ILLINOIS POLLUTION CONTROL BOARD
September 20, 1985
AMEROCK CORPORATION,
Petitioner,
v.
)
PCB 84—62
.LLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
NiH.
CHARLES F. HELSTEIN OF THOMAS, HINSHAW & CULBERTHON APPEARED
ON BEHALF OF THE PETITIONER;
NIH. THOMAS DAVIS APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by
3.
Marlin):
This matter comes before the Board upon the May 29, 1984
tiling of a petition for a five year variance by Amerock
Corporation (Amerock) from the hexavalent chromium (0.1 mg/i),
total chromium Ci mg/i), copper (0.5 mg/i), cyanide (0.i mg/i),
nickel (1 mg/i), zinc (1 mg/i), total suspended solids (TSS) (15
mg/i) effluent standards of 35 Iii. Adm. Code 304.124 and from
the ammonia nitrogen and biochemical oxygen demand (BOD) effluent
standards located at 35 Ill, Adm. Code 304,301 and 304.120
respectively. As
the
petition was deficient, a more information
order was entered on the same day. The requested information was
received on August 15, 1984. Since upon subsequent examination
no violations of the effluent standards for BOD, nickel or
ammonia have been measured, this requested relief including
Sections 304.120 and 304.301 has been dropped. Amerock has
waived the one hundred—twenty day Board decision date.
The Illinois Environmental Protection Agency (Agency) tiled
its first recommendation on September 10, 1984. Meanwhile an
objection had been filed, triggering the need for a hearing.
Hearings were set and cancelled on January 25 and March 8,
1985. A hearing was held in Rockford, Illinois on May 24,
1985. The hearing transcript was received by the Board on July
10, 1985. The Agency recommends granting a one year variance
from the requested effluent standards of 35 Iii. Adm. Code
304.124 except for nickel~, with which Amerock agrees (R.6,l4).
The Agency maintains no relief is needed for ammonia nitrogen
and
BOD.
Anierock
has
two primary manufacturing facilities in
Rockford, Illinois where alloys of copper, steel and zinc,
plastics and other materials are converted by various processes
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2
into products for the home. These processes include sheet meL~L
fabrication, zinc die casting, plastic molding, burnishing,
butting, cleaning, electroplating, coloring, antiquLrlg, painting
and lacquering1 Process wastewater containing cyanide is
pretreated on site before discharge to the Sanitary District ot
Hockford sewer system. Five outfalls are permitted by NPDES
Permit IL 0003344 to discharge stormwater runoff into Kent Creek
(Creek). One of these is also permitted to discharge noncontact
cooling water. Three unpermitted outfalls have recently been
discovered by Amerock.
Section 309.102 of Title 35 of the Illinois Adtniuist ~‘~liv•~
Code in relevant part requires that an NPDES permit he requit nO
for “,..the discharge of any contaminant or pollutant by any
person into the waters of the state from a point source....” Thn
Board’s definition of pollutant located at 35 111. Adm. Code
3t)1,340 parallels the federal definition
133
U.S.C. S1362(b); see
40 C.F.R. 122.2.
Section 12(f) of the Act mandates that the Board not requir~:
an NPDSS permit for any discharger who is not required to have a
permit under the Clean Water Act. The Clean Water Act general
requirements for NPDES permits are presented in 40 C.F.R. Part
122 and require a permit for the discharge of any pollutants tr~i!
a point source into waters of the United States See 33 U.S.C. ~
1311(a), 1342(a)(l)J
As defined in Section 301.340, pollutant in relevant part i~
an i~~dustria1waste. In turn, industrial waste is defined, in
ralevant part, as any “...wastes resulting from any process ot,
industry, manufacturing, trade, or business....” (Section
301.285). Therefore, under this situation an NPDES permit
can
only be required if material discarded from the plant operations
is discharged along with stormwater runoff.
The Board has held that an NPDES permit can be rmjuir~1 trr
stormwater discharges only if pollutants discarded Irom plani
operations are discharged along with storrnwater runoH. Cargill,
Inca v, IEPA, 47 PCB 127 (PCB 81—37, May 27, 1982). In Cargi.Ll,
due to a paucity of facts, the Board found insufficient evidence
to support such a determination. On appeal, the Board was
affirmed, the Court stating:
The Board’s findings that Cargill’s discharge
contains no process wastes, that no material discarded
from the plant operation was discharged along with
stormwater runoff, and that contaminants may result
from rainwater running over roofs and parking areas
picking up contaminants from fallout of non—localized
air emissions, natural debris and cars which use the
area are supported by evidence in the record.
Therefore, Cargill is not required to obtain an NPDES
permit because it does not discharge “pollutants” as so
defined in the FWPCA nor adds contaminants to storniwater.
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3
JEPA v. Cargill, Inc. et al., No.82—650, Rule 23 Order, 2nd
District, June 16, 1983.
The stormwater discharge regulations have been amended since
the Board’s decision in Cargill. Amended at 48 Fed. Reg. 3983
(1983), 40 C.F.R. 122.26 states that “(separate storm
sewers...are point sources subject to the NPI)ES permit
program.” A separate storm sewer is defined as “a conveyance or
system of conveyances (including pipes, conduits, ditches, and
channels) primarily used for collecting and conveying storm water
runoff and which is either” in an urbanized area pursuant to
criteria at 39 Fed. Reg. 15202 (May 1, 1974) or if not in such an
urbanized area, is designated by the Director of the state NPDES
permit program to be under such program 40 C.F.R. 122.26(b) and
(c), July 1, 1984. Amerock is within an urbanized area (39 Fed.
I~eq.
15202).
For those in a similar situation but not in an urbanized
area would have to meet 40 C.F.R. l22.26(b)(3) which provides as
follows:
(3) Conveyances which discharge process wastewater or
storm water runoff contaminated by contact with wastes,
raw materials, or pollutant—contaminated soil, from
lands or facilities used for industrial or commercial
activities, into waters of the United States or into
separate storm sewers are point sources that must
obtain NPDES permits but are not separate storm sewers.
Therefore, the Board finds that Amerock does need an NPDES
permit for its stormwater discharges pursuant to 40 (..~.R.
122.26.
Returning to the Amerock evidence, a contamination problem
was discovered by Amerock. Chemicals are being discharged in
excess of permit limits during rainfall or snow melt periods.
(R.9—10). Amerock believes the problem may stem from air
emissions from plant operations being deposited on the 750,000
square feet of roof (R.17, 12), however it stresses that it is in
compliance with all air pollution regulations (R.l8). This air
emissions theory appears to be supported by Amerock’s
installation of air pollution control devices for chromium which
reduced the chromium discharge to the creek by a factor of ten
(R.ll). However, the Board need not determine exactly from what
point on the Amerock property the contaminants emanate. The
Board need only find and does so find that the contaminants from
plant operations are being discharged to waters of the State.
Two citizens at hearing expressed concern about the
situation and objected to a variance that lasts five years
(R.31
and 33).
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4
Amerock has been sampling all discharge pipes during
rainfall or snowmelt events since September 1984 (R.l0—ll, Agency
Amended Rec. 2). The creek water has also been sampled upstream
and downstream of the plant since that time (Id., R.12). Amerock
represented at hearing that it would be instituting biological
monitoring of the creek (R. 12) and as of May 24, 1985 only
needed to choose a consulting firm (R. 22). Grab samples of the
creek bottom are already being taken in anticipation of this work
(Id.). The sampling programs so far have identified the
contaminants. What remains is to identify the sources and to
obtain and implement engineering recommendations. Amerock and
the Agency agree that a five—year variance is not needed and both
assert that to deny a one year variance for further study would
he to impose an arbitrary or unreasonable hardship on Amerock
because the pollution control technology is not feasible until
the contaminant sources on the property are found (R. 25).
The Board agrees but will grant variance relief for a period
of 15 months. The Board finds that to deny Amerock a fifteen
month variance would be to impose an arbitrary or unreasonable
hardship. An Amerock official testified that while no biological
studies have been performed, there are fish in the creek (R. 16)
and other wildlife which have been observed in the area such as
turtles, ducks, and insects (R. 25). While the evidence is
marginal, the Board finds that the grant of variance will have
minimal adverse effects on the environment for the term of the
variance and will maintain the status quo which has existed for
about 30 years (R.—l8) for only that fifteen month period.
While the Board rarely grants variances without concrete
plans for compliance, occasional fact situations require a
certain flexibility as to this requirement. Anderson Clayton
Foods v. IEPA, PCB 84—147 (January 24, 1985). Regarding Amerock,
there is data identifying contaminants but not the sources. In
addition, there has been good faith in reporting the
contamination problem and total cooperation from Amerock.
Therefore, the Board finds that Amerock be granted a variance
from the following effluent standards of 35 Ill. Adm. Code
304.124: hexavalent chromium, total chromium, copper, cyanide,
zinc and total suspended solids.
The time period of variance will run from June 1, 1985 and
expire on September 1, 1986. The Board notes that Atnerock has
had considerable time prior to the date of this decision to move
forward with the suggested studies. Water samples have been
taken since September 1984. At the May 24, 1985 hearing Amerock
represented that it was taking grab samples of the creek for
biological analysis. Such analysis appeared to be close to
starting. The September 1, 1986 variance termination date will
give Amerock enought time for biological analysis, submittal of
engineering recommendations, and implementation of those
recommendations. While the study in Condition 2 of the Order is
due toward the end of the variance period, its submission is a
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5
mere formality. It is anticipated that implementation of
engineering recommendations will occur before September 1, 1986.
The Agency has recommended that the Board impose sampling
conditions on the variance (Agency Amended Rec. 1, 2). Amerock
has agreed to these conditions (R. 22-24). Therefore, the Board
will impose these conditions on the variance. Because of the
Board’s concern on the potential for bioaccumulation of certain
heavy metals and to better appraise stream impact from these
discharges, the Board will add another condition and will require
sediment sampling and analyses from representative points
upstream and downstream of Amerock’s discharge.
This Opinion concludes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Amerock Corporation (Amerock) is hereby granted a variance
from the following effluent standards located at 35 Ill. Adni.
Code 304,124: hexavalent chromium, total chromium, copper
cyanide, zinc, and total suspended solids, for its discharges of
storm water runoff and snow melt runoff subject to the following
conditions:
1. This variance begins on June 1, 1985 and expires on
September 1, 1986.
2, Amerock shall perform a study regarding the sources of,
and measures to eliminate, the discharge of contaminated
storm runoff and snow melt runoff and shall submit a
written report of its findings to the Agency’s
Compliance Assurance Section/DWPC, on or before June .L,
1986.
3, Amerock shall, to the extent feasible, install curbing
and/or guttering to isolate contaminated flows from
noncontaminated water as sources of contamination are
discovered. A description of these activities shall be
included in the report prepared pursuant to condition 2.
4. In addition to the sampling required by Amerock’s NPDES
permit, Amerock shall inspect each discharge location
during and shortly after periods of rainfall and shall
obtain one sample from each discharge per month. The
samples from Outfalls 001, 002, 004 and 005 shall be
analyzed for the parameters as required by the NPDES
Permit and the discharges from the three unpermitted
outfalls shall be analyzed for the parameters listed in
the NPDES Permit for Outfalls 001 and 004, The results
of these analyses shall be attached to Amerock’s DMR’s
and submitted to the Agency.
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5. Amerock shall take a grab sample of Kent Creek once each
month upstream and downstream of its discharges at a
time when discharges are occurring. These samples shall
undergo a complete biological and chemical analysis and
the results shall be attached to Amerock’s DMR’s and
submitted to the Agency.
6. Amerock shall conduct a biological examination of the
bottom of Kent Creek twice a year.
7, Amerock shall conduct a one—time stream sediment
sampling program from representative points upstream and
downstream of the runoff and snow melt discharge
points. These samples shall be analyzed for hexavalent
chromium, total chromium, copper, cyanide and zinc. The
results shall be included in the report prepared
pursuant to Condition No. 2.
8. 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 he held
in abeyance for any period during which this matter is
being appealed. The form of this certificate shall he
as follows:
Certif icate
I, (We)
having read the Order of the Illinois Pollution Control Board in
PCB 84—62, dated ____________________________________________________
understand and accept the said Order, realizing that suc.h
acceptance renders all terms and conditions thereto binding and
enforceable.
Petitioner
By: Authorized Agent
Title
Date
IT IS SO ORDERED.
Board Member J.D, Dumelle concurred.
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I, Dorothy M, Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the M’O~Z~
day of
~
,
1985
by
a vote of
_________________.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
65-475