ILLINOIS POLLUTION CONTROL BOARD
February 14,
J.975
CITTZENS FOR A BETTER ENVIRONMENT,
Complainant,
vs..
)
PCB 74—201
STEPAN CHEMICAL,
Respondent.
STEPAN CHEMICAL
Petitioner,
vs.
)
PCB 74—270
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
STEPAN CHEMICAL,
Petitioner,
vs.
)
PCB 74—317
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
James
W. Gladden and Harley Hutchins, Attorneys for Stepan Chemical Co.
John L. Bernbom, Attorney for EPA
CBE appeared by one of its officers, Dennis Adamczyk
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
This consolidated proceeding involves an enforcement case
(PCB 74-201),
an appeal from permit denial
(PCB
74-270) and a
Petition for Variance
(PCB 74-317).
Consolidation of the three
cases was ordered by the Board on September 5, 1974 pursuant to
motion of Stepan.
Stepan owns and operates a chemical manufacturing facility
known as the Millsdale Plant which is located in Will County near
the •Des Plaines River.
Among the chemicals produced at this plant
15—445
—2—
are phthalic anhydride,
liquid detergent intermediates, dry
cleaning emulsifiers, polyurethane foam systems and high purity
speciality chemicals for the cosmetic industry.
Effluent from
the Millsdale Plant is discharged to Cedar Creek.
On January 24, 1974 the Board issued its Opinion and
Order in two prior consolidated cases involving Stepan, PCB 72-489
and PCB 73-184.
The first case
(72—489) was an enforcement action
initiated by the Agency.
It charged Stepan with violations
of
a
SWB permit and certain specified Water Pollution Regulations.
The
second case was a variance proceeding wherein Stepan sought relief
from Rule 404(f)
of the Water Pollution Control Regulations.
A
Stipulation for Settlement
in these cases was accepted by the Board
(with the exception of one part).
The settlement provided that Stepan would initiate the
following programs:
1.
Beginning December 1,
1973 and continuing through
April
30, 1974 Stepan will continuously monitor
the influent to and the efflnent from the waste
water treatment plant and will run a weekly BOD
test of the effluent on
a composite sample collected
during the week.
2.
At monthly intervals, beginning on the 31st day of
the month after the entry of an order by the Board
Stepan will report to the Board and the Agency on
its progress under the above described program.
The report shall include the results of the test
done with respect to the operation of the waste
water treatment plant.
Representatives of the
Agency shall have the right to visit Stepan’s
plant during working hours upon reasonable notice.
3.
Stepan agrees
to execute within
30 days from the
approval of the proposed program,
a performance
bond in the amount of $5,000 to guarantee the
performance of
the test referred to in Part 1 above.
4.
Stepan agrees
to file a complete construction permit
application on or before February 15, 1974 specifying
the manner in which it will divert the discharge from
its waste water treatment plant to the Des Plaines
River.
Within 90 days from receipt of a construction
permit, but in no event later than July 15,
1974,
Stepan agrees
to operate its waste water treatment
facility so that there will be no discharge from that
facility to Cedar Creek.
15
—
446
—3—
5.
Stepan agrees
to execute within
30 days from the
approval of the proposed settlement,
a forfeiture
bond for liquidated damages in the amount of
$30,000 in the event that Stepan fails to perform
the acts set forth in part
4 above,
6.
Stepan agrees that the discharge from its waste
water treatment facility when diverted, to the Des
Plaines River will be in compliance weth Rule 404(a),
and that pursuant to Rule 404(b) (ii),
the discharge
from its waste water treatment facility will be
reduced to 20 mg/i BOD and 25 mg/l suspended solids
on or before De~cember31,
1974.
If the effluent
requirements
for the Des Plaines River are changed
at any time in the future,
Stepan agrees to operate
its waste water treatment facility in compliance
with such new requirements.
7.
Stepan agrees to submit and obtain construction
permits for all future modifications in its waste
treatment facilities.
On or before January
1,
1974
Stepan will submit necessary permit applications for
all modifications made in the new waste water treat-
ment facility from April 1,
1973 to date.
Stepan
shall also submit on or before February
15,
1974 a
compliance program, pursuant to Rule 1002,
showing
how it intends to achieve
a discharge of 20 mg/i
BOD and 25 mg/i suspended solids on or before
December 31, 1974 and,
a further program to assure
a consistent discharge of
30 mg/i BOD and 37 mg/l
suspended solids when the discharge of the waste
water treatment system is diverted to the Des Plaines
River.
In its January
24,
1974 Order the Board granted Stepan a
variance from Rule 404(f)
of the Water Pollution Regulations until
July 15, 1974 provided that its effluent not exceed
30
rng/l BOD
and 37 mg/l suspended solids after February 15,
1974.
Stepan was
ordered to submit by February 15, 1974
a program assuring 30 mg/i
BOD and 37 mg/i suspended solids after diversion of its effluent
from Cedar Creek to the Des Plaines
River and a compliance plan
showing what method would be used
to reduce BOD to
20 mg/i and
SS to 25 mg/l on or before December 31,
1974.
A $12,500 penalty
for past violations was agreed to by Stepan.
For the sake of brevity,
the past history of the Millsdaie
operation will not be repeated in this Opinion.
This information
can be obtained by reading the January
24..
1974 Opinion and Order
of the Board in PCB 72-489 and 73-184
(consolidated).
15—447
—4—
In the current enforcement action, PCB 74-201, CBE charges
that Stepan:
a) operated its Millsdale plant without an operating
permit every day after February 15, 1974 to date of the Complaint
in violation of Rule 903 of the Water Pollution Regulations,
b)
has discharged effluent from the Miilsdale Plant on certain specific
dates subsequent to February 15, 1974 containing BOD in excess of
30 mg/l and SS in excess of
37 mg/l in violation of the Board Order
and Rule 404(a)
of the Water Pollution Regulations,
c)
did not file
the program and compliance schedule ordered by the Board, and
d)
has discharged effluent in such chemical and biological compositions
so as to constitute
a violation of Section 12(a)
of the Environ-
mental Protection Act.
CBE withdrew its allegation that there had
been excessive bacterial concentrations in the plant effluent.
In PCB 74-270 Stepan seeks a ruling that the Agency errc~neously
denied Stepan a construction permit.
The Stepan application for
construction permit is dated January 31, 1974 and the date of
receipt by the Agency is shown as February 14, 1974.
The Agency
denied the permit on March
12,
1974 stating that the open ditch
through which Stepan proposes to divert its effluent to the Des
Plaines River is considered “waters”
as defined in Rule 104 of the
Water Pollution Regulations.
Rule 104 of the Water Pollution Regulations defines
“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 the State o~fIllinois, except
that sewers and treatment works are not included
except as specifically mentioned;
provided,
that
nothing herein contained shall authorize the use of
natural or otherwise protected waters
as sewers or
treatment works except that in—stream aeration
under
Agency permit is allowable.”
Stepan contends that the Agency decision on the ditch was
erroneous or,
in the alternative,
that the definition of
“waters”
in the Water Pollution Regulations is not in accordance with the
Environmental Protection Act and that the application of such
Rule to Stepan is an unconstitutional taking of property.
In PCB 74-317 Stepan seeks variance from Rule 404 of the Water
Pollution Regulations until December 31, 1975 in order to continue
operations pending completion of improvements
to an existing waste
water treatment facility.
Stepan states that the contaminant
reduction program presented in the prior consolidated proceeding
*5—
unfortunately failed to reduce contaminant concentrations
sufficient to meet applicable standards.
The Agency recommends
denial of this variance.
A public hearing on these consolidated cases was held on
October 22,
1974.
Stepan called four witnesses and the Agency
called three.
CBE called no witnesses stating that their witnesses
would be the same witnesses to be called by the Agency and thus
the Agency’s case would cover the same testimony CBE intended to
present.
CBE also declared that Stepan’s Answer to Request for
Admission of Facts constituted the evidence required to prove
their allegations.
No members of the public were present at the
hearing.
The Millsdaie plant is situated in
a generally north to
south setting with a double set of railroad tracks bounding the
plant about 200’
to the west, between the Des Plaines River and
the plant.
Cedar Creek flows east to west through
a wooded area
north of the plant through an abandoned gravel pit thence through
culverts under the railroad tracks where it branches into two
channels, both of which discharge into the Des Plaines River near
Treat
Island.
Northeast of the plant is
a wooded area and some crop land.
Immediately east of the plant is primarily crop land with the
exception of a parking lot.
Further east is
a wooded area which
contains a small swamp.
The area southeast of the plant
is part
woodland and part crop land.
South of the plant is
a large grass
and wooded area
(Stepan Exhibits #4 and #11)
George Andrae, Stepan’s Corporate Chief Engineer, testified
that no one lives near Cedar Creek and the only point of access
to the Creek downstream of the discharge point
is from the Des
Plaines River.
Stepan owns
the land south of the Creek and
Mobil owns the land to the north.
Plant Manager, Joseph Steinreich,
Jr.
testified that he had never seen anyone in the area other than
Stepan employees and Agency investigators.
No citizen complaints
about the discharge have been brought to his attention.
Dealing first with the CBE complaint,
the record clearly shows
that Stepan has operated its Millsdale plant without an operating
permit.
Stepan could have operated the plant from January
24 to
July
15, 1974 under protection of
a variance.
Stepan does not
contest the fact that it has continued to discharge its effluent
solely to Cedar Creek through the entire time period involved here.
Data taken from Stepan’s operating reports for the period February
15
to September 30, 1974 is shown on the following page.
BOD
Days Compliance/
Percent
TSS
Days Compiiance/
Percent
Avg.
Range
Days Sampled
Compliance
Average
Range
Days Sampled
Compliance
Month
Feb.
15-’28
320
(400~240)
0/4
0
158
(404—65)
0/8
0
March
123
(236—60)
0/4
0
130
(28218)
1/19
5
April
55
(100—23)
1/4
25
51
(216—6)
11/21
52
May
68
(88—51)
0/5
0
239
(896—24)
3/18
17
June
20
(35—2)
3/4
75
34
(88—il)
14/20
70
July
34
(64—4)
3/5
60
38
(94—3)
10/21
48
August
40
(70—18)
1/4
25
85
(190—4)
5/20
25
Sept,
75
(110—36)
0/4
0
121
(290—36)
2/17
12
—7—
After startup of the waste treatment plant,
a number of
operating problems including foaming, hydraulic overloading
and slug flows caused Stepan to seek the services of an engineering
consultant in April
1972,
One year later Stepan entered into a
formal contract with this consultant in which the consultant was
given complete and independent authority to operate the waste
treatment plant.
This contract and the improvement program which
was devised by the consultant weighed heavily in Stepan’s favor
in the prior consolidated cases~
Upon assuming the duties of plant manager in October 1973,
Joseph Steinreich, Jr. set up regular meetings with the consultant
to review progress in achieving compliance.
By December 1973
Steinreich was concerned that Stepan would not be able to achieve
a consistent discharge level of
30 mg/i BOD and 37 mg/l
SS
(R.
119).
In February 1974 Stepan terminated the contract of the consultant
and retained the services of Betz Environmental Engineers Inc.
Betz was assigned the task of determining what changes would
be required to bring the Milisdale plant effluent into compliance.
In April 1974 Betz submitted
a report in which
a number of areas
were identified
as requiring immediate attention.
In general, Betz
recommended construction of
a containment
system for isolating process waste water and contaminated storm
water runoff,
a new aerated lagoon for providing both equalization
and additional SOD removal capability and a new pressure filtration
system for treating secondary clarifier overflow.
These modif1—
cations would operate
in addition to and in support of the existing
activated sludge system.
Capital costs and annual operating costs
for the improvements are quoted as $676,100 and $74,200 respectively.
It was proposed that this program should be completed
according to the following project schedule (Stepan Exhibit #50):
Schedule of Dates
Start Engineering
October
4,
1974
Preliminary Engineering Review
December 23, 1974
Finalize Prepurchase Specs
January
6,
1975
Issue Equipment for Quotes
January 13, 1975
Receive Quotations
February 10, 1975
Issue Purchase Orders
March
3,
1975
Receive Vendor’s Drawings
April
21, 1975
Start Final Design
March
3,
1975
Complete Design
May 15,
1975
Award Construction Contract
July 15, 1975
Receive Equipment
September 1,
1975
Start—up
December
30, 1975
15
—451
—
8—
Dr. Wallace Lampe, Betz Senior Project Engineer,
stated
that
the project is now in the detailed engineering design
phase.
Upon completion of the project, Stepan should be able
to consistently meet the limits of
20 mg/I BOO and 25 mg/I SS
in its effluent, according to Dr. Lampe.
Stepan’s variance from Rule 404(f) was conditioned upon
the discharge of an effluent containing no more than
30 mg/l
SOD
~nc1
37 mg/l SS.
From the operating data it can be determined
L~i
SLepan met these parameters
from February 15 to July 15, 1974
l~
of
the
time
for
BOD
and
37
of the time for suspended solids.
Compliance
for
the
period
February
15
through
September
30,
1974
was achieved 23
of the time for BOD and 32
of the time for
suspended solids.
These operating reports also show that Stepan occasionally
encountered minor operational problems.
In February the plant
began experiencing carry—over of suspended solids which was
blamed on an “abundance of poor settling filamentous organisms”.
In order to solve this problem hydrogen peroxide was added to
sludge return.
No particular problem is cited for March.
In
April
a chlorinator vacuum pump motor burned up and was sent out
for repair.
No operational problems are shown for May, June or
July.
The waste treatment plant began experiencing shock loadings
five to ten days prior to August 30,
1974
(R. 192) on which date
a solenoid valve between vessels T—1 and T—2 stuck in the closed
position.
Vessel T-1 began to overflow and~when that problem
was corrected,
the valve opened completely allowing the material
in T-l to flow rapidly through T-2.
Activated sludge in T-2 was
flushed out of the treatment plant into Cedar Creek.
Dr. Lampe
testified that shock loadings caused by high organic content,
rapid pH change or hydraulic increases could cause problems that
require eight to ten days or more to rectify
(R.
166).
The record thus
shows that in addition to not having an
operating permit, Stepan clearly did not abide by the conditions
of the variance.
It must be found that Stepan was not operating
under protection of a variance from February
15 to July 15, 1974.
In accordance with Part 1 of the Stipulatipn for Settlement,
Stepan submitted
a construction permit application for all changes
or modifications made to the waste treatment plant and production
plant since April 1973
(Stepan Exhibit #9).
The record does not
show what action the Agency took on this permit application.
Parts
IA
and
B
of
the January 12,
1974
Board
Order
required
Stepan
submit
by Febouarv
15
1974
a
orograrn
assuring
a
consistent
5
—
452
—9—
discharge of no more than
30 mg/l SOD and
37
mg/1SS
after
diversion to the Des Plaines River.
Stepan was also to submit
a compliance plan showing how it would achieve
20 mg/i BOD and
25 mg/i SS on or before December 31,
1974.
CEE
charges
that
neither of these two documents was
filed.
The
record
supports
the
CBE
charge.
While
it
might
be
argued that information in Stepan1s construction permit appli-
cation
(dated
January
31,
1974)
contained
such
information,
the
Board
finds
nothing
there
or
anywhere
else
in
the
record
which
would
satisfy
Part
3
of
the
Board
Order.
Andrae
testified
that
Stepan
had
performed
all
seven
items
agreed
to
in
the
Stipulation
for
Settlement, including preparation
of
the
program
and
compliance
plan.
The
only
program
and com-
pliance plan in this record is the one formulated by Betz with
an April 1974 date.
If an earlier program and compliance plan
was prepared in compliance with the Board Order,
it was not made
a part of this
record.
The finding must be that the program and
compliance plan were not executed,
in violation of the Board Order
and Rule 1002 of the Water Pollution Regulations.
The final allegation
of CBE is
that Stepan has caused water
pollution in violation of Section 12(a)
of the Act.
Data and
testimony
in
the
record
show
that
Stepan’s
waste
treatment
plant
has
consistently
failed
to
produce
an
acceptable
effluent.
Some
progress is
shown in the data for June,
July and August 1974 but the
overall picture reveals that reduction of contaminants was not
achieved consistently during the time given Stepan to clean up
its
effluent.
To date,
Cedar Creek still receives effluent which
violates the standards and causes water pollution.
We have carefully considered the character and degree of injury
to health, welfare and property of the people;
the social and
economic value of the pollution source;
the suitability of the source
to the area in which located; and the technical practicability and
economic reasonableness of reducing the emissions and discharges.
From our consideration of all facts bearing upon the reasonableness
of the emissions we must find that
Respondent,
in
violation of
Section
12(a)
of
the
Act,
did
cause,
threaten
or
allow
the
discharge
of
contaminants
into
the
environment
so
as
to
cause
or
tend
to
cause
water pollution in Illinois or so
as
to violate standards adopted
by the Pollution Control Board.
In the prior consolidated cases Stepan told the Board that it
planned
to
install
a
pipeline
from
the
waste
treatment
plant
to
the
Des
Plaines
River
by
July
15,
1974.
The
Board
approved
of
this
project
because
the
Des
Plaines
has
a
greater
assimilative
capacity
and
the
plan
would
provide
relief
for
Cedar
Creek.
However,
wIten
Stepan
told
the
I~cencvon January 16, 1974
(Stepan
Exhibit
#7).
that
its
construction permit apolication was
being
15—453
—10—
prepared,
it was revealed for the first time that Stepan did
not intend to install pipeline continuously from the plant to
the Des Plaines River.
Instead, Stepan informed the Agency
that it
planned
to
install
a
pipeline
under
a two track spur
coming into the plant and then discharge its effluent to an
open ditch to be constructed on or near railroad property.
Stepan did not inform the Board of this change of plans at any
time.
The January 31, 1974 construction permit application was
received by the Agency on February
14,
1974.
On February 22
the Agency acknowledged the
January
16,
1974 letter and further
told Stepan that the use of an open channel, which could con-
ceivably receive runoff and be accessible to the general public,
was a concern to the Agency.
The letter warned that the open
channel could be considered
“waters” and that such consideration
should
be
accounted
for
in
preparation
of
final
plans.
George
Andrae
testified
that
the
two
railroads
involved
had
been
contacted
“well
over
a
year
ago”
(R.
60)
.
Andrae
stated
that
the
laying
of
pipe
under
the
railroad
tracks
and
continuously
to
the
river
would
be
expensive
and
that
nine
months
to
a
year
would
be
required
to
obtain
permission
from
the
railroad.
Andrae’s
testimony
on
this
point
raised
some
doubt
about
Stepan’s
good
faith
throughout
its
dealings
with
the
Board
and
the
Agency.
“Well
over
a
year
ago”
would
indicate
that
in
October
1973
Stepan
had
knowledge
of
requirements
for
placing
the
pipeline
under
the
tracks.
Stepan
told
the
Board
and
the
Agency
that
the
diversion
pipeline
under
the
tracks
would
be
installed
by July 15,
1974
while
apparently
knowing
that
nine
months
to
a
year
would
be
required
to
obtain
permission alone.
Additional
time
would
be
required
to
install
the
pipeline
once
permission
was
received.
All
of
this
raises
the
possibility
that
Stepan
did
not
intend
to
carry
out
the
terms
of
its
agreement.
We next turn to the central
issue; whether Stepan’s proposed
discharge will be to waters of the State.
As proposed,
Stepan
would discharge its effluent through
a pipeline which would run
under
a spur line from the IGC tracks
(shown on Exhibit
#4 as
GM&O tracks).
The pipeline would end a short distance on the west
side of this spur line.
Plant effluent would then enter
a ditch
which
runs
in
a
southerly
direction
along
the
west
boundary
of
the
pJant to a culvert beneath the IGC tracks.
On the other side of
the culvert the effluent would again flow in
a southerly direction
for a short distance until it reaches
a culvert under the AT&SF
tracks.
Beyond the second culvert the flow would be in a westerly
direction across a wooded area and some State property to the Des
Plaines River.
15—
454
*
11-’
Both
culverts
were
already
in place under the railroad
tracks when Stepan built its Millsdale plant
(R.
67).
Andrae
testified that the discharge course to the culverts is a man-
made ditch
(R.
36)
constructed by Stepan
(R.
67)
and that the
course between the two culverts is also
a ditch
(R.
36)
.
This
ditch
does
not
appear
on
a
U.
S.
Geological
Survey
map
of
the
area which carries a 1954-Photo Revised 1973 date
(Stepan
Exhibit
#12).
Although
the record does not show the exact period
of time for construction of
the ditch, Stepan Exhibit #6
shows
that the ditch system was constructed “during the course of the
settlement discussions”
in PCB 72-489.
These discussions, according
to the Stipulation and Proposal for Settlement
in PCB 72-489,
continued throughout most of 1973.
There
is
no
argument
that
the
ditch
from
the
northwestern
corner of the plant to the first of the double culverts was con-
structed by Stepan.
Stepan admits that the ditch was dug for
the purpose of diverting runoff waters away from the waste treat-
ment plant in order to reduce hydraulic loading on the treatment
plant.
The
record
shows
that
the
ditch
drains
only
Stepan’s
property
(R.
62).
However,
the
proposed
discharge
course
from
that point on and the nature of other streams
to the south and
southeast of the Millsdale plant was the subject of extensive
testimony and evidence.
There appear to be at least two separate stream channels in
the
aerial
photograph
(Stepan
Exhibit
#11)
that
continue
under
Millsdale Road in
a westerly direction southeast of the plant.
The
right
side
stream
appears
to
meander
somewhat
until
it
enters
a wooded area.
Two separate stream channels are discernible in
the
wooded
area,
one
of
which
appears
to
be
the
right
side
stream
as it progresses through the wooded area.
As both streams exit
the
wooded
area
they
join
and
enter
what
appears
to
be
a
manmade
channel which flows in an easterly direction a short distance and
thence turns south where it eventually enters another stream
which
appears
to
be
the
left
side
stream
as
it
emerges
from
another wooded area.
From that point the joint stream flows
to a culvert under
the Milisdale Extension Road which runs north to south along the
eastern Side of the plant.
The stream continues under Millsdale
Extension
Road
to
the
west
until
it
enters
a
large
wooded
area
south of the plant.
It is not possible to determine from the
aerial photograph
in which direction the stream continues.
A number of lines appear in the aerial photograph at the
extreme northwest corner of the wooded area immediately south
of the plant.
These lines, which may be small channels, appear
to come out of the woods and enter a drainage ditch which borders
the entire southern boundary of the plant.
The point at which
the small lines join the drainage ditch
,is the first of the two
culverts under the railroad tracks.
15 —455
—12—
Dennis Offerman,
a Stepan employee, traversed parts of the
drainage course south of the plant from the Millsclale Extension
Road to the large wooded area on September
6 and 9 and October
9,
1974.
Photographs
taken by Offerman on September
6 show the
drainage course at two culverts under the Extension Road.
The
bed of
the drainage course near the road appears to be rock lined
in certain stretches and earthen in others.
No water
is dis-
cernible in this photographs.
On September
9 Offerman walked and took photographs of the
drainage course as
it nears the wooded area south of the plant.
In these photographs
the drainage course bed is lined with rather
large
rocks
except
for
one
area
which
appears
to
have
a
solid
rock bed.
Offerman confirmed that
this area of the drainage
course did have a solid rock bed
(R.
106).
As the course enters
the
wooded
area
the
rock
strewn
bottom
becomes
wider
and
flatter.
Offerman testified that there is no discrete ditch within the
wooded area beyond the point where the course enters
(R.
77)
No water
is visible in the drainage course in these photographs.
Offerman’s photographs of the first railroad culvert area
shows
some water in the drainage course as it nears the culvert.
He testified that there was a slight flow through the course near
the first culvert on September
9.
However,
no water is visible
near the outlet of the second culvert or near the drainage course
discharge
point
at
the
Des
Plaines
River
on
that
date,
Photographs taken by Offerman on October
9
(Wednesday)
show
essentially
the
same
dry
bed
conditions
revealed
in
the
earlier
photographs up to the point where the drair~agecourse enters the
woods.
Offerman testified that he believed a “fairly substantial
rain” had fallen in the area on the previous weekend
(R.
87)
The drainage course contains water as it approaches
the first
railroad
culvert.
Water
is
visible
in
photographs
of the drainage
course
beyond
the
culverts
until
it
reaches
the
Des
Plaines
discharge
point.
Although
no
water
is
flowing
in
the
bed
at
the
discharge point,
it is not possible because of quality of the
photocraphs
to determine whether the bed is
totally devoid of
water.
(Stepan Exhibit *39)
Offerman testified that the course
was completely dry at that point
(R.
90)
although water was
flowing in the course several feet upstream
(R.
89)
Offerman also kept a log of conditions he observed from the
double culvert on Milisdale Extension Road
to the wooded area
from September
9 through October 18,
1974.
On these dates
Offerman
testified
he followed the drainage course from the culvert
to where it entered
the
wooded area.
From September
9 to September 12
the log
(Stepan Exhibit *43) described the culvert condition as
“dry”.
On September 13 the log records that
a flow was observed in the
course near the culvert after
a heavy rain had occurred late the
previous
day.
The flow was noted
as being 1/2” in depth.
—13-
Beginning
.
September
16
and
continuing
through
October
18
the
log records “no flow” for the entire period.
Rain occurred
on October
13,
1974.
The “no flow” notation meant that small
puddles were observed following a rainfall but they were spaced
far apart and the stream was not flowing
(R.
92).
Offerman testified that a heavy rain would cause water to
flow in the culvert for six to eight hours, then flow more slowly
for several hoursand finally stop
(R.
94).
Other than the
period of time during which he took
the photographs and made
entries in the log,
Offerman testified that it was not his normal
practice to observe the culvert conditions as he drove to and
from the plant
CR.
109).
Agency engineer, Theodore Denning, inspected and photographed
the drainage course south and southeast of the plant on May 16,
1974.
Flowing water is clearly visible in the drainage course
and all photographs taken on that date.
Denning admitted that it
had rained the previous day and that it was possible that the rain
had been “heavy”.
CR.
213)
He also stated that Cedar Creek was
flooding on that date
CR.
219),
Denning stated that he had never walked over the entire
drainage course and in particular that portion from the Millsdale
Road to the Millsdale Extension Road,
He testified that a Stepan
employee, Frank Rae, had been with him when he photographed the
drainage course near the Millsdale Road.
According to Denning,
Rae informed him that the drainage course continued from that
point to the Des Plaines River
(R.
222)
.
Rae is no longer employed
by Stepan and was not called as a witness,
A return visit was made by Penning on October
17,
1974 in
order to inspect the drainage course area.
Water was observed
flowing through the culverts towards the Des Plaines River at
about
2 to
3 gallons per minute on that date,
He
did.
riot follow
the drainage course to the point at which it enters the Des Plaines
River.
Denning described the water in the drainage course as
“clear, colorless,
sparkling”
(R.
207).
(Note:
The Offerman log
book recorded rain on October
13,
1974)
Denning testified that
the clarity of the water on October
17 led him to believe that a
natural spring was located somewhere in the area of the railroad
culverts
(R.
209)
although he made no attempt to trace the source
of the clear water
(R.
219)
*
He observed no plants or evidence
of aquatic life in the stream bed and did not sample the water
in the stream
(R.
22).
Agency engineer Surinder Gambhir testified that he had
reviewed Stepan’s proposed plan and recommended denial of the
diversion project
(R.
227),
After reviewing the Stepan file,
15—457
which included reports by Penning, Gambhir reasoned that the
ultimate effect of the diversion would be no different than
the present discharge to Cedar Creek
(R.
228)
He later accom-
panied Penning on the May 16 inspectionand noted that his ob-
servation paralleled those of Denning’s on that date.
Gambhir testified that he walked the section of stream
from the railroad culverts
to the Des Plaines River.
Based on
observations made during this walk he believed that the channel
was a natural watercourse instead of manmade
CR,
230.
He did
not walk the drainage course between the
two
roads
into
the
lant,
His decision that the channel east of the first railroad culvert
was
a continuation of the channel observed at Millsdaie Road was
based on his interpretation of topographical maps of the area
(R.
244)
Inspection of the topographical maps submitted by Stepan
(Stepan Exhibit #12)
show that the terrain about one mile east of
the Des Plaines River begins to slope towards the River and
eventually drops about 95 feet in elevation as
it meets
the River.
Thus, Gambhir’s interpretation that the course appeared to be
draining in the direction of the River is credible.
After reviewing the entire record in this case,
it is the
Board’s opinion that the Agency properly denied Stepan a permit
for the proposed diversion.
The record shows that the Agency was
concerned not only about the ditch, but more importantly,
the
effect of the discharge on the small drainage course after the
two streams join near the first railroad culvert.
Denninq noted
in his report of the May 16,
1974 visit that the stream from the
railroad culvert to the Des Plaines River would be accessible
by several dirt roads during dry weather.
At least two such
roads with vehicles on them are clearly visible in the aerial
photographs submitted by Stepan (Stepan Exhibit #4).
The ditch into which Stepan proposes to divert its effluent
was constructed by Stepan primarily as a means of directing runoff
water away from the waste treatment plant.
Stepan is correct that
the ditch as constructed does not merit the classification of
“waters”.
The intent of the Water Pollution Regulations
is
to
provide that degree of protection which is necessary to “restore,
maintain,
and enhance the waters of this State in
order
to
protect
health, welfare, property and the quality of
life and to assure
that no contaminants are discharged into tIe waters without being
given the degree of treatment or control necessary to prevent
pollution”.
15—458
Prsor
to diversion
of effluent,
water
in
this
manmade
ditch
wouto. consast
solely or runoff.
There
is
no
evidence that
water
ie
c~ ted
suppoirs
acg~t~.r II
a
.~
used for agricultu’~al
por~
poses,
is
used
to
water
domestic
animals
or
frequented
by
am’
wildlife
creatures.
We
do
not
choose
to
cons:Luel
that
ditch,
for
remlato
ry
purposes
as
waters
of
tIe
state.
However,
tI
e
record
also
contains
an
aerial
photograph,
Lopcdrao!ic
nao~ ena Dcnri~rs!s ~ecoliecLioi
of me con er.~atton
o ~n Steua~ onpioyee P~
This ov~aen~e
lncicdtei
tlin tn~re~s
an
interrt..ittent
water
cou.rse
to
I
an
south
and
southeast
or
the
plant
a.nd
that
at
least:
part
of
the
‘water
flowit.tq
intermIttently
under
the
cuL’erts
flows
from
this
water
course.
Stepan
argues
strongly
that
evidence
does
not
support.
such
a.
conclusion.
‘~
tth
~
~ooa
~or~a ca~ma~ ~nL
~
pdoLoorapJ~
in
ur
opinion.
support Donning’ a
testimony.
From
all
of
the
evidence
we
find
that
an
intermittent water course
dces. ~exist and that waters
of the
State flow
through. the culverts.
To
allow
Stepan
to
proceed
with
its
plan
would.
simply
mean
that
the
waste
treatment
plant
effluent
‘would
be
directed
from
a
s~eam
ircaD&ale
o~ass~.m~~atiro
the coataminants
to an
even
smaller
intermittent
stream
to
which
the
public
have
access
by
road
and
by
river.
This
intermittent
stream
is
“waters”
and
is
deser’vinq
of
the
same
protection.
afforded.
Cedar
Creek.
A
t
t’umber
of
prior
Board
Oninions
are
cited
by
the
parties.
In particular,
Allied Chemical’ Company
vs.
EPA,
PCB
73—382,
is
cited to show ‘both sides
of
the
“waters”
issue,
In Allied Chemical
the
plant
effluent
was
being
discharged
to
the
Ohio
River
via
a
w
i~cd
was
~r~pl~t~it
on
I
is
own” 0
m’
A.L~d Cte~rca~a
d
which was
fen..ced to prevent ~ubIic
ac.cess.
In the
i.nstant case
we have
c. channel which
f’Icws
on. sand wholly owned by Stepan
to
the point
at which it ‘would enter
a
na.t’ural drainage course and
subseauiantl.y traverse
land. not
o’wned. by Stepan,
Stepan
c.ites the
Boa.rd opir.ion
OAF
vs.
EPA,
PCB 71—115
ap’pa
seal” ly
i.n
cci
effort
to show
the variance
should
be granted
based
upon Stepan’s
diligence,
good faith
and the
fact
that
they
are not seeking to avoid prosecution
for
past
violations.
However,
when Stoinreich became aware December
1973
that
the
effluent
could
not
consistently
meet
the
30
mg/I SOD
and 37 mg/I SS effluent
standards
he
failed
to
advise
the
Agency or the Board of this
discovery.
In
addition,
it
appears
to
us
that
Stepan,
at
the
time
it agreed to divert
its
effluent to the Des Plaines River, knew
full well that it could
not
meet its agreed deadline.
Therefore,
we are reluctant to praise Stepan for diligence and good faith,
15—459
—16—
Had Stepan provided the Board with the complete picture as
Stepan knew it to be, our prior Order could have been different.
As it now stands,
Stepan has ignored a major part of our prior
Order which required diversion to
the
Des Plaines River by
July 15,
1974.
Thus,
the problem now facing Stepan is,
for the
most part,
self—imposed.
Stepan submitted a copy of CFR Title 40,
Subchanter N, Part
417-Effluent Guidelines and Standards for Soap and Detergent
Manufacturing Point Source Category (Stepan Exhibit
‘#41), and
calculations based on effluent limitations contained in that
document (Stepan Exhibit #40).
These two exhibits, according to
Stepan, are important to its case since they show that achievement
of
30
mg/I
BOO
in
plant
effluent
requires
better pollution control
technology than Best Practicable Control Technology Currently
Available as defined in the Federal Regulations.
Under the Federal
effluent limitations Stepan claims it should be allowed to discharge
an effluent containing as much as
50 mg/l BOD (calculations show
the correct figure to be 44.72 mg/l BOD).
At least four other factors must be considered
in weighing
this evidence.
First,
as clearly noted in the Federal Regulation
prior to each section in which effluent limitations are established,
the
U.
S.
EPA states that certain data “which would affect these
limitations have not been available and,
as a result, these
limitations should be adjusted for certain plants in this industry”.
Second
is the consideration that Stepan effluent equalled or better~
the Federal limitations for BOD .50% of
the time in April 1974,
100%
in June 1974,
60% in July 1974 and 75% in ~ugust
1974.
Third
is
the additional Federal requirement that Stepan should be able to
achieve 10.6 mg/l TSS
in
their
effluent
using
Best
Practicable
Technology.
Operating data show that Stepan has accomplished this
feat only five times
since February 1974.
Finally, Dr. Lampe
testified that completion
of the proposed improvement projects
should permit Stepan to consistently meet the Illinois effluent
limitations.
In our opinion, these considerations show that the
Millsdale plant, when properly operated,
is one plant that must be
considered
an
exception to the rule,
as cautioned by the U.
S.
EPA.
An
alternative
is
available
to
Stepan
as
partially
brought
out
in the testimony of Plant Manager Steinreich.
Steinreich testified
that Stepan could cut another water course from the last railroad
culvert
to
the
River.
Such
a
cut
would
be
made
if
it
was
deemed
necessary to receive the permit
(R.
270)
.
Steinreich stated that
the project would allow Stepan to avoid Agency objection to crossing
state owned land.
However, the Agency noted
that no such objection
was
anywhere
to be found in the record.
15—460
—17—
This proposed second or extended ditch would not solve the
problem since effluent
in
the existing ditch would mix with the
drainage course water before the first railroad culvert.
Nothing
would
be
gained
by
cutting
a
second
ditch
on
the
other
side
of
the second
railroad culvert to the River if drainage course
water had already been contaminated by plant effluent.
Also,
in
viewing the aerial photograph
in conjunction with Steinreich’s
statement,
it
appears that the public would still have access
to
the contaminated water.
One alternative solution would be for Stepan to install a
pipeline to intercept the effluent at some point in the manmade
ditch before the first railroad culvert.
Effluent would then be
transported via pipeline from
that
point to the Des Plaines River.
This pipeline would be routed through both culverts and thence to
the river.
By inst.alling this pipeline Stepan would avoid contaminating
any “waters”
in the drainage course with plant effluent.
Public
access to the plant effluent would also be avoided.
Andrae testi-
fied that a
90 day
maximum would
be
recruired
for
Stepan’s pro-
posed diversion since piping and pumps
for the proposed diversion
to the ditch are already on site
(B.
40).
Possibly this equipment
1could be used to achieve
a diversion such as
that described above.
Steinreich testified that the surfactant plant
(60-70% of
the
total
Millsdale
production)
would
have
to
shut
down
if the variance
were denied and Stepan were required
to meet the effluent standards
applicable
t.o the Des Plaines River by December 31, 1974
CR.
129).
The entire plant would have to shut down
if Stepan were required to
meet the more strict effluent standards applicable
to Cedar Creek.
Certain equipment at the plant, such as the sulfonators,
cannot be
operated in
a reduced mode because designed to operate at only one
rate
(B.
159).
Stepan believes that the concentration of contaminants
in its effluent would probably not change even if operation in a
reduced mode were possible because the primary sources of contamin-
ation are spillage and wash down,
In its Recommendation,
the Agency states that Stepan failed
to comply with bonding requirements in the prior Order.
A $5,000
bond was required to guarantee weekly effluent testing.
The bond
was never posted but the testing was done,
7~.notherbond in the
amount of $30,000 was agreed to by Stepan for liquidated damages
in
the
event
Stepan
failed
to
file
its
construction
permit
appli-
cation on or before February 15,
1974
and.
if Stepan failed to cease
its discharge to Cedar Creek by July
15,
1974.
The $30,000 bond
was posted in April after the Agency brought it to the attention of
Stepan
s attorney.
15 —461
The Agency recommends denial of
variance
in part because
of reluctance
to recommend
a future shield for prosecution for
a company that has consistently been in violation of the Act
and applicable Regulations since at lea~tNovember 10,
1971,
The Agency cites GAF vs. EPA, PCB 71-li stating that the Board
has held that “a hardship which at some time ma
have been
corn”
sidered to he arbitrary or unreasonable,
is no longer so con-
sidered after the polluter has failed to make use of ample
opportunities for achieving compliance,”
Section
35 of the Act. provides that the Board nay grant.
a
variance
whenever
it
is
found, upon presentation
of’ adequate
proof,
that
compliance
would
:Lmpose
an arbatrary or unreasonabie
hardship.
In this case adequate proof
is woefully lacking.
Stepan has v~oiatedBoard Regulations,
the Environmental Protection
Act,
their own Stipulated Agreement and the Boardli Order in the
prior consolidated cases.
The record of
this proceeding does not.
support Stepan’ a claim of arbitrary and unreasonable hardship.
Stepan has been given ample opportunity to achieve compliance.
They
cannot
claim
hardship
on
the basis
of
malfunctioning treat-
ment
plant
equipment
because
the
record
clean
shows
that
such
malfunctions
have
occurred only twice since the January 1974 Board
Order.
The
only
hardship
recognized
in
the
record
is
the
largely
self
imposed
one
created
by
Stepan’s
failure
to
divert
its
effluent
to
the
Dbs
Plaines
River
as
agreed.
Variance
until
December
31,
1975
cannot
be
allowed
at
this
time
based
upon
the
record
before
us.
Although the
Betz
program
appears to be capable of bringing Stepan’s pffluent into compliance,
it
is
essential
to
the
protection
of
Cedar
Creek
that
the
contamin.ated
effluent
be
diverted
as quickly as
possible
to the Des Blames
Rive:c.
Stepan
will
be
given
the
opportunity
to show its
good
faith
if it
is willing to install a diversion pipeline using the maximum efforts.
possible.
It should be
readily
apparent
from
the
Order accompanying
this
Opinion
that
the
degree
of
effort
put
forth
by
S’tepan
in
the
pipeline project will he
a prime consideration in any future variance
decision.
Stepan
is
granted
a
variance
for
120
days
only
on
the
condition
that it
submit
to
the
Agency
within
30
days
a
plan
for
transporting
its
effluent
via
pipeline
to
the
Des
Plainen
River.
This
pipeline
shall be
constructed
such
that
it
continue
uninterrupted
from
some
point before the first of
the
double
railroad
culverts
to
the Des
Plaines
River
and
such that the natural stream channel through and
beyond
the
double railroad culverts shall not be contaminated with
plant effluent.
Since
piping
and
pumps
for
the
denied diversion project are
already on site we believe that the schedule for such a project
15
—
462
—19
*
could be accelerated.
Clear reasons shall be provided in
‘the event more than 90 days are required to complete the
diversion.
The remaining issue is what monetary penalty,
if any,
should
be imposed upon Stepan.
CBE contends that a penalty of $20,000
would
be supported by the record.
Stepan submits that such fine is not appropriate because:
1) Stepan relied upon
a consultant who contractually guaranteed
to
bring
the
plant effluent
into
compliance,
2)
a new compliance
program
has been formulated,
3)
Stepan has undertaken an internal
spill
prevention and equipment maintenance program,
4) violations
were
not deliberate and not caused
by
neg1i~ence, 5)
the
Agency
did not join the CBE suit or commence
its
own
enforcement action,
6) Stepan has acted in good faith and
the
Board
has held that
good faith effort is not rewarded with penalty and
7)
the Supreme
Court and Appellate Count have stated that civil penalties are to
be
‘used as a method to aid enforcement of the Act and that punitive
considerations
are secondary in nature.
As the courts have stated, a civil penalty may
be
imposed
when such remedy is necessary to aid enforcement of the Act and
when such remedy will aid in the protection, enhancement and
estoration of the environment by eliminating,
lessening and
eventing pollution.
Stepan has knowingly operated in violation of the law for
quite some time.
It has been releasing its effluent to a small
creek that simply is incapable of assimilating such waste loading.
This Board allowed Stepan a very liberal ~variance in order to
clean up its effluent.
The variance was allowed in part
becaus,e
Stepan had a program it contended would work and because Stepan
promised to divert is effluent in short time to the Des Plaines
River.
In reality, the operating data shows
that very little progress
has been realized in the past year.
Cedar Creek is still being
contaminated by loadings in excess of 100 times the allowable BOD
concentration and almost 180 times the allowable suspended solids
concentration.
This record supports the imposition of a significant civil
penalty.
it is the finding of the Board that Stepan should pay
a civil penalty in the amount of $15,000 for water pollution
violations proven in this proceeding.
No liability
is
placed upon
Stepan
for
failure to timely post the
two
bonds required by the
prior Board Order.
15
—
463
—20—
Finally, the Agency has filed
~ Motion to Forfeit the
$30,000 bond described in this Opinion.
The Board has
ordered
that
this
action
be
docketed
under
a
s.eparate
nuiTJner
and
a
hearing
has
been
ordered.
While
this Opinion and
the record
from which
it was drawn may have bearing
on the Motion, the
merits of that Motion will not be
taker: up in this Opinion.
This Opinion constitutes the findings of fact and con—
clusions of law of the Illinois Pollution Control Board.
ORDEB
It is the Order of the Pollution Control Board that:
1.
Stepan Chemical Company
is granted variance from
Rule 404(f)
of the Water Pollution Control Regu-
lations for its Millsdale plant for 120 days from
the date of this order.
This variance is allowed
on the conditions
that:
a)
Stepan submit to the Agency and
the
Board
within
30 days of the date of this Order
a plan
for transporting its effluent to the Des Plaines
River.
Such plan shall show that the effluent
will be
enclosed in pipeline prior to reaching
the railroad culverts south of the plant and that
no effluent will be discharqed
to either Cedar Creek
or the unnamed natural drainage channel south of
the plant as identified in these proceedings,
Every effort shall be made to complete the project
during the term of this variance.
b)
During
the
term
of
this variance Stepan shall
not increase its BOD
and
SS discharge
to
Cedar
Creek over levels achieved in July
1974.
2.
Stepan shall
continuously monitor the influent
‘to
and effluent from the Milisdale waste treatment
plant throughout the entire period of variance
allowed in Part
1 of
this Order,
Effluent will be
analyzed for BOD
(on
a weekly composite samole)
content and suspended solids content.
The Agency
will
be
provided a copy of all analytical results
obtained during the term of variance.
3.
Within 30 days of the date of
this Order Stepan snaIl
post a $5,000 bond with
the
Agency to guarantee per’-
formance of the effluent testing required in Part 2
15
—
464
—21—
above and shall post
a $15,000 bond with the Agency
to guarantee installation of pipeline to carry the
plant effluent to the Des Plaines River without dis-
charge to either Cedar Creek or the unnamed natural
drainage channel south of the plant.
The bonds shall
be mailed to:
Fiscal Services Division, Illinois EPA,
2200 Churchill Road,
Springfield, Illinois 62706.
4.
Stepan Chemical Company shall pay to the State of
Illinois by March
1,
1975
the sum of $15,000 as
a
penalty for the violations
found in this proceeding.
Penalty payment by certified check or money order
payable to the State of Illinois shall be made to
Fiscal Services Division,
Illinois EPA,
2200 Churchill
Road,
Springfield, Illinois 62706.
Dr. Odell dissents.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board1 hereby cer ify the above Opinion and Order was adopted this
___________day of
~
,
1975 by a vote of2~to
/
15—465
