ILLINOIS POLLUTION CONTROL BOARD
November 22, 1974
)
LACLEDE STEEL
COMPANY
)
)
)
v.
)
PCB
72-425
)
72-505
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
MR. JOSEPH H.
WEYIIRICH,
Lewis,
Rich, Tucker, Allen ~ Chubb
appeared on behalf of LaClede Steel
Company
MR.
LARRY
R.
EATON,
and
MR.
DELBERT
IIASCIIEMEYER,
Assistant
Attorney
Generals,
appeared
on
behalf
of
the
Environmental
Protection
Agency
OPINION
AND
ORDER
OF
THE
T3OARI)
(by
Mr.
I)umelle)
This
opinion
is
in
support
of
an
order
entered
November
14,
1974
which
granted
variances
with
conditions.
LaCiede
Steel
Company
(LaClede)
requests
a
variance
from
the Illinois Sanitary Water Board Regulations
(SWB),
the Environmental
Protection Act
(Act)
and the Water Pollution Regulations
of the
Illinois
Pollution Control Board (Water Regulations)
in order that
it
may
continue
to discharge contaminants
from its steel mill during
the
time
that
it
is
constructing
a
treatment
system.
LaClede
filed
a
variance
petition,
PCB
72-425,
seeking
a
variance
from
the
SWB
Rules
and
Regulations,
on
October
30,
1972.
The Agency filed
a Motion to Dismiss
this variance petition on
November
17,
1972.
The Board on November
21,
1972 denied the
Agency’s Motion
to Dismiss
and ordered LaClede
to amend its
variance petition so
as
to comply with the Board’s Procedural
Rules.
The
Agency
Filed a Motion to Reconsider this denial on
December
5, i972~
LaClede filed an Amended Variance Petition on
December
8,
1972
which
sought
a
variance from SWB-13 until
July
31,
1973.
The Board denied the Agency’s Motion to Reconsider
on
December
12,
1972 because LaClede’s Amended Variance Petition
conformed to
the
Board’s Procedural Rules
and satisfied the Agency’s
original grounds for the Motion to Dismiss.
On December 20, 1972,
LaClede filed
a new Petition for Variance,
PCB 72-505, which requested
a variance from Water Regulation 903(a) which required LaClede
to obtain an operating permit for its lagoon and tube mill discharges
after December
31,
1972;
Water Regulation 921(d) which required LaClede
to
file an approved Project Completion Schedule prior
to obtaining
an operating permit;
and
Water
Regulation
1002
which
requires
that
a
Project
Completion
Schedule
show
compliance
with
the
applicable
deadlines.
LaClede,
in PCB 72-505, sought
a variance for
14—463
-2-
one year.
The Agency
filed a Recommendation
on February 28, 1973
to deny the variance request
because
LaCiede
had not
shown that
its present inability to meet these
standards was not due solely
to its own inaction.
LaCledo
Filed
a naw
Amended
Consolidation
Petition for a Variance, PCB
72-425
and 505,
on May
1,
1973 requesting
a variance
from
Water
Regulations
921,
404(b)
404(f),
408 and
203.
The Agency filed
a Recommendation
to LaClede’s new Variance
request on September
20,
1973.
The Agency recommended that LaCiede’s
request
for a variance from Water Regulation 921(d)
be dismissed as
moot and the request
for a variance from Rules
203,
404 and 408
of the Water Regulations be denied because LaClede’s variance
petition sought
a shield from prosecution based on past inaction
and was
therefore
a self-inflicted hardship.
The
Agency
further
stated that LaClede’s request that Shield’s Branch he designated
Secondary Contact and Indigenous Aquatic Life Waters
(Secondary
Contact) pursuant to Rule
302(k) was not
a proper request.
On
December
7,
1973 the Agency filed
an Amended Recommendation setting
forth the previous objections and recommended that
in the event
a
variance
is
granted,
it should be limited solely to those
rules from
which
a variance was requested in LaClede’s Amended Consolidated
Petition for Variance dated May 1,
1973.
Three days of hearings were
held in December,
1973
in Alton,
Illinois.
Following
the hearing
the
parties submitted both briefs and reply briefs.
LaClede filed
a
Motion for Oral Argument which the Board denied on February 28,
1974.
LaClede operates
a steel mill located within the City of
Alton,
in Madison County,
Illinois.
LaClede has been in operation
at this
site since
1915
(R.
44).
LaClede employs approximately
3,000 people with an annual payroll of $30 million dollars at the
Alton plant
(R.
31-33).
LaClede produces semi-finished steel
products,
such
as
irigots and billets, and finished steel products,
such
as wire, pipe,
tubing and reinforcing bars,
for the manufacturing
and construction industries
(R. 20-26).
In producing
the 800,000
tons of steel annually, LaClede uses approximately
44 million
gallons
of water per day
(mgd)
of which approximately
38 mgd
is
recycled within the plant
(R.
59).
Approximately
3 mgd is
lost
through evaporation
(R.
85) and about
3 mgd is discharged through
the waste
treatment system
(R.
85,
117).
LaClede’s wastes are discharged into
an “M” shaped lagoon
which provides some settling and
an unspecified detention time
(R.
79), and where caustic
is added to neutralize the acid
contents.
(R.
79,
123).
This lagoon and caustic additive process
has been in operation since approximately 1965
(R.
123).
Other
portions
of the wastewater system,
such as
the open-hearth pond,
date back much further
(R.
126).
Water quality tests, conducted by LaClede
14
—464
-3-
before construction of the acid reclamation system, show
the
following effluent characteristics
(R.
178 and LaClede’s Exhibit
16, p.
1)
Parameters
Milligrams Per Liter
(mg/i)
Iron
(total)
400
Lead
0.3
Chromium
(total)
0.1
Manganese
3.6
Zinc
10
Suspended solids
195
The Agency monitored LaClede’s effluent and submitted the following
chemical characteristics
(Agency Recommendation
p.
2);
Parameters
Milligrams
Per Liter
(mg/i)
BUD
8-1300
Iron
40400
Lead
Chromium
(total)
Manganese
2.0
-
4.2
Zinc
2.3
-
3.0
Suspended Solids
40-540
Oil
0-32
pH
4.7
-
6.3
Dissolved Solids
920
-
2000
Sulfate
1300
Ammonia
1.4
-
218
14
—
465
-4-
Both LaClede’s and the Agency’s effluent sampling were conducted
prior
to the time that LaCiede had
in
operation an acid recovery
system which should remove approximately 20,000 gallons per
day of spent
sulfuric acid, pickle liquor,
(R.
117)
from LaClede’s
effluent.
This should improve the quality of
the wastewater
discharge
CR.
180,
181).
LaClede estimates
that with the acid
recovery system in operation,
its effluent
would
have the following
characteristics (LaClede’s Exhibit 16);
Parameters
Milligrams Per Liter
(mg/i)
BOD
12
Suspended solids
100
Iron
(total)
40
Chromium
(total)
0.15
Manganese
1.4
Zinc
1.3
Lead
0.25
The Agency has recommended that LaClede’s variance petition
be denied because LaClede’s past inactions
in treating its
industrial waste
(Agency Amended Recommendation p.
6).
LaClede’s
position is that the first knowledge they had of any treatment
requirement was contained in a letter from Mr.
C.W.
Klassen
of
the Agency dated January 19, 1971
(LaClede Exhibit 4), which
advised them of PCB Regulation R70-3 requiring secondary treatment
by December 31, 1973
(R.
86).
However, LaClede did construct the
“W’
lagoon and neutralization facilities
in 1966
(R.
79,
80).
Apart from the lagoon and caustic treatment installation,
LaClede had not conducted any additional water pollution control
activities
(R.
126-128).
Subsequent to January,
1971 LaClede installed
a portable
oil skimmer in the fall of
1972 to remove
oil from various ponds
located within LaClede’s plant water system
(R.
108).
LaClede
installed a permanent oil skimmer in May,
1973 at
a cost of
approximately $50,000
(R.
109-110).
LaClede obtained the necessary
construction and operating permits
in September,
1973.
In September,
1973 the1waste discharges from the tube mill
were diverted
to the plaht’s sewer system.
This eliminated
a
second discharge pipe from LaClede’s plant and provided lagoon
settling for the tube mill discharge
(R.
84).
14
—466
-5-
LaClede designed and constructed an acid recovery system to
treat the pickle liquor waste at an approximate cost of $950,000
CR.
113).
As
of the date of the hearing, construction of the
actual equipment had been completed and pickle liquor from the
wire
mill was being treated
(p.
6 LaClede Brief).
By January, 1974
all other pickle liquor streams should be tied into the system
(R.
Ill).
LaClede applied for the necessary permits but the
Agency has not approved the permits for the acid recovery system
(R.
107-108).
Engineers
for LaCiede could not give
a monetary value
for the recovery by-products
obtained in the settling port1ions
of
LaClede’s treatment system or for the acid recovery system
(R.
134).
The Board, although sympathetic to the Agency’s position that
LaClede should not be granted
a variance based on past inaction,
finds
that sufficient
information was not presented to deny
a
variance
request on this ground
only.
LaClede did construct the settling
lagoon and caustic neutralization facilities
in 1966.
When con-
fronted with the letter from Mr.
Klassen, LaClede proceeded in
an
appropriate fashion to develop
a wastewater treatment plan
including the interim installation of oil skimming devices and the
acid reclamation system.
The Board finds
that LaClede’s use of
the entire seven-day
10-year
low flow of the Mississippi River
for calculating dilution
\ralues
is not correct
(R.
179,
215).
LaClede did not submit any
calculated water quality values
at
the edge
of the applicable
mixing
zone,
but rather based its water quality values on the entire
ten year
low flow volume in the Mississippi River
(R.
179).
Any
requests for an extension of this variance must contain estimated
water quality values at the edge
of the applicable mixing
zone.
The
major
issue
presented
in
this variance petition is what
regulations govern LaClede’s effluent.
Regardless
of which of the
two positions
is chosen LaClede’s effluent is
in violation of
the regulation which might be applied
to it,
even with oil
skimming and acid recovery systems on line.
LaClede’s treatment
system is scheduled for completion by October 1975.
The treatment
system that LaClede
is proceeding
to implement should result in
compliance with the water quality standards that apply to dis-
discharges into the Mississippi River
(R.
179).
LaClede estimates
that the total cost of the system will be approximately $34 million
dollars which does not include the cost expended for the oil
skimming devices and the acid reclamation system
CR.
113).
The Agency maintains that
since LaClede discharges
into Shield’s
Branch,
the Mississippi standards
are not applicable.
14—467
-6-
Therefore,
the Board must decide if LaClede’s effluent
is
to be governed by the Mississippi discharge standards found in
Rule
404 or the discharge standards applicable
to Shield’s Branch.
Detailed information was presented by both LaClede and the
Agency concerning the status of Shield’s Branch.
The history of
Shield’s Branch gives
some insight
as
to its characterization.
Aerial photographs
taken in 1941
(LaClede Exhibit 20a and
20
b)
show Shield’s Branch as
it meandered downstream of the Owens-
Illinois plant
to the slough of the Mississippi River.
Asked to
describe the contents
of the stream in those days, Mr.
Sheppard,
an Alton consulting engineer since
1921,
stated:
“In 1941
it
(Shield’s Branch) was carrying waste
from Owens Illinois Glass Company,
a stormwater from
Shield’s Valley Drainage Area of about 1500 acres,
it was carrying a number
of sewerways,
that
is
sanitary waste
from various
sewers..
.“
(R.
310).
By 1954
a
levee had been constructed along
the bank of
the
Mississippi which had the effect
of isolating the slough area
from
the River itself
(R.
311).
Aerial photographs taken in 1955 (La-
Clede Exhibit 22a and
22b)
showed the slough to be reduced to
a
single channel carrying the flow of Shield’s Branch.
At
that
time
the channel entered the Mississippi through twin-60’s
culverts in
the levee.
These photographs also show that Shield’s
Branch has been straightened and channelized
for a short dis-
tance upstream of where it enters the former slough area.
The
result of
the levee was to effectively increase the length
of
Shield’s Branch between Owens
Illinois Plant and its dis-
charge to the Mississippi.
Finally,
in 1963
the diversion dam
was installed under Owens
Illinois that was designed
to divert all
dry weather flow plus additional flow up
to
2-1/2
times
dry weather
flow,
to the Alton Sewage Treatment Plant
(R.
306,
316).
Mr.
Sheppard
estimates that sufficient rainfall occurs--somewhere in excess of
0.1
inch--so that the
dam
overflows
approximately
50
to
60
times
a year
(R.
320).
When this happens stormflow sewage,
and
industrial effluent enters the channel downstream
of the
dam
(R.
326) but upstream of LaClede’s outfall.
The hydrology of the area
is shown
in Agency Exhibit
3 and
LaClede Exhibit
21.
North
(upstream)
of Broadway Street,
Shield’s Branch is
a small stream
(Agency Exhibit
5
thru
9)
fed continuously by a spring
(R.
281) and
by
storm runoff during
periods
of precipitation
(R.
319).
The watershed of~Shield’s
Branch, north of Broadway Street,
appears to contain between
1300 and 1400 acres
(Agency Exhibit
3).
The record and exhibits
show that for most of its length north of Broadway, Shield’s
14
—
468
-7-
Branch is
an unaltered waterway
(Agency Exhibit
5-7).
Approximately
2,000 feet north of Broadway Shield’s Branch
becomes
a concrete
channel and 1,000 north of Broadway goes underground until
it
emerges south of Broadway on the Owens
Illinois property.
At
a point underneath Owens Illinois, the diversion dam is located
(R.
281)
.
Other changes
to the channel at Owens
Illinois include
a relocation of the original channel
some
26 feet east
(R.
323).
This new channel
is
a concrete channel
into which LaClede dis-
charges.
Several hundred
feet downstream of LaClede’s discharge
point the concrete stops
and the channel becomes
a dredged
and straightened version of the original channel.
Mr.
Sheppard
testified that
this “improved channel” was created to control
erosion and that
it takes
the place entirely of the old channel
(R.
323,
326).
The
distance from La Clede’s discharge point to the
twin sixties,
the discharge point into the Mississippi River,
is
approximately one mile
(R.
259).
Downstream of the diversion dam,
the flow
is almost entirely
LaClede’s plant effluent.
In addition surface runoff from an area
of about 174 acres drains into the stream
at approximately the
same point
as LaClede’s effluent
(R.
340,
341).
In addition,overflow
which occurs during wet weather comes down the
altered channel.
An Agency aquatic biologist testified that when LaClede’s
treatment plant will be completed and in operation,
the water
quality
in the Shield’s Branch downstream
of the outfall
of LaClede would be sufficient
to support
a balanced aquatic
community
(R.
293).
He defined
a balanced community of aquatic
organisms
as one where the preponderance
or major abundance of
organisms will
be
in
favor of more intolerant
(to environmental
toxicants such
as industrial
or municipal wastes)
forms
(R.
293).
While
this was not contested by LaClede, no evidence was presented
as to the expected DO level.
The question before the Board
is whether LaClede discharges
to the Mississippi River through an industrial
sewer which
is an
extension of LaClede’s treatment plant or whether LaClede discharges
into Shield’s Branch,
a water of the State for regulatory purposes?
The Board has determined that
the above question must be decided
by closely examining each separate factual situation in light of
general guiding principles
set out
in previous cases.
“The Board
feels that
this question is
such
a variable nature that no hard and
fast rule can be
set down,
and so the Board shall decide the case
on its facts, and such other cases
in the future will be decided on
the merits of each case”
(Central Illinois Public Service Company v.
EPA, PCB 73-384,
p.
3
(March 28, 1974))
(CIPS).
When the Board
decides
that
a body of water
is not a water
of the state, the Board
is declining to extend the Board’s regulatory power over the broad
statutory grant of authority found by Section 11(a)
of the Act.
14—469
-8-
The Board has considered the question of what constitutes
a “water of the state” in numerous recent cases,
In Alton Box
Board Company
v.
EPA, PCB 73-140,
9-15
(August 9,
1973)
(Alton),
the Board held that the question present was whether “the
receiving stream was the Mississippi River or
a tributary to
the Mississippi River known
as
Shield’s Branch”(Alton,
Supra
at 9-18).
The Board held that the Mississippi River effluent standards
apply and that “Shield’s Branch as
it was once known no longer
exists”
(Alton,
Supra at 9-19).
However,
this determination was held to be of no precedential
value in EPA v, Alton Box Board Company
and LaClede Steel Company,
PCB
74-51
(August
29,
1974).
Information was presented to the
Board,
that Shield’s Branch
(or the “industrial ditch”) did not
flow directly into the Mississippi River but in fact had been
impounded and reversed in flow,
The impoundment drained some
7,200 feet upstream at
the Wood River Drainage Ditch Alton pumping
station where
it
was pumped over the Mississippi level.
Because of this information,
the Board finds
that its
previous ruling that Alton discharged directly to the
Mississippi River
is
of no precedential value.
The
original decision that Alton discharged directly to the
Mississippi River was correct based upon the information
presented at the original hearing
in PCB 73-140. However,
this new information presented regarding the closing of
the twin 60’s
does not support
a determination that
Alton discharges
directly to the Mississippi River
(EPA v. Alton and LaClede, supra,
5,
6,
and 7).
EPA
V.
Alton and LaClede, supra, was an enforcement action which
stemmed from H7S emissions
from the impoundment,
or slough area,
into which both Alton and LaClede discharge.
The twin-60’s, which
provide the drainageway under the levee, had been closed by
the
Army Corps
of Engineers
(Corps).
This resulted
in the impoundment
being formed, which
reversed in flow and drained some 7,200 feet
upstream at the Wood River Drainage District Alton pumping
station where
it
was pumped over into the Mississippi River.
The
enforcement action was settled when Alton agreed to directly
discharge
its waste
to
the
Mississippi River via
a pipe,
and
when Alton and LaClede agreed
to
a program to remove
or treat
the accumulation of industrial sludge loaded in the impoundment
area.
In addition to industrial effluent, during periods
of high
water the impoundment area contains significant amounts
of
water which seeps through
the
levee,
Evidence presented in
EPA v. Alton and LaClede,
supra
at
6, projected that during the
months
of January through June,
the new
twin-60’s
being constructed
14—470
-9-
by the Corps, which are supposed to drain the impoundment area
during periods of low-flow in the Mississippi River, will be
closed 25
of the time and during the month of April will be
closed approximately 50
of the time.
Because LaClede’s discharges
into the same impoundment area
via the drainageway in question
--
Shield’s Branch
--
the Board’s
determination in PCB 74-51 removes the support of
a previous de-
termination in deciding whether the Mississippi River standards
of those standards applicable
to Shield’s Branch apply.
LaClede Steel
discharges
into Shield’s Branch approximately
2500 feet upstream from Alton Box Board’s discharge (LaClede
Exhibit 22a).
Therefore Alton Box Board’s discharge
is
in much
closer proximity to the Mississippi River
(prior to the closing
of the twin 60’s).
However, mere proximity to a larger receiving
stream does not warrant the application of the larger receiving
stream’s effluent limitations
to discharges
into small
tributaries
(Stepan Chemical Company v. EPA,
PCB
73-184, January
24,
1974).
In Stepan the Board granted
a variance in order
to allow the
chemical company to construct a discharge
line directly into the
Des Plaines River, and remove its discharge from Cedar Creek,
a
small
tributary
to
the Des Plaines River.
In Allied Chemical Corporation
v.
EPA
(PCB
73-382,
11-379
(Feb.
28, 1974)) the Board determined that in Allied’s particular case the
naturally occurring depression and its effluent flow should not
be considered waters
of the state and that Rule 408 should apply
(Allied, supra 11-381).
Allied discharged industrial waste
through what the Board determined
to be an industrial ditch
or sewer for a distance
of 2,500 feet directly to the Ohio River.
Allied Chemical owned the lands surrounding the ditch and
had
fenced the facility from public access.
“It will be an
explicit part of this order that
the effluent waters shall not
be used for any recreational, domestic animal watering,
or
irrigational purposes.
Furthermore,
the land surrounding the
ditch shall remain closed to the general public.
Should Allied
decide to change the use of its land,
the nature of the depression
shall be re-evaluated.”
(Allied, Supra 11-381).
In Central Illinois Public Service Company v.
EPA,
PCB 73-384,
11-677 (March 28,
1974) (CIPS),
the Board determined that McDavid
Branch of the east
fork of Shoal
Creek
is a water
of the state and
that “it is
a natural accumulation of water that flows
through the
State of
Illinois.
Though it does not flow for the entire year,
testimony by Richard Burkeson of Sargeant ~ Lundy Engineers stated,
“the stream is not and was not navigable when CIPS built the Lake
(R.
24), before that time he did notice that there was aquatic-based
14—471
-10-
life
in
the
streamt
(CIPS
Supra
at
677)
.
The Coffeen Lake which was
formed
by damming Mcflavid Branch
was
held
to be
a water
of the state
in
that
it
fit
the definition of waters under the Act because
it
is
“artificial
and
private”;
and
is
wholly
within
the
State
(CIPS
supra
at
677).
Coffeen
Lake
was
characteri:ed
as
a
large
accumula-
tion of McDavid Branch
which
contains
the
aquatic life
present
in
McDavid Branch (CIPS, supra at
4)
Sec~tion
12(a)
of the Environmental Protection Act states
that
“no person shall cause,
threaten,
or allow the discharge of
any
con-
taminant
into
the environment
in any state
so
as
to
cause or tend
to
cause
water pollution in Illinois, either alone or in combination
with matters
from other sources,
or so
as
to violate regulations
or
standards
adopted
by
the
Pollution
Control
Board
under
this
Act.”
Section 3(o) of
the
Environmental
Protection
Act
and
Rule
104
of
Chapter
3, Water Pollution Regulations
of
Illinois,
further
define
“waters” as
“all accumulations
of
water,
surface
and
underground,
natural and artificial,
public
and
private,
or
parts
thereof
which
are wholly or partially within,
flow
through,
or
border
upon
this
State.”
It
is apparent that
the
statutory
definition
of
“waters”
encompasses
all waters within
the State.
Any regulatory scheme
therefore
is
an administrative determination to
limit this
statutory broad definition.
Agency Exhibit
5 through
9 clearly show that
the portion
of Shield’s Branch upstream from the diversion of
the Alton
Sewage Treatment Plant,
is
a small watercourse which,
in its
lower
regions, has been channelized.
These Agency Exhibits
and testimony
presented at the hearing lead the Board to the conclusion that this
portion of Shield’s Branch
is
a water of the state.
Examining
that portion of Shield’s Branch downstream from the diversion
darn
extending to
the slough area,
the Board finds
that
this channel
is
a water of the State.
Conversion
to
a concrete channel and
channelization does not destroy the protection afforded
a water
of the State.
The discharge of
a
large
industrial water user’s
effluent into an intermittent stream does not change
the stream’s
classification as
a water of the State.
In addition, because the projected closing of the new twin-60’s
will result in the continuation of the impoundment of LaClede’s
discharge in what has been the impoundment
area,
the Board finds
that LaClede should be required to meet those standards
applicable
to discharges into Shield’s Branch not the Mississippi River.
For the above reasons the Board finds
that Shield’s Branch
is
a water of the State from the rock outcroppings which give
rise to the initial flow in Shield’s Branch to and through the
point of the diversion dam,
to and through the point of LaClede’s
discharge,
to and through the point where Shield’s Branch
discharges
into the slough or impoundment area,
and
to and through
the point where Shield’s Branch empties
into
the Mississippi River.
Having found that Shield’s Branch
is
a water of the State,
the
Board further finds
that Shield’s Branch is currently
a water
of the state downstream of the diversion dam located under the
Owens-Illinois property.
14—472
-11-
To
hold
otherwise in this case--that the waters
of Shield’s
Branch
are no longer waters
of the State, the Board’would be
embracing
the
concept
that
withdrawal
of
2-1/2
times
dry
weather
flow destroys or
removes
the protection afforded
a water of the
State.
Water Pollution
Rule 602(c)(2)
requires that sewage
treatment plants be capable
of treatment up
to
10
times
dry
weather flow
by
December
31,
1975.
Thus,
the Alton Sewage
Treatment District
would
not be able
to allow the continued
overflow
of combined sewage whenever flow exceeds 2-1/2 times
dry
weather
flow
in
Shield’s Branch and comply with Rule
602(c) (2).
Federal
grant
regulations
that
govern
cost
effectiveness
and
Rule
602(b)
of
the
Water
Pollution
Regulations
require
that
excessive
infilitration
and
storm water flows be prohibited.
The Board notes
that
diverting
the
entire
flow
of
the
stream
results
in
what
may
be
characterized
as “an excessive infiltration”.
LaClede’s
argument
that
Shield’s Branch no longer exists
because
of
the
channelization
and construction of
a concrete channel
is
rejected
by
the
Board.
To
hold
otherwise,
the Board would be
accepting
the
argument
that merely channelizing
or construction
of a
concrete
culvert,
reduces
a stream from
a water
of the State to
some
nebulous
lower
classification.
Not to
have
held that
Shield’s
Branch
was
a
water
of
the
State,
the
Board
would
have
had
to
find
that
the
present
channel
of
Shield’s Branch was
an
industrial
sewer.
No
other
applicable
classification exists except waters of the
State and an industrial
sewer.
The Board,
in League of Women
Voters
v. NSSD,
PCB
71-12,
14,
1-369
(March
31, l971),’has
held
that
a protected water of the State
cannot be used as
a
treatment work.
The
only exception
is
for in-stream aeration
provided for
in Water Pollution Rule 104.
The legislature has determined
that
it
is
in the public
interest of the health,
safety,
and
general welfare of the
people
of the State of Illinois to restrict discharges
of contaminants
into waters
(Section
2, Environmental Protection Act).
A body
of water,
that
is
“a water
of the State” should not be
reduced
to something less than
a water of the State without action from
the legislature.
Shield’s Branch prior to the diversion of dry
weather flow
to Alton Sewage Treatment Plant, channelization,
construction of
a concrete culvert, and discharges
of industrial
waste, was clearly
a water of the State.
It remains
a water
of the State
for which the Board will apply regulatory protection.
The Board finds
that Shield’s Branch
is currently an
intermittent stream.
Therefore,
applying Rule
302(k),
Shield’s
Branch could possibly be reclassified a Secondary Contact and
Indigenous Aquatic Life Waters
(Secondary Contact), because this
waterway upstream from the slough would be dry approximately
300 days per year
in the absence
of LaClede’s effluent.
14
—
473
-12-
Because the Board found that Shield’s Branch continues
to exist and
is
a water
of the state, LaClede Steel Company
has improperly used Rule
404(b)
as the design criteria for its
new treatment plant
(R.
230).
Shield’s Branch
is
an intermittent
stream, and
is
a potential secondary contact water.
An Agency aquatic biologist testified that when LaClede’s treat-
ment plant was completed and in operation,
the water quality
in
Shield’s Branch downstream of the outfall of LaClede would he
suffi-
cient
to
support
a
balanced
aquatic
community
(R.
293).
If
water
quality, after the projected removal of contaminants
by
LaClede’s
planned treatment plant, would maintain
a diversified
aquatic biota,
the question remains
if the physical aquatic environment
is such that
it would or would not maintain a diversified aquatic biota.
In-
sufficient evidence was presented which
would convince the Board
to apply Rule 3.02(k).
Shield’s Branch or
the
impoundment area is
currently extremely polluted due to discharges
from Alton Box, LaClede
and Owens-Illinois.
Whether
it
will maintain a diversified aquatic
biota absent contaminants remains
to be proven once Alton discharges
via a pipe to the Mississippi and the projected treatment systems
are on line.
If reclassification were
to be granted,
the effluent limitations
found at Rule 402 and 408 would have to be met because Rule 205
Restricted Use Standards through Rule
205(e) requires “concentrations
of other substances shall not exceed the applicable effluent standards
prescribed
in Part
IV.”
Currently,
LaCiede’s discharge has
to meet
Rule 203(f)
limitations because
of the application of Rule 402 which
prohibits the violation of water quality standard (Rule 203(f))even
if the discharge was
in compliance with
the effluent standard found
in Rule
408(a).
Regardless
of reclassification, LaClede Steel must produce
an effluent which satisfies the BOD and suspended solids standards
found in Rule 404(f).
LaClede’s effluent must be treated to
4 mg/l
of BOD and
5 mg/i of suspended solids.
Dr.
Tomlinson, LaClede’s
consulting engineer, testified that the proposed treatment system
would not reach 4 mg/i
of BOD.
He
testified that to meet the
4
mg/i
BOD
and S mg/i suspended solids standard of Water Regulation Rule
404~f),would cost an additional $1.5 million dollars
(R.
346).
He further testified that he had not examined whether the designed
treatment system would meet the Pfeffer standard of
10 mg/i BOD
and 12 mg/i of suspended solids
(Rule 404(f)(ii))
(R.
350).
An Agency aquatic biologist testified that when LaClede’s
proposed treatment was
on line and producing the projected effluent
found
in LaClede Exhibit
16, that Shield’s branch would support
a balanced aquatic community
(R.
293).
While not controverted
by LaClede, the record is absent as
to the expected DO levels
in Shield’s Branch.
Assuming this
to be true,
LaClede could
qualify under the Pfeffer exception of Rule
404(f) (ii) and would
14—474
-13-
thus
be
limited
to
a
10
mg/i
BOD
and
12
mg/l
suspended
solids
effluent
restriction.
LaClede
currently
projects
that their
treatment
system
will produce an effluent of 12 mg/i BOD and
5
mg/i
of suspended
solids
(LaClede
Exhibit
16).
Dr.
Tomlinson
testified
that
he
had
not
examined
whether the treatment
system could produce an effluent
of
10 mg/l BOD
(R,
305).
de
further
stated
that
the plant was
not
designed
for
the
10-12
standard
and
it
might
or might not meet the 10-12 standard
(B,
351),
The
Board
finds
that
LaClede~s
discharge
to
Shield’s
Branch
must
meet
the
4-5
standard
of
Rule
405(f)
unless
LaClede
can
demonstrate
that
under
the
Pfeffer
exception
it
should
be
allowed
a
10-12
effluent
limitation.
While
basing
its
projected
treatment
system
on
the
wrong
standard,
LaClede
has
taken
steps
that
will
significantly
reduce
environmental
consequences
of
its discharge,
Therefore,
the
Board
finds
that
to deny LaClede
a variance
would
be unreasonable.
T:~e Board,
therefore,
will
grant
LaCiede
a
variance
from
Water
Bule
404(f),
408
and
203
in
order
to
shield
LaClede
from
prose-
cution
while
it
is
building
its
treatment
system.
However,
this
variance
is
premised
on
the
requirement
that
LaClede
develop
a treatment system
to meet the requirements of Rule
404(f)--an effluent with
4 mg/l of
BOI) and
5 mg/i
of suspended
solids--unless
LaClede
can
demonstrate
that
Rule 404(f) (ii) should
be
invoked
which
would
allow
LaClede
10
mg/I
of
BOD.
LaClede
will
also
be
required
to
maintain
its present BOD discharge
of
12
mg/l
(LaClede
Exhibit
16)
;
a
maximum
suspended solids
concentration of 100 mg/i
(LaClede Exhibit
16, after acid
recovery)
; and the continued operation of
its oil separation
facilities.
This
Opinion constitutes
the Board’s findings
of fact and
conclusions
of law.
Mr.
Ilenss dissents.
Mr. Marder will
file
a concurring
Opinion,
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois Pollution Coi~troI
Board,
hereby certify the above Opinion was
adopted on the ~
~
day
of November,
1974 by
a vote of
3._j
~
Illinois Pollution Co
rol Board
14—475
