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
    78-179

    —2—
    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
    18~180

    —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
    78-181

    —4—
    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

    —5—
    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:
    78-184

    —7—
    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

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