ILLINOIS POLLUTION CONTROL BOARD
    April
    8,
    1976
    HYON WASTE MANAGEMENT SERVICES, INC.,
    )
    Petitioner,
    v.
    )
    PCB 75—457
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    Mr. George BullWinkel, Attorney, appeared for the Petitioner;
    Mr. John Bernbom, Attorney, appeared for the Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr.
    Zeitlin):
    This matter is before the Board on a Permit Appeal filed by
    Petitioner Hyon Waste Management Services,
    Inc.
    (Hyon)
    on
    December 1,
    1975.
    The Agency’s Response and Permit Record were
    filed on January
    6,
    1976.
    Hearings were held in the matter on
    January
    26 and 27,
    1976,
    in Chicago.
    An Interim Order of the Board entered December 11,
    1976,
    specifically denied Hyon’s Motion to Consolidate this matter with
    PCB 75-413, another case concerning denial of permit applications
    for Hyon facilities by the Environmental Protection Agency
    (Agency).
    PCB 75-413, decided separately today,
    concerns the denial of permits
    by the Agency concerning air emissions from Hyon’s Chicago facility;
    this case concerns the denial of permits under Ch.
    3: Water Pollution.
    Nonetheless,
    the hearings held on January 26 and 27 considered both
    cases jointly.
    This case,
    like PCB 75-413,
    is decided on that combined
    Record.
    Hyon characterizes its Chicago facility as an “integrated
    treatment facility for industrial wastes,”
    (R..6).
    In addition to
    the incinerator described in PCB 75-413, which is used primarily
    to burn liquid wastes,
    the facility contains several other processes
    for the treatment of liquid wastes.
    These include biobeds, which
    serve
    to biodegrade some materials,
    an activated sludge system with
    an attendant clarifier, oxidation ponds,
    settling ponds, acid treating
    beds and other treatment equipment.
    Attendant facilities include
    a receiving station,
    a tank farm,
    a drum handling station,
    storage
    for neutralized sludge,
    an acid receiving basin,
    a laboratory and
    various other storage areas and related equipment,
    (R.
    20-21).
    The facility itself
    is adjacent to Lake Calumet on Chicago’s
    south side.
    A large part of its area is composed of two long
    earth-fill peninsulas
    jutting into the lake.
    It
    is located in a
    largely industrial area, and is surrounded by various heavy industrial
    plants, bulk terminals and the
    like,
    (id.~).
    21
    —85
    —2—
    Hyon’s facility treated
    a total of approximately
    19 million
    gallons of waste
    in 1975.
    Although evaporation accounts for a
    considerable water loss,
    and some liquids are incinerated,
    a large
    amount of water nevertheless remains,
    and is discharged after treat-
    ment to sewers of the Metropolitan Sanitary District of Greater
    Chicago
    (MSD),
    (R,35-36),
    Discharges to the MSD began in January,
    1975,
    (R.56), and amount to approximately 40,000 gallons per day,
    (R.57).
    The permit application in question in this case was received
    by the Agency on September
    2, 1975,
    (EPA Ex.
    12).
    The application
    was rejected by the Agency on November 24,
    1975,
    for the following
    reasons,
    (Hyon Ex,
    12):
    “1.
    Samples taken
    .
    .
    .
    on May 27,
    1975 and
    October 16,
    1975 of your discharge tributary to
    the Metropolitan Sanitary District
    .
    .
    .
    revealed
    concentrations of cyanide at 8.5 mg/i and 5.5 mg/l,
    respectively.
    The concentration of cyanide in the
    discharge to a public sewer system must comply with
    Rule 703 of the Illinois Pollution Control Board
    Rules and Regulations, Chapter
    3
    setting
    a standard
    of 0.025 mg/lI.
    2.
    Test results from the monitoring wells have
    not been reported to this Agency as required by
    SPECIAL CONDITION as specified in the last
    2 years
    operating permits for all
    facilities except the
    Receiving Station, Activated Sludge System and Force
    Main and Lift Station.”
    As was the case with PCB 75—413, Hyon bases its permit denial
    on two grounds:
    1.
    The Agency’s permit denial for the above
    reasons was improper; and,
    2.
    Hyon’s facility needs no permit under
    Rule 953 of Chapter
    3: Water Pollution.
    We shall dispose of the latter of these contentions first.
    Hyon bases
    its argument that no permit is needed for its water-
    related facilities
    on the grounds that it is not operating so as
    to constitute a “treatment works,” “wastewater source” or “pretreat-
    ment works.”
    Hyon further argues,
    however, that even if it is operating
    a
    pretreatment works,
    it should still
    be exempt from the permit require-
    ment by reason of the exemption in Rule 953(d).
    Hyon claims that
    it meets all three of the requirements of that Rule,
    and is therefore
    eligible for the exemption.
    21—86
    —3—
    Most of Hyon~sarguments
    in this regard need not be examined
    closely, since we find that Hyon is not entitled to an exemption
    under Rule 953(d).
    Part
    (1)
    of Ru1e~3(d) bars from the exemption
    any pretreatment works which will,
    (1)
    Discharge toxic pollutants,
    as defined in
    Section 502(13)
    of the FWPCA
    Federal
    Water
    Pollution Control Act as amended by Public
    Law 92—500,
    86 Stat.
    816, on October 18,
    19723,
    or pollutants which may interfere with the
    treatment process into the receiving treatment
    works.
    Hyon’s argument in this regard is only that it will not discharge
    toxic pollutants “in toxic amounts”
    (Hyon Brief,
    p.
    19, citing
    R.
    58,
    108).
    Neither Rule 953(d) (1)
    nor the FWPCA, however,
    limit
    the term “toxic pollutant,”
    as does Hyon,
    with the qualification,
    uin toxic amounts.”
    It is clear from the record that Hyon treats
    toxic industrial wastes and is
    indeed capable of discharging toxic
    pollutants to MSI) sewers,
    (e.g.,
    R.
    62-72,
    200, EPA Ex.
    6,
    7).
    Hyon does not seriously dispute the fact that cyanide,
    a toxic
    pollutant, has been found in its effluent to the MSD.
    Nor are we convinced that Hyon’s arguments that
    “in toxic
    amounts”
    is
    a defensible addition to our Regulation by reason of
    MSD sewer discharge limitations or historic “de minimus” effects
    of Hyon’s discharges,
    (e.g.,
    R,
    87, 109-110).
    The permit system
    is designed to assure just such de minimus effects, and MSD’s
    limitations have no relevance to the issue.
    Having decided that Hyon’s pretreatment facilities are indeed
    subject to a permit requirement, we next decide whether its appli-
    cation for such permit was properly denied by the Agency.
    Testimony by the Agency witness who actually reviewed and denied
    Hyon’s permit application,
    CR. 398,
    399), indicated that his actions
    were,
    at least in part,
    based on misinformation and improper reasoning
    as regards what does or does not constitute
    a sufficient lack of
    information on which
    to base a permit denial.
    In particular,
    that
    witness made an erroneous interpretation of the Act in stating that
    a failure to comply with conditions in previous Agency-issued permits
    constitutes sufficient grounds for a permit denial.
    Section 12(a)
    of the Act does not,
    as he stated, empower the Agency to so act,
    unless such failure to comply with permit conditions does itself
    lead to a lack of information or an indication of violation of
    substantive provisions of the Act or our Regulations.
    21—87
    —4—
    As regards Hyonts failure to supply test well data,
    testimony
    indicated that the wells actually had been drilled by Hyon
    -—
    twice.
    In an effort to comply with prior permit conditions,
    Hyon first
    drilled wells in 1974,
    (H. 183).
    However,
    those wells proved
    unsatisfactory, and Hyon constructed new wells in 1975, the first
    reports from which were submitted to the Agency on November 12,
    1975,
    the same date as the Agericy~spermit denial
    in this case.
    (The Agency
    chose
    to characterize that data as
    a new permit application, which
    it also rejected.)
    The record indicates that Hyon took all reasonable
    steps to build and sample the required wells
    in a manner acceptable
    to the Agency and the Illinois State Geological Survey, which helped
    to plan the wells,
    CR. 184-190).
    The Agency’s judgement on data
    which was submitted was questionable:
    One Agency witness, who denied
    the permit application, was unable to state,
    or even discuss,
    the
    meaning of dry wells where those wells were constructed to monitor
    leachate migration,
    (H.
    414),
    However, despite these errors, which would normally require
    reversal of the permit denial,
    the Agency must nonetheless be upheld
    in this case.
    Despite the Agency’s failure to timely inform Hyon of
    the cyanide sampling results, and the Agency’s apparent lack of concern
    over those samples
    (H.
    392-393), and considerable testimony to the
    effect that those cyanide concentrations are probably not harmful,
    (e.g.,
    394,
    110,
    53,
    76,
    409—410,
    423), those samples do indicate a
    violation
    of
    our Regulations.
    Letters from Hyon to th~Agencyindicate
    that Hyon was aware of its cyanide discharges,
    (Hyon Ex.
    13,
    14), and
    also indicate that
    I-lyon felt that it was not subject to the 0.025
    mg/l limitation for cyanide sewer discharges in Rule 703.
    Hyon felt
    instead that
    it
    was subject only to the limitation of 10.0 mg/i set
    by the MSD.
    To this extent, Hyon was wrong and the Agency’s permit
    denial was correct.
    Hyon~sBrief correctly points out that the limitation in Rule
    703
    is currently under review by the Board.
    R 74-15,
    -16, “CYANIDE”
    (pending).
    That fact, however, cannot be construed as sufficient
    cause for the Agency to ignore the existing Regulation.
    Where Agency
    sampling indicated that the cyanide limit was being exceeded,
    it was
    required, barring
    a Variance,
    to reject Hyon’s permit.
    This matter
    would m6re properly be raised by Hyon in a Variance proceeding.
    Hyoni also attempted to use the testimony of an MSD witness to
    show that the Agency was not rejecting permit applications by others
    for violation of the cyanide standard.
    We find that this
    is irrele-
    vant to the present case.
    The Agency is not empowered to make such
    allowances for any discharger.
    In light of our decision on cyanide
    discharges,
    above, we need give further consideration to neither
    this nor any other of Hyon’s contentions.
    21
    —88
    —5—
    This Opinion constitutes the findings of fact and conclusions
    of law of the Board
    in this matter.
    ORDER
    IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that the matter
    in PCB 75-457 be dismissed.
    Mr. Jacob Dumelle and Mr.
    James Young abstained.
    I, Christan L. Moffett,
    Clerk of the Illinois Pollution
    Control Board, he~ebycertify the above Opinion and Order were
    adopted on the ~
    ‘
    day of
    _______
    ,
    1976, by a vote of
    3-o
    Christan L. Mo~fet,/Merk
    Illinois Pollution ~6Mrol
    Board
    21—89

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