ILLINOIS POLLUTION CONTROL BOARD
July 19, 1984
QUAKER
OATS
COMPANY,
)
Petitioner,
v0
)
PCB 83—107
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
MR. JAMES
I. RUBIN OF BUTLER, RUBIN, NEWCOMER, SALTARELLI
&
BOYD APPEARED ON BEHALF OF PETITIONER;
MR. STEVEN M.
SPIEGEL
APPEARED ON BEHALF OF THE RESPONDENTO
OPINIOW AND ORDER OF THE BOARD
(by J. Marlin):
This
matter comes
before
the Board upon an August
5,
1983
petition
for
variance filed by the Quaker Oats Company (Quaker)0
Quaker requests relief from
35
Ill,
Mm. Code 304.120(a) deoxy—
genating waste effluent limitations and Section 304.141 National
Pollutant Discharge Elimination System (NPDES) permit effluent
standards0
Quaker
further requests relief from Section 12(a)
of the
Environmental
Protection Act (Act).
The original variance
petition requested a prospective 15 month variance to study
compliance
options0
The time frame now requested for variance
is
between
August
8,
1983 through May 1,
1984.
The Illinois
Environmental
Protection
Agency
(Agency)
filed
its recommendation
on
October
7g
l9830
An
amended petition was filed on January
11,
1984
and
the
Agency
filed
an
amended recommendation on
March
12? 1984~
A
hearing
was held on March 2?, 1984 in Pekin,
IiJ.inois~
The
subject
of
the variance
is Quaker~splant in Pekin,
Illinois
which
manufactures
paperboard
from recycled corrugated
and
noncorrugated
waste paper products and kraft clippings.
Approximate’y
60 people are employed
at the plant which produces
78
tons
of
paperbiard
per
day0
A
new wastewater treatment plant
(WWTP)
was completed
in 1970 and consisted of a mechanical clarifier and a five-day
aerated
lagoon0
In
1978 a tertiary system was completed which
consists
of
a
deep
bed
sand filter
and
a backwash
lagoon.
Further
improvements
included
channelizing the existing
aerated
lagoon7
adding
a
polymer
at
the mill
to assist in retaining solids
during
production,
installing
a
nutrient control system to
maintain high lagoon bacteria
levels, covering a portion of
59-25
2
the
lagoon
with
inner
tubes
to
reduce
winter
heat
loss,
and
the
installation
of
a
plastic barrier across the lagoon to
promote
maximum
bacterial utilization and to
act as
a
retainer
for
the
inner
tubes.
In
June
1983
Quaker
began
to
recycle
part of
its
wastewater
which
resulted in compliance from
July
through November 1983.
J3efore
recycling
was
initiated,
the
Agency sent Quaker
a pre-~enforcementconference letter on April
12,
1983
giving
notice
of
five-day
biochemical oxygen demand (EOD5) and total
suspended solids
(TSS) violations, color and turbidity
effluent
violations,
and failure to submit complete notices of non-
compliance
(NON’s)
(Agency Rec, at 12).
A pre-enforcement
conference was held on May 16, 1983.
On July
6,
1983 the Agency
sent an enforcement notice letter to Quaker0
Quaker filed
this petition for variance on August
5,
1983.
In the past Quaker has been unable to comply during the
w:Lnter and early spring months
(1st Amended Petition, Exhibit
A)0
in 1981 Quaker asked permission of the City of
Pekin to
connect to the City~ssewage treatment plant
(STP).
Permission
was denied
(1st
Amended
Petition).
However, Quaker has now
entered into a written agreement with the City of Pekin for
the Citys STP to treat the flow from Quaker’s WWTP
during
periods of non—compliance.
The agreement
is for an initial
5 year period with a renewal option.
The City
may
terminate
the agreement for cause by 10 days advance written notice (Waste
Water Discharge Agreement at 7).
The full agreement is attached
to the Agency~sAmended Recommendation0
Quaker has represented
that it will be in compliance by May 1984
(1st Amended Pet.
The cost of Quaker’s attempts to comply with
the
state
regulations has been approximately $1,250,000 from 1970 through
the end of 1983,
of which $452,000 was the cost of the initial
WWTP in 1970
(1st Amended Pet.
at
8).
The total cost
figure
includes engineering fees.
The agreement with the City of
Pekin requires that Quaker pay the City
a
minimum user fee
of $25,000 per year~
$i~000
permit fee per year, and no more
than $5r000 for sewer modifications.
As in any variance proceeding,
the burden is on the
petitioner
to show that compliance with the Board rules
and
regulations
would impose an arbitrary or unreasonable hardship
on petitioner.
Quaker argues that
compliance
with
the applicable regulatIons
would
impose
an
arbitrary
or
unreasonable
hardship
on
it
because
of ~‘thetechnological
difficulty
of
achieving
cold
weather
complIance” and because of the
8Agency~s
sudden
and unjustified
change in position regarding the acceptability of Quaker’s
previous compliance efforts”
(Pet, Brief
at
1).
Quaker states
that
the Agency
wanted
it to abandon its deep bed sand filter
and
to consider an activated sludge treatment system
(Pet.
Brief at
7;
Exhibit U).
Quaker wanted to refine
and
improve
59~26
the existing system (Pet~Brief at 7).
Quaker asserts that
for
13 years it worked together with the Agency and that now
the Agency wants to throw
those
efforts
away.
The Agency asserts that
enforcement decisions have nothing
to do with
a finding of whether an arbitrary or
unreasonable
hardship exists and that
the
Agency
has
not
changed
its posItion
towards
Quaker
~Agency
Brief
at
1,
2).
The Agency states that
it
made
re
commendations
and
is
now
moving
toward enforcement
because of
Quakers
minimal
efforts
to
achieve compliance with
the
regulations
(Agency
Brief at
2).
The Agency cites two
similar
paper
hoard
manufacturing companies in Illinois that
meet
the
state
effluent
standards of
30 mg/i BOD5 and 30 mg/l
TSS
(Agency
Roe.
at
2,
3).
Quaker
is asking the Board for
interim effluent standards of 81 mg/I BOD5 and 134 mg/i TSS
(1st Am. Pet.
at.
1) while its performance history would dictate
much
lower
concentrations
(Agency
Am0
Rec,
at
3,
4).
The
Agency
further
asserts that Quaker has been
dragging
its
feet
in
implementing
Agency
recommendations.
Physical!
chemical
treatment
(polymer)
and
a
nutrient control system
were
recommended
in
1979
and
finally
implemented in
1982 or
1983
(Exhibit S~Agency P~ec, at ii).
Prior to 1979 NON~swere
not sent by Quaker to the Agency
and
afterward only
incomplete
NON~swere sent (Exhhit
S; Agency Rec. at
10, 12).
The BOD
and
TSB
excursions
as well as the color and turbidity violations
of 1979 were still present in early 1983
(Id.
).
The
Board
earees
with
the
Agency
that
Quaker
did
not
timely
implement
the
recommendations
of
the
Agency
or
similar
corrective
measures
The
Board
notes
that
Quaker
did
install
the
deep
bed
sand
filter
in
:L977
but
furthet
timely
efforts
were not
forthcoming~
Although
Quaker
states
that
it
filed
a
variance
petition
to
escape
the
Agency~s
change
in
position,
it appears
that
it
was
to
avoid
an
enforcement
proceeding.
Enforcement
efforts
and
decisions
have
nothing
to
do
with
the question
of
arbitrary
or
unreasonable
hardship.,
Quaker has failed to
sustain
:Lts
burden
in
showing
that
compliance
with the applicable
reguin~:ions
would
impose
an
arbitrary
or
unreasonable hardship
on
.itse1f~
To
the
extent.
that
there
is
any
hardship?
it
was
self—imposed
by
Quaker~s lethargic
attempts
at comp1iancs~
Quaker
is
askinq
for
a
retroactive.
variance,
which
is
nornafly
denre~ by
me
Board
except
under
exceptional
circum~-
stances~.
Quaker:
enumerates
its compliance efforts
and
cites
She1lO~raiwv~.PCB,
24
111.
App.
3d
549,
321 N..E.2d 170
(1974)
for
the
proposition
that
Quaker
should
he
entitled
to
a
retroactive
variance.
The
appellate
court
in
Shell
cited
the
prior
Board
c.” se
q
on
0±1 Corn
a~v
v.
IEPA,
10
PCB
217
(PCB
72~447,
December
6,
1973),
wherein
a prospective variance
was
granted
to
Union
Oil.
Neither
citation
supports
Quaker’ s
~r~o~osition.
59~27
While Quaker has requested variance
from
Section
12(a)
of the Act~
it
has
not
provided the Board
with sufficient
evidence
to
warrant
the
grant
of
variance
from
this
statutory
section.
The
requested
variance
is
denied.
This
Opinion constitutes the Board’s findings of fact
and
conclusions
of
law in this
matter.
ORDER
Quaker
Oats
Company
petition
for
variance
from
Ill.
Rev.
Stat.
1983,
ch.
111½, par.
1012(a),
35
Iii.
Adm.
Code
304.120
(a) and 304.141
is hereby
denied,
IT IS SO ORDERED.
Board
Member
J.D. Dumelle concurred.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
was
adopt~edon
the/?’~’
day
of
~,
1984
by
a
vote
of
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
59~28