ILLINOIS POLLUTION CONTROL BOARD

December

22,

1987

MODINE MANUFACTURING COMPANY,

Petitioner,

V.

)

PCB 85—154

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by

B.

C.

Flemal):

This matter comes before the Board upon

a Petition for

Variance

filed by Modine Manufacturing Company

(“Modine”)

on

October

16,

1985.

Modine seeks variance relief until December

31,

1987 from Ill.

Adm. Code Sections 302.212 and 304.105 a~they

relate

to ammonia nitrogen and un—ionized ammonia nitrogen,

and

from Section 304.120(c)

as

it relates to biochemical oxygen

demand

(“BOD51’)

and total suspended solids (“TSS”).

History

Modine owns and operates

a manufacturing plant

in

Ringwood,

Illinois,

Mcflenry County,

which fabricates air conditioning

condensors and evaporators.

•Modine’s Ringwood plant has sought

legal protection

from the above cit~dstandards in six different

actions prior

to the present action

.

In PCB 82—111, the Board

granted Modine variance relief

for ammonia nitrogen, un—ionized

ammonia,

BOD5,

and TSS, from

May

29,

1984 to March

1, 1985~.

Hearings were held

in

this matter on February 3,

1986,

September

23,

1986,

October

22,

1986 and October

23,

1986.

The

Illinois Environmental Protection Agency (“Agency”)

filed its

recommendation to gran~tthe variance on December 11,

1985,

1 PCB 82—111 was the most recent major Board action involving

thE

Ringwood facility’s effluent discharges.

The prior proceedings

were discussed

in PCB 82—111

(58 PCB

207), and

it

is not

necessary to the disposition

of this action

to repeat these here.

2 At several places

in the instant record the present request

is

characterized

as an “extension”

of the prior variance.

The Boarc

believes that the present request

is more properly characterized

as

a request

for

a new variance.

84—735

---

subject

to conditions

(this document also appears

in the record

as Petitioner’s Exhibit

2).

Petitioner filed

its brief

in

support

of amended variance petition on August

7,

1987, and

its

amended brief

in support of amended variance petition on

Sept~mber3,

1987.

The Agency filed

its brief on October

2,

l987~,and Petitioner

filed

its reply brief on October

15,

1987

with

a motion

to file instanter.

That motion

is granted.

In

addition,

the

above have been accompanied by many delays,

requests for continuances,

and filings of many motions.

For the reasons discussed below,

the Board finds that

arbitrary or unreasonable hardship would

be suffered

if the

requested variance were denied.

Therefore, variance will be

granted subject

to conditions.

Ringwood Plant

Modine’s condensor products are primarily fabricated from

aluminum parts which are metallurgically bonded together using

zinc and fluoride salts, under the influence of heat,

utilizing

the Alfuse process (Petition at

2).

As

a part of its

manufacturing operations,

Modine generates process wastewater.

The process wastewater

is treated by preliminary physical—

chemical

t:reatment,

followed by mixing with non—contact cooling

water

and treated domestic wastewater.

It

is then discharged

into three

lagoons for further treatment,

and

is later

chlorinated and discharged into an unnamed tributary to Dutch

Creek (Modine’s Amended Brief at

2).

It is for

the excess levels

of BOD~,TSS, ammonia nitrogen and un—ionized ammonia present

in

the effluent that Modine seeks variance.

Hardship

Modine asserts that there is no technically feasible and

economically reasonable means

for

it to comply with the Board

effluent standards noted

above.

Since

the filing of its petition, Modine has installed

a

new process on its evaporator line,

the Nocolok process, which,

as Modine states,

has eliminated

the process wastewater

from that

line of production.

The cost of installation of

the system was

approximately $4 million.

Modine asserts

that although

the new

process yields evaporators acceptable

to its customers,

the

process

is not adaptable

to the condensor line because of the

The Agency

in its brief amended

its recommendation deleting

conditions

1 and

2 pertaining

to further

testing of the

wastewater effluent from the Ringwood plant, stating

that the two

conditions have become moot.

84—736

---

—3—

large number of individual condensors produced

on that

line.

Modine therefore states that

it cannot come into compliance

even

with the

use of

this new production process due

to the process

wastewater generated

by the condensor line production

(Modine

Amended Brief

at 19—20).

Modine has previously investigated other compliance options

(See PCB

82—111).

Modine retained James W.

Patterson,

a

consultant, who made recommendations

for

improving the quality of

Modine’s effluent.

The treatment system designed by Dr.

Patterson included retrofitting

the existing system through the

use of rotating biological

contact units and certain lagoon

modifications

(R.

at

457).

It was estimated

in

1982 that the

cost

of the system would be approximately $408,200 to $420,000,

and

that even with the system, Modine would

not meet the

applicable effluent limitations at all times

(R.

at

458; Modine

Exhibit

20,21).

Dr.

Patterson testified that the condensor

production at the plant has remained the same since his previous

studies

in 1982 and the data would

be representative of what he

would expect to

find at the present time

(R.

at 456).

£4odine has implemented

other

improvements previously

suggested by its consultants including

raising the pH level

in

the clarifier for more efficient removal

of suspended solids and

to better control ammonia nitrogen,

to cease

adding phosphorus

nutrients to the ponds. to avoid

increases

in suspended

solids,

and to isolate spent slurry for reuse

(B.

at 525—6,

500—1).

The Agency states that

in view of the

fact, that Modine

provided additional facts on the environmental

impact of its

effluent

at the public hearing,

that the variance

if granted

would shortly expire, and because Modine has spent significant

sums

in attempting

to control

its wastewater discharge, the

Agency believes

it would be

an arbitrary or unreasonable hardship

to deny the variance (Agency Brief

at

5).

Environmental Impact

Modine claims that continued operation of the condensor line

at the Ringwood facility will

not have an adverse impact on water

quality.

Modine currently discharges wastewater into an unnamed ditch

adjacent

to the Ringwood facility.

Upstream from Modine’s

discharge,

the unnamed ditch

is fed by drainage area from

a

marshy meadow.

Downstream from Modine’s discharge the stream

becomes

a flowing

stream, and because of the retention capability

of the Modine lagoons,

the stream remains even when

84—737

---

—4—

Modine

is not producing wastewater4.

Access

to the stream

is

greatly limited by the physical remoteness of the water course.

During

the summer

the stream

is overgrown and partially blocked

from view due

to vegetation which grows up to seven feet tall

immediately adjacent

to the stream.

For most of the

time the

stream is several

inches deep and one

or

two yards wide (Modine

Amended Brief at 20—2).

In 1979, Modine retained Dr. Charles Wahtola of Camp,

Dresser and

Mc!(ee, Incorporated

(“CDM”)

to review the receiving

stream.

(Dr. Wahtola’s study was discussed

in the Board’s

Opinion and Order

in PCB 82—ill.)

In 1986,

Mr. Thomas Meitner,

environmental engineer for Modine,

conducted

a study to determine

if any changes

in the ditch’s ecosystem have occurred since

Dr.

Wahtola’s study.

As the study indicates:

The scope of

this investigation includes an

overview of the ditch’s ecosystem, and concentrates on

the general types of organisms which were observed,

specifically the benthic macroinvertebrates.

The

primary objective was

to determine the presence or

absence

of macroinvertebrate and fish populations

at

various ditch locations,

and to note

if any marked

changes

in these populations have occurred

since the

three 0DM studies noted

above.

Secondly, this

investigation was also

to determine

if land use

in the

watershed has undergone any changes since the CDM

studies.

(Modine Exhibit 19

at

1)

Specific observation stations were established from points

upstream of Modine’s discharge to a point just below the ditch’s

confluence with Dutch Creek.

Mr. Meitner noted that fish,

macroinvertebrates, and aquatic vegetation were found

at points

upstream and downstream of the Modine discharge point.

He noted

a lack of diversity of macroinvertebrates (finding mainly

oligochaetes and diptera)

at two points downstream from the

discharge, though fish were observed

in those areas and at the

discharge point itself

(B.

at 558—560;

Modine Exhibit 19).

Mr. Meitner testified that the organisms he found

in

specific habitat areas were very similar

to the types of

organisms found by

Dr.. Wahtola

in those same locations

(B.

at

560).

Mr. Meitner further stated

that he observed no

quantifiable adverse impact on the receiving stream from Modine’s

discharge

(B.

at

569).

In his study he noted the character of

the surrounding area and concluded:

Morton Chemical also discharges

into

a ditch at

a point below

the Modine discharge.

The two ditches join before confluence

with Dutch

Creek.

84—738

---

—5—

Mr. Bryan Petrucci,

a Resource Conservationist

with the McHenry County Soil and Water Conservation

District, was contacted regarding the unnamed

ditch to

which Modine discharges.

Mr. Petrucci stated that

Ringwood,

Illinois, specifically the Dutch Creek

tributary area,

has remained basically unchanged since

1979.

Some subtle changes involving

land ownership

and

a shift

to larger farms have occurred since

the

CDM study.

Mr. Petrucci also stated that this area

has been classified

as

a “target watershed” due to

historic agricultural land erosion

...

This problem

was evidenced at various locations throughout

the area

under

investigation.

Gully erosion and

areas of silt

accumulation

in the ditch were commonly observed.

*

*

*

The

presence

of

fish

directly in the Modine

effluent indicates that this water contains an

adequate supply of dissolved oxygen and

is of high

enough quality to support their

existence.

This may

also indicate that the overall quality of Nadine’s

effluent has

improved since the CDM studies.

(Modine Exhibit

19

at

2,

3)

There

is therefore

a basis for concluding that there has

been minimal adverse

impact on the receiving

water’s from Modine’s

discharge over the period

of the requested variance.

The

presence of fish,

aquatic vegetation, and other organisms,

as

indicated by the data presented,

support this finding.

Conclusion

The Board finds this matter to be

a difficult call.

The

long time that this matter has been extant,

both

in its present

and previous incarnations, compounded by the repeated delays in

bringing the matter to resolution,

suggest that some of the

hardship asserted by !4odine

is self—imposed.

Moreover,

the Board

is displeased with

a request for

a variance which has a term,

but

for

a few days, which

is after the fact.

While

the Board allows

that there may be circumstances where the latter

condition might

validly arise,

it also believes that after—the—fact grants of

variance are generally inconsistent with the intent of variance

relief as enuciated in the Environmental Protection Act.

At the

minimum,

it

is not the intent of

a variance to legitimize past

failure to comply with rules and regulations.

In considering the entirety of this matter,

the Board finds

that

in such

a close decision the recommendation and the post—

hearing brief

of the Agency to grant the requested variance

84—739

---

—6—

carries special weight.

With this

in mind,

the Board finds that

it has been shown that absent

a variance, the applicable effluent

standards would have imposed an arbitrary or unreasonable

hardship upon Modine,

and that there has been minimal adverse

environmental

impact as

a result

of the plant discharges over

the

period of

time for which variance

is requested.

The Board

therefore grants the variance,

to terminate on the date

requested,

December

31,

1987.

The Board must also decide

to what date

the variance

presently granted should be retroactive.

The Board finds that

the most reasonable outcome under the circumstance

is

to grant

the variance retroactive

to October 16,

1985,

the date of

filing

of the

instant request.

The Board further finds warranted

the

Agency’s request

(Agency Brief at

7) that condition

#2 of the PCB

82—111 variance also be incorporated

as

a condition in the

instant variance.

It

is also worth noting that Modine has recently filed with

the Board

a request for

a site—specific rule change involving

discharges from Modine’s Ringwood plant.

The Board’s action

today should not be construed as indicative of any predisposition

toward

the merits of that proposal, and Modine

is expected

to

provide all necessary information

in support

of that proposal as

it would under

other circumstances.

This Opinion constitutes the Board’s findings

of fact

and

conclusions of law in this matter.

ORDER

Modine Manufacturing Company

is hereby granted variance for

its plant

in Ringwood, McHenry County, from 35

Ill. Adm.

Code

302.212 and 304.105 as

they relate

to ammonia nitrogen and un-

ionized ammonia and from 35

Ill.

Adm. Code 304.120(c) as it

relates to BOD5 and total

suspended solids, all subject to

the

following conditions:

1)

Variance shall begin on October

16,

1985,

and terminate

on December

31,

1987.

2)

The following effluent and water quality limitations,

in

xng/l,

shall not be exceeded:

BOD5

TSS

AMMONIA—N

UN-IONIZED NH3-N

Summer

60

35

5

1.48

Winter

120

20

15

1.3

3)

Within forty—five

(45) days of the date of this Order,

Petitioner shall execute

and forward

to wayne

L.

84—740

---

—

I—

Wiemerslage, Enforcement Programs, Illinois

Environmental Protection Agency,

2200 Churchill

Road,

Springfield, Illinois 62794—9276,

a Certification of

Acceptance

and Agreement to be bound

to all terms and

conditions of this variance.

The 45—day period shall

be

held

in abeyance during any period that this matter

is

being appealed.

Failure

to execute and forward the

Certificate within

45 days renders this variance void

and of no force and effect as

a

shield against

enforcement of rules

from which variance was granted.

The form of

said Certification shall

be as follows:

CERTIFICATION

I,

(We), _______________________________,

hereby accept

and agree

to be bound by all terms and conditions of

the Order~of

the Pollution Control Board

in PCB 85—154,

December

22,

1987.

Petitioner

Authorized Agent

Title

Date

Section 41

of the Environmental Protection Act,

Ill.

Rev.

Stat.

1985

ch.

1111/2 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 that the above Order was adopted on the

~~i~c/

day of

~

,

1987,

by a vote of

~c.’

Dorothy M. Munn,

Clerk

Illinois Pollution Control Board

84—741