ILLINOIS POLLUTION CONTROL BOARD
September
20,
1979
BEKER INDUSTRIES CORP.,
Petitioner,
v.
)
PCB
79—9
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
Mr. Duane A. Suer,
Patton,
Boggs
& Blow, appeared for the
Petitioner;
Mr. William E. Blakney, Assistant Attorney General, appeared
for the Respondent.
OPINION AND ORDER OF TEE BOARD
(by Mr.
Young):
This matter comes before the Board on a Petition for Variance
filed by Beker Industries, Corp.
on January 16,
1979,
requesting
relief from certain terms and conditions of NPDES Permit IL0036463
which was issued on December 14,
1978,
and became effective on
January
13, 1979.
Specifically,
a variance is requested from
the Board regulations which under the NPDES permit require:
1.
For monitoring and treating contaminated storm water
runoff from Outfalls 002a,
002b,
003,
004d,
006 and
007
to meet the effluent limitations required by Rules
302(i)
(temperature),
406 (ammonia nitrogen),
407
(phosphorus
and 408
(additional contaminants)
of
Chapter
3:
Water Pollution Regulations;
2.
For separately monitoring and treating Outfalls
001
and 002c,
004a and 004b,
and 004c and 005,
and for
separately monitoring combined Outfalls 004a—004b
and 004c-005 for compliance with the total dissolved
solids
(TDS)
of Rule 408(b)
of Chapter
3;
and
3.
For
complying
immediately
with
these other require-
ments of the permit,
including final effluent
limitations.
On
February
26,
1979,
the
Environmental
Protection
Agency
submitted
a
recomim~n~ation advising
the
Board
to
allow,
as
per
Request
No.
2,
the
consolidation
of
certain
discharges
and
the
mathematical combination of these combined waste streams for
compliance with the TDS requirements,
However, the Agency also
recommended denial of Petitioner~s request for a variance from
35—
389
—2—
the remaining permit in Requests
1 and
3 which require monitor-
ing,
treatment and ir’imediate compliance with the requirements
of Chapter
3 and the NPDES permit.
On May 21,
1979,
Beker
filed an Amended Petition which significantly modified the
proposed compliance measures and clarified the compliance
studies and programs
to be undertaken by the Petitioner.
After reviewing these revisions,
the Agency submitted an
amendment to the original recommendation on June
29, 1979,
and a minor modification on August
1,
1979,
in favor of the
variance subject to specific conditions outlined by the Agency.
Hearing was held on August
30,
1979,
in Ottawa,
Illinois
during which the Petitioner submitted clarifications
to pur-
ported ambiguities
in the record.
No members of the public
were present.
Beker Industries owns and operates a chemical manufacturing
facility
in Marseilles,
Illinois which
is bounded by the Illinois
River and the Kickapoo Creek.
Originally,
the Marseilles facility
produced sulfuric acid, phosphoric acid and diammonium phosphate
(DAP)
.
After temporarily closing the facility, Beker converted
the plant to the manufacture
of dicalcium phosphate in addition
to sulfuric acid while phosphoric acid and diammonium phosphate
production was discontinued.
According to the petition,
the
Marseilles facility currently produces 25,500 tons of dicalcium
phosphate and 188,000 tons
of sulfuric acid annually.
(Pet.
4—5;
Am. Pet.
19-20).
in 1975,
Beker filed an NPDES permit application which listed
five non-process
water
discharges ancillary to the production of
chemicals.
Since Petitioner’s facility discharged no process
wastewater pollutants,
the Marseilles facility was in compliance
with all applicable USEPA effluent regulations and therefore,
was subject only to the Board Rules regarding wastewater dis-
charges
to the Illinois River and the Kickapoo Creek.
(Am. Pet.
4;
Rec.
4).
On December 14,
1978, Petitioner was issued a revised NPDES
permit which identified seven additional or
a total of twelve
discharges as separate outfalls each requiring monitoring and
treatment.
Eleven of the twelve discharges were to the Illinois
River; Discharge
007 flowed to the Kickapoo Creek.
Descriptions
of the twelve outfalls identified by the NPDES permit are as
fo
11
ow
5:
001
-
Noncontact
Cooling
Water
002a
-
Cooling
Water
Pond
002b
-
Contaminated
Storm
Water
Runoff
002c
-
Noncontact Cooling Water
003
-
Steam Condensate and Contaminated Storm Runoff
35— 3 90
—3—
004a
-
Boiler
Blowdown—Sulfuric
Acid
Plant
004b
-
Water Treatment
(Softener)
Plant Waste
004c
-
Noncontact Cooling Water
004d
-
Contaminated Storm Water Runoff-Sulfuric Acid
Storage Area
005
-
Noncontact Cooling Water—Sulfuric Acid Plant
006
-
Gypsum
Pond
007
-
Contaminated
Storm
Runoff-East
Side
In
addition
to
listing
Discharges
001,
003
and
005,
the
revised
NPDES
permit
segregated
waste
streams
in
Discharges
002
and
004
in
accordance
with
the
source
of
wastewater
con-
tamination.
Foremost among the discharge sources
is
a 35—acre
former phosphoric acid cooling water pond
(Discharge
002a),
which flows to the waters of
the Illinois River via an inlet
and adjacent outlet point.
Petitioner claims that with the
discontinued production of phosphoric acid, the pond serves
as a catchment for storm water runoff for a gypsum pile
approximately 50 feet high and occupying about 80 acres.
However,
the Agency asserts that waste from clean-up operations
are being pumped to the pond in addition to the runoff from
the gypsum pile.
(Am. Pet.
5,
6; Am. Rec.
2-3,
6).
Discharge 002b
serves as an
outfall
which
collects
waste-
water from clean—up operations, precipitation events and over-
flows from sump pumps not directed to the cooling pond.
Dis-
charge 002c receives water from the Fuller—Kenyon compressor
and its discharge converges with the surface flow of Discharges
002a and 002b
in a drainage ditch tributary to the Illinois
River.
(Am.
Pet.
5-6; Am.
Rec.
3).
The revised NPDES permit also divided Discharge 004 into
four wastewater streams which are combined in a common ditch
before flowing into the Illinois River.
Discharges
004a,
004b,
004c and 004d were distinguished for purposes of separate
monitoring
and. effluent limitations
for the contaminates
carried
by each outfall.
Petitioner claims that Discharges
004a,
004b and 004c carry storm water runoff from areas which formerly
manufactured phosphoric acid and diammonium phosphate.
(Am.
Pet.
5—6;
Am. Rec.
3).
The revised NPDES permit also identified two discharge
points from Petitioner’s facility for separate monitoring and
treatment.
Discharge
006
is
a discharge point from a separate
pond also containing calcium sulfate
(gypsum) which flows
directly to the Illinois River.
Discharge
007 conveys con—
taminated storm runoff from the east side of Petitioner’s
facility into Kickapoo Creek.
(Am. Pet.
6;
Am. Rec.
3,
4).
After reviewing the terms and conditions of the NPDES permit,
as revised, Beker has proposed alternative measures to ultimately
meet the requirements of the permit which requires approval of
the Board
in the form of
a variance.
Beker’s proposed compliance
35—391
—4—
program
involves
three
basic elements.
First, Petitioner
requests
relief
for
intermittent
overflows from the cooling
water pond tributary to Discharge 002a and four additional
wastewater streams of contaminated storm water.
Second,
Beker seeks modification of the NPDES permit to consolidate
three discharges and to combine by mathematical formula the
new discharges
to conply with the TDS requirements.
Third,
Petitioner requests that the Board establish a schedule of
compliance
to reasonably implement these measures and to
provide the necessary interim effluent limitations during
the variance period.
The first of
these elements includes two distinct parts.
As the first part, Beker proposes to implement a program to
prevent overflows from the cooling water pond
(Discharge 002a)
and the gypsum pond.
Measures include liming the cooling pond,
dilution from natural precipitation and managing the discharge
to eventually eliminate the pond
as a source of pollution.
In addition, Petitioner seeks
a modification of the permit’s
ammonia nitrogen effluent limitation to allow a daily maximum
concentration of 120 mg/i.
The second aspect of this part
would require Beker to initiate measures to reduce contamination
of storm water runoff from 002b,
003,
004d and 007.
Specific
clean-up and monitoring programs have been designed to remove
contamination or eliminate the discharge from the drainage
area.
(Am.
Pet.
8—15).
The second element of Petitioner’s program would allow
Beker
to consolidate into three discharges
the following waste
streams:
Discharges
001 and 002c
(noncontact cooling waters)
Discharges
004c
and
005
(noncontact cooling waters)
,
and Dis-
charge 004a
(boiler blowdown)
and 004b
(water treatment
(softener)
plant waste)
.
Petitioner also seeks to mathematically
combine new Discharges 004a-004b and 004c-005 for purposes of
compliance with the TDS effluent limitations.
(Am. Pet.
15—17).
As the final element, Beker requests that a specific
schedule and interim limitations be established to permit
Petitioner to continue operations while implementing the pro-
posed program.
Petitioner seeks
a reasonable timetable for
submission of permits for construction, diversion of discharges
arid
other
proposed
measures
and
a
reasonable
schedule
for
commencing
clean—up,
monitoring
measures
and
construction
in
accordance with the proposed program.
In addition,
Beker
requests interim limitations
and monitoring requirements which
reflect current conditions at the Marseilles facility.
(Am.
Pet.
17—19)
3 5—392
—5—
Petitioner
has
estimated
that
the
total
capital
cost
for
completion
of
the proposed control measures ranges from $113,500
to $156,000.
In
addition
to
the clean—up operations mentioned
above, Petitioner has proposed monitoring and treatment equip-
ment for Discharges OOl—002c,
004a—004c,
and 004c—005 to assure
compliance with all applicable effluent limitations.
To
monitor compliance of the combined Discharges 004a-004b/004c-
005 with the
~flj5
effluent limitation of Rule
408 (b)
,
will
require measurements
of actual flow at each monitoring station
and a suitable mathematical formula approved by the Agency to
determine the TDS concentration in the combined discharge.
Petitioner claims that the proposed program is the most cost-
effective means of assuring maximum environmental protection.
(Am.
Pet.
7,
22—25).
It
has
been
the
position
of
Beker Industries
from the
very
beginning
of
Lhis
proceeding
that
the
Environmental
Pro-
tection
Act
does
not
authorize
the Agency to impose limitations
on
storm
water
runoff.
Beker
accedes to the NPDES permit re-
quirements
for Outfalls 002a,
002b,
003,
004d
and
007, only
for
the
purposes
of
this variance proceeding.
In response,
the Agency maintains that the authority
to control
a con-
taminateci storm
water
runoff
discharge
pursuant
to
NPDES
authority
is
well-founded
within
appropriate
definitions
of
the
Act
and
the
Board
regulations
and therefore within the
scope of Section 12(f)
of the Act.
Having reviewed the arguments, the Board finds
since the
discharge
from
Petitioner’s outfalls,
identified above,
are
admixtures
of
land
runoff
and
significant amounts of con-
taminants,
the storm water runoff
assumes the character of
“wastewater~ for the purposes of the NPDES permit provisions
of Sections
12(f)
~
13(b)
of the Act and Board regulations
thereunder.
Moreover,
control of such discharge
is clearly
required by Federal regulations pursuant to the Clean Water
Act,
(See
40 CFR, Part 122).
(Am. Pet.
2;
Rec.
17—18).
In reviewing Beker’s original variance petition,
the
Agency objected to Petitioner’s failure
to provide measures
for achieving
full compliance,
as per Procedural Rule 401(a)
(6)
,
and its inability to determine environmental impact as
required by Procedural Rule 410(a) (7)
.
According to the
Amended Recommendation, the Agency has determined that
Petitioner’s proposed program will provide the data necessary
to meet the compliance requirement.
The Agency also believes
that continued discharges will have localized impact for the
short length of time of the variance.
Furthermore,
the Agency
supports such effluent limitations for Outfall
002a,
002b
and 007 for the duration of the variance period as has been
determined by the Agency’s best engineering judgment.
(Rec.
13—16; Am.
Rec.
4—5).
35—393
—6—
The
Board
finds
that
a
variance
is
warranted
to
allow
Petitioner
to
implement
its
proposed
program within the time
frame of the Order.
Interim limitations will be provided as
are recommended by tI~eAgency.
Petitioner will be granted
a variance from the applicable terms
and conditions of its
NPDES permit as determined by the Order.
The Board will direct the Agency to modify Petitioner’s
NPDES Permit IL0036463
in compliance with this Order pursuant
to Rule
914 of Chapter
3 and to include interim effluent
limitations which
are consistent with this Order.
This Opinion constitutes
the Board’s findings of fact
and conclusions of law in this matter.
ORDER
The Petitioner, Beker Industries Corp.,
is hereby granted
a variance from Rules
302(i)
(temperature),
406
(ammonia
nitrogen),
407
(phosphorus)
and 408
(additional contaminants)
of Chapter
3:
Water Pollution Regulations,
to permit
modification
of the terms and conditions of NPDES Permit
IL0036463
as necessary to initiate and implement the
requirements of Paragraphs
1 through
9
of this Order.
1.
Outfall
001
A).
Outfall
001 shall be combined with Outfall
002c.
Within
30
days
of the date of
this Order,
Petitioner shall submit a properly executed
construction
permit
application
to
the
Agency
for
this
proposed
combined
outfall.
Within
30 days following issuance of the construction
permit
for
the
combined outfall, Petitioner
shall commence monitoring pursuant to the
final limits
in its NPDES permit.
During the
interim discharge period, Petitioner shall
monitor the outfalls separately pursuant to
the provisions of its present NPDES permit.
2.
Outfall
002a
A)
.
Within 30 days
of
the
date
of
this
Order,
Petitioner shall submit
a properly executed
construction permit application including
“as-is”
drawings of the cooling pond to the
Agency for the proposed managed discharge
program of Outfall
002a.
Final details of
the managed discharge program shall be
approved by the Agency prior to issuance
of
the
construction
permit.
35— 394
—7—
13)
.
Within
10
days
of
the
date
of
this
Order,
Petitioner
shall
commence
neutralization
of
the cooling oond
(Outfall 002a)
with lime.
Within
120
clays
after
the
date
of
the
Order
in
this
proceeding, Petitioner shall have
com~)leted
such
neutralization
and
shall
commence
the
program
of
managed
dischar~e
of
the
contents
of
the
pond
and
monitorinq
thereof
in
accordance
with
the
final
limits
of
its
NPDES
permit
(with
the
exception
of
ammonia-nitrogen to be outlined below)
All work requiring additional permits
shall
be completed within 30 days after issuance
by the Agency of such permit.
C)
.
Interim effluent limits for Outfall
002a
with the exception of ammonia—nitrogen shall
correspond to those requested in Exhibit
B
in the oriqinal Petition for Variance.
D)
.
Petitioner
shall be allowed
to discharge
ammonia-nitrogen at a level of 120 me/l
daily maximum from Outfall
002a for a
~)eriod of one year following pond neutralization.
At the
end
of
the one year period, Petitioner
shall
request
that
its
NPDES
permit
be
modified
to
reflect
then current discharees, with a
daily
maximum not
to
exceed
120
mg/i.
Within
2
years
following
the date
of
this
Order,
Petitioner
shall
have
achieved
compliance
with
Chapter
3
limits
for
ammonia-nitrogen
for
Out-
fall
002a or seek an extension of relief from
the L3oard.
I~).
Until
such
time
as
the
program
of
managed
discharge commences, the
interim
effluent
limits for Outfall 002a shall be as re-
quested
in Exhibit B of the original Petition
for
Variance.
3.
Outfall
002b
A)
.
Within
30
days
after
the
date
of
this
Order,
Petitioner
shall
implement
fully
all
of
the
airtel jorative
and
preventive
measures
pre—
scribed
in
its
Petition
with
respect
to
)iscilarqe
002b.
35—395
—8—
B).
Uithin~30 days after the date of this Order,
Petitioner
shall submit a properly executed
construction permit application for diversion
of boiler blowdown from Outfall 002b for
inclusion and treatment in Outfall 004a
combined with
004b,
C)
.
Within
120 days after
the issuance of a
construction permit for diversion of boiler
blowdown from Outfall
002b,
Petitioner shall
have completed such diversion.
D)
.
Petitioner shall develop a housekeeping and
maintenance plan to prevent spills
in the
unloading area which would drain
to the
junction box downstream of the phosphoric
acid plant sump pumo.
Petitioner
shall
submit such plan to the Agency no later
than six months from the date of this
Order.
H)
.
For a period of six months following
implementation
of the foregoing measures,
Petitioner
shall
monitor
the
discharge
with
respect
to
all
parameters
specified
for Outfall 002h in its NPDES permit by
means of weekly grab samples (luring
periods of runoff.
Petitioner shall pro-
vide
nonthly
monitoring
reports
to
the
Agency during this six—month period.
If
at the conclusion of such monitoring and
resulting
data
shows
that
the
measures
taken by Petitioner have significantly
reduced contamination, the Agency would
be authorized,
upon
Petitioner’s
request,
to
modify
the permit
with
respect
to
such
discharge
to
relieve
Petitioner
of
any
further
obligation
to
continue
monitoring
thereof.
If
at
the
conclusion
of
such
monitoring,
the
Agency
concludes
on the
basis
of
the
resulting
data
that
the
quality
of the
discharge
is
un-
acceptable,
the Agency would be authorized
to reopen these variance proceedings con-
cerning such discharge unless Petitioner
were to implement such additional measures
as the Agency might consider necessary to
reduce
the
contamination
of
the
discharge;
35—39 6
—9—
provided, however, that to the extent that
the
discharge
is
in
compliance
with
applicable
effluent limitations under Part IV of Chapter
3 regulations it would be deemed acceptable
to
the
Agency.
4.
Outfall 003
A).
Within 30 days of the date of the Order in
this
proceeding, Petitioner shall have fully
ir.iplemented all of the ameliorative and
preventive measures for Outfall
003 as
described in its petition.
B).
For a period of six months following
implementation of the foregoing measures,
Petitioner shall monitor the discharge
with respect to all parameters specified
for Outfall
003 in its NPDES permit by
means of weekly grab samples during
periods of runoff.
Petitioner shall pro-
vide monthly monitoring reports to the
Agency
during
this
six—month
period.
If
at
the
conclusion
of
such
monitoring
the
resulting data shows
that the measures
taken by Petitioner have significantly
reduced contamination,
the Agency would
he authorized, upon Petitioner’s request,
to modify the permit with respect
to such
discharge to relieve Petitioner of any
further obligation to continue monitoring
thereof.
If at the conclusion of such
monitoring the Agency concludes on the
basis of the resulting data that the
quality of the discharge is unacceptable,
the Agency would be authorized to reopen
these variance proceedings concerning
such discharge unless Petitioner were to
implement such additional measures as
the
Agency might consider necessary to
reduce the contamination of the discharge;
provided, however, that to the extent
that the discharge
is in compliance with
applicable effluent limitations under
Part IV
of
Chapter
3
regulations
it
would he deemed acceptable to the Agency.
35—397
—10—
5.
Outfalls 004a and
004b
A).
Within
30 days of the date of the Order in this
proceeding,
Petitioner shall submit a properly
executed construction permit application for
the
proposed
combined
treatment
of
discharges
from Outfall
004a and 004b and diversion of
boiler blowdown from Outfall
002b.
B)
.
Within
120 days from the date of issuance of
a construction permit for such combined out-
fall, Petitioner
shall have completed con-
struction and commenced monitoring pursuant
to its final NPDES permit limits for the
combined discharge.
C).
During the interim discharge period for Out-
fall 004a,
004b and the boiler blowdown
diverted from 002b, Petitioner shall monitor
the discharges separately in accordance with
the interim limits proposed in Exhibit B to
the original Petition for Variance.
C)
.
Within 30 days of the date of the Order
in this
proceeding, Petitioner shall submit a formula
acceptable to the Agency for calculation of
total dissolved solids for mathematically
combining Outfall 004a—004b and 004c—005 for
this parameter.
Petitioner shall he allowed
to discharge total dissolved solids pursuant
to this formula of mathematical combining
Outfall 004a—004h and Outfall 004c—005 for
a period of five years.
6.
Outfall
004c
and
005
A)
.
Within
30 days after
the
date of the Order in
this
proceedinq,
Petitioner shall submit a
properly
executed construction permit
application to the Agency for proposed com-
bined Outfall 004c—005.
13)
.
Within
30 days after the issuance of
a
construction permit for the combined Out-
fall
004c-005, Petitioner shall have
commenced monitoring pursuant to its
final NPDES permit limits.
C).
In the interim period, Petitioner shall
monitor Outfall 004c and 005 separately
pursuant to present NPDES permit.
35—398
-ii-
7.
Outfall 004d
A)
.
Within
30 days after
the date
of
the
Order
in
this proceeding, Petitioner shall complete all
ameliorative and preventive measures described
in its petition so that Outfall 004d may be
eliminated as a discharge point.
The Agency
shall be authorized to delete Outfall 004d,
U~Ofl
the request of Petitioner, after completion
of such measures.
8.
Outfall
006
A)
.
Within
30
clays
o:f the date of the Order in
this ~roceeding,
Petitioner shall eliminate
the discharge
at Outfall
006.
The Agency
shall be authorized to delete Outfall 006,
u~on
the
request of Petitioner,
after
completion of elimination of the discharge.
9.
Outfall 007
A)
.
Within
30 days of the date of the Order in
this proceedinc,
Petitioner shall implement
all of the ameliorative and preventive
measures for Outfall
007
as described in its
petition.
B).
For a period of six months following
imolementation of the forecjoinq measures,
Petitioner shall monitor the discharge with
respect
to
all
parameters
specified
for
Out-
fall
007
in
its
BPDFS
permit
by
means
&
weekly
grab sammles during periods of
run-
off.
Petitioner
shall
provide
monthly
monitoring renorts
to the Agency during
this sin—month neriori.
If at the con-
clusion
of
such
monitoring
the
resulting
data
shows
that
the
~1easures
taken
by
Petitioner
have
sienificantlv
reduced
contamination,
the
Agency would be
authorized,
upon Petitioner’s request,
to modify the mermit with respect to such
discharge
to relieve Petitioner of any
further
obligation
to
continue
monitorinq
thereof.
If at the conclusion of such
monitoring the Agency concludes
on the
basis of the resulting data that
the
quality of
the
discharge
is unacceptable,
the Agency would he authorized
to reopen
35—399
—12—
these variance proceedings concerning such
discharge unless Petitioner were
to implement
such
additional
measures
as
the
Agency
might
consider
necessary
to
reduce
the
contamination
of the discharge; provided,
however, that to
the extent that the discharge
is in compliance
with applicable effluent limitations under
Part IV of Chapter
3 regulations, it would be
deemed acceptable
to the Agency.
10,
Petitioner, within
30 days of the date of this Order,
shall request Agency modification of NPDES Permit 1L0036463
to incorporate all conditions of the variance set forth here-
in.
11.
The Agency, pursuant to Rule 914 of Chapter
3,
shall
modify NPDES Permit 1L0036463 consistent with the conditions
set forth in this Order and include such interim effluent
limitations which are consistent with the terms of this Order.
12.
Within forty-five
(45)
days of the date of this Order,
the Petitioner shall submit to the Manager, Variance Section,
Division of Water Pollution Control,
Illinois Environmental
Protection Agency,
2200 Churchill
Road, Springfield,
Illinois,
62706,
an executed Certification of Acceptance and Agreement
to be hound to all terms and conditions of the variance.
The
forty—five day period herein shall be suspended during judicial
review of this variance pursuant to Section 41 of the Environ-
mental Protection Act.
The form of said certification shall be
as follows:
CERTIFICATION
I,
(We),
___________
having
read
the
Order of the Pollution Control Board in PCB 79-9,
understand and accept said Order, realizing that such
acceptance renders all terms and conditions thereto
binding and enforceable.
SIGNED
TITLE
DATE
IT
IS SO ORDERED.
35—400
—13—
I,
Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certif
t,~iatthe above Opinio
and
Order were adopted o
the
____________
day of
____________,
1979,
by
a vote of
______________
Christan L. Moffet
,
rk
Illinois
Pollution
n
rol
Board
35—40 1
