ILLINOIS POLLUTION CONTROL BOARD
February 17,
1994
IN THE MATTER OF:
)
)
PETITION OF CABOT CORPORATION
)
FOR AN ADJUSTED STANDARD FROM
)
AS 92-8
35
ILL. ADM. CODE 738.SUBPART B
)
(Adjusted Standard)
OPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter is before the Board on an amended petition for
adjusted standard filed by Cabot Corporation
(Cabot) on September
25,
1992.
Cabot requests that the Board grant an exemption from
the underground injection control
(UIC)
disposal prohibitions in
35
Ill. Adm. Code 738.Subpart B for certain wastes disposed at
Cabot’s Tuscola facility.
The United States Environmental
Protection Agency
(USEPA) has granted an exemption from the
parallel federal UIC rules.
The Board’s responsibility in this matter arises from the
Environmental Protection Act
(Act)
(415 ILCS 5/1 et seq.).
The
Board is charged therein to “determine, define and implement the
environmental control standards applicable in the State of
Illinois”
(Act at Section 5(b)) and to “grant
***
an adjusted
standard for persons who can justify such an adjustment”
(Act at
Section 28.1(a)).
More generally, the Board’s responsibility in
this matter is based on the system of checks and balances
integral to Illinois environmental governance: the Board is
charged with the rulemaking and principal adjudicatory functions,
and the Illinois Environmental Protection Agency (Agency)
is
responsible for carrying out the principal administrative duties.
Based upon the record before it and upon review of the
factors involved in the consideration of adjusted standards, the
Board finds that Cabot has demonstrated that grant of an adjusted
standard in the instant matter is warranted.
The adjusted
standard accordingly will be granted.
BACKGROUND
Cabot operates a inorganic chemical manufacturing facility
(SIC Code 2819)
located in Tuscola, Illinois.
The facility
occupies approximately 100 acres and employs 184 persons.
The facility manufactures silicon dioxide (Sb2), marketed
under the trademark Cab—O—Sil.
The production process consists
of the hydrolysis/oxidation of a chlorosilane feed stock to
produce Si02 and hydrochloric acid (HC1).
—2—
Several hazardous waste streams are generated at the Tuscola
facility.
The majority are disposed of in one of two UIC wells
(Well No.
1 and Well No.
2)
located at the facility.
The waste
streams injected in the UIC wells include acidic waste water from
air pollution control scrubbers,
stack drains, fan drains,
other
equipment drains, and wash downs
(D002), plus unsalable by-
product HC1
(also D002); spent acetone from the QC laboratory
(F003); and surface water drainage,
seepage,
leachate, and
groundwater
(F039).
The two UIC wells are permitted by the Agency.
Wastes with hazardous waste numbers D002,
F003,
and F039 are
explicitly prohibited1 from underground injection unless an
exemption has been granted.
Cabot disposes of these wastes via
underground injection based in the exemption granted under
federal law.
The injection zone at the Cabot site includes the upper part
of the Franconia Formation, all of the Potosi and Eminence
Dolomites and the Gunter Sandstone, and the lower part of the
Oneota Dolomite between the depths of 5,400 and 4,442
feet.
The
immediately overlying confining zone is the Shakopee Dolomite
between 4,442 and 4,124
feet.
The confining zone is separated
from the lowermost source of underground drinking water at a
depth of 2,750 feet by sequences of permeable and less permeable
sedimentary rocks which provide additional protection from fluid
migration into underground sources of drinking water.
(55 Fed.
Reg. 49340
(November 27,
1990).)
PROCEDURAL HISTORY
Cabot has sought and obtained “no—migration exemptions” from
USEPA pursuant to the exemption procedures found at 40 CFR 148.20
et sep.
for the same wastes here at issue.
Cabot’s petition to
USEPA was submitted in April 1989.
On August 24,
1990 USEPA
issued a notice to grant the exemptions published at 55 Fed. Reg.
34739.
On November 6,
1990 USEPA granted the exemption for Well
No.
2, published at 55 Fed. Reg.
49340
(November 27,
1990)
and on
February 4,
1991 USEPA granted the exemption for Well No.
1,
published at 58 Fed. Reg. 5826 (February 13,
1991).
On August
3, 1992 Cabot filed a petition with the Board
seeking to effectuate the exemption in State law.
The Board
1
The prohibition against waste F003 occurs at Section
738.110 of the Board’s regulations and at the parallel 40 CFR
148.10 of USEPA regulations; the prohibitions against wastes D002
and F039 occur at Section 748.116 and 40 CFR 148.16,
respectively.
—3—
initially docketed the petition as a site-specific rulemaking
under docket R92-16.
However, by orders of August 13,
1992 the
Board closed docket R92-16 and redocketed the matter as the
instant proceeding, AS 92-8.
In redocketing this matter as an
adjusted standard, the Board observed:
neither the Board nor USEPA rule provides for
regulatory action on a “no—migration exemption”.
USEPA
has ~
taken regulatory action.
Rather,
it has
published Federal Register notices of non—regulatory
actions which appear to be similar to adjusted
standards.
The UIC actions are not rules, and will not
appear in the CFR.
Section 13(c) of the Act requires the Board to
adopt rules which are “identical in substance” to
federal regulations.
In this case,
there are no
regulations.
(In re: Petition of Cabot Corporation, R92-16,
135 PCB
471, August 13,
1992)
In its August 13,
1992 order opening Docket AS 92—8 the
Board also directed Cabot to file certain additional information.
On September 24,
1992 Cabot responded by filing the amended
petition here before the Board.
On December 1,
1992 the Agency filed its response to Cabot’s
amended petition.
The Agency response is accompanied by exhibits
consisting of the Agency record of its participation before USEPA
in response to Cabot’s request for federal exemption.
The Agency argues first that Cabot’s petition before the
Board should be dismissed for lack of State authority to grant
the requested exemption (see following).
The Agency argues in
the alternative that the adjusted standard be granted.
By order of November 4,
1993 the Board observed that it
desired to move the instant matter to decision on the freshest
record possible, and accordingly allowed Cabot and the Agency
opportunity to bring any matters up-to-date.
No additional
filings have been made.
ADJUSTED STANDARD PROCEDURE
The Act at Section 28.1 provides that a petitioner may
request, and the Board may impose, an environmental standard that
is:
(a) applicable solely to the petitioner,
and
(b) different
from the standard that would otherwise apply to the petitioner as
the consequence of the operation of a rule of general
applicability.
Such a standard is called an adjusted standard.
—4—
The general procedures that govern an adjusted standard
proceeding are found at Section 28.1 of the Act and within the
Board’s procedural rules at 35 Ill. Adm. Code Part 106.
The procedures via which an adjusted standard from the UIC
prohibitions may be sought, and the level of justification
required for a petitioner to qualify for a UIC adjusted standard,
are set out at 35 Ill.
Adm. Code 738.Subpart
C.
738.Subpart C
was adopted in Board docket R92-2, UIC UPDATE, January 25,
1990,
effective February 20,
1990.
The 738.Subpart C regulations are
identical—in—substance to the federal UIC exemption procedures.
738.Subpart C has the following organization:
PART 738
HAZARDOUS WASTE INJECTION RESTRICTIONS
SUBPART C:
PETITION STANDARDS
AND
PROCEDURES
Section
738.120
Petitions to Allow Injection of a Prohibited Waste
738.121
Required Information to Support Petitions
738.122
Submission, Review and Approval or Denial of
Petitions
738.123
Review of Adjusted Standards
738.124
Termination of Adjusted Standards
Each of the Part 738 sections is identical-in-substance to
the federal UIC exemption provisions, with the correspondence as
follows:
State Regulation
Federal Regulation
Section 738.120
40 CFR 148.20
(1988)
Section 738.121
40 CFR 148.21
(1988)
Section 738.122
40 CFR 148.22
(1988)
Section 738.123
40 CFR 148.23
(1988)
Section 738.124
40 CFR 148.24
(1988)
AUTHORITY
A threshold issue raised by the Agency is whether the Board
has authority to grant exemptions from UIC land disposal
prohibitions.
The Agency contends that this authority, unless
explicitly delegated to the State as part of a primacy
delegation,
is vested solely in the Administrator of USEPA.
In
the instant case the State has never sought primacy with respect
to the provisions of Part 738, and accordingly the Agency
contends that the State has never been given the authority to
grant exemptions from land disposal prohibitions.
On this basis,
the Agency recommends that the Board dismiss the instant docket.
—5—
The Board is unable to agree with the Agency.
The
Administrator of USEPA has explicit authority to grant exemptions
from the federal UIC law.
But the law at issue here is State
law.
In State law the authority to grant exemptions is vested in
the Board.
This authority resides in the Board pursuant to
regulations adopted under Sections 13(c)
and 22.4(a) of the Act,
which, among other matters, mandate that the Board adopt
regulations implementing a State UIC program.
The Agency has
presented nothing in the Act, nor in any precedent, that in any
way suggests invalidity of the State regulations absent USEPA’s
delegation of primacy.
Cabot has sought and received exemption under federal law
from the Administrator of USEPA.
To receive exemption under
State law Cabot must, accordingly and as it now does,
seek
exemption from the Board.
The Board notes that in arriving at this conclusion
regarding authority,
it distinguishes the issue of authority from
the issues of conflict and relative stringency that might arise
from Cabot holding an exemption under federal law for the same
activity prohibited under State law.
The conflict/stringency
issues go to the merits of Cabot’s request for exemption from the
State UIC regulations, to which the Board next turns.
MERITS
The elements of justification required for an exemption
under Board regulations are the same as those required for
federal exemption.
Cabot accordingly stands on its petition as
presented to USEPA as demonstration of the merits of its petition
before the Board.
The Agency observes that it actively participated in the
tJSEPA review of Cabot’s federal petition.
(See,
e.g., Exhibits
1-12 to Agency’s Response.)
The Agency observes that it was
assisted in its review by the Illinois State Geological Survey
and Illinois State Water Survey, and that it conducted an
extensive technical review and submitted numerous comments to
USEPA regarding the Cabot petition.
The Agency further observes
that, although it initially considered Cabot’s federal petition
to contain “deficiencies or inconsistencies”
(Agency Response at
¶
8), Cabot ultimately addressed and satisfied all of the
Agency’s concerns.
The Agency accordingly concludes that it has
no new comments to present to the Board in the instant
proceeding.
(~.
at ¶9.)
The demonstration that must be made to gain the “no—
migration exemption” here requested is found at Section
738.120(a)(l)(A).
A showing is required that:
—6—
Fluid movement conditions are such that the injected
fluids will not migrate within 10,000 years:
i)
Vertically upward out of the injection zone; or
ii)
Laterally within the injection zone to a point of
discharge or interface with an Underground Source
of Drinking Water
(USDW)
as defined in 35 Ill.
Adm. Code 730.
In proposing to grant the exemptions requested by Cabot,
USEPA summarized the elements that entered into its decision to
move forward on Cabot’s petition:
The draft decision to approve Cabot’s petition for
continued injection was reached after a careful
consideration of the factors involved in an
environmentally protective injection operation.
These
factors include the type of waste injected, well
construction, well operation, proof of mechanical
integrity of the wells, properties of the injection and
confining zones,
including their ability to receive and
confine the waste,
a detailed search for any abandoned
boreholes which may serve as a conduit for upward waste
migration, and comprehensive modeling of the existing
waste plume and further growth and movement of the
plume, both vertically and laterally,
for the next
10,000 years.
(55 Fed. Req.
34741
(August 24,
1990).)
In granting the federal exemption for injection into Well
No.
22,
USEPA found:
USEPA personnel reviewed all data pertaining to the
petition including but not limited to well
construction, regional and local geology, seismic
activity, penetrations of the confining zone, and the
mathematical models submitted by Cabot to demonstrate
that no migration from the injection zone would occur.
The USEPA has determined that the geological setting at
the site as well as the construction and operation of
Well No.
2 are adequate to prevent fluid migration out
of the injection zone within 10,000 years, as required
under 40 CFR Part 148.
(55 Fed. Reg. 49340
(November
27,
1990).)
USEPA has further found:
2
USEPA’s findings with regard to Well No.
1, which were
presented at a later date, were substantively the same.
See 58
Fed. Req. 5826 (February 13,
1991).
—7
As required by 40 CFR part 148, Cabot has demonstrated to a
reasonable degree of certainty that there will be no
migration of hazardous constituents from the injection zone
for as long as the waste remains hazardous.
This final
decision allows the continued underground injection by Cabot
of specific restricted hazardous wastes including
hydrochloric acid and wastewaters contaminated with
hydrochloric acid which are hazardous because they are
corrosive (i.e.,
pH is less than or equal to 2.0 hence its
waste code of D002 under 40 CFR 261)
a multisource leachate
(Code F039)
contaminated with small amounts of 1.1—
dichloroethylene,
1. 2-dichloroethylene, methylene chloride,
phenol, tetrachloroethylene,
and trichloroethylene from a
closed waste storage impoundment and low concentrations of
residual spent acetone
(Code F003)
rinsed from laboratory
glassware cleaned with solvent into a Class
I hazardous
waste injection well specifically identified as Well No.
2
at the Tuscola facility.
This decision constitutes a final
USEPA action for which there is no administrative appeal.
(55 Fed. Reg.
49340
(November 27,
1990)
and 58 Fed. Req.
5826 (February 13,
1991).)
The Board has also reviewed the justification provided by
Cabot to USEPA, and finds that Cabot has made all the
demonstrations required pursuant to the identical—in—substance
regulations at 35 Ill. Adm. Code 738.Subpart C.
As an additional matter, the Board observes that programs,
such as the State UIC program, that are intended to be identical-
in—substance” with federal programs are, by their nature,
intended to be no more (or less)
stringent than the corresponding
federal program.
The Board finds that withholding the exemption
that Cabot here seeks would cause a more stringent State law to
apply to Cabot,
in contradistinction to the stringency principle.
In sum, the Board finds that Cabot has demonstrated that
grant of adjusted standard is warranted.
The Board further finds
that the conditions imposed by USEPA on the similar federal
exemption are necessary limitations on the grant of this adjusted
standard.
Accordingly, the adjusted standard will be granted
subject to those conditions3.
~ The Board notes that the leachate concentration limits
specified in today’s order (condition
2)
are the same as those
specified in Cabot’s federal exemption.
These concentration
limits are derived from health—based levels using a conservative
“final to initial” concentration ratio of 0.003.
USEPA notes
that the concentration ratio of 0.003 provides 10 times the
dilution sufficient to increase the pH of the waste from 0.5 to
2.0 and more than enough to reduce the concentration of all
hazardous constituents to nonhazardous levels.
(55 Fed. Reg.
—8—
ORDER
Cabot Corporation is hereby granted an adjusted standard
from the requirements of 35
Ill.
Adin.
Code 738.Subpart B for the
underground injection control Wells Nos.
1 and 2 at its Tuscola,
Illinois, facility.
This adjusted standard constitutes an
exemption from the prohibitions of Subpart B such as to allow the
underground injection disposal of wastes classified as acidic
water
(D002), by-product hydrochloric acid (D002),
spent acetone
(F003), and multi-source leachate
(F039).
The adjusted standard
is subject to the following conditions:
(1)
The monthly average injection rate must not exceed 400
gallons per minute.
(2)
The concentrations of the constituents included in the
injected leachate may not exceed the following values:
Acetone
47,000
mg/L
Tetrachloroethylene
1.66 mg/L
Methylene Chloride
59.0
mg/L
Trichloroethylene
1.66 mg/L
1,2 Dichloroethylene
.33 mg/L
1,1 Dichioroethylene
2.33 mg/L
Phenol
12,000
mg/L
(3)
Injection must occur only into the Franconia, Potosi,
and Eminence Dolomites and the Gunter Sandstone;
(4)
The injection zone consists of the Franconia, Potosi,
Eminence, and Oneota Dolomites and the Gunter
Sandstone,
found between 4,441 and 5,400 feet in
Cabot’s Well No.
1 and between 4,442 and 5,400 feet in
Cabot’s Well No.
2; and
(5)
Cabot shall be in full compliance with all conditions
of its permits and other conditions relating to the
exemption found in 35 Ill. Adm. Code 738.123 and
738.124.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
34743
(August 24, 1990)
and Exh.
4 at 8—4.)
—9—
I, Dorothy
14. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certj~ythat the above opinion and order was
adopted on the
/7~
day of
________________,
1994, by a
vote of
~
Control Board
