ILLINOIS POLLUTION CONTROL BOARD
October 25, 1990
BORDEN CHEMICALS AND
PLASTICS OPERATING LIMITED
)
PARTNERSHIP,
Petitioner,
v.
)
PCB 90—130
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes before the Board on a petition for
extension of variance, filed on July 6, 1990, by Borden Chemicals
and Plastics Operating Limited Partnership (“Borden”). Borden
seeks an extension of the variance granted on December 5, 1985 in
PCB 82—82 and extended by variance granted on October 6, 1988 in
PCB 88—90. That variance granted relief from the regulatory
restrictions found at 35 Ill. Adm. Code 302.208 and 304.105,
which govern the discharge of total dissolved solids (“TDS”) and
chloride from Borden’s facility in Illiopolis, Illinois. The
variance expired on October 6, 1990. Borden requests an
extension until such time as the Board may issue its Final
Opinion and Order granting permanent site—specific relief in R86—
14, in which matter the Board issued its Second Notice Opinion
and Order on August 30, 1990.
Procedural History
Borden’s Petition for Extension of Variance and a Motion to
Submit a Reduced Number of Attachments to Petition were filed on
July 6, 1990. On July 19, 1990, the Board granted Borden’s
motion to submit a reduced number of attachments since these were
already part of the variance case, PCB 82—82. On August 6, 1990,
the Illinois Environmental Protection Agency (“Agency”) filed its
Recommendation in support of granting the requested extension.
On August 17, 1990, a letter of objection was filed. On August
30, 1990, the Board set the matter for hearing, which was held on
October 4, 1990 in Illiopolis, Illinois. No members of the
public participated at hearing. The Board notes that at hearing
the Hearing Officer was inappropriately requested to incorporate
by reference the entire record in the two previous variance
proceedings and the regulatory proceeding. Tr. at p. 16. The
request was also made in the body of Borden’s petition. Pet. at
p. 5. The Hearing Officer granted the incorporation by reference
on the basis of all the documents in the prior proceedings “were
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all included in submissions made in this case by the
petitioner.” Tr. at p. 17. In fact, Borden did not file all the
documents in this case.
The Board hereby overrules the Hearing Officer’s ruling on
incorporation by reference to the extent that it may be construed
as incorporating any part of the record in prior proceedings
which was not resubmitted to the Board with Borden’s variance
petition filed on July 6, 1990 in accordance with 35 Ill. Adm.
Code 101.106(a). The Board continues to rule that only prior
Board Opinions and Orders will be incorporated by reference.
Additionally, the Board notes that the petitioner’s myriad
citations to the records in prior proceedings without any
recitation of appropriate supporting arguments has unnecessarily
complicated and delayed the Board’s decision here. See Pet. at
pp. 5—7.
The Facility
Borden’s Illiopolis plant produces polyvinyl chloride
products, including suspension and dispersion resin, for use by
the vinyl film, siding, fabric, flooring, plastic pipe, and wire
insulation industries. The facility employs about 280 people.
Tr. at p. 8. Borden’s TDS and chloride discharges are attributed
primarily to two sources: (1) plant intake water obtained from
local wells and (2) wastewater from air pollution control
equipment which Borden installed at a cost of approximately $15
million and has operated since 1978. Borden estimates that 70
of the plant’s TDS loading is derived from these two sources and
that the remaining 30 is caused by production processes. Tr. at
pp. 8—10. Borden asserts that it is not feasible to modify its
manufacturing process to reduce the 30 of TDS and chloride
discharges attributable to production processes. Tr. at p. 11.
The plant discharges approximately 800,000 gallons of effluent
per day. The maximum TDS concentration may be as high as 2500
mg/i, with the average being below 1200 mg/l. The average
chloride concentration is usually less than 700 mg/i. See R86—
14, Opinion and Order, February 8, 1990, p. 1.
The facility discharges directly to an unnamed tributary
which flows for approximately three miles from the plant to Long
Point Slough. Approximately seven—tenths of a mile from that
point, Long Point Slough flows into Old River, which joins the
Sangamon River approximately 1.3 miles farther downstream. Tr.
at p. 11. Borden’s 800,000 gallons per day of effluent
constitute 90—95 of the tributary’s flow during dry weather.
See R86—14, Opinion and Order, February 8, 1990, p. 2.
Background
Borden has been operating under a variance granted on
October 6, 1988 in PCB 88—90, which allowed Borden to discharge
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effluent which would not cause the water quality to exceed
monthly average concentrations of 2200 mg/i for TDS and 700 mg/i
for chloride. That variance expired on October 6, 1990, and
after that date Borden would not be shielded from enforcement
actions for discharges which violate the general use water
quality standards.
The regulatory standard from which Borden seeks relief
requires that TDS concentrations shall not exceed 1000 mg/l and
concentrations of chloride shall not exceed 500 mg/i. 35 Ill.
Adm. Code 302.208. Relief is also needed from Section 304.105,
which provides that no effluent, alone or in combination with
other sources, shall cause a violation of any applicable water
quality standard. In Borden’s case the stream has a 7—day/b--year
low flow of zero (7Q10
=
0). Therefore, toassure that Borden’s
effluent does not cause a violation of the water quality
standard, Borden’s NPDES permit would set the effluent
limitations at the same level as the water quality standard.
In the site-specific rule now proposed for Second Notice,
TDS and chloride concentrations have been set at 3,000 mg/i and
900 mg/l, respectively. These levels were found to involve
minimal environmental impact, and the costs of compliance
(estimated by Borden to be in excess of $17 million) outweighed
any environmental benefit presented in the record. Tr. pp. 12—13
and see R86—l4, Opinions and Orders of February 8, 1990, May 24,
1990, and August 30, 1990.
The pending regulatory relief is structured as follows:
Section 303.431 Long Point Slough and Its Unnamed
Tributary
The general use water quality standards for total dissolved
solids and for chloride contained in Section 302.208 shall
not apply to Long Point Slough and its unnamed tributary,
which receive discharges from the Illiopolis, Illinois
facility of Borden Chemicals and Plastics Operating Limited
Partnership, from the outfall of that facility to the point
of the confluence of the unnamed tributary downstream with
the Sangamon River. Instead this water, shall comply with a
total dissolved solids standard of 3,000 mg/i and a chloride
standard of 900 mg/i.
Section 304.211 Discharges From Borden Chemicals and Plastics
Operating Limited Partnership Into an Unnamed
Tributary of Long Point Slough
The effluent standards for total dissolved solids and
chloride discharged from the Illiopolis, Illinois faciiity of
Borden Chemicals and Plastics Operating Limited Partnership
into an unnamed tributary of Long Point Slough shall comply
115—45 5
—4—
with the following effluent limitations as measured at the
point of discharge to the unnamed tributary:
Total Dissolved
3,000 mg/l daily maximum
Solids
Chloride
900 mg/i daily maximum
Discussion
Pursuant to Section 104.121(f) of the Board’s regulations,
an applicant for a variance must submit a compliance plan since
the contemplated relief is only temporary. Borden’s plan to
achieve compliance in PCB 88—90 was to obtain permanent site—
specific relief in R86—14, the still pending regulatory
proceeding. Borden had expected to secure site—specific relief
by October 6, 1990. Other compliance alternatives were rejected
as being technically infeasible and economically unreasonable.
The filing of a proposal for site—specific relief is not a
compliance plan, since it is a matter of speculation whether such
regulatory relief may be granted. See Citizens Utilities Company
of Illinois v. IPCB et al., 479 N.E. 2d 1213 (3rd Dist. 1985)
aff’g Citizens Utilities v. IEPA, PCB 83—124 (April, 19,1984,
June 14, 1984). However, in certain unusual circumstances, the
Board has found that seeking site—specific relief may be
acceptable as a basis for variance relief. In Illinois Power
Company v. IEPA, 100 PCB 177, 180, 181 the Board explained this
situation as follows:
The prospect of filing for site-specific
regulatory relief does not obviate the need
for a compliance plan in a variance
proceeding, however, the Board has recognized
that some factual circumstances prompt some
flexibility regarding this requirement.
(Anderson Clayton Foods v. IEPA, PCB 84-147
(January 24, 1985).) The Board has granted a
variance in the absence of a concrete com-
pliance plan where more information regarding
new technology needed to be gathered in order
to recommend methods of compliance or, alter--
natively,
regulatory
changes.
(Id.)
Similarly, the Board granted a variance even
though a petitioner did not present a
compliance plan where the technology did not
exist for petitioner to reasonably reach
compliance. (Mobil Oil Company v. IEPA, PCB
84—37 (September 20, 1984).)
The Board
concluded that the conducting of research
aimed at finding a means of coming into com-
pliance could be accepted as a compliance
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—5—
plan. (Id.) Lastly, the Board has recognized
a rare exception to the compliance plan
requirement where the variance requested is of
a limited duration, the environmental impact
is minimal and petitioner has made good—faith
efforts to remain in compliance. (General
Motors Corp. v. IEPA, PCB 86—195 (February 19,
1987).)
The Board concludes that, under the instant
circumstances, the lack of a concrete
compliance plan does not bar the granting of a
variance. IPC has experienced conditions at
the Station substantially different than those
predicted in prior models and, as discussed
below, has demonstrated that the expected
adverse environmental impact resulting from
its proposed limitations is minimal and
temporary. Moreover, the parties agree and
the evidence demonstrates that it is not
reasonable to expect IPC to immediately comply
with the current thermal limits.
IPC v. IEPA, PCB 88—97, 100 PCB 177, 181.
In Borden’s unique circumstances, the pending regulatory
relief may serve as a substitute for the customarily required
compliance plan. However, the variance would be conditioned upon
a requirement that if the site—specific request is denied, a
compliance plan must be submitted within a relatively short time
frame. This, in fact, is how Borden’s variance was structured in
PCB 88-90.
Section 35 of the Environmental Protection Act (“Act”)
requires that a petitioner for temporary variance relief show
that compliance would create an arbitrary and unreasonable
hardship. The Agency has agreed with Borden’s assertions that
undue hardship would result from requiring the installation
extremely costly equipment for very little environmental
benefit. The Agency also agrees with Borden that the TDS and
chloride concentrations in Borden’s effluent involve minimal
environmental impact. Ag. Recom. at p. 1; see also PCB 88—90,
Opinion and Order of October 6, 1988 at pp. 3—4. Borden has
resubmitted the environmental impact study prepared by the
Academy of Natural Sciences of Philadelphia in support of its
claim that the biota of the unnamed tributary are minimally
affected. R86—l4 Petition, Ex. A.
Consistency with Federal Law
Neither Borden nor the Agency has raised any issue
concerning whether the extension of variance may be granted
115—457
—6—
consistent with current federal law. Borden’s petition makes
reference to earlier findings that the variance was consistent
with federal law, and the record gives no indication of any
conflict with federal law.
Conclusion
The Board concludes that Borden has presented adequate proof
that immediate compliance with the general use water quality
standards for TDS and chloride would continue to impose an
arbitrary and unreasonable hardship for Borden at its Illiopolis
facility. For this reason the Board will grant the requested
relief in a form substantially as recommended by the parties.
However, the Board notes that it is unwilling to leave’ the
variance open-ended, that is, without a date certain for
termination, even though the regulatory matter is in the Second
Notice stage.
ORDER
Borden Chemical and Plastics Operating Limited Partnership
(Borden) is hereby granted an extension of the variance granted
in PCB 88—90, Opinion and Order of October 6, 1988, from 35 Ill.
Mm. Code 302.208 “Chemical Constituents” and 35 Ill. Mm. Code
304.105 “Violation of Water Quality Standards”, but only as they
relate to the total dissolved solids (TDS) and chloride
standards. This variance applies only to Borden’s Illiopolis,
Illinois facility. The extension of variance is subject to the
following conditions:
1. Borden’s discharge shall not cause the water quality in
the unnamed ditch, Long Point Slough, or Old River to
exceed a monthly average concentration level of 2200
mg/i TDS or 700mg/l chloride, based upon the sampling
frequency contained in Borden’s NPDES permit.
2. This variance will expire on the earlier to occur of:
(a) October 6, 1992, or
(b) upon the date of adoption by the Board of a final
order granting specific relief in R86—14, or
(c) if Borden is denied relief in the site—specific
proceeding, this variance will extend for an
additional twenty—four months from the date of
decision in the site—specific proceeding provided
Borden complies with the following schedule:
115—458
—7—
Items
Completion Date
Submit compliance plan and
6 months from date of final
specifications to the Agency
Board Order in the site—
for permit review
specific proceeding R86—l4
Receive permits
12 months from date of final
Board Order in R86-14
Complete construction of
24 months from date of final
improvements and be in
Board Order in R86—l4
compliance
3. Borden shall monitor the TDS and chloride levels in its
effluent and in the unnamed ditch above and below
Borden’s discharge.
4. Within 45 days after the date of this Opinion and Order
Borden shall execute and send to:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section
2200 Churchill Road, P. 0. Box 19276
Springfield, Illinois 62794—9276
a certificate of acceptance of this variance by which it
agrees to be bound by the terms and conditions contained
herein. This variance will be void if the Petitioner
fails to execute and forward the certificate within the
45 day period. The 45 day period shall be in abeyance
for any period during which the matter is appealed. The
form of the certification shall be as follows:
CERTIFICATION
I, (We), _____________________________
,
having read the
Opinion and Order of the Illinois Pollution Control Board, in PCB
90—130, dated October 25, 1990, understand and accept the said
Opinion and Order, realizing that such acceptance renders all
terms and conditions thereto binding and enforceable.
Petitioner
By: Authorized Agent
115—459
—8—
Title
Date
Section 41 of the Environmental Protection Act (Ill.
Rev. Stat. 1987, ch. 111 1/2 par. 1041) provides for appeal of
final Orders of the Board within 35 days. The Rules of the
Supreme Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify~hat the abov~.O~pion and Order was
adopted on the ~‘~3
c~
day of
‘.J~_/~~
,
1990 by a vote
of
________________
/
/
/
/
~ —(
/
Dorothy M. G~n, Clerk
Illinois Poliution Control Board
115—460