ILr~Ir~IOISPOLLUTION CONTROL BOARD
November 19,
1981
STEPAN CHEMICAL COMPANY,
Petitioner,
v.
)
PCB 79—161
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
~ERCY
L.
ANGELO, MAYER,
BROWN,
& PLATT, APPEARED
ON
BEHALF OF
THE
PETITIONER.
NANCY J.
BENNETT, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
or
THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by
I.
Goodman):
On August 10,
1979 Stepan Chemical Company (Stepan) submitted
a Petition for Review of the NPDES permit issued by the Illinois
Environmental Protection Agcncy (?~gcncy) on July 12,
1979 for
S~epan’sMilisdale plant.
No members of the public attended the
hearing held on February
4,
1980.
The Milisdale plant,
located
in Elwood, Will County,
produces
a variety of organic and specialty chemicals.
The organic chemi-
cals consist mainly of phthalic anhydride, urethane foam products,
and tertiary oil recovery products.
The speciality chemicals
are used
in the production of surfactants.
Effluent from the
wastewater treatment system discharges to the Des Plaines River.
Stepan seeks review of the following conditions:
1.
the imposition
of a chlorine residual limitation,
2.
the frequency of required monitoring
for
pH,
biochemical oxygen demand
(BOD),
total suspended
solids
(TSS), and fecal
coliform,
3.
the requirement of methylene blue active substances
(MBAS) and chemical oxygen demand
(COD) monitoring,
4.
the specification of mathematical compositing for
oil and grease monitoring,
5.
the prohibition on transfer of the NPDES permit,
44—63
2
6.
the requirement of retaining monitoring records
for specific periods of
time,
and
7.
the incorporation of other state
requirements into
the NPDES permit.
Stepan’s NPDES permit contains
a chlorine
residual effluent
limitation of 0.75 mg/i pursuant to
Rule 405 of Chapter
3:
Water
pollution
(R.
68),
Chlorine is used
at the Milisdale plant to
reduce fecal coliform levels.
Stepan’s NPDES permit limitations
for fecal coliform are 200 organisms per 100 ml of discharge for
a 30—day average sampling and 400 organisms per 100 ml of dis’-
charge for a daily maximum sampling.
Stepan asserts that
it has
not been able to establish
a reasonable correlation between fecal
coliforrn and chlorine residual concentration
(R.
30), and con-
sequently is having difficulty in simultaneously meeting the fecal
coliform and chlorine residual standards
(R.
19).
Stepan alleges that the Agency usurped the Board’s rulemaking
authority by imposing a chlorine residual limitation which is not
governed by a promulgated state or federal regulation
(Pet.
Brief,
p.6).
Rule 9l0(a)(6)
of Chapter
3:
Water Pollution Control Rules
and Regulations
(Chapter 3)
states:
“Prior to promulgation by the Administrator of the U.S.
Enviroimiental Protection Agency of applicable effluent
standards and limitations pursuant to Sections 301,
302,
306, and 307
of the Federal
Water Pollution Control Act
(FWPCA)
the
Agency
shall
impose
such conditions
as
the
Agency determines are necessary to carry out the provisions
of the FWPCA;
,
,
The Second District
Appellate Court
in ~
Illinois Pollution
Control Board,
52
Ill.App.3d
1,
9 Ill.Dec.893,
367 N.E.2d 327 (1977),
determined
that Rule 910(a)
(6) constitutes
a directive, and not a
delegation,
from the Board to the Agency
which
is consistent with
the
Agency’s authority under Section
39(b) of the Illinois
Environmental
Protection Act
(Act) to issue
NPDES permits with
conditions.
~~od
Coal
Corn any v.
Illinois
Pollution Control Board,
344
N.E,2d 279
(5th Dist.
1976), however,
invalidated
Rule 9l0(a)(6)
as an
unauthorized delegation of the
Board’s rulemaking
authority.
The
3rd District,
in which Will
County is located,
did
not reach this issue in a recent opinion
(Illinois
Power
V.
Illinois
Pollution Control Board etal,,
No.
81—34,
Appellate Court of
Illinois,
3rd
District,
Sept.
30, 1981).
Without reaching the issue of delegation,
the Board finds
pursuant
to Rule 910(a)(6)
and Section 39(b) of the Act that the
imposition of
a chlorine residual limitation by the Agency upon
stepan
was not necessary to carry
out the provisions of the Act
or the
FWPCA
Clean
Water
Act
(cWA).
Stepan has encountered
44—64
3
technological difficulty
in
meeting fecal coliform and chlorine
residual limitations simultaneously.
Compliance with the non—
promulgated chlorine residual
limitation causes frequent non-
compliance with promulgated
fecal coliform limitations,
The Boar&
therefore,
finds that the
chlorine residual limitation clearly is
not required to accomplish the purposes and provisions of the Act
or the
cWA.
The Board notes that the use of chlorination for the
control of fecal coliforin is before the Board in R77~-l2.
Stepan also objects to the increase in the frequency of
monitoring pH, BOD,
TSS,
and fecal coliform from once per week
to bwice per week because Agency tests conducted over the past
several years demonstrate that the effluent has been well within
Stepan’s prior NPDES permit limitations for these parameters.
The Agency states that monitoring frequency requirements are based
upon the probability of toxic pollutants in a source’s discharge,
bhe size of the discharge,
and the nature of the receiving stream
(P.
135).
There
is no indication in the record that these cri-
teria were misapplied.
Furthermore,
the record indicates that
Stepan originally consented to twice per week monitoring
(R.
71).
The Board finds that the twice per week monitoring requirements
are reasonable under Rule 910(f)
of Chapter 3 regardless of the
absence of excursions beyond the limitations
in previous permits.
Stepan also objects to the requirement of monitoring MBAS to
determine surfactant levels
in its discharge.
Stepan stated that
interferences from organic sulfates,
sulfonates,
and carboxylates
present in its waste stream would artificially increase MBAS
readings and render the testing meaningless
(R.
30—33).
Stepan
cites “Standard Methods for the Examination of Wastewater and
Waste,”
14th Ed.
(1975),
p.
600, Method No, 5l2A,
to demonstrate
that such interferences would occur.
Testing for surfactants through the use of MBAS monitoring
is required by 40
C,F.R.
§136,3(a).
Number 113 of Table
I,
“Lists
of Approved Test Procedures,”
lists “colorimetric (methylene blue)”
as the approved method,
and reference is made to Standard Methods,
st.i~a,and to the “Annual
Book of ASTM Standard,” Part 31,
“Water,”
Standard D2330—68, Method
A,
p.
494
(1976).
Section 136,3(a) of
40 C.F,R, also states that alternative testing procedures may he
applied for by a discharger under certain conditions.
The Board
notes that Stepan has not applied for an alternative test pro-
cedure even though ASTM Standards,
supra,
Part 31,
“Water,”
Standard D2330—68,
p.
497,
contains a Method B which is speci-
fically designed to limit interferences encountered in the
methylene blue colorimetric test,
The Board finds that the
requirement of monitoring MBAS is reasonable.
The Agency states that because 40 C.F.R. §417,
subparts
I,
3,
N,
P, and R impose effluent limitations for COD
(Resp.Brief,
p.S), that monitoring requirements are implicitly imposed for COD.
Stepan, on the other hand, argues that the COD effluent limitation
does not apply to its facility (Pet.
Brief pp.
10-11;
Pet.
Reply
Brief,
p.8).
44—65
4
Assuming ar~~endo,that Stepan is correct, the Agency would
not be precluded from imposing monitoring requirements.
Both
Section 39(b), paragraph
2,
and Rule 910(f) allow the imposition
of monitoring requirements in the absence of applicable effluent
limitations.
The Board must decide whether the monitoring re-
quirements are necessary to accomplish the purposes of the Act
under the circumstances of the case.
Because Stepan’s process
streams, some of which are not subject to COD limitations, con-
verge into
a single discharge stream,
it is impossible to deter-
mine which portion of COD in Stepan’s discharge is from a process
with a COD limitation
(R.
5).
The Board finds
in this case that
requiring the accumulation of COD monitoring data
is not necessary
to accomplish the purposes of the Act, therefore,
the Board finds
that Stepan need not monitor COD in the combined stream.
As to composite sampling of oil and grease monitoring,
the
Board upholds the requirement although nothing in Chapter
3 re-
quires such compositing.
A composited sample taken over a period
of time is more representative than a single sample taken at a
given moment.
Compositing also allows dischargers more flexibility
in their plant design and operation because they have to meet
merely an average rather than an absolute standard.
The cost
of the plant design, construction, and operation,
and not the
cost of monitoring, were major factors
in the formulation of the
compositing rule
(R.
74—1,
—8, —9),
The Board
recognizes that mathematical compositing may he
more expensive than mechanical compositing;
however, accuracy is
absolutely essential,
The environmental benefit derived from
mathematical rather than mechanical compositing outweighs its
cost.
The Board, therefore, upholds the mathematical compositing
requirement for oil and grease as a representative testing method
which complies with Chapter 3,
and is
necessary
to accomplish the
purposes of the Act.
Stepan’s objections to the prohibition on transfer of the
NPDES permit,
the requirement of retaining monitoring records for
specific periods of time,
and the incorporation of other state
regulations into the NPDES permit may be dealt with summarily,
The prohibition on transfer of the permit does not necessitate
the closure of the facility upon sale as Stepan argues;
a permit
by the new owner may be applied for in advance of the transfer
of the facility.
The scope of a permit is not just facility—
related;
it also depends upon the owner’s operating procedures
and policies.
Requiring Stepan to maintain monitoring records
during periods of unresolved litigation or when required by the
Agency is a reasonable means, under Section 39(b)
of the Act, of
assuring compliance with the Act.
The Board finds that the Agency
has not abused its discretion by imposing such a requirement.
Lastly, incorporation of other State requirements into the permit
does not increase Stepan’s liability.
The provision merely assures
consistency in the application of State
laws and regulations and
is a reasonable exercise of Agency discretion.
44—66
5
This Opinion constitutes
the findings of
Eact and conclus~oris
of law of the Board in
this matter,
ORDER
It
is the Order of the Illinois Pollution Control Board
that
the NPDES permit application of Stepan chemical Company he reriand~T
to
the Illinois Environmental Protection Agency for ceconsider~ion
consistent with the Opinion herein.
IT
IS SO ORDERED.
I,
Christan L,
Moffett, Clerk of the Illinois Pollution
C~)ntrolBoard, hereh~~ertify that the above Opinion and Order
~ri~i~opted on the
~
day of
~
1981 by a voLe of
Christan
L. Moff~i?/Clerk
Illinois Po11utio~a(~ontroiBoarl
44—67