and
bluegill. Sixteen macroinvertebrate taxa were collected at five
stations within the survey area. Thus, the Agency concluded that
there were no significant biological impacts detected downstream
of the Morton Chemical discharge. Dutch Creek has been
classified as a moderate aquatic resource by the Department of
Conservation. Water quality samples collected in 1986 were
within acceptable limits for all General Use water quality
parameters except mercury (0.78 ugh exceeded standard of 0.5
ug/l). Mercury was found both upstream from Morton Chemical as
well as in Morton Chemical’s discharge, thus the Agency drew no
conclusions as to the source of the excursions.
Morton Chemical argues that it would be an arbitrary or
unreasonable hardship to require the expenditure of an estimated
$1000 a day to landfill this wastestream when the Agency’s own
evidence demonstrates that no environmental harm will occur if
the discharge is allowed to continue. Brief at 2.
Morton Chemical notes that it has already expended a
substantial sum on the polymer washwater concentrator ($675,000)
and has plans for additional expenditures ($495,000) for a second
stage evaporator exclusive of any costs to be incurred by
completing the proposed compliance plan. R. at 15—16.
CONCLUS ION
At the ouset, the Board first wishes to note that the time
for Morton Chemical to contest the permitting of outfall OO1A as
a separate outfall has long since elapsed. Even were the Board
to agree to review the Agency’s decision to separately permit
this discharge, no evidence concerning the outfall status exists
in the record other than the “bare” allegation in the amended
petition and elsewhere in the record that it is an internal
wastestream. Secondly, the Board wishes to note that it does not
grant variance from permit conditions but from rules, regulations
or orders of the Board. Ill. Rev. Stat. 1985, ch. 1111/2, par.
35. If variance is granted from the effluent limitation of 35
Ill. Adm. Code Section 304.120(c), the permit will be modified by
the Agency consistent with the Board’s order.
The Agency has attempted to equate the Petitioner’s burden
of proving in a variance proceeding that it will suffer an
78-182
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arbitrary or unreasonable hardship with a demonstration that it
will be unable to pay the additional costs incurred if the
variance is denied. Morton Chemical argues that “the
petitioner’s ability to pay is not the proper test employed in
determining whether a variance should be granted.” Brief at
12. The Board believes that the proper “test” lies somewhere
between these two assertions. The “ability to pay,” which
requires some analysis of economic information particular to a
given petitioner, is one factor to be weighed against the
environmental impact in determining whether an arbitrary or
unreasonable hardship has been shown. Simply because an entity
is financially sound does not preclude it from ever making such a
demonstration. The evidence in this matter demonstrates that
the
discharge at issue has no “significant” impact on the receiving
stream. Although the Agency demonstrated that Morton Chemical
could afford to continue landfilling this waste, which may entail
its own environmental consequences, it does not follow ipso
facto, that there is no arbitrary or unreasonable hardship. The
Board is satisfied, that in light of the environmental evidence,
and the expenditure of approximately $550,000 which would be
required if variance were denied, that Morton Chemical has
demonstrated an arbitrary or unreasonable hardship. Thus, the
Board will grant variance, subject to the conditions as suggested
by the Agency.
In closing, the Board wishes to note its concern over the
excursions of the mercury standard noted in Dutch Creek. Little
discussion of this was presented in the record. The Agency’s
attachment notes that mercury was found upstream of Morton
Chemical as weXi as in its discharge. Despite the presence of
mercury in the discharge, the Agency stated in 1986 that Morton
Chemical’s NPDES permit did not list mercury as a regulated
parameter. Moreover, there is no indication whether the mercury
present in Morton Chemical’s discharges are present in the
discharges at Outfall OOlA or 001 or both. Nor are the levels of
mercury detected provided. Since monitoring and reporting of the
mercury levels is not currently required of Morton Chemical, it
is no wonder that the Agency expressed doubt as to the source of
the excursions in Dutch Creek. Thus, the Board believes that it
would be appropriate, as a condition of this variance, to require
the Petitioner to monitor for mercury at Outfall 001 and Outfall
OOlA.
The Board’s existing regulations at 35 Ill. Adin. Code
304.126 limit the concentration of mercury in any effluent (from
0.003 mg/i to 0.0005 mg/i with application of averaging). Morton
Thiokol has not requested a variance from this regulatory
provision and the Board is not granting a variance from it. The
Board anticipates that the effluent monitoring for mercury
required by today’s Order will be done at a level of detection
that allows a determination of whether the effluent from 001 and
OOlA complies with the regulatory limits.
7R~1R~
—6—
ORDER
Morton Thiokol, Inc..,, Morton Chemical Division, is hereby
granted variance from 35 Ill.. Adin., Code 304.120(c) and 304.141(a)
for its plant located in Ringwood, Illinois, subject to the
following conditions:
1. This variance shall expire on June 30, 1988.
2. This variance shall apply only to Outfall OOlA.
3. Petitioner shall continue to monitor and report all
parameters for Outfall OOlA as required by its NPDES
permit, including Biochemical Oxygen Demand (SOD).
4, Petitioner shall begin monitoring and reporting for
mercury concentrations at Outfall 001 and Outfall OOlA
on a monthly basis.
5.. Petitioner shall comply with the following schedule:
A. By June 30, 1987, develop design criteria and
complete the selection of the appropriate
technology.
B.. By July 31, 1987, complete plans and specifications
for the needed facilities.
C. By January 31, 1988, begin construction of
facilities.
D. By May 31, 1988, complete construction and,
E. By June 30, 1988, attain operational level.
6. Petitioner shall report monthly on its progress to
achieve compliance through its construction program.
Reports shall be submitted to the Agency concurrently
with its Discharge Monitoring Reports (DMR’s).
7. Petitioner shall submit a Certificate of Acceptance to
the following:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section #19
P.O. Box 19276
Springfield, Illinois 62794—9276
Attention: James Frost
The form of the Certificate of Acceptance shall be as
follows:
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CERTIFICATION
I, (We)
,
hereby
accept and agree to be bound by all terms and conditions of the
Order of the Pollution Control Board in PCB 86—223, dated May 14,
1987.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
o7f~t~
day of
)‘~h~~-~1
,
1987, by a
vote of
.5—/
.
/
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
78-185