ILLINOIS POLLUTION CONTROL BOARD
April
8,
1976
CATERPILLAR TRACTOR COMPANY,
Petitioner,
)
V.
)
PCB 75—499
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent,.
OPINION OF THE BOARD
(by Mr. Dumelle):
This Opinion is
in
support of an order entered March 25,
1976 which dismissed the petition for variance.
This matter comes before the Board on a petition for
variance filed December
23,
1975 by Caterpillar Tractor
Company
(Caterpillar),
seeking relief from Rules
404,
408(a),
602(c) (2)
and 602(d)
(3)
of Chapter
3:
Water
Pollution,
of the Board’s Rules and Regulations.
A
Recommendation from the Environmental Protection Agency
(Agency) was filed on February 19, 1976.
Petitioner manufactures heavy equipment and employs
18,500 people at its East Peoria, Illinois facility,
Peti-
tioner’s facility has
a combined storm and wastewater treat-
merit
system capable of retaining all dry weather flows
and
additional flows up to three times the average dry weather
flow.
Caterpillar’s combined storm and wastewater sewer
system has
14 overflow discharge points.
During heavy
rainstorms the combined storm and industrial wastewater
bypasses the existing interceptor sewer and waste treatment
plant,
and is discharged through the
14 outfalls into four
waterways, all of which are tributary to the Illinois River.
Caterpillar’s petition,
in summary,
asks the Board to
find the arbitrary and unreasonable hardship required for
a grant of variance on the basis
of the following five
allegations; quotations from the petition are underlined,
followed by the Board’s comments:
First,
Caterpillar has
been diligently working
on
a method ~3meet
the requirements of
Rule__602.
—2—
The implementation date for Rule 602 was December 31,
1975;
this petition was filed December 23,
1975, one week
before compliance was due and proposed
a delay of three years
in compliance.
Rule 602 was adopted March
7,
1972 and became
effective April 16,
1972.
The petition indicates that during
the period from the effective date of the regulations until
some unspecified date after the third calendar quarter of
1974,
a period of longer than
2 years,
some $1,000 of engineering
time and $23,100 had been expended to equip one building with
a trial roof runoff and flume
system.
Approximately one yar
after the trial system was found wanting,
an engineering con-
sultant was engaged on November
4,
1975,
less than
60 days
prior to the compliance date, to produce a preliminary design
for submission to the Agency by July
1,
1976, six months after
the compliance date had passed.
While we have no doubt that the Caterpillar personnel
involved worked diligently on their assignment, the facts
as set forth in the petition could support a logical conclusion
that compliance with Rule 602 by December 31, 1975 was far
from a high priority concern on the top management agenda.
An examination of Petitioner’s schedule now proposed for
bringing the facility into compliance indicates that the
Board’s implementation date as originally promulgated was
capable of achievement by Petitioner had he initiated,
on the
effective date of Rule 602, the compliance progrant he now
proposes.
Second, The requirement for a variance until
December
31,
1978 is a reasonable term
for design, installation and testing
of the holding lagoons.
As discussed just above, were the required implementation
date December
31,
1978, the schedule may indeed be reasonable,
given a November
4,
1975 employment date for a design con-
sultant.
However, there is absolutely no preliminary design
information in the petition concerning the proposed project
which would allow either the Board or the Agency to verify that
the time schedule proposed represents
a reasonable time within
which the constructions inherent in such a project should be
completed.
We are supplied
a small
scale
(1”
=
1000’) plot plan with
four lagoons approximately located thereon with an admonition
in the text of the petition that the exact number and location
of the lagoons may change as the design phase continues.
Similarly we are told that the lagoons will be designed to
21
—
106
—3—
handle at least
10 times the average dry weather flow but
nowhere
is the amount of dry weather flow given.
No cost
estimate of any nature
is
f~urnishedand the schedule proposed
is conditioned to
include
possible further delays necessitated
by design and procurement of materials,
labor disputes,
acts
of God or occurrences beyond the control of Caterpillar.
Addi-
tionally, no cost or schedule comparisons of any alternative
methods of compliance are set forth in the petition.
The petition is devoid of any proof that the schedule
proposed is reasonable;
nor
are sufficient facts presented
from which the Board might draw such an
inference.
Third, During
the
period for which the variance
is sought,
there will not be any significant
environmental harm due to the fact that
bypasses can be expected to occur quite
infrequently,
i.e., at an estimated rate of
only
12 times per year.
The petition contains no estimate of the quantity and
nature of
the overflows except to
state that oils and suspended
solids are the only pollutants expected to be discharged.
Agency grab—samples of effluent from Petitioner’s treatment
works establish
the
presence of chromium, phenol,
iron,
zinc
and cyanide
and lead to
the inescapable conclusion that they
are present in the combined sewer system in addition to the
oil and grease and suspended solids and all are subject to by-
passing.
No estimates of the quantity and nature of the
discharge from the overflow points were given to us because
Petitioner “feels that any such estimate would be of highly
questionable validity.”
While
we
can appreciate the factors
mitigating against precision
in
such an estimate, the following
information, readily available,
could be evaluated to assist
in a determination of the possible environmental impact of
the discharges:
(a)
Measured dry weather flow to the existing
treatment
works;
(b)
Identification
of
contaminants
present
in
treatment
works
influent
(c)
Average
concentration
of
contaminants
present
:Ln
treatment
works
influent;
(d)
Measured
dry
weather
flow
in
the
collection
system compared to design average dry weather
flow;
(e)
Stream flow data, biologic status and water
quality sampling of those water courses
receiving the combined sewer overflows from
Petitioner’s pLant
site.
21
—
flj7
—4—
Since none of the above information appears in the petition,
the Board
is simply unable to make any conclusion regarding
the environmental impact of Petitioner’s discharges on the
receiving stream and can make no estimate of the benefit
to the public by Petitioner’s immediate compliance with Rule 602.
Fourth,
Without
a variance, Caterpillar may
be subject to an enforcement
case
~~E~o~ldjeopardize
its
operation
and affect the
livelihood of its
18,500 employees at the East Peoria
Fifth,
Caterpillar contributes to the tax
base of
the
community and the State of
Illinois, and contributes substantially
to
the
gross income of the community by
amplay
ing 18, 500 pars
ons
at
the
Eas
Peoria facility,
It
is clear
from the petition that the
cost
of
compliance
with
the
regulation
is not
in issue
here and that the hardship
complained of is solely of
the
need for a delay during which
compliance
can
be
achieved,
The two preceding allegations
would
be
useful
in ascertaining the
social
and
economic
value
of
the
pollution
source
under
Section
33(c)
of
the
Act.
The
Board
is
required
by
Section 33(c)
of
the
Act
to
consider,
in
an
enforcement
action,, the
social
and
economic
value
of
a
pollution source,
as well
as
other factors,
in determining
the reasonableness
of a
discharge which
is found to have vio-
lated the Act.
However, consideration
of the particular
criteria established by Sections 33(b)
and
(c)
of the Act,
including
the
social
and
economic
value
of
the pollution source,
are applicable to
enforcement
cases
arid
then
by
way
of
mitigation;
other forms of
action before the Board such as variance, permit
denial appeal and
regulatory proceedings are
controlled by different
provisions of the statute, aLthough some of the same factors may be
involved.
The scope of a variance order
is limited by the provisions
of Sections
35 and
:36 of
the
Act and the order of the Board
disposing
of
a
variance petition can only:
(a)
Dismiss the petition; or,
(b)
Grant the requested variance;
or,
(c)
Grant a variance subject to conditions
imposed by the Board, however, such a
conditioned variance would not be binding
until accepted by the Petitioner
(Citizens
Utilities Co.
v,
PCB,
289 NE
2d 642,
646—
648
(2 Dist,
1972)).
21—108
—5—
Simply
stated,
Petitioner
is not faced with a shutdown
order in this proceeding.
As
the
Board
has
previously
held,
denial of
a
variance is not a shutdown
order
(Norfolk and
Western
~
I PCB 281,
284
(1971)).
An order denying
a variance, liowever,
is
a refusal by
the
Board to provide the
Petitioner with
the defense of a
variance to a subsequent
enforcement action,
In
Norfolk,
supra,
the
Board
stated,
at
282:
We
recognize
the
importance
of
railway
operations
to
the
general welfare
and
economy
of
the
region..,
But. Section
37
of the Environmental
Protection
Act
makes
plain that Petitioner must
prove
that
the
pollution caused
:by its continued violation
is
not
so
great
as
to justify the
hardship
that immediate
compliance
would produce.
In the
instant
petition the Petitioner has
completely
failed
to
meet
its
burden of proof.
We have not
been provided
any
cost
or
schedule comparison
of
alternative
methods of
compliance;
to
the contrary we have been provided no
estimate
of
the
cost
of
compliance by any method,
We have
absolutely
nothing
before
us
from
which we can
adequately
assess
the
pollution resulting
from the
overflows
from
the
combined
sewer
system as they now exist,
Without
sufficient
facts
regarding
both,
it would
not
be
poss:Lble
to
determine
if
there
is an
arbitrary
and
unreasonable hardship imposed upon the Petitioner
by
compliance
with the regulation
even
if
we were able to
satisfy
ourselves
from PetitionerTs proof that the hardship
was
not
self
imposed,
which we cannot.
The
Board’s
denial
of
a
variance
is
not
an
order
shutting
down
all
or
any
part
of
the
Petitioner’s
operations;
in
fact,
we
would
be
pleased to consider a new
petition
for
variance
which
furnishes
the information which
does
not
appear
in
the
record
now
before
us in this matter.
This Opinion
constitutes the
Board’s findings of fact and
conclusions of
law.
Mr. Young
Concurs.
I, Christan L.Moffett,
Clerk of the Illinois Pollution
ontrol
Board, hereby
certify the above Opinion
was adopted on the _________day
of April,
1976 by a vote
of
21
—109