ILLINOIS POLLUTION CONTROL BOARD
December
5,
1985
SORDEN CHEMICAL COMPANY,
Petitioner,
v.
)
PCB 82—82
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
)
Respondent.
MR.
SHELL
J.. BLEIWEISS OF SIDLEY
& AUSTIN APPEARED FOR
PET
ITIONER;
MR.
F.
WILLIAM
HUTTON APPEARED FOR RESPONDENT.
‘)PTNION AND ORDER OF THE BOARD (by J.
Marlin):
This matter comes before the Board upon
a June
22,
1982
filing
by Borden Chemical Company
(Borden)
of
a petition for
variance from the 1,000
mg/i
general
use total
dissolved solids
(TDS)
and 500 mg/l chloride water quality
standards
(WOS)
of
35
Ills
Adm, Code 302.208.
Two year relief
(R.
8)
is requested from
Sections 302,208 and 304.105, the latter providing
that
no
effluent shall
cause
a violation of
a WOS.
While relief from the
1.5
Mg/i ~mmon~a ni~roge~genoral
~se WOS wa3 also ori9inaily
requested,
such relief
is now unnecessary.
That
portion of the
proceeding has been dismissed
(Order, April
18,
1985).
An open
waiver
of the Board*s time
to render
a decision was fiLed on July
2’~,
t~82.
t~ughoutthe length of
the proceeding,
hearings were
cancelled at
least
three times.
On April 6,’~l983,the hearing
was continued “generally~ on motion of Borden.
There was no
action
until on~year later,
at which time the Illinois
Environmental Protection Agency (Agency)
filed another
appearance.
The
last
(third) Agency amended recommendation was
filed on May
20,
1985.
Hearing was held on July
15, 1985
in
Springfield, Sangamon County,
Illinois.
The prior variance granted in PCB 78—269
(34 PCB 71, June
22,
1979) expired on June
22,
1982
see
35 PCB 557, October
8,
1979 dismissal
of R 78—13~,
It had provided relief from the TDS
and chloride general use WOS’s of old rule
203(f)
Section
302,208
and from old rule 402
Section
304.1051,
Borden was
also granted
a provisional variance for
45 days from the
suspended solids effluent standard of old rule 404(c)
t304.l20(c)1,
such relief starting
on June
14,
1982
(47 PCB 285,
PCB 82—74, June
10,
1982).
The Borden plant
is located
in
a rural
area one mile west
of
Tiliopolis,
Illinois.
It employs about
170 people and produces
polyvinyl
chloride
(PVC)
resin, PVC latex emulsions,
styrene—
67-03
2
hutadiene
emulsions,
polyvinyl
acetate
emulsions
and
PVC
plastic
film and moulding
compounds.
Vinyl
chloride
emission
control
is
provided
by combustion
in
an incinerator followed by
scrubbing,
his
omission control system cost
$15,000,000 and became
operational
on October 21,
1978.
The scrubbing operation
produces
a water solution of hydrochloric acid which
is
neutralized with caustic or soda ash to produce
a neutral
effluent containing salt.
This effluent
is added
to
the plant’s
other wastewater prior to discharge.
The design average flow of
borden’s
wastewater treatment plant
is 0.615 million gallons per
day
(MGD) while actual flow is 0.444 to 0.712 MGD
(Ag.
2nd Am.
Eec.).
The
plant
discharges
about
400,000
gallons
per
day
(GPD)
into
an
unnanied
ditch
which
has
a
seven—day,
ten—year
low
flow
at
zero.
However,
Borden
represented during
the prior variance
proceeding
that
for
the
thirteen
years preceeding 1982,
the ditch
had
never
been
dry.
Upstream
are
located
two
other
dischargers,
a
municipal
water
treatment plant which discharges filter back wash
and
a
chicken
hatchery
which
discharges
cage
and
crate
washings.
Borden
claims
that
the
ditch
is
not
used
for
recreational purposes and that chloride and TDS concentrations
will
not detract from whatever aesthetic value
the ditch might
have,
The ditch
runs about one and one—half miles before joining
a
drainage area known as Long Point Slough, which flows
into the
Sangamon River
about one—half mile past the ditch.
The ditch
is classified as
a general use water and the
app1icabl~WQS’s ar~1,000
mg,’l TOS and 500 mg/l chloride
(Section 302.208).
Discharge data supplied
in the Agency’s
second and third amended recommendations demonstrate that the
requested
2200 mg/l TDS and 700 mg/l chloride levels
in the
receiving
ditch,
downstream
from the discharge, wore
substantially met during and since the last variance (3rd at
2,
2nd
at
9).
Reduced flow (Agency
lists zero flow for September
1984)
in
September, October and November of 1984 caused
the
monthly averages for TDS
to exceed 2200 mg/l.
Agency water
quality data for the Sangamon River
for “water year 1982” are
below the present general use WQS’s of 1,000 mg/l TDS and 500
mg/l
chloride
(3rd Am. Rec,)
Borden has alleged
that
compliance with the Board’s TDS
chloride WOS regulations would impose an arbitrary or
unreasonable hardship.
Regarding alternate methods of TDS and
chloride control,
the record shows no change
from the prior
variance record.
The Board
finds that there
is
no proven
conventional technology which
is also economically feasible to
treat
TDS and chloride levels
in Borden’s wastewater.
TherefOre,
the Board finds that compliance with Section 304.105
as
it
relates
to TDS and chloride WQS’s
of Section
302.208 would
impose
an
arbitrary or unreasonable hardship on Borden.
Borden
has
had
more
than
sufficient
time
to
submit
environmental
impact
data
and has failed to do
so.
In
the prior
67-04
3
variance proceeding,
the Board
in
its Opinion stated
that
any
data collection pursuant
to the variance should
include
‘•.,.hiologicai surveys which include counts of
salt tolerant and
sensitive species
as low flow conditions develop...”
(34 PCB
71,,
74,. June 22,
1979, PCB 78—269).
The only environmental
impact
evidence presented by Borden was
in
the
original
petition,
wherein
It
was
stated
that
the
ditch
is
not
used
for
recreation
and
that the ditch was
not
a habitat for “significant aquatic
life’1
(Pet, at 8).
The Agency itself was concerned with the
potential
for
harm
to
downstream
public
water
supply
users
but
with
new
information
has receded from its previous variance
denial
posture
(3rd
Am.
RecJ.
The
Agency
has
stated
that
any
adverce
environmental
impact
would
be
minimal
(Id.).
While
the
environmental
impact
evidence
is
sorely
lacking
in
substance,
the
Board
finds,
based
on
the
data
in
the
record,
that
any
adverse
environmental
impact
will
be
minimal
during
the
term
of
any
V a
r
ian
Ce.
I~
Borden. is planning
to fulfill
its representation
at
hearing that
it will be filing
a site—specific proposal
•(R.
11),
an environmental study must be submitted at the time the proposal
is filed.
The study should address those points listed
in
the
Board~Order dismissing R78—13
(35 PCB at
558, October
18,
1979),.
Any
such site—specific proposal should include copies of
any
documents
from prior proceedings
that Borden wants
considered.
The, Board
notes that the record in this proceeding
is
cluttered
with
a
number
of
conflicting
or
overlapping
proposals~recommendations,
and clarifications.
Outright
incor~orat1~Ofl~f the prior records could
lead to confusion.
Of
particular interest will
be updated information on the source of
contaminants and the potential means of removing them from
the
effluent by either process changes or treatment.
Copies of any
applicablre
~
~er~nfts~
should be
included.
Additionally,
Borden
is
reminded that
a revision or modification of
a WQS
is
accomplished through either changing the use designation of the
stream by
a use attainability analysis or by revising the WQS
criteria consistent with the stream designation
33
U.S.C.
§1313(c)(2),
40 CFR
1311.
If Borden seeks to revise or modify
a
WQS,
it will have to submit
information addressing
such
issues.
Borden should be aware that the Board
is
currently
considering
Sangamon Basin Water Quality Standards
in R83—20,
Petitioner
is reminded that the filing of
a proposal for
site—specific relief
is not
a compliance plan for variance
purposes.
Any assumption that it will be granted
is speculative,
Citizens Utilities Company of Illinois
v.
IPCB et al~,479 N.E,2d
1213
(3rd.Dist.
1985) affirming Citizens Utilities. v.
IEPA, PCB
~3—l24,
April
19
and
June
14,
1984.
By
interim
order
of
the
Board
dated
September
5,
1985,
the
parties were requested to address whether
the Board could grant
variance relief from water quality standards consistent with
~edera1 law,
specifically 33 U.S,C~ §~l3l3,1370,
After meeting
with the USEPA,
the Agency stated that the Board may grant
67-05
4
variance
relief
from
water
quality
standards
based
on
a
No~iemhor
1977
Memorandum
of
Agreement
between
the
two
agencies
(Agency
-tatus
Report,
October
4,
1985).
Based
on
the
minimal
short—term
adverse
environmental
impact:
md
that
immediate
compliance
would
impose
an
arbitrary
or
nnrtasonable
hardship,
the
Board
hereby
grants
Hordon
a
variance
from 304,105 as
it
relates
to
the
TDS
and
chloride
WQS’s
o~
Section
302.208,
subject
to
the
conditions
suggested
by
the
•\~ency.
The
Board
will
continue
the
interim
water
quality
‘~tandards
of
2200
mg/l
TDS
and
700
mg/l
chloride.
The
Board
takes
notice
that
the
Agency
did
recently
issue
an
NPDES
permit
t~nrBorcIen~sdischarge
and
Borden’s
appeal
is
docketed
as
PCI3
85—82.
Borden
has
requested
rolief
retroactive
to the date of
issue
of
the
latest
applicable
NPDES
permit.
The
stipulation
in
cLarification
contains
a
May
25,
1985
issue
date
(p.
2,
para
5)
and
the
hearing
record
contains an effective date of June
22,
1985
(R,
12).
The
Agency
recommends
the
grant
of
retroactive
relief
starting
June
22,
1985
(R.
12).
The
Board
rarely
grants
retroactive
variances
absent
some
showing
of
exceptional
circumstances.
Quaker
Oats
Company
v.
IEPA,
59
PCB
25
(July
19,
1984,
PCB
83—107T.
The
variance period will begin on the date of
this
Order,
as
no
exceptional
circumstances
have
been
shown
whatsoever.
If
anything
there
has
been
excessive
delay
on
the
part
of
Borden and presentation of less than optimal information
supporting
the petition.
This constitutes
the Board’s findings of
fact and
conclusions
of
law.
ORDEI~
Borden
Chemical
Company
is
hereby
granted
a
variance
from
35
111.
Adm. Code 304.105
as
it relates to the TDS and chloride
wOs’s
of
Section
302.208 for
its wastewater discharge
at
its
Iliopolis,
Illinois plant subject
to
the following conditions:
1.
This variance shall commence on the date of this Order
and expire on the date of
issuance of
a final Board
Order
in any site—specific proceeding or July
1,
1988,
whichever
is sooner,
2.
Petitioner’s effluent shall
not cause
the water quality
in
the
unnamed ditch to exceed
a monthly average
concentration level
of 2200 mg/l TDS or 700 mg/l
chloride, based upon the sampling frequency contained
in
its NPDES permit.
3.
Petitioner shall
file
its request concerning
its
Illiopolis plant
for
a site—specific rule change from
the TDS and chloride water quality standards on
or
before
April
1,
1986.
67-06
5
4.
If Petitioner
is denied full
relief
in
the site—specific
proceeding
and
additional
compliance
measures
become
necessary,
they
shall
be
completed
in
accnrdance
with
the following schedule:
Items
Completion
Date
mhmit plans
and specifications
6 months from date of final
to
Agency
for
permit
review,
Board
Order in site—specific
rulemaking.
Complete
construction
of
15
months
from
date
of
improvements,
submission
of
plans
and
specifications
or
July
1,
1988,
whichever
occurs
first.
5.
Within
forty—five
days
of
the
date
of
this
Order,
Petitioner
shall
execute
and
forward
to
the
Illinois
Environmental
Protection
Agency,
Compliance
Assurance
Unit,
Water
Pollution
Control
Division,
2200
Churchill
Road,
Springfield,
IL
62706,
a
Certificate
of
Acceptance
and
Agreement
to
be
bound
to
all
terms
and
conditions
of
this variance,
This forty—five day period shall
be held
in abeyance
for any period during which
this matter
is
being
appealed.
The
form
of
this
certificate
shall
be
as follows:
Certificate
I,
(We)
having
read
the
Order
of
the
Illinois
Pollution
Control
Hoard
in
PCI3
82—82,
dated
_____________________________,
understand and
accept
the said Order, realizing
that such acceptance renders all
terms
and conditions thereto binding and enforceable.
Petitioner
By:
Authorized
Agent
bate
Title
IT
IS
SO
ORDERED,
Board
Member
3.D,
Dumelle
concurred.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
was
adopted
on
the
_______________
day
of
~
,
1985
by
a
vote
of
____________.
~
Dorothy
MI
Gunn,
Clerk
Illinois
Pollution
Control
Ho~r~
67-07