ILLINOIS POLLUTION CONTROL BOARD
July 8, 1999
IN THE MATTER OF:
PETITION OF ABBOTT LABORATORIES
FOR ADJUSTED STANDARD FROM 35
ILL. ADM. CODE 302.208 AND 304.105
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AS 99-5
(Adjusted Standard - Water)
ORDER OF THE BOARD (by N.J. Melas):
This matter comes before the Board on a June 14, 1999 “Motion for Reconsideration”
(Mot.) filed by the Illinois Environmental Protection Agency (Agency). In the motion, the
Agency asks that the Board reconsider the relief provided to petitioner Abbott Laboratories
(Abbott) in its May 6, 1999 opinion and order. See
In re
Petition of Abbott Laboratories
(May 6, 1999), AS 99-5. On June 24, 1999, Abbott filed a response to the motion for
reconsideration (Resp. Mot.). The Board grants the motion for reconsideration and, for the
reasons stated below, modifies its opinion and order of May 6.
Abbott initiated this action on November 12, 1998. On December 17, 1998, the Board
issued an order requesting that Abbott file an amended petition in order to correct certain
informational deficiencies in the original petition. On February 16, 1999, Abbott filed an
“Amended Petition for Adjusted Standard” (Am. Pet.) which fully complied with the Board’s
December 17, 1998 order.
In its amended petition, Abbott requested that the Board grant it an adjusted standard
from Sections 302.208 and 304.105 of the Board’s rules (35 Ill. Adm. Code 302.208,
304.105) for the discharge of chloride and total dissolved solids (TDS) from its facility at
Abbott Park, Lake County, Illinois. Am. Pet. at 9. The adjusted standard requested involved
an approximately 2,000 foot stretch of the Middle Fork of the North Branch of the Chicago
River (Middle Fork). Abbott claimed that it needed the adjusted standard as a result of the
wintertime practice of salting its paved surfaces and Highway 43. This practice causes salt to
flow into Abbott’s pond system. The salt is then discharged from Abbott’s permitted outfall
into the Middle Fork, causing Abbott to be seasonally out of compliance with its National
Pollutant Discharge Elimination System (NPDES) permit. Am. Pet. at 5, 7, Attachments 8-
11.
On March 16, 1999, the Agency filed its response (Res.) to Abbott’s amended petition.
The Agency recommended that the Board grant Abbott an adjusted standard from Section
302.208 of the Board’s rules. Res. at 2. On May 6, 1999, the Board granted Abbott an
adjusted standard from Section 304.105 but, for the reasons stated therein, did not grant
Abbott an adjusted standard from Section 302.208.
In re
Petition of Abbott Laboratories
(May 6, 1999), AS 99-5, slip op. at 5. In its motion for reconsideration, the Agency requests
that the Board grant Abbott relief consistent with the position it espoused in its response - that
adjusted standard relief should be granted from Section 302.208. Res. at. 2. Abbott, in its
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response to the motion for reconsideration, requests that the Board grant the motion for
reconsideration and modify the May 6, 1999 Board order. Resp. Mot. at 1.
Abbott requests that it be allowed to discharge 750 milligrams per liter (mg/L) for
chloride and 1,500 mg/L for TDS into the 2,000 foot stretch of the Middle Fork. Resp. Mot.
at 4. The current water quality standard for those constituents, found at Section 302.208 of
the Board’s rules, are 500 mg/L for chloride and 1,000 mg/L for TDS. The water quality
standard for these constituents has also been incorporated into Abbott’s NPDES permit. Res.
at 2-3, 5. While the Agency recognizes that the Board’s May 6 opinion and order intended to
grant Abbott the relief requested, and while the Agency agrees that Abbott has justified the
relief requested, the Agency takes issue with the way the Board’s opinion and order
“structured” that relief. Mot. at 2. The issue presented in this motion for reconsideration is
simply whether the relief requested is more appropriately given from Section 302.208 (the
water quality standard itself) or Section 304.105.
DISCUSSION
Granting Relief from Section 302.208
While the Board has previously granted relief from Section 302.208 (See
In re
Borden
Chemicals & Plastics Operating Partnership (November 18, 1993), AS 93-2;
In re
Illinois
Department of Transportation, District 8 (October 3, 1996), AS 96-12), it has generally been
reluctant to do so. In large part, this reluctance was based upon a belief that granting relief
from Section 302.208 for a particular water of the state potentially grants that same exception
to the general water quality standard to any other discharger to that same stretch of water.
The Agency states that Abbott is currently the only NPDES-permitted discharger along
the 2,000 foot stretch of the Middle Fork. Res. at 13; Mot. at 4. The Board wants to ensure
that no other potential discharger to that stretch of water will be automatically entitled to
benefit from the adjusted standard granted to Abbott as a result of this order. This adjustment
from the water quality standard belongs to Abbott alone. Any future NPDES permits for other
dischargers to this segment of Illinois water will require a separate and independently justified
adjusted standard before there will be any deviation from the water quality requirements found
at Section 302.208.
While the Board continues to believe that there is little practical significance in
providing an adjusted standard pursuant to Section 302.208 as opposed to Section 304.105, in
this instance the Board accepts the Agency’s position in this proceeding under this set of facts
and accordingly grants relief from Section 302.208 to Abbott.
Sampling Requirements
The May 6, 1999 Board opinion and order directed Abbott to conduct various sampling
activities from the early spring of 1999 through April 2000. The Agency’s motion for
reconsideration stays the May 6, 1999 Board opinion and order until the disposition of the
motion for reconsideration. 35 Ill. Adm. Code 101.246(c). To ensure that the sampling
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requirements from the May 6, 1999 Board opinion and order are conducted during the proper
time of the year, the Board revises some of the sampling requirements consistent with the
order below.
CONCLUSION
The Board grants the Agency’s motion for reconsideration and modifies its May 6,
1999 opinion and order. The Board will grant Abbott an adjusted standard from the general
use water quality standards at 35 Ill. Adm. Code 302.208. The Board will not grant Abbott
an adjusted standard from 35 Ill. Adm. Code 304.105, because such relief is unnecessary
given the grant of relief from Section 302.208. Also, on its own motion, the Board modifies
some of the sampling requirements from the May 6, 1999 opinion and order.
MODIFIED ORDER
The Board hereby adopts the following adjusted standard, pursuant to the authority of
Section 28.1 of the Environmental Protection Act:
1.
As set forth below, the Board grants Abbott Laboratories (Abbott) an adjusted
standard from 35 Ill. Adm. Code 302.208. The adjusted standard applies only
to Abbott’s facility located in Abbott Park, Lake County, Illinois, which has 11
interconnected ponds that discharge from Outfall 001 and Outfall 002 to the
Middle Fork of the North Branch of the Chicago River (Middle Fork).
2.
The general use water quality standards for chloride and total dissolved solids
(TDS) at 35 Ill. Adm. Code 302.208 do not apply to the portion of the Middle
Fork that extends from Abbott’s Outfall 002 to the intersection of the Middle
Fork and the northern boundary of Route 176. Instead the following water
quality standards apply:
a.
750 milligrams per liter (mg/L) for chloride, and
b.
1,500 mg/L for TDS.
3.
The Board grants the adjusted standard subject to the following conditions:
a.
Abbott must monitor the concentrations of chloride and TDS in the
Middle Fork on a monthly basis for a period of one year after the date of
this order consistent with the specifications in its amended petition.
Sampling must continue through July 2000. Abbott must retain records
of the monitoring results and make them available for public inspection.
b.
Abbott must sample fish and benthos in the Middle Fork upstream of
Outfall 001, below Outfall 002, and at the northern boundary of the
Route 176 Intersection. Sampling at the three sites must occur once in
the early spring of 2000 and once in the late spring of 2000 consistent
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with the amended petition. Abbott must retain records of the sampling
results and make them available for public inspection.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 8th day of July 1999 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
