ILLINOIS POLLUTION CONTROL BOARD
July 11, 1985
STAtJFFER CHEMICAL COMPANY,
Petitioner,
V.
)
PCB 85—26
tLLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
OPfNION T~.NDORDER OF THE BOARD (by R. Fleinal):
This matter comes before the Board upon petition br
extension of variance filed by Stauffer Chemical Company
~“Stauffer”) on March 1, 1985. Stauffer requested that the Boarci
allow the company a one—year extension of a five—year variance
which the Board previously granted on March 6, 1980, in the
matter of PCB 79—230. The 1980 order consisted, inter alia, of a
five—year variance from compliance with 35 Ill. Mm. Code 302.208
and 304.105 with respect to the discharge of Total Dissolved
Solids (TDS). The present petition was precipitated by expiration
of the original variance, which occurred on March 1, 1985. The
Illinois Environmental Protection Agency (~Agencyu) filed~its
recommendation in this matter on April 9, 1985, recommending that
the Board conditionally grant Stauffer’s petition. Stauffer filed
a response to the Agency’s recommendation on April 19, 1985,
disagreeing with some of the Agency’s conclusions of fact and
proposed conditions to the extension of variance. The Agency gave
written notice of Stauffer’s request for variance but received no
comments. Stauffer waived its right to hearing by motion filed
April 19, 1985.
Stauffer owns and operates a chemical manufacturing and
processing plant in Chicago Heights, Illinois, which produces
phosphate compounds and sodium bicarbonate by reacting phosphoric
acid with alkalies. These products are sold primarily for use in
the food processing industry. The company discharges non—contact
cooling water, storm water, and water distilled in its vacuum
crystalizer operation from the plant through its outfall #001 to
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a storm sewer, which in turns discharges into the State Street
Ditch. The ditch, a water of the state*, then joins Thorn Creek.
Stauffer is requesting a one—year extension of the five—year
variance so that it may continue to discharge water which causes
the water quality standard for TDS concentration of 1000 mg/l,
found at 35 Iii. Adm, Code 302.208 to be violated. Stauffer
aileges that the primary reason for its past failures to meet the
TDS standard was the high background concentration of TDS in the
company’s cooling water influent, which was drawn from wells in
the area. Stauffer further claims, and the Agency does not
dispute, that the background level of TDS in the well water was
generally over 1,500 mg/i. Stauffer contends that no alternative
water supply was available to the company until recently, and
that no practicable technologies exist for controlling TDS
levels. The company obtained Lake Michigan water, which has lower
TDS levels, in November, 1984. Since that time TDS
concentrations in both the State Street Ditch and Outfall #001
have decreased but TDS levels above the regulatory level continue
to be observed.
Stauffer contends that the requested one—year variance is
necessary to dissolve and flush out the remaining solids in its
system left over from the well water, and to determine if the
company can discharge without causing levels to exceed the 1,000
ing/l TDS standard during seasonal variations. The latter issue
pertains to whether Stauffer’s “housekeeping” and management
efforts will be sufficient to control TDS levels in stormwater
runoff from its plant during winter, for example. Stauffer
alleges that if the variance extension is denied it must close
the Chicago Heights operations permanently, close them
temporarily while attempting to control the TDS discharge, or
continue to operate and risk civil and criminal enforcement
proceedings. Stauffer believes any of these results would be an
“arbitrary and unreasonable hardship,” and not justified by the
“minimal” benefit resulting from termination of the TDS
discharges.
The Agency agrees that if Stauffer’s recent TDS violations
are due to system flushing, the company will bring the TDS levels
in its discharges into compliance. Further, the Agency does not
deny that no significant environmental degradation would result
from the granting of this variance. The Agency does contest,
however, Stauffer’s claim of hardship, reasoning that the
hardship may be self—imposed. Stauffer’s original variance was
*In its response to the Agency’s recommendation, Stauffer
indicated that it has consistently questioned whether State
Street Ditch is in fact a “water of the state” for enforcement
purposes and that it desired to reserve the right to raise this
issue with the Agency and/or the Board at a later time. Stauffer
correctly noted that this issue is not presently before the
Board.
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conditioned, inter alia, on the company’s annual submittal to the
Agency of reports studying and evaluating new TDS treatment
methodologies. Stauffer admits that it failed to file any of
these required reports, but contends that such failure was the
result of administrative oversight rather than willful or bad
Eaith action. Petitioner further alleges that there have been no
significant changes during that period in the technology for
controlling TDS. The Agency suggests that if Stauffer had
undertaken the studies ordered in 1980 it might not have needed
another variance in 1985.
On balance~ ~.heBoard finds that denial of variance would
cause arbitrary ~ unreasonable hardship. Therefore, the Board
grants Stauffer~.request for one—year extension of its variance,
subject to the•~~~~nditions discussed below. Ill. Rev. Stat. Ch.lll
l,’2, par. 1036 ~P) requires that a variance may be extended only
if satisfactory progress has been shown. The Board is persuaded
that such progrees has been made, but in so doing does not
condone the manner in which Stauffer has done so. Stauffer
ignored the Board’s 1980 order by failing to file any of the TDS
treatment methodology reports that were required under the
original variance. Such conduct may have convinced the Board to
deny any request for extension of variance by Stauffer had the
company been unable to acquire Lake Michigan water by this time.
Since Lake Michigan water has been acquired, however, and has
diminished TDS levels in the company’s discharges, the Board
finds the satisfactory progress requirement met. In order to
prevent degradation of the State Street Ditch during the variance
period, the Board finds it necessary to limit the concentration
of TDS in the ditch during that time to 1,850 mg/i. The Board
also conditions this extension of variance on the preparation by
Stauffer of a compliance program, to be submitted by the company
for Agency approval, should Stauffer fail to be in compliance
with TDS standards within six months into the period for which
the variance applies. This condition ensures that if the use of
Lake Michigan water does not in itself allow Stauffer to bring
its TDS discharges into compliance, the company will take the
steps necessary to do so before the end of the one—year variance
period. To grant a series of variances without a plan for
compliance would viclate the intent of the Illinois Environmental
Protection Act and case precedent in this area (e.g. see Monsanto
Company v. Pollution Control Board, 67 Ill. 2d 276, 367 N.E. 2d
684, (1977)). As further conditions of this extension of
variance, the Board requires Stauffer to continue monitoring TDS
levels (as outlined below) and to continue to use reasonable
housekeeping and maintenance measures to minimize TDS levels
being discharged from the site.
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In response to Stauffer’s request that its NPDES Permit be
modified to reflect the extension of variance, the Board reminds
Petitioner that such a determination is within the purview of the
Agency. As such the Board will not order this, but rather leave
~he decision to the Agency.
This Opinion constitutes the Board’s findings of Cact and
conclusion of law in this matter.
ORDER
Stauffer Chemical Company is hereby granted a one—year
extension of variance from compliance with 35 111. Adm. Code
304. 105 as it applies to the total dissolved solids (TDS)
limitations of 302.208, subject to the following conditions:
L. This variance will expire one—year from the date of Lii~~
order;
2. During the period of this variance the concentration of
Total Dissolved Solids found in the State Street Ditch
shall at no time exceed 1,850 mg/l;
3 That if Stauffer’s effluent is not in compliance with
TDS standards during the months of October, November,
and December of 1985, it shall by January 15 submit to
the Agency, at the address given below, a compliance
plan calculated to achieve compliance by the end of the
variance period;
4. That Stauffer monitor TDS concentrations weekly in the
State Street Ditch and monthly in Thorn Creek, with
reports of finding made to the Agency at the address
given below;
5. That Stauffer use all reasonable housekeeping and
maintenance measures necessary to minimize TDS levels in
its effluent; and
6. Within forty—five days of the date of this Order,
Stauffer shall execute a Certification of Acceptance and
Agreement to be bound to the terms and conditions of
this variance. This forty—five day period shall be held
in abeyance if this matter is appealed. The
Certification shall be forwarded to the Illinois
Environmental Protection Agency, Compliance Assurance
Section, 2200 Churchill Road, Springfield, Illinois,
62706, Attention: James Frost and shall read as
follows:
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CERTIFICATION
Stauffer Chemical Company (Petitioner) hereby accepts and
agrees to be bound by all terms and conditions of the order of
the Pollution Control Board in PCB 85—26, dated
_________
Petitioner
By: Authorized Agent
Title
Date
IT IS SO ORDERED
J.D. Dumelle concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opnion and Order was
adopted on the
1~z~L’
day of
___________________,
1985 by
a vote of
_________________
~
Dorothy M. ~‘nn, Clerk
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