June 7,

OLIN CORPORATION

)

#73—82

v.

ENVIRONMENTAL PROTECTION AGENCY

)

GEORGE BULLWINKLE

AND

KENNETH

R. MISCHNER OF PRICE, CUSHMAN, KECK,

MAHIN

& CATE, APPEARED ON BEHALF OF PETITIONER

JAMES

I.

RUBIN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF

ENVIRONMENTAL PROTECTION AGENCY

OPINION

AND

ORDER OF THE BOARD(BY SAMUEL T.

LAWTON,

JR.):

On February

7,

1973, pursuant to petition for variance filed by

plant, the following Order was entered:

“1.

Olin’s Petition for Variance as respects its main

plant sewer effluent is granted until June

1,

1973,

insofar

as the requirements of Sections 903 and 914 relating to

operating permits, and Section 1002 relating to the project

completion schedules

are concerned, but only to the extent that

they apply to the Rule 408 standards for arsenic, fluoride

and lead, provided that:

(a)

O1in~smain plant sewer

effluent

discharges

to

the

Des Plaines River after December 31,

1973

not

exceed

0.3

mg/I

arsenic,

20. mg/I

fluoride

and 0.2 mg/i

lead,

(b)

Olin

continues

with

and

completes

in

timely

fashion

and

in

any

event

before

December

31,

1973,

its

$810,000

~Inter~m

Control

Program~ presently

underwav~

(c)

Olin

proceeds

immediately

to

carry

cut

and

completes

within

16

months

from

the date of

this

Order,

Project

B—7

cailing

for

expenditures

of

$400,000 to seal

off

the

qypsum

pond

effluent,

and

completes

that

portion

of Project B-I calling for an expenditure of $6,000

to repair

the

HF

emergency pond prior to December

31,

1973.

2.

Oiin~s

petitions

for variance.in all other respects

are

mooted or denied in accordance

with

the above opinion.

8—

219

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3.

The Environmental Protection Agency is hereby author-

ized to accept Olin’s permit applications and completion sche-

dules

embodying

the foregoing and is further authorized to issue

such permits and approve such schedules in due course if such

permits and schedules are otherwise in order.

4.

On or before March

1,

1973, Olin shall have leave to

petition the Board for an extension of this variance contingent

upon sufficient proof of the continuing uncertainty of the deter-

gent phosphate market and its economic effect on Olin’s Joliet

plant, the costs of compliance with the Board’s regulations,

and

the effect on the concentrations of regulated constituents

in the waters of the State of Olin’s discharge beyond a reasonable

mixing zone from the point of entry, in accordance with this

Opinion.”

On March

1,

1973,

a petition for extension of variance was filed

;etting forth the entry of the foregoing Order and requesting an ex-

:ension of the variance to June 1,

1974.

The reasons ascribed were

rincipally the uncertain future of the detergent phosphate market, and

:he inordinate cost of compliance in the event such market is decreased

3ignificantly or disappears,

The Agency recommended that the variance

)e either denied or dismissed,

asserting that the uncertainty of the

hosphate market did not constitute

a justifiable basis of hardship,

mtitling petitioner to the variance extension sought.

Hearing was held on the petition

in

Joliet on April 25, 1973.

The

widence and testimony presented by petitioner may be summarized as

Eollows:

William Nowakowski, Acting Controller of petitioner,

(R. 7), testi-

ied that if capital expenditures were made that would bring the Joliet

)lant into compliance with all pollution regulations,

the cash flow

~ould remain negative for a period in excess of four years.

This was

remised on an assumption that price increases would offset cost in-

;reases,

that bond interest and shareholder dividend expenditures

qould remain at their present levels and that approximately $4,000,000

~‘ouldbe expended for the total pollution control program.

The fore-

~oing figure would include those expenditures which are presently

)rogrammed,

as set forth in the above Order.

Considered also was

the

profit that might otherwise be derived from the sale of Louisiana-

)roduced soda ash that would be used~inthe Joliet phosphate production.

:n the event production declined, the cash recovery period would be

~orrespondingly extended.

Tom S.

Miya,

(R.

41), Professor and Head of the Department of

‘harmacology and Toxocology at Purdue University, testified that he

~asa member of the Woods Committee established by the Assistant Secre-

:ary of the Department of Health, Education and Welfare, with the objectiv

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220

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of studying the status of a phosphate detergent substitute known

as N.T.A.

The Committee established testing procedures for deter-

mination of the safety of N.T.A.

Testing was proposed in two areas,

carcinogenic potential and mutigenic potential.

A minimum of

30

months was deemed necessary for completion of carcinogenic testing.

While the report was filed in July of 1972,

the witness was unable

to state whether testing pursuant to the recommendation was initiated.

At the present time,

the safety status of N.T.A. has not been ascer-

tained.

C. Edward Platt

(R.

50)

an employee of Proctor

& Gamble, which

is petitioner’s primary phosphate purchaser in the detergent field,

testified.

This witness

is involved in the marketing of laundry

detergent and testified as to the status of various legislative and

municipal enactments respecting phosphate bans and detergents, observing

that the State of Indiana, Erie County, New York and Dade County,

Florida, presently ban or limit the sale of phosphate laundry deter-

gent.

The states of New York and Connecticut also have comparable

laws, either in effect or due to go into effect in the near future.

On the other hand, the witness noted that the

U.

S.

District Court

for the Northern District of Illinois had declared the Chicago ban on

phosphate unconstitutional.

The substance of his testimony was to

the effect that the future use of phosphate in detergents was un-

predictable because of the uncertainty of restrictive legislation.

Mr. Platt also commented on Proctor

& Gamble’s present testing and

marketing program to diminish the use of phosphate in detergents,

irrespective of prohibitive legislation, suggesting that this would

ultimately lead to a decline in the purchase of phosphates.

In any

event, he believed that within

“the next year or two”, Proctor

&

Gamble would have

a. clearer prediction

of what its needs

would be for

detergent phosphate.

He predicted the phosphate demand for detergents

by his Company would be substantially diminished.

Emil Stoltz

CR.

71) Manager of Environmental Control of petitioner’s

Joliet plant, testified to the compliance program the Company had under-

taken pursuant to paragraph 1 of our February

7, 1973 Order.

He

indicated that the anticipated cost of $810,000 for the interim com-

pliance program had increased to $1,025,000.

Construction permits

have been applied for but not yet received as of the date of the

hearing.

The interim control program, however,

is on schedule.

Sampling of the Des Plaines

River, both above and below the petitioner’s

discharge, indicated that a variance is no longer necessary for arsenic

as the present effluent is below that provided in the Regulation.

The lead and fluoride parameters continue to exceed allowable

limits although petitioner contends that the difficulty in testing

lead content for the low measurements involved is

such that,

at the

present time, it

is not able to ascertain that it is,

in fact, viola-

ting the Regulation.

Fluoride in the effluent does exceed the allowable

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8—221

---

limits

although

the

dilution

ratio

once

the

effluent

has

passed

the

mixing zone is such that we are satisfied that no significant environ-

mental harm will result.

Accordingly, variance will be needed only

for petitioner’s main plant sewer effluent discharge to the Des Plaines

River for fluoride and lead limited to

20 mg/l and 0.2 mg/i respective-

ly, after December 31,

1973 as provided in our original Order.

Merhie Shoemaker

CR.

92) Marketing Manager for phosphate products

of petitioner, testified that Proctor & Gamble purchases of phosphate

had declined approximately 30

for the period 1970-71-72

as contrasted

with the base period of 1965 through 1969.

A contract for phosphate

supply has been entered into between petitioner and Proctor & Gamble

for the year 1973,

which, according to this witness, is unilateral

in

character

in

that

it

does

not

obligate

Proctor

&

Gamble

to

purchase

any amount from petitioner although conceivably valid as a matter of

law if the buyer was limited to petitioner’s source alone.

The maximum

estimated amount which would be required is again 30

below that of

the base period.

Alternative uses for phosphate,

particularly as

fertilizer,

do

not appear feasible in view of the cost of production.

Hugh Hogeman

CR.

106) Assistant Director of Environmental Affairs

for petitioner, testified to the nature of the relief sought by the

present petition for variance extension, observing that variance only

in the fluoride and lead parameters was

sought, under Rule 408 to June,

1974.

In addition, relief from the project completion schedule is

sought to June of 1975 for compliance with the fluoride and lead

limits.

The interim compliance program will be achieved by December 31,

1973.

From

the

foregoing,

it appears that Olin is pursuing the interim

compliance program and gypsum pond improvements pursuant to its original

representations.

However, with respect to the ultimate future of the

phosphate production and demand, we know little more than we did at the

time of the original proceeding.

Legislation limiting phosphate use

has been adopted in some jurisdictions.

Petitioner’s principal customer,

while continuing to use phosphate,

is proceeding with formulations

that will lessen its use and the Federal Gcvernment’s studies of

phosphate

substitutes,

for all that appears

in the record, have not

made

any

signi.Ei

cant

progress.

The

prcgnosis of petitioner’s continued

phosphate

production

and

the demand for its product continues uncertain,

However,

as

in

all

variance

cases,

we

must

act

on

what

is

in

the

record

and balance the

1ossibiiity

of

harm

to

the

community

if

the

variance

ii

~liowed

against

the

hardship

on

th~Company if

the

variance

is

denied

This,

in

turn,

must be correlated to

the

precise

environmental

impact

that

results

from

any

departure

from

the

Regulations

granted

by tnis Board.

~e

have

previously

held ~n

consideration

of

all

of

the

relevant

factors,

that

the

env~ronmentai

impact

from

relaxation

of

tue

parameters

sought

by

Petitioner,

namely,

fluoride

and

lead,

is

relatively

slight

with

respect

to

the

main

plant

sewer

effluent,

as

8

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222

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contrasted with the substantial expenditures petitioner would be

compelled to make to bring its operation into full compliance in the

immediate future, particularly

in light of the continuing uncertainty

of

its

phosphate

production

and

demand.

However,

we

do

not

feel

constrained

to

extend

the

variance

for

a

full

year.

We

will

grant

a

six-month

variance

from

the

fluoride

and

lead

restrictions

and

relief

from

the

requirements

of

the

project

completion schedule in order to allow for completion of petitioner’s

compliance program and gypsum pond improvements,

as already undertaken.

We

believe

the

Board

should be advised as to the status of petitioner’s

operations and program at which time we can again review both the

compliance program as undertaken and the future of petitioner’s total

operation.

This opinion constitutes the findings of fact and conclusions of law

of the Board.

IT IS THE ORDER of the Pollution Control Board that variance order

heretofore granted in

#72-253 on February

7,

1973,

is extended as to

petitioner’s main plant sewer effluent until December

1,

1973, with

respect to Rule 408, standards for fluoride and lead only,

subject to

all terms and conditions

as set forth in said Order.

Any petition for

extension of variance shall be filed no later than September

1,

1973,

subject to all terms and conditions provided in paragraph

4 of said

Order.

Sections 903 and 914 relating to operating permits and Section

1002 relating to project completion schedules are varied for a period to

and including one year from this date in order to enable the Environ-

mental Protection Agency to grant construction permits to enable comple-

tion of petitioner’s compliance programs and gypsum pond improvements

pursuant to our original Order.

I, Christan Moffett,

Clerk of the Pollution Control Board, certify

that the above Opinion and Order was adopted on the j~

day of June,

1973, by

a vote of

4/

to

0

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