ILLINOIS POLLUTION CONTROL BOARD

November 26, 1972

OLIN CORPORATION,

Petitioner,

v.

)

PCB 72—253

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

George E.

Bullwinkel and Edward L. Overtree for Olin Corporation;

James

I.

Rubin and Steven Bonaguidi, Assistant Attorneys

General, for the Environmental Protection Agency.

OPINION AND ORDER OF THE BOARD

(by Mr. Parker)

By Petition filed June 21, 1972 and supplemented

August 7,

1972,

Olin Corporation seeks

a variance from certain

of the Water Pollution and Air Pollution standards presently

in effect, and with effective dates in the future,

as concerns

its Joliet plant which produces phosphate-based and fluorine-

based products.

The plant employs about 500 and has an annual

payroll of about

$6 million

(H. 45-46, second portion, August

16,

1972)

It will be helpful at the outset to briefly review the

nature of Olin’s Joliet operations.

Olin’s phosphate-based

products are made by reacting phosphate rock with sulfuric

acid to form phosphoric acid

(and by-product calcium sulfate

hydrate, known as gypsum)

,

and then forming various sodium

phosphates

by reaction of the phosphoric acid with soda ash or

caustic

soda.

The principal phosphate-based product is sodium

tripolyphosphate, most of which is used in laundry detergents.

About 75

of Olin’s Joliet plant phosphate production is used

in detergents

(Petition,

page 3).

A by—product called “Hy—Grade”

fertilizer is made from phosphate muds filtered from the sodium

phosphate solutions during processing.

The fluoride based products include hydrofluoric acid and

aluminum and sodium fluorides.

They are produced by reacting

fluorspar with sulfuric acid to form hydrofluoric acid

(and

by-product anhydrous calcium sulfate), which in turn is

reacted with other materials,

for example with alumina to form

aluminum fluoride.

The by-product calcium sulfates from both product lines

have no significant market value and are disposed of by piling.

A water slurry of calcium sulfate is pumped to a “gypsum pond”,

where the insoluble calcium sulfate settles out.

After re-

cycling to the process for re—use, the excess slurry over-

flows

to the Des ~laines River.

6

—311

---

By way of further background,

Olin adopted a water

pollution abatement program in May of 1971 in response to the

Agency’s request.

That program was designed to bring all

effluent waste streams into compliance with then current

effluent standards by the end of 1973.

Specific dates set

forth were April 1972 for removing sodium silicate solution

from the discharge to the main plant sewer, July 1972 for

installing a recycle system for solids discharged from the

sodium tripolyphosphate

“C” production, October 1972 for

removing solids discharged to the sewer from the chlorinated

trisodium phosphate operation, April of 1973 for controlling

solids discharged to the sewer from boiler blowdown and

scrubber effluent from the vacuum ash handling system, and end

of 1973 for completion of redesign or modification of the

gypsum pond impoundment facilities

(See Exh. A to Petition).

Olin is presently following this program and has expended

$326,000 of

an estimated total

$3,610,000 for pollution control

projects

(pp.

2,

7 of Petition,

R,

227—230).

Olin’s Petition says

(pp.

7-8)

it is presently required by

a Federal Court order entered October 27, 1971

in a Refuse Act

proceeding

to implement a compliance program “substantially

as set forth”

in the May 1971 program.

The record is silent as

to what relationship the new compliance program which

is the

subject of this proceeding bears to this Court Order, or as to

whether any order entered by this Board granting permission to

Olin to depart from the May 1971 program would become effective

in the absence of Federal Court approval.

Olin contends in the instant variance proceeding, the

petition for which was filed approximately 13 months after

adoption of the May 1971 water pollution abatement program,

that business uncertainties concerning the future for detergent

phosphates

“have precipitated

a reassessment of the situation”

(Petition, page 2),

Olin says that Procter & Gamble, Olin’s

largest phosphate customer,

is publicly committed to removal of

phosphates from its detergent products when

a suitable replace-

ment

is available

(Petition,

page 11), and contends there

is

a

possibility that Federal legislation may be forthcoming which

will ban or limit phosphate use in detergents,

“which could

cause the abrupt demise of Olin’s phosphate business and its

Joliet Plant”

(Petition, page 11)

.

Olin states that the

Federal government’s

“final decision on phosphates and their

replacements.. .will not be forthcoming in less than two years”,

to permit time for further experimentation and study, and

argues that it should not be required to spend “approximately

$4.0 million necessary to achieve compliance with the newly

adopted standards before their effective dates,

in light of the

best information available concerning the extremely fluid

market condition and legislative situation that only time will

clarify”

(Petition,

page 12).

—2—

6

—

312

---

Instead, Olin proposes a new compliance plan

(Exhibit Q

to the Petition)

to be substituted for

the

May,

1971 plan.

The

new plan

is

presented in alternative form, covering two

possibilities

if

detergent phosphates continue and three if

they do not.

The two are:

continuation of

the

present plant

operations

(Alternate

B, cost $3.08 miliion*)

or relocation

of

the

phosphoric

acid

manufacturing

operations

(to

strenqhcen

the

business)

and

continuance

of

all

other

present

operations

at

Joliet

(Alt.

A,

cost

$2.25

million).

The

other

three

possibilities

are:

continuation

of

an

industrial

(i.e.

non--

detergent)

phosphate

business

and

the

fluoride

products

(Alt.

C,

cost

$1.73

million)

,

continuation

of

the

fluoride

products

only

(Alt.

0,

cost

$400,000)

,

or

a

complete

shutdown

of

the

plant

(Alt.

E,

cost

~65,000).

In

the

case

of

each

of

the

five

alternatives

the

engineering

work

is

not

to

he

started

until

mid—1974,

and

the

work

will

not

be

completed

until

late

or

the

end

of

1975

when

all

standards

are

expected

to

be

met.

Olin

points

out

that

in

addition

to

these

five

alter-

natives

it

has

already

committed

itself

and

is

proceeding

to

expend

an

additional

$810,000

to

provide

certain

ixrprovements

prior to the end of 1973 when the effluen.t standards become

effective.

These projects, labelled 1-1 through 1-4 and

Alt,

II

on

Exh.

Q

to

the

Petition,

include

a

collection

system for process wastes

($300,000)

,

a clarifier

($150,000)

for plant sewer effluent (which will remove about 95

of the

suspended and settleable solids per Supplemental Exhibit F),

gypsum pond recycling improvements

($140,000)

which will

reduce occasions of storm water--induced gypsum pond overflow,

and hydrofluoric acid tail gas ($20,000)

and retort emission

($200,000)

scrubbers.

These projects are often referred to

in the record as Olin’s “Interim Control Program”.

As noted,

this $810,000 program

is already underway,

a

“good deal of

that money has already been spent”

(H.

168)

,

and this portion

of

the work will go forward whether or not the variance sought

is granted or denied

(H.

168; Petitioner’s Supplemental

Information on Effectiveness of Compliance Program, pp. 4-5),

The specific variances sought by petition,

all for periods

of one year but which Olin would anticipate extending further,

are as follows,

Insofar as air pollution

is concerned, Olin

requests a variance from the emission standards of Rules

203

(b)

,

204

(f)

(1)

(A)

and 204

(f)

(2)

,

which will become

effective December 31,

1973, and from the implementation plan

provisions of Rules 103 and 104,

to permit Olin’s emissions

*

Costs from Appendix

I

to

Petition; note that Alt.

B

corrected by Supplemental Request for Relief.

—3—

6_

313

---

hydrofinoiFic acid

operation),

(c)

phosphate

particulates,

and

(d)

fugitive

particulates

from

barge

unloading

operations.

See

Peti-

tion

for

Variance

Par,

VIII,

Cl)

and

(2),

and Supplemental Request

for

kelief.*

As respects water pollution,

Olin requests a variance

from the effluent standards

of

Rules

401

—

403,

and from Rule 408

which will become effective December 31,

1973,

as

well

as

from

the

implementation plan provisions of Rules

903,

914 and 1002,

to permit

Olin’s discharae of

effluents

containing

excessive

amounts

of

arsenic, cadmium, copper,

fluoride,

iron

(total and dissolved),

lead,

manganese, mercury, oil,

pH,

zinc,

total suspended solids and total

dissolved solids.

See Petition for Variance,

Par. VIII,

(3)

and

(4), Exh.

I to the Petition, and Petitioner’s Answer to Recommenda-

tion of Illinois Environmental Protection Agency,

pars.

14,

21.

Public hearings were held on the petitions on August 14 and 16,

1972.

The record also includes a deposition taken on August 21,

1972.

Turning first

to the

air

pollurion portion of Olin’s petitions,

we

find

that

the

individual requests for relief are all either

mooted, unproven

by

the record,

or in one instance withdrawn after

the

case had been submitted

to the Board for decision

(but before

the Board reached

a tentative decision on November 21,

1972)

Olin has commendably already set about abating the

objectionable

emissions of SO2, sulfuric acid mist,

and fluoride emissions from

the hydrofluoric acid plant.

As noted, Olin has already spent or

is

already committed

to spend $20,000 for a tail gas scrubber, and

$200,000

(Alternate

II)

for retort emission scrubbers

(H,

168),

which

will

bring

about

compliance

with

the

standards

before

the

December

31,

1973

effective

date.

Thus

these

variance

requests

are

mooted.

We note parenthetically that we are unable

to

evaluate Olin’s

Alternate 1, replacement of

the

small H? retorts with one large

retort,

for want of cost information.

In view of this,

plus the fact

that Alternate

II

will

put Olin in compliance

in time to meet

the

standards

(by the end of

L973 vs. April

of

1974

for

Alt.

I),

we

find

that Olin has failed to prove that the $200,000 expenditure

(for

Alt,

II)

will

constitute

a

hardship.

We

note,

too,

that

the

HF

retort

emissions problem

is separate and apart from those associated with the

phosphate

products

and

accordingly from Olin’ s market uncertainty argu-’

ments

(discussed

later

in

this

opinion)

.

In

any

event,

Olin

has

itself

used

Alternate

II

rather

than

Alternate

I

in

arriving

at

its

~58l0,O0()

figure,

and

thus

has

±tsef

made

at

least

a

tentative

election.

Olin’s

request

for

leave

to

withdraw

its

variance

requests

ocr—

raining

to

air

pollution

(see

Petitioner’s

Withdrawal

of

Certain

Requests

for

Relief

and

Correction

of

Record

filed

November

27,

1972)

was

filed

after

the

case

had

been

discussed

and

aftor

this

aseect

of

the

case

had

been

decided

by

th~ Board

at

its

regular

weekly

meeting

on

November

21,

1972

attended

by

reoresent.atives

of

Olin.

Olin’s

request

is

accordingly

denied

as

tardy

except

as

to

chat

~:art

relac

rig

to

phosphatu

particulates

which

was

pr ~vicusL’

withdrawn

by

Olin

before

Board

decision

---

So

also

is

Clins

request

mooted

as respects its dock

rnloadinq

faciliiies,

Olin

says

it

will

replace

thu

present

ps ten

w: rh

c

cc”;

one

adeguate

to

meet

fransiorit

car

emission

standards

by

:riid—1975

at

c

cost

of

~ll0,OOO,

but

onil

al.

such

steps

are

in

fact

necessary

to

meet

the

applicable

regu-

lcOion’

(p.

3

of

Scpplemental

Request

for

Relief)

.

The nasis

for

the

r. quest

is

obvicrslv

speculatave.

No

er’idenoo

was

placed

in

the

record

~n

support

of

this

~equest,

and

we

find

there

is

no

showing

that

a

~‘criance

‘~:ll

he

reedel.

As

Icr

ohospb ate

particul.ates,

Olin

has,

s~rice

the

hearings

but

~ora

discussion

in)

decision

of

the

case

On

tnc

Board

or.

~Je ‘cm; or

21,

1972,

withdrasn

its

varranca

remuast

cc

thc

~s

chat

a

will

riot

be

necessary.

Ne’rertheless,

ye

fad

odlicjed

to

corrmeno

on

th~s

aspect

of

tho

orcncedinfs

bricause

ic

ocints

up

the

need

ior

careful

preparation

of

pLnadi~igs

and

marsanling

of

facts

ir,

cases

broeght

h~’ OLin

and

others

before

the

Board.

Olin’s

original

petitton

proposed

to

comply

with

the

star

nerds

by

modifying

its

scrubbers

and

expanbinq

its

collection

faccif--

nies

at

a

cost

of

$375,900

(Proiect

5-9,

0th.

Q

to

Petition)

Shortly

before

the

~ub~ic

hearinc,

Clan

filed

a

Supplemental

Hecuest

for

Relief

~nich

stated

that

Olin

riad,

subsequor.t

to

the

hung

of

the

oricinal

petition,

‘irivesticated

more

:horcuqhiy”

its

prancipal

air

emassaon

sources

and

hat

netermaned

Lhat

less

extensive

modifications

will

he

required

than

originally

estamited’

The

estimat:e

of

capital

required

to

modify

the

phosphate

particu-

late

scrubbers

and

collectors

‘.-‘as

accordingly

revised

downwardly

from

$375,000

to

$125,000.

Then,

at

the

public

hearing,

Olin’s

witness

explained

CR.

3—4,

August

16,

1972)

that

originally

‘h?y

had

idcntiied

six~ coss

b_c

cii

c”~issiori

sources

‘rich

tthy

“thought

perhaps”

were

not

in

compliance,

and

that

tney

made

a

“top-of--the—head

guess’

that

it

would

cost

$75,000

per

source

to

bring

them

into

compliance

(there

is

no

explanation

as

to

how

multiplying

six

times

$75,000

i’~ould give

the

$375,000

figure

used

in

the

original

retition)

.

The

Olin

witness

said

they

originally

had.

no

basis

in

fact

for

believing

any

of

the

six

sources

were

out

of

compliance

(H.

3,

4,

Angust

16,

1972)

.

Subsequently

Olin

carried

out

tests

which,

according

to

the

testimony

(F,.

5,

6,

11,

14,

15,

August

16,

1972),

show

that

onip

one

of

the

six

sources

is

presently

out

of

compliance,

and

then

only

marginally

so.

That

one

is

the

Tripoly

A

South

scrubber,

which

presently

has

an

emission

rate

of

23.4

pounds

per

hour

vs.

19.2

under

the

present

regulation

and

19.0

to

be

effective

at

the

end

of

1973

(H.

12,

August

16,

1972)

.

There

is

no

testimony

connecting

the

$125,000

corrected

figure

for

Project

B—9

with

the

single

Tripoly

A South

scrubber which will be out of compliance.

The Supplemental Request

for Relief ties the $125,000 figure to “these process emission

sources”

(at.

p.

2)

,

which

it

fails

to

otherwise

identify.

We

*

The

six

are

(R.

4,

August 16,

1972):

AC scrubber in Hy-Grade fertilizer plant

Rotolouver scrubber in Hy-Grade fertilizer niant

Tripoly A North scrubber

Tripoly A South scrubber

Tripoly B North scrubber

Tripoly

B

South

scrubber

—5--

6

315

---

conclude, therefore, that

based

on this testimonial record the

$125,000 must cover more than the single emission source upon

which the variance is sought.

As noted, Olin’s recent with-

drawal of its request for a variance as respects phosphate

particulates

has

rendered unnecessary our reaching a legal

conclusion as to sufficiency of the proofs.

Hopefully, in

future variance proceedings before the Board the Petitioner

will be able to base each variance request upon

firm

facts,

showing the need for a variance

and

the cost of compliance.

This brings us to the water pollution aspects of the case.

Two

separate wastewater discharges flow from Olin’s Joliet

plant to the Des Plaines River.

One

is the main plant sewer

effluent, a combination of process and sanitary wastewater.

The

other

is

the overflow from the

gypsum

pond, which discharges

into

the

River

approximately

one

mile

downstream

of

the

main

plant

sewer

discharge

CR.

233).

The

two

discharges differ in

the nature and quantity of contaminants, and Olin’s abatement

proposals

are

different

for

each.

We thus take them up

separately for discussion.

The main plant

sewer

discharge amounts to about 1300 GPM

Csupp. Exh. A).

The present discharge fails to meet the

December 31, 1973 effluent standards of Rule 408 for arsenic

(0.5 vs. 0.25 mg/l standard), fluoride (20. vs. 2.5 mg/l standard),

and lead

(0.2 vs. 0.1 mg/l standard)

--

all per Supplemental

Exhibit

~•*

As indicated earlier, Olin is presently proceeding

to install a clarifier (Project 1-2) which will reduce the total

suspended solids from 370. to 15.

**

mg/l prior to the end of

1973, and the

total

suspended

solids

are

expected

to

remain

at

or within the Rule 408 standard after

that

date

CSupp. Exh. F).

*

Supplemental

Exhibit

F

shows

Olin’s current

total

dissolved

solids

as 1200. mg/l and projected full compliance as

1630. mg/l, each to be

compared

with a standard of 1250.-

3500. mg/l (standard allows 750 mg/l over background of

500 mg/l, and permits a

maximum

of 3500. mg/l where process

stream

recycle is practiced, as is said by Olin to be the

case here).

Thus, Olin’s data indicates there will be no

need for a variance for total dissolved solids, and this

part of the variance request is dismissed as

moot.

**

Number appearing in Supplemental Exhibit F corrected from

5. to 15. by Olin’s representatives present during Board

discussion of case on November 21, 1972.

CSee also pp. 2—3

of Petitioner’s Withdrawal of Certain Requests for Relief

and Correction of Record, filed November 27, 1972).

—6—

6

.

316

---

The

gypsum pond overflow discharge to

the

River

is

presently

~bout 38,900

lbs. per day

(Supp.

Exh.

B)

.

Olin expects this to

be reduced to

11,130 lbs. per day on days of overflow

(Supp.

Exh.

B)

following completion

in mid—1973 of the gypsum

pond

recycle

improvements

(Project

1-3)

currently

underway.

Olin

apparently

arrived

at

the

11,130

lbs.

per

day

figure

by

estimating

(no sup--

porting data)

that 10

spillage would occur

from the pond during

periods of heavy rainfall or rapid spring thaws

(Suop.

Exh.

B).

The

contaminants

and

their

concentrations

which

will

still,

accord--

ing to

the

estimate,

fail

to

meet

December

31,

1973

standards

are

arsenic

(0.5 vs.

0.25 mg/i standard), cadmium

(0.35 vs. 0.15 mg/I

standard),

copper

(1.2 vs.

1.0 mg/i standard),

fluoride

(llOO.vs.

2.5* mg/i standard),

total iron

(55, vs.

2.0 mg/l standard)

,

dis-

solved iron

(55.

vs.

0.5 mg/l standard), manganese

(7.4 vs.

1.0 mq/l

standard)

,

mercury

(0.0007 vs. 0.0005 mg/l standard)

,

oil

(35.

vs.

15. mg/i standard)

,

pH

(2.l_2.6** vs. 5-10

standard)

,

zinc

(6.0 vs.

1.0 mg/i standard),

total suspended solids

(30.

vs.

15,

mg/i standard),

and total dissolved solids

(14,100

vs.

3500. mg/i standard)

-—

all

per Supplemental Exhibit

B.

Insofar as water pollution abatement is concerned,

the net

result,

then,

as of the end of 1973

of Olin’s $810,000 expenditures

currently underway

($590,000 of which

is

for water pollution abate--

merit)

is that the concentration of total

suspended solids in the

main plant sewer effluent will be substantially reduced,

hut the

concentration of other contaminants will remain the same as now.

And the total mass overflow from the gypsum pond will be reduced

by a factor of about

2/3, while the contaminants and their concen-

trations remain the same as presently.

This means that after

December 31, 1973 Olin’s discharges per the proposed Exhibit

Q

compliance plan will still exceed the Rule 408 standards for

14

parameters,

the depart~sbeing especially large for fluorides,

iron, manganese,

zinc and total dissolved solids.

Curiously enough,

it turns out that what Olin seeks here does

not involve any phosphate water quality or effluent standards,

for there

are no such standards for

the

relevant section of the Des Plaines

River.

While Illinois has adopted phosphate limitations applied to

reservoirs or lakes

(cf. Sects.

203

(c)

and 206

(c)

of Water Pollu-

tion Regulations)

,

the

State

(i.e.

our

Board)

was

not convinced of

a need for such standards as applied to this section of the Des Plaines

River

(see p.

7 of Opinion in re

Effluent

Criteria,

etc.,

January

6,

1972).

There

is

no

evidence

in

the

record

that

Olin’s phosphate

*

Curiously

enough,

this

2.5

mg/l

fluoride

standard

was

“accepted”

by

the

Board

in

lieu

of

an

initially

proposed

1.0

mg/i

standard

after Olin’s Joliet people testified that they had been able to

attain levels of

2 or 2.5 mg/i on their effluent

(PCB Opinion,

R70—8,

p.

15,

January

6,

1972;

p.

106

of

hearing

transcript,

October

6,

1971)

**

This low pH may explain why Olin has installed a carbide gun at

the gypsum pond timed to discharge every two minutes to keep

birds away

(H. 67-68,

section portion of transcript, August 16,

1972)

-7-.

6

-31/

---

discharclus

cause

violation

of

any

of

these

standards

downstream

at

the

site

ci

any

reservoir

or

lake

which

might

he

fed

by

the

River.

And

thre

is

no

eoidence

showinq

-that

Olin’s

discharges

of

phos-

phates

to

tue

River

cause

or

tend

to

cause

water

ooilutaon,

quite

apart

From

any

violation

of

standards,

which

would

or

might

violate

the

Environmental

Protec-:ion

tot

(Sect:,

32

a.)

We

rota

t’il:h

interest

that

Olin’s

new

compliance

plan,

Exhibit

Q

t:)

the

Petition,

includes

a

Project

3—7

which

calls

for

virtually

complete”

seaIin

off

the

gypsum

pond

effluent

so

that

it

cannot

reach

the

tivcr

at

all

Phe estimated cost is $400,900 and the pro~-

posed compliance schedule calls

f~r

this

work

to

be

started

in

mid—1974

and

complated

some

16

months

later

(in

late

1975)

Ii

Pro2 cot

:3-7

were

to

be

implemented,

the

River contamination from the

-p’psuir

ronu

overflow

would

be

compl

ebely

elaminatea

except

durang

severe

store

cerinds,

Also,

Project

B—I

incluc-ics

one

small

item,

HP

1imerc~caeoy Pond

~epair

at

a

cost

of

$6

,009,

which

will

advantageously

prevent

91 ionic

from

entering

the

process

sower

system

during

in-

fregue:-t

unset

conditions

(sue

Pet:Ltioner

‘s

Suonlemental

Information

on

ffectL~eness

of

Ocapliance

Program,

pp.

5-6)

The

record

concerning

the

erfect

on

the

River

of

the

two

dis-

charges

leaves

a

good

deal

to

be

desired.

Starting

with

Agetcy

summary

data

for

1971

taken

at

the

Brandon

Road

Bridge

located

up--

strea-”

of

0

in’s

plant,

Olin

calculates

rather

than

measures

the

cf~9act

of

its

two

discharges

on

the

River

(Exh.

L

to

Petition’k)

,

and

concludes

that

all

watei:

quality

standards

would

still

be

met

in

the

kiter.

1hore

is

no

evidence

that

actual

testing

of

the

River

water

was

oarrioi

out

at

ant

location

just.

beyond

a

mixing

zone.

Olin

has

submitted

data

(Exh.

M

to

Petition)

which

it

acquired

in

April

1972

from

samolinq

downstream

near

the

I—Sf

bridge

(Smith’s

Bridge)

,

hut

there

is

no

snowing

that

this

downstream

location

bears

any

reason-

ab

Le

reThtionshio

to

a

mixing

zone**.

and

we

note

from

a

map

that

Smith’s

Bridge

is

located

at

least

five

miles

downstream

from

the

two

Olin

dascharges

into

-the

River.

Olin

has

not

sampled

the

bottom

biota

or

fish

life

:Ln

the

River

(H.

39,

August

16,

1972)

,

and no

hioassays

have

been

run

on

the

Olin

discharges

even

though

Olin

admitted

that

it is not possible to know

the

total

effect

of

its

oischarges on the River without such information

(H.

38, August16,

1972)

*

Also see Petitioner’s Supplemental

Information on Effectiveness

of Compliance Program filed October

23,

1972.

**

Olin has,

in making its calculations,

assumed that

-there is com-

plete mixing at the points of discharge of the Olin effluents

into the River

(see Petitioner’s Supplemental Information on

Effectiveness of Compliance Program, p.

3)

.

The only explana-

tion offered for this assumption

is that the Des Plaines

River

at Olin’s Joliet plant and continuing downstream

to the 1-55 Bridge

is

a restricted use water.

We find no exception for restricted

use waters in the Water Pollution Regulations on mixing

zones

(see Regs.,

pars.

201 et seq.), and thus reject this assumption

as without foundation.

Olin’s representative who appeared before

the Board during its discussion of

the case conceded that with—

out this assumption the calculated levels of contaminants

in

the River would be higher than otherwise.

—8—

6

—318

---

:n support

of

its petitions,

Olin argues that oomalianoe

-.cith

the

standards would impose

an

arbitrary

or unreasonable

hanishia

:aron it because

it

would

have

to spend monet on

colletion abatement

in

the

face of uncertainty

as

to

whether

the detergent phosphate market will continue

at

all.

Olin’s

record proofs

in

support

of its argument

include several

Procter

C

Gamble newspaper advertisements

and written state-

ments,

cci several

statements concerning

the Federal government’s

acoitude.

One Procter

&

Gamble advertisement,

dated March

25,

?~0 (lOch.

C)

to Petition),

states

in part:

“What

Is Procter

&

Gamble’s Position

In Regard To

?hosphates

in Detergents?

Procter

&

Gamble

is engaged

in an

‘all out’

effort

to reduce

-—

and eventually

to eliminate

--

the phos-

phate content of

its detergents.

We have

not waited

for

‘proof’

that

the elimination

-of phosphates

from our products will have any signifi-

cant

effect

one

war

or

the

other

on

lakes

and

streams,

Scientific

opinions

on

this

matter

do

differ.

But

it

mar take years

to develop

the necessary proof one way

or

the other.

(Page

2

of Exh.

0)

Another, dated

-July

7,

1972

(Pet.

Exh.

13)

says:

“The Chicago City Council has passed

a law making

it

illegal

to sell detergents containing

phosphates

after

June

30,

972.

We would like

to explain our Company’s

position

in regard

to this action.

.

.we have reluctantly

concluded

that the only responsible

thing for

us

to

do

is to withdraw all our laundry detergents

from Chicago.”

In

a letter dated August 10,

1972

to Mr.

Robin,

-the

Assistant Attorney General representing

the Agency

in this

proceeding,

Mr.

W.

W.

Ventress,

)ivision

Counsel of Procter

&

Gambel,

stated in

part:

“At this

time

it

is impossible

to supply you precise

information

on

the projected needs

of phosphates

in

detergents

for our Company

in the years ahead

for

two

basic reasons:

1.

We cannot yet

say

when our efforts

to find

a satisfactory replacement

for phosphates

in

deter--

cents will

be completed.

2.

It

is

entirely

cossiblo

that some additional

lecislative bodies

in

this country may decide

to

restrict. phosphates

in detercents

in some way.”

***

---

“Procter

&

Gamble has placed a high priority on a

search for a phosphate replacement in detergents and

it

is

the

Company’s largest single research item.

This is

a very complex problem which involves, among

other things, extensive safety tests

from both human

and environmental standpoints.

We are confident we

will

find

a

replacement, hut cannot give you a schedule.

As

you may

know,

in 1970 we thought

we

had

a

suitable

substitute

in NTA and were actively moving to gain

experience with

it.

However,

at

the

request

of

the

U.

S.

Government, we

are not using

NTA

until

further

tests

have been completed.

We wish we could he more precise but with the many

uncertain-ties concerning phosphate legislation,

improved municipal treatment facilities

for handling

phosphates and changing attitudes in

the scientific

community

as well as by those

in government and

the

consuming

public,

there

is no way to he more definitive

at this time.”

Hs

for the Federal government’s position,

Olin points

to

statements made April

26,

1971

by Surgeon General Steinfeld and

by Mr.

Russell

II.

Train before

the FederaL

Trade

Commission

(Pet.

Exhs.

8,

9)

The Surgeon General said

in part:

“Mr.

Chairman,

it

is

a pleasure

-to appear before

the

Federal Trade Commission

concerning

a proposed rule

that would require that

-all detergent packages dis-

play

a list

of the principal

ingredients and

a warn-

:Lng

if phosphates were used.”

***

“In respect

to efforts

to displace phosphates

from

detergents,

it

should

be realized that tests

conducted

thus

far indicate that some of

the cur-

rently used

substitutes

for phosphates are clearly

toxic or caustic and pose serious accident

hazards,

especially to children.

Other

substitutes not yet

fully tested may also be toxic and/or caustic.

Intensive research on this problem currently is

underway by both Government and industry.

~4uchis

unknown, particularly of

the long term biological

effects of components of detergents.

Of course,

some of the substitutes may not be harmful, but we

must be certain of this before large scale exposure

of society to them

is permitted.”

***

—10-

6

—

320

---

“The

U,

S.

Public Health Service therefore urges the

Federal Trade Commission

to defer making

a decision

regarding

labelling

at

this

time,”

Reference

is also made to a

U.

S.

Department

of Health,

Education and Welfare news release dated May 5,

1972

(Exh.

N

to Petition)

,

which reads in part:

“Use of NTA

in laundry detergents

was discontinued

voluntarily by the soap and detergent industry late

in 1970,

pending study

of its effects

on health.

Acting on

the

conclusions of

the Committee, which has

just completed

its reView

of

the

subject,

Dr. DuVai

announced that the Department

of Health, Education,

and Welfare would continue to oppose use of NTA in

laundry detergents.

This policy will remain

in effect

until

studies are completed

on:

——

NTA’s possible carcinogenic effects and

--

NTA’s possible mutagenic effects.”

“HEW attaches a high priority to completion of its

examination of the questions remaining on the possible

health effects of

NTA,

Assistant Secretary

DuVal

has asked the Woods Committee to design experiments

needed to answer these questions.

The experiment

designs should be available in

the

next few weeks and

will become a basis for prompt initiation of

the

needed studies.”

In the most recent newspaper pronouncement, submitted by

Olin* as an additional exhibit after the hearing, the Akron,

Ohio Beacon

—

Journal quoted Dr. Steinfeld as saying on

September

12,

1972:

“It will be 18 months to two years before results are

known., .there is no question NTA affected development

of the fetus in pregnant animals.”

Petitioner Olin’s Brief asserts the significance of the

above to be as follows

(pp.

7-8,

12-13):

“On the one hand,

Russell

E. Train, Chairman of the

Council on Environmental Quality and Jesse L.

Steinfeld,

the United States Surgeon General, urge

caution in condemning phosphates out of hand because

of the possible adverse health effects of presently

*

See letter to Board Clerk from Olin’s counsel dated October 2,

1972,

-11-

6

—

321

---

known substitutes

(Petitioner’s

Exhibits

8

and

9)

On the other,

the largest single

producer

in

the

soap industry has publicly committed itself

to

removing phosphates from its products

(Petitioner’s

Exhibits

12,

13,

15 and

16)

.

This company, Procter

& Gamble,

is also Olin’s largest single customer,

accounting

for between

30

and 40

of

its 1971

Joliet plant output.

The Joliet plant

is Olin’s

only facility capable of making laundry phosphates.

A continued market for laundry phosphates

is

crucial to

the

economic viability of the Joliet

plant.”

***

“To commit

the necessary

funds

to bring the Joliet

plant into compliance on the dates required would not

be

a rational business decision.

Olin’s Vice

President William Oppold stated as much,

The only reasonable business decision which Olin can

make in the present climate is to withhold the

necessary investment.

In the absence of

a variance,

this means that the plant must close at the end of

1973.”

Olin does not explain why

the market uncertainty

is any

more critical now than it was back at the time of Procter

&

Gamble’s March, 1970 announcement, or later in May of 1971 when

Olin adopted its water pollution abatement program

(which it

is

now

bound to follow pursuant to Federal Court order).

The May 1971

program, which makes express reference to the uncertain market

for detergent phosphates, included commitments by Olin to spend

what had to be substantial

sums

on pollution abatement

(see

Exh.

A

to Petition),

and we

are

provided

with

no

evidence

as

to

why

the apparently continuing market uncertainty now suddenly

renders the abatement expenditures unreasonable.

There

are

also

other

aspects

of

Olin’s

proofs

that

make

us

wonder

if

the

sky

is

really

falling.

Olin’s

brief

argues

that

in

the

absence

of

a

variance

“the

plant

must

close

at

the

end

of

1973”

(see

above).

Yet

no

witness

so

testified.

On

the contrary,

the

Olin

witnesses

have

projected

production

and

sales

into

the

future

at

the

same

levels

as

currently

(H,

153—155,

198,

213),

We

also

question

whether

Olin

has

timely

kept

the

Board

informed

as to its intentions and its own changes

in the posture

of

its

case.

The

original

petition

for

variance

asserted

that

even

the

$810,000

initial

expenditures,

labelled

as

Interim

Control

Program,

would

not

be

made

unless

the

variance

were

granted

(p.

1

of

Exh,

Q

to Petition)

.

No expression

to the

contrary

came

from

Olin

prior

to

the

public

hearing

or

during

---

presentation

of

evidence

at

the

hearing

until

the

Assistant

Attorney

General

received

an

affirmative

answer

when

he

asked

Olin’s

Vice—President

on

cross—examination

whether

Olin

intended

to

make

the

$800,000

plus

expenditures

whether

or

not

the

variance

was

granted

(H.

168).

After

the

hearing

Olin

acknowledged

that

the

$810,000

initial

expenditures

are

to

be

excluded from the variance sought*.

This reduces the

“approximately

$4.0

million”

cost

figure

of

the

original

Petition

(p.

12)

by almost

a full million dollars.

Unfortunately,

the

record

does

not

reflect

the

extent

to

which

this

changes

the

results

of

Olin’s

cash

flow

analyses

(eg.

see

R.

175)

,

and we

find

it

difficult

to

evaluate

the

record on

cash

flow

in

the

absence of this information.

Still

another

aspect

of

Olin’s

case

is

bothersome.

Olin’s

cost

figures

appear

for

the

most

part

to

be internally generated.

As

approximations

they

appear

to

be

rounded

off

to

the

nearest

five

or

ten

thousand

dollars

(see

Exh.

Q to Petition)

.

There

is

no record evidence that Olin obtained

firm

quotations

from

equipment suppliers and contractors,

and

we

question the sound-

ness

of

our

basing

grant

of

a

variance

upon

such

ball

park

estimates.

In

the

one

case

shown

in

the

record

in

which

Olin

received

some

type

of

cost

estimates

from

a

contractor,

the

numbers were characterized by the Olin witness as a

“top-of—the--

head

guess”

(R,

4,

August

16,

1972)

and

later

were

revised

downwardly substantially

(see page

5

herein),

Olin’s market uncertainty argument is interesting, and appears

to he one

of

first

impression

for

our

Board,

One

problem

we

have

with

it

is

with

the

quality

and

extent

of

the

proofs submitted.

We

start

with the fact that to date Olin’s Joliet Plant phosphate

sales have not decreased

(R.

102,

115—116)

,

even though

various municipalities have passed ordinances limiting phosphates

(eq. see Exh.

P to Petition),

And,

if

Olin’s

sales

continue

at

present

levels

there

is

no

problem

because

Olin

can

recoup

the

pollution

abatement

expenditures

in

terms

of

cash

flow

within

about

five

years,

which

Olin

considers

a

reasonable

period

(H.

175).

If,

on

the

other

hand,

Olin’s

Joliet

plant

sales

drop

off incrementally in the next few years by

1

per year,

the cash

recovery period extends to eight years.

For an incremental sales

decrease of

3

per year there would be no recovery at all**

(H.

158)

It does appear that sales information will soon become

available

for

the

year

1973.

The

record

shows

that

Olin’s

phosphate sales contracts with

its

customer

Procter

&

Gamble

are

entered

into

on a calendar year basis, and that these contracts

*

Petitioner’s

Supplemental

Information

on

Effectiveness

of

Compliance

Program

dated

October

23,

1972, pp.

4-5.

~

As indicated,

however,

these

cash

flows

were

not

calculated

for

the

downwardly

revised

and

corrected

abatement

expenditures,

and

thus

have

limited

value

here,

-13-

6— 323

---

typically are negotiated and signed in November or December of each

year

(H.

130)

.

This means that the contract for 1973 should he

negotiated

in the next few weeks.

Once Procter

&

Gamble makes

known its purchase requirements

by

way of this current contract

negotiation it may be possible for Olin to make

a more secure

prediction of its future sales.

And with this information in hand

we will have a more current and therefore better yardstick to use

in assessing Olin’s hardship.

Returning to the nature of Olin’s proofs as far as the market

is concerned,

we note that Olin does not contend that it will be

affected any differently by Illinois’ pollution control

laws than

will its competitor Stauffer Chemical Company, which also has a

detergent phosphate plant

in Illinois,

and which shares last place

with Olin insofar as market portions are concerned

(H.

114, 146).

One of the most difficult questions of proof to resolve is that

presented by Olin’s heavy reliance on newspaper ads and press

releases as proof of market uncertainty.

The only information in

the record on Procter

&

Gamble’s intentions is that found in the

detergent company’s public statements

(H.

129)

.

Olin did not

present

a single witness from Procter

& Gamble to testify about

that company’s purchase intentions, and did not present anyone

from

the Federal government

to testify about the ongoing research

on phosphates or their replacements.

We

have

very little competent evidence as to the two year

minimum time period that Olin says may he necessary before a market

decision can be made.

And

even if we accept the newspaper reports

as proof,

the time period is open ended.

It could stretch on

interminably.

What

happens

if at the end of 1973 Olin’s market

uncertainty argument is repeated in support of renewed variance

petitions.

This Board’s orders could end up functioning as

licenses to pollute.

From the above we draw the following conclusions insofar as

the water pollution aspects of the petitions are concerned.

As

for the gypsum pond effluent, we do not believe Olin has proven

the requisite hardship to justify grant of

a variance.

By spending

$400,000

(Project 3—7)

in addition

to the $810,000 presently

committed,

this effluent

could

he

eliminated

virtually

entirely.

The gypsum pond effluent contains a large number of contaminants

in concentrations exceeding

the

Rule

408

standards,

some

far

in

excess of standards,

including

fluorides,

acidi-ty and dissolved

solids, and Olin has failed

to show persuasively

that continued

discharges will

have

no adverse effects on the Des Plaines River,

By

doing

away

with

the

gypsum

pond

overflow,

copper,

iron

(total

and dissolved)

,

manganese,

mercury,

zinc,

cadmium

and

acidity

would

all he eliminated

as problems,

since

these contaminants

originate

solely

with

the

gyosum

pond

effluent.

If

it was reasonable

for Olin, with

full knowledge*

of

the

so-called uncertain

market

conditions

for detergent phosphates,

Since

at

least

as

early

as

March

25,

1970

(Exh.

0

to

Petition)

---

t:

~~cnrnic

S31),))3 ‘n poflation .sbaterent

to achie~’eson~.’ inorovc-

~

t:~n it

is ruisontle for

1.Ln to spend an additional

S4

~.

2)

~

te

achic’:e

r.’en

;reater

ir’prronents

resulting

fron

near

r.PL.t. b.’cki:c ~: the :yps~npond.

The sane can be said ‘or

the .3ó,.~Nxc~enditzreto ‘3r0”ont fluoride uosets within the

plant

part cf ~roj~:t 3—1,.

Despite wtaatever case Olin can be

sail

~e

have

riade

n

tha

marks:

uncertainty

issue,

)lin

has

not

estab.ianed

that

it

s.w~ll

save

these

$400,030

and

$6,000

ex;endit~r•:s.

The rtain p~.intsewer presents a diffarant situation becauce

the

:ontazsnation

lr’els are less

t::an in the c~seof the

çvosun

pond,

anc

the costs

of ramo--inci the contaninants to meet standards

would

be

re.ative..:

11i4h,

eg.

?rcjnt

3-6,

an

effluent

treatment

plant, would have to be co~pleted

it

an

additional

cost

of

S830,’)aO*.

This cost could he prohibiti--ely hi.yh in relation to

the

benefits

obtained

--

if tao detergent ohosphate narket is

going

to

disappear

soon.

Thus,

the record shows that attn installation of the

clarifier, which will reduce total saspended solids by over 95’t, the

main plant sewer effluent departures from the Decer.ber

.31,

1973

effluent standards will he re1ati-ret~snill.

The 0.5 rig/i arsenic

level exceeds the 0.25 mg/l standard by a factor of two, but is

still within the 0.05 to 0.5 mg/l range

a:hieved by standard pro-

cesses

according to Weston

(Scac

toinien of the

Boari

in re

Effluent Criteria, R70—8,

p.

12, January 6,

1972).

Tha lead

ln”nl

(0.2 mg/l) also wifl he twice

the

stand~rd,bit stifl.

‘nrv

L’-e;

it should

be

kept

in rind that

tn’s standard was

.;et nainly on the

basis of the tochnica

feasibiLity of rnchina it rather thin han

to the environment.

Fluoride remains a probtert at

2’)

rig

‘1 vs. a

2.5

mg/l standard, bit even this doe.3 net :oo,

as

ha-I

‘then conpared

with

Patterson’s

reconnended

(albeit

not

aloptod)

10.3

nz/1.

standard

(See

Dpinion,

sapra,

p.

15).

Then,

too,

then

ia

the

-lilution

effect

in

the

Des

Plaines

River,

if

ale-pntn

proors

of

lick

of

harm

to

tee

liver

can

be

nade.

The

Agency

argues

that

Olin’s

petitions

should

he

denied

because

(a)

“uncertain

market

conditions

are

not

groands

for

the

grant of a “ariance”

(Respondent’s Brief, p. 4), and

(h)

for the

reason that ~j1inwould obtain an

infair conpctitiie ~dvantagn

over its Uhinois competitor, Stauffnr Thenical, should

)lin not

have to spend the money necessary to comply with the requlations

&aile Stau~ferpresumah.~yis req’aire’I

to

anct does r.eet its

obligation

of

compliance.

:vn

have

little

‘lnuht

that

the

r-~a

likelihood

of

i

substantial

market -onpletely disappearina in a

7ery

short

period

of

tine,

if

on-ien

perriaslvel.y,

an-I

with

like’

proof

that

ther~ would

be

no

alternative

use

‘or

the

related

prod.iction

facilities,

is

one

of

the

factors

to

he

consiCered

by

this

130 ar’i

aLong

with

others

in

2valiating

whether

“an

arbitrary

or

.mre-asonabi’3

hardship”

has

been

shown

to

exist

pursuant

to

~nction

5

~

the

Act.

As

indicated

above,

however,

we

are

*

~:,ooo,~oa

:~~s

the

$130,000

cost

of

the

clwi9.or.

..

—

L

‘

6—326

---

concerned

h~r~

with

the

quality

of

the

proofs subnitted by Olin

as

to

the

market

as

well

as

the possible

adverse

effects of the

main plant sewer effluent upon the River.

The Agency’s point

about

‘lin’s gaining an auvantage over its competitor Stauffer,

t1iough also not completely proven in this record, gives us some

pause

-

-

and in effect urges us to require Olin to meet strict

standards

of

proof

of

hardshio.

~ur conclusion insofar as the main plant sewer is concerned,

then,

is that Olin

nay

be able to prove its case if given more

tine

in

which

to

gather

meaningful !actual information as to the

detercent

phosphate

narket,

costs

of

compliance,

and

the

lack

of

adverse effects on

the

River.

Accordingly, we believe Olin should

be

given

an

extension

of

tine

within

which

to

file

its

permit

application

and

project

completion

schedules.

This will have the

advantage

that

‘lin

will

during the next (ew weeks learn what its

sales will be for 1973, and will also hopefully during the next

several months be able

to develop more competent evidence as to

the future for detergent phosohates, as to its compliance costs,

and the effects of the rtain plant sewer effluent upon the River.

)lin

is

currently

under

an

obliqation,

pursuant

tc

Sections

903

and

914

of

the

Watar

‘ollution

Regulations,

to

file

an

application

for

an

operating permit for its wastewater treatment

works

no

ater

than early October

of

1972

(i.e.

at

least 90 days

bctrre

December

31,

:972).

\nd

Olin

was

obliged

by Section 1002

(b)

Ci)

of

the

Regulations

to

file

a

Project

Completion

Schedule

with

the

Environmental

Protection

Agency

no

later

than

Yuly

1,

1972*.

Wu believe, and the Order below so provides, that Olin

should be given until June 1,

1973

to file its application for an

operating permit under Sections 903 and 914, and to file its

project conpletion schedules pursuant to Section 1002.

Olin may

on or before ‘larch 1,

1973, petition the Board for a further

extension of tine if •)lin believes it can meet requirements of

proof consistent with this opinion.

There

is one last residual matter involving our interim order

entered Septenber 6,

:972 in which we designated certain Olin

exhibits as not subject to disclosure to the public.

At the time

of that order, we indicated that prior to deciding this case on

the merits we would advise Petitioner if the non-disclosure

status must be lifted in order to allow our rendition of a final

order.

As it turns out, we have not, in rendering this decision

on the merits, had to rely upon the exhibits covered by the prior

non-disclosure order, and upon Petitioner’s request an order will

be entered returning these exhibits to Petitioner’s custody.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

*

There is no indication in the record

that

Olin has complied with

either of these requirements during pendency of these proceedings.

—16—

6—326

---

ORDER

1.

Olin’s Petition for Variance as respects its main plant

sewer effluent is granted to the extent that Olin is hereby

given until June 1,

1973

to file its application for an operating

permit under Sections 903 and 914, and to file

its project

completion schedules pursuant to Section 1002 of the Water

Pollution Regulations, but is granted only to the extent that

the relevant requirements of Sections 903,

914 and 1002 apply to

the Rule 408 standards for arsenic, fluoride and

lead.,

2.

The grant of paragraph

1 herein is subject to the

following conditions:

(a)

That Olin’s main plant sewer effluent discharged

to the Des Plaines River after December 31,

1973

not exceed 0.5 mg/l arsenic,

20. mg/i fluoride,

and 0.2 mg/i

lead.

(b)

That Olin continues with and completes in timely

fashion and in any event before December

31,

1973,

its $810,000 “Interim Control Program” presently

underway, and

(c)

That Olin proceeds immediately to carry out and

completes within 16 months from the date of this

Order, Project B-7 calling for expenditures

of

$400,000 to seal off the gypsum pond effluent,

and completes that portion of Project 5-1 calling

for an expenditure of $6,000

to repair the HF

emergency pond prior to December

31,

1973.

3.

The Environmental Protection Agency is hereby given

permission

to act upon Olin’s permit application and project

completion schedules authorized herein to be filed on or before

June

1,

1973,

and subsequently

to issue

a permit or approve such

schedules if the usual requirements are met.

4.

Olin’s petitions for variance as concerns air pollution

are

mooted insofar as SO2,

sulfuric acid mist,

and fluoride emissions

from the hydrofluoric acid plant are concerned.

Olin’s petitions

for variance as respects phosphate particulates have been withdrawn.

And

Olin’s variance requests concerning fugitive particulates from

barge unloading operations are mooted for want of

a showing that

a variance will be required.

Olin’s recuests for a variance as

concerns its gypsum pond effluent are denied.

5,

Olin

may

on or before

March

1,

1973, petition

the

Board

for

a further extension of

time as concerns the variance granted herein

with respect to Olin’s main plant

sewer

effluent upon a showing

that

it

can meet requirements of proof consistent with

the

opinion

herein,

and

including a

showing

of

Olin’s progress in

meeting

the

conditions

of

paragraph

2.

---

I, Christan L. Moffett, Clerk of the Pollution Control

Board, certify that the above Opinion and Order was adopted

by

the Board on the 28th day of November,

1972, by

a vote of

5

to

0.

6

—

328