ILLINOIS POLLUTION CONTROL BOARD
July 25,
1991
MODINE MANUFACTURING CORP.,
)
Petitioner,
)
PCB 88-25
(Variance)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ROY
M.
HARSCH
AND
GARDNER,
CARTON
&
DOUGLAS
APPEARED
ON
BEHALF
OF
PETITIONER;
KATHLEEN
C. BASSI APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(J.
Anderson):
This matter comes before the Board on the Petition for
Variance filed by Modine Manufacturing Corp. on January 25,
1988.
By Order of February 4,
1988, the Board requested additional
information.
Modine filed an amended petition for variance on
March,
17,
1988,
and an open waiver of the deadline for Board
decision on April
8,
1988.
Modine filed a second amended
petition for variance on May 10,
1988.
The Agency filed its
first recommendation on August 5,
1988.
Modine filed a response
on October 11, 1988.
Modine filed exhibits inadvertently omitted
from its response on October 26,
1988.
On May 24,
1989,
the
Agency filed an addendum to its recommendation, and Modine filed
its third amended petition
for variance.
The Board received three letters of objection to the
variance on February 17,
1988, March 2,
1988, and March 11,
1988.
The public hearing occurred on May 25,
1989,
and members of the
public attended and participated.
Modine filed a supplement to
the record on July 17,
1989, with a letter disclosing events
subsequent to the public hearing and its post—hearing brief on
July 21,
1989.
The Agency filed its post-hearing brief on August
21,
1989.
Modine filed a reply brief on September 21,
1989.
On July 3,
1990, the Board ordered briefing on questions
arising through its decision in R87-36,
a related proceeding on a
petition by Modine for site-specific rulemaking.
On August 9,
1990, Modine filed its fourth amended petition for variance in
response to the Board order.
The Agency filed its amended
recommendation on September 12,
1990, suggesting that the Board
grant the petition in part and deny it in part.
FACTS
AND
ISSUES
Modine operates a plant that employs 269 workers at
124—157
2
Ringwood,
Illinois.
The “McHenry” plant uses two processes, the
older “Alfuse” process and the newer “Nocolok” process, to
produce various types of heat exchange condensers and evaporators
for various customers.
The Alfuse process produces process
wastewater and non—contact cooling water.
Process wastewaters
arise from a wet scrubber, water quenches,
a slurry wash,
and
test tanks, with the scrubber producing most of the process
wastewater.
The Nocolok process produces only non—contact
cooling water.
All plant service water originates from an on—
site well.
About 3500 gallons per day
(gpd)
of wastewater
originate from plant sanitary facilities.
The Alfuse and Nocolok
processes produce about 81,000 gpd of non—contact cooling water.
The total discharge from all sources combined total about 300,000
gpd.
In the wastewater treatment system, the process wastewaters
are combined and treated with lime in the first of three
treatment lagoons for neutralization and removal of fluoride,
zinc, and aluminum.
The sanitary wastewater is first treated in
an extended aeration system, then discharged into this first
lagoon.
The non—contact cooling waters also enter this lagoon
system.
The first lagoon removes suspended solids and
deoxygenating wastes.
Flow from the first lagoon discharges to
the second lagoon, then the third,
in series, before discharge to
a chlorine contact tank.
The mean hydraulic retention time of
the lagoon system is 15 to 20 days.
The treated effluent enters
an unnamed tributary of Dutch Creek about two miles upstream of
the confluence,
and Dutch Creek drains into the Fox River about
two miles farther downstream.
The Board has granted Modine relief from the generally-
applicable limitations and standards in prior proceedings.
On
May 29,
1984,
in PCB 82-111, the Board granted Modine variance
relief from the ammonia nitrogen, un—ionized ammonia,
biochemical
oxygen demand, and total suspended solids standards and
limitations for the period from May 29,
1984 until March
1,
1985.
See Modine Manufacturing Co.
v.
EPA,
No. PCB 82—111,
59 PCB 185,
215
(May 29,
1984).
On December 22,
1987, in PCB 85—154,
the
Board granted another variance for these parameters for the
period from October 16,
1985 through December 31,
1987.
~
!4odine Manufacturing Co.
v.
EPA,
No. PCB 85-154,
84 PCB 735, 740-
41
(Dec.
22,
1987).
In R87—36, effective May 31, 1990, the Board
adopted site-specific rules relating to Modine’s fluoride,
biochemical oxygen demand, and total suspended solids discharges.
See In re Site-Specific Limitation for the Modine Manufacturing
Co.
Facility. Ringwood. Illinois,
No. R87—36,
111 PCB 461, 482—
23
(May 24,
1990).
The nature of the relief sought in this proceeding and the
Agency’s recommendation have changed throughout the course of
this proceeding.
Initially, Modine sought the following with
regard to ammonia—nitrogen, un—ionized ammonia, biochemical
124—158
3
oxygen demand, and total suspended solids:
a new variance,
or a determination that the rules in
question separately and in combination are
unreasonable, arbitrary and capricious as specifically
applied to its McHenry Plant
Petition for Variance at
2.
The Agency Recommendation challenged Modine’s assertions as to
the treatability of its wastewater and impact on the receiving
stream.
The Agency Recommendation highlighted many perceived
informational deficiencies
in the petition and criticized the
petition as deficient for lacking a compliance plan.
The Agency
asserted that Modine sought a permanent variance ~ontrary to law
and recommended denial of the requested variance.
The first and
second amended petitions for variance added further information
and arguments to the record.
The Third Amended Variance Petition
added further arguments as to the originally-requested
pollutants,
but further added variance requests as to fluoride
and barium discharges.
~g
Third Amended Variance Petition at 5-
6.
When Modine filed its fourth amended petition, dated August
9,
1990,
it sought relief more limited in many ways from the
original petition, although it added a request as to zinc.
By
this last filing, Modine added definite variance expiration dates
for each pollutant,
and it dropped its request as to barium.
Modine’s fourth amended petition retained the prior requests for
relief as to ammonia nitrogen, un—ionized ammonia, biochemical
oxygen demand, total suspended solids, and fluoride.
Similarly,
the Agency’s amended recommendation of September 12,
1990 no
longer urged a blanket denial of variance relief.
In the
intervening time from January 25,
1988 until August
9,
1990,
Modine has effected changes to its wastewater treatment system,
completed October
1,
1990,
and the Board granted a site-specific
rule for Modine’s fluoride, biochemical oxygen demand,
and total
suspended solids discharges in R87—36, effective May
31,
1990.
~
14 Ill. Reg. 9437
& 9460
(June 15,
1990).
In R87—36, the
Board also determined that no relief was necessary as to barium
pursuant to the background pollutant exception of 35
Ill.
Adm.
Code 304.103.
See In re Site-Specific Limitation for the Modine
Manufacturing Co.,
supra, at 482-23.
As of this time,
the relative positions of the parties are
summarized point-by-point as follows:
1
This reflects the Agency’s position as late as the public
hearing held May 25,
1989,
g
Tr.
28-31,
and when
it filed
its
post-hearing brief on August 21,
1989.
See Post-Hearing Brief at
3—8.
12
~—
159
4
Ammonia Nitrogen
(NH2—N)
(Sections 302.212. 304.105
& 304.301)
Modine:
For the period from December 31,
19872 through October
1,
1990:
3.2 mg/i (monthly average)
May through September
4.4 mg/i (monthly average)
October through April
4.4 mg/i (daily maximum)
May through September
4.4 mg/i (daily maximum)
October through April
Agency:
For the period from the date of the Board Order until
October 1,
1990:
Grant requested limits.
Un—ionized Ammonia (Section 302.212(b))
Modine:
For the period from December 31, 1987~through October
1,
1990:
0.08 mg/i
Agency:
For the period from the date of the Board Order until
2
In the January
25,
1988 petition
for variance,
Modine
sought an extension of the prior
variance of PCB
85—154,
a new
variance,
or
a
declaration
that
the
standards
for
ammonia—
nitrogen, un—ionized ammonia, biochemical oxygen demand, and total
suspended solids did not apply to its discharges because they were
“unreasonable,
arbitrary and capricious as specifically applied”
to its discharges.
Petition for Variance at 2.
The fourth amended
petition clearly requested an inception date of December 31, 1987,
the day the PCB 85-154 variance expired, for fluoride, biochemical
oxygen demand, and total suspended solids.
It requested a variance
“until October
1,
1990” for ammonia—nitrogen, un—ionized ammonia,
and
zinc.
See
Fourth
Amended
Petition
at
6.
The
Agency
interpreted
the requests
as to
ammonia—nitrogen and un—ionized
ammonia as for the period beginning December 31,
1987,
yet stated
that Modine was unclear as to the requested inception as to zinc.
See
Agency’s Amended Recommendation at
2.
The Board reads
the
requests as to ammonia—nitrogen and un—ionized ammonia as for the
period beginning December 31,
1987,
consistent with the Agency’s
interpretation.
However,
the Board fails to see how the Agency
interpreted this same passage as unclear as to zinc.
Therefore,
the Board
interprets
the
requested
inception
date
for
zinc
as
December 31,
1987 for the sake of the following discussion.
See supra note 2.
1Th—
160
5
October
1,
1990:
Grant requested limits.
Difference between the parties:
The inception date,
i.e., the
period from December 31, 1987 until the date of the
Board Order.
Biochemical Oxv~enDemand
(BOD5)
(Section 304.120(c))
Modine:
For the period from December 31,
1987k through May 31,
1990~:
25 mg/i
(monthly average)
May through September
35 mg/l
(monthly average)
October through April
60 xng/l
(daily maximum)
May through September
70 mg/l (daily maximum)
October through April
Agency:
For the period from the date of the Board Order until
May 31,
1990:
Grant requested limits, but retroactive relief
is
unwarranted.
Difference between the parties:
The retroactive inception date,
i.e., the period from December 31,
1987 until the date
of the Board Order.
Total Suspended Solids
(TSS)
(Section 304.120(c))
Nadine:
For the period from December 31,
19876 through May 31,
1990~:
12 mg/i (monthly average)
30 mg/l
(daily maximum)
Agency:
For the period from the date of the Board Order until
May 31,
1990:
See supra note 2.
~
The effective date
of
the relief
granted
in the site-
specific rulemaking in R87-36.
6
See supra note 2.
See supra note 5.
124—16
1
6
Grant requested limits, but retroactive relief is
unwarranted.
Difference between the parties:
The retroactive inception date,
i.e.,
the period from December
31, 1987 until the date
of the Board Order.
Fluoride (Sections 302.208
& 304.105)
Nadine:
For the period from December 31,
19878 until May 31,
1990~:
4.0 mg/i (monthly average)
5.6 mg/l (daily maximum)
Agency:
For the period from the date of the Board Order until
May 31,
1990:
Grant requested limits, but retroactive relief is
unwarranted.
Difference between the parties:
The retroactive inception date,
i.e., the period from December 31,
1987 until the date
of the Board Order.
Zinc (Section 304.124)
Modine:
For the period from December 31,
198710 until October
1,
1990:
No limitation stated
Agency:
Deny the requested variance because Modine has proven
no hardship and proposed no limitation.
Difference between the parties:
Any grant of relief.
DISCUSSION
The Board made specific findings in the site-specific
rulemaking, R87-36:
T)here
is no alternative treatment method for Nodine
which is simultaneously technically feasible and
8
See supra note 2.
See supra note 5.
10
See supra note 2.
124—162
7
economically reasonable.
.
.
.
At
least as regards
the parameters at issue,
(Modine’s effluent
is not a
limiting factor in the quality of the receiving
waterway.
In re Site-Specific Limitation for the Modine
Manufacturing Co.,
supra,
at 478.
Subsequent to that Opinion and Order of May 24,
1990 relating to
biochemical oxygen demand,
total suspended solids, and fluoride,
the Agency recommends that the Board grant the requested
variances for all parameters except zinc.
See Agency’s Amended
Recommendation at 4-5.
Therefore, since the initial filing of
this proceeding, the issues in this proceeding have reduced to
two:
(1) the propriety of retroactive relief, and
(2) whether
relief is warranted as to zinc.
The Board now addresses these
issues in turn.
Retroactive Variance Relief
Nodine filed its petition for site-specific rulemaking,
in
R87—36, on October 16,
1987-—76 days before the December 31,
1987
expiration of the variance in PCB 85-154.
Nodine filed the
initial petition in the instant proceeding,
requesting variance
relief as to ammonia—nitrogen, un—ionized ammonia,
biochemical
oxygen demand,
fluoride,
and total suspended solids, on January
25,
1988, 25 days after the expiration of the prior variance.
l4odine first requested relief as to zinc on August 9,
1990.
Fluoride and zinc were not the subject of PCB 85-154.
See Nodine
Manufacturing Co.
v.
EPA,
No. PCB 85—154,
84 PCB at 740-41.
As a general rule,
in the absence of unusual or
extraordinary circumstances, the Board renders variances as
effective on the date of the Board order in which they issue.
LCN Closers,
Inc.
v. EPA, No. PCB 89—27,
101 PCB 283,
286
(July
27,
1989); Borden Chemical Co.
v. EPA,
No. PCB 82—82,
67 PCB 3,6
(Dec.
5,
1985); City of Farmington v.
EPA, No. PCB 84-166,
63 PCB
97,
98
(Feb.
20,
1985); Hansen-Sterling Drum Co.
v.
EPA, No. PCB
83—240,
62 PCB 387,
389
(Jan.
24,
19856); Village of Sauget v.
~,
No. PCB 83—146,
55 PCB 255,
258
(Dec.
15,
1983); Olin Corp.
v.
EPA, No. PCB 83—102,
53 PCB 289,
291
(Aug 30,
1983).
A variance is not retroactive as a matter of law, and
the Board does not grant variance retroactivity unless
retroactive relief is specially justified.
Deere
& Co.
v. EPA, No. PCB 88-22,
92 PCB 91,
94
(Sept.
8,
1988)
(citations omitted).
Absent a waiver of the statutory due date,
Section 38(a)
of
the Environmental Protection Act requires the Board to render a
decision on a variance within 120 days of the filing of a
124—163
8
petition.
~
Ill. Rev. Stat.
1989 ch.
111½, par.
1038(a)
(amended from 90 days by P.A.
84—132 0,
effective Sept.
4,
1986).
For this reason,
a petitioner that wishes a variance to commence
by a certain date must file its petition at least 120 days prior
to the desired inception date.
~g
EPA v.
Citizens Utilities Co.
of Illinois,
No. PCB 79—142,
56 PCB 1,
4
(Jan.
12,
1984)
(Enforcement action in which inception date of variance was at
issue).
This is apparently the position the Agency desires the
Board to take,
since the Agency requests that the ~oard make any
variance effective on the date of the Board Order.
1
As we stated in Fedders-USA v.
EPA,
No. PCB 86-47,
98 PCB
15,
19
(Apr.
6,
1989):
The
Board
will not
.
.
.
agree to back—date variances
unless the variance is timely filed
(i.e.
120 days
prior to the termination of the prior variance, absent
unusual circumstances and absent good reasons for
subsequent delay in the proceeding).
The rationale behind this general rule is twofold, and the Board
has set it forth in prior opinions.
First,
To grant retroactive relief as requested would
encourage other companies to file in an untimely
manner.
DM1.
Inc.
v.
EPA, No. PCB 88—132,
96 PCB 185,
187
(Feb.
23,
1987).
Further,
The Board is inclined not to grant retroactive relief,
absent a showing of unavoidable circumstances, because
the failure to request relief in a timely manner is a
self-imposed hardship.
American National Can Co.
v.
EPA, No. PCB 88-203,
102
PCB 215,
218
(Aug.
31,
1989).
However, the Board has granted variances with “retroactive”
inception dates under certain circumstances.
The nature of the
circumstances has dictated the inception date in each case.
The Board has made the variance retroactive to the date on
which we would have rendered a decision——i.e., 120 days from the
date the petition was filed--where there was a delay of the
proceeding through no fault of the petitioner.
Allied Signal,
Of
course,
this
would
result
in
dismissal
of
this
proceeding because the requested termination dates are past.
124—164
9
Inc.
v. EPA, No. PCB 88—172,
105 PCB 7,
12
(Nov.
2,
1989)
(procedural delay); Morton Chemical Div.
v.
EPA, No. PCB 88-102,
96 PCB 169, 181
(Feb.
23,
1989)
(confusion over interpretation of
federal regulations, the Agency changed its view during the
course of the proceeding, and the petitioner sought compliance
during the pendency); Union Oil Co.
of California,
No. PCB 84-
66,
63 PCB 75,
79
(Feb.
20,
1985)
(delay was beyond the control
of the petitioner).
We have used a shorter period than the
statutory time
for decision to back—date a variance where we have
otherwise viewed the petition as timely filed prior to the date
on which the petitioner required the relief.
Monsanto Co.
v.
~,
No. PCB 88—206(B),
98 PCB 267,
273
(Apr.
27,
1989)
(filed 92
days before compliance deadline).
However, this type of
“backdating” is entirely consistent with the Board’s repeatedly—
enunciated disinclination to grant retroactive variances.
In
these cases, the Board did little more than confer an inception
date of the latest date on which the Act would have required a
Board decision, were it not for a waiver of that deadline.
Under
certain circumstances there is a legitimate interest on the part
of the Board and all parties that the petitioner grant a waiver
of the 120 day period, and this merely serves to avoid penalizing
a petitioner for having submitted such a waiver.
The Board has applied an earlier inception date than the 120
days where there are unavoidable, special, or extraordinary
circumstances.
American National Can Co.
102 PCB at 218
(11 days
after filing, where petitioner diligently sought compliance and
there was no reason to anticipate the need for a variance until
it was too late to timely file); Minnesota Mining and Manufac-
turing Co.
v.
EPA, No. PCB 89-58,
102 PCB 223, 226
(Aug.
31,
1989)
(day after filing,
where petitioner learned of error that
resulted in non-compliance only shortly before filing); Fedders-
USA, 98 PCB at 19
(date of filing, where extended proceeding for
prior variance ended only a short time before filing); Pines
Trailer Co.
v.
EPA, No. PCB 88—10, 90 PCB 485, 488
(June 30,
1988); Bloomington/Normal Sanitary District
v.
EPA,
No.
PCB 87-
207,
87 PCB 21,
22
(Mar.
10,
1988)
(nine days after filing, where
there were unexpected construction delays and the petitioner made
a good faith effort at compliance); Classic Finishing Co.
v.
EPA,
No. PCB 84—174(B),
70 PCB 229,
233
(June 20,
1986)
(date of
filing first amended petition, where there was a change in
company ownership,
an ongoing compliance effort that resulted in
updatings of the petition and eventual compliance before the date
of the Board decision,
and due to nature of the materials
involved and the technology-forcing nature of the underlying
regulation); Chicago Rotoprint Co.
v. EPA, No. PCB 84—151,
63 PCB
91
(Feb.
20,
1985)
(35 days after filing, where need for variance
was not known earlier).
The Board has also occasionally applied
an effective date that ante-dates the filing of the petition
under the extreme of such circumstances.
Deere
& Co.,
92 PCB at
94
(Sept.
8,
1988)
(20 days prior to filing, where petitioner
diligently sought relief and good faith efforts appeared to have
124—165
10
resulted in compliance prior to the Board decision); Midwest
Solvents Co.
of Illinois v.
EPA,
No. PCB 84—5,
57 PCB 369,
371
(Apr.
5,
1991)
(nine days before filing, where the petitioner was
diligent in seeking relief and the delay in filing arose through
procedural confusion over the extension of a prior provisional
variance).
Other cases underscore the fact that the timliness of filing
is a primary factor in consideration of the “special
circumstances.”
First,
there are those in which the Board
routinely refused to apply a retroactive inception date where
either the petitioner filed late without explanation or where
delay resulted through some fault of the petitioner.
~
Closers. Inc.,
101 PCB at 286; DM1.
Inc., 96 PCB at 187; Borden
Chemical Co.,
67 PCB at
6; City of Farmington,
63 PCB at 98;
Hansen-Sterling Drug Co.,
62 PCB at 389; Village of Sauget,
55
PCB at 258; Olin Corp.,
53 PCB at 291.
Second is the existence
of other factors relating to the petitioner’s diligence and
efforts at compliance:
A principal consideration in the granting of
retroactive relief is a showing that the petitioner has
diligently sought relief and has made good faith
efforts at achieving compliance.
Deere
& Co.
v.
EPA, No. PCB 88-22,
92 PCB 91,
94
(Sept.
8,
1988)
(citations omitted).
The Board has located only one case in which it granted
retroactive variance relief without some recitation of
unavoidable, special,
or extraordinary circumstances that
inidicate timeliness of the filing for relief.
That was the
variance granted Modine immediately prior to this requested
variance, and in that proceeding the Agency recommended that the
variance commence on the date of filing of the petition.
See
Nodine Manufacturing Co.,
84 PCB at 739—40.
In that predecessor
to this present proceeding,
the Board stated:
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 this
matter to resolution,
suggest that some of the hardship
asserted by Modine 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 enunciated by the Environmental
Protection Act.
At the minimum,
it is not the intent
124—166
11
of a variance to legitimatize 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 of the Agency to grant the requested
variance carries special weight.
Modine Manufacturing Co.,
84 PCB at 739-40 (retroactive
to date of filing).
The present variance proceeding is essentially an extension
of the prior Modine Manufacturing Co. proceeding quoted above,
with some minor differences.
Again the Agency recommends a grant
of variance, but it expressly recommends that the variance take
effect on the date of this Order.
In addition to the parameters
involved in the prior proceeding,
fluoride and zinc are involved
here.
Here, Nodine has achieved compliance prior to the date of
this order,
in major part as a result of the R87-36 site-specific
rulemaking.
Through the suing of variance proceedings and two
site-specific rulemakings,
Modine has sought relief; and
through the R87-36 site-specific rule and various plant and
process changes, Modine has already achieved compliance.
However, Modine nowhere recites any special circumstances
that would justify full retroactive relief, and Modine nowhere
explains its delay in filing this present proceeding to the
extent it requests an extension of variance.
The filing of R87—
36 prior to the termination of the PCB 85-154 variance is
insufficient because it is unrealistic to expect any site-
specific rule to issue within 76 days.
A recitation of arbitrary
and unreasonable hardship is necessary to any grant of a
variance.
Therefore,
an arbitrary and unreasonable hardship
cannot also constitute a “special circumstance” that would
justify retroactive relief.
Otherwise, all variances would
simply apply retroactively upon request.
For the foregoing reasons, the Board has two options:
1.
Grant relief retroactive to 120 days after the date Modine
filed the petition for variance; or
12
~g
In
re
Site—Specific
Limitation
for
the
Modine
Manufacturing Co.,
No.
R87—37,
Modine Manufacturing Co.
v.
EPA,
No. PCB 85-154,
84 PCB 735
(Dec.
22,
1987);
l’lodine Manufacturing
Co.
v.
EPA,
No.
PCB
82—ill,
58 PCB
207
(May
29,
1984);
Modine
Manufacturing
Co.
v.
EPA,
No.
PCB 79—112,
47 PCB
519
(Aug.
18,
1982)
(dismissed); In re Modine Manufacturing Co. Petition to Amend
Chapter
3
Regulations,
No.
R79—8,
46
PCB
247
(Apr.
29,
1982)
(dismissed); Modine Manufacturing Co. v. EPA, No. PCB 74-14, 14 PCB
169
(Oct.
17,
1974)
(Order on rehearing).
124—167
12
2.
Deny relief by dismissing this proceeding because the
requested termination dates are already past.
The Board favors the first option.
However, Modine filed the
initial petition on January 25,
1988,
and it subsequently amended
the petition four times--the final time on August 9,
1990.
The
filing of an amended petition restarts the time-clock
for the
purposes of Section 38(a).
~g
City of South Beloit, No. PCB 86-
113,
76 PCB 368
(Mar.
19,
1987); Mobil Oil Co.
v. EPA, No. PCB
84—37,
60 PCB 41
(Sept.
6,
1984).
This means that the choice of
inception dates could range from Nay 24,
1988 to December 6,
1990.
In considering which date to use as an inception date for
the grant of variance in this proceeding,
the Board again
considers the history of this proceeding.
The Board notes that
since the filing of the initial petition, Nodine has revised its
plant operations and pursued R87—36 to achieve compliance.
Modine did not wait until Board resolution of this matter to take
actions directed towards compliance.
Further, Nodine continued
to revise its request and plant actions until the Agency finally
agreed to recommend a grant of variance.
As stated by Modine in
its pleadings:
Nodine has filed its variance request
.
.
.
so that
1’lodine could come into full compliance with the Board’s
regulations.
The length of time it has taken Modine to
reach this point is not the result of misuse, but has
resulted form Modine’s continuing efforts to find a
compliance alternative.
Nodine’s Reply Brief at
2
(filed September 1,
1989).
For the foregoing reasons, the Board finds that the amended
petitions filed throughout this proceeding have served a useful
purpose.
The Board will not penalize Modine for filing the
amended petitions that served this purpose of ending the
controversy in this proceeding.
The Board further observes that
Modine has used the time during the pendency of this proceeding
to seek relief and to achieve compliance.
These “special circum-
stances” would justify the Board using the date of filing of the
initial petition to determine the inception date for the
variance.
As
noted earlier in this Opinion and Order,
the initial
petition for variance included requests for relief as to ammonia—
nitrogen, un—ionized ammonia, biochemical oxygen demand, and
total suspended solids.
The third amendment of May 24,
1989
added fluoride, and the fourth amendment of August
9, 1990 added
zinc.
Therefore,
as to ammonia—nitrogen, un—ionized ammonia,
biochemical oxygen demand, and total suspended solids, the Board
124—168
13
will grant the variance retroactive to 120 days after the filing
of the initial petition—-i.e.,
to May 24,
1988.
As to fluoride,
the Board will grant the variance retroactive to 120 days after
the filing of the third amended petition--i.e.,
to September 21,
1989.
For ~e
reasons stated below,
the Board will deny relief
as to zinc.
Zinc Variance Relief
In the fourth amended petition for variance, Modine asserts
that it had eight zinc exceedances during the period of January,
1984 through July,
1990.
Modine states that it believes these
the result of the location of its sampler, which tends to collect
unrepresentative samples for zinc.
Modine intended to relocate
this sampler by October
1,
1990.
It did not believe that its
effluent had an adverse impact on the receiving stream.
Modine
requested the variance to allow it to construct a new sampling
point.
Fourth Amended Variance Petition at 5—6.
The zinc issue first appeared in the August
9,
1990 Fourth
Amended Variance Petition.
No request as to zinc appears in any
of the prior petitions.
See generally Petition for Variance
(filed Jan.
25,
1988); Amended Petition for Variance (filed Mar.
17,
1988); Second Amended Petition for Variance (filed May 10,
1988); Third Amended Variance Petition (filed may 24,
1989).
Modine did not make one at hearing.
See generally Transcript of
Hearing
(held May 25,
1989).
Further, Modine made no assertions
as to zinc in its post—hearing filings.
See generally Modine’s
Post Hearing Comment (filed June 2,
1989); Modine’s Post Hearing
Brief
(filed July 21,
1989); Modine’s Reply Brief (filed Sept.
1,
1989).
In fact, the only factual basis given in support of the
requested relief is contained in the request in the Fourth
Amended Variance Petition.
~
Fourth Amended Variance Petition
at 5-6.
The Agency requests that the Board deny the requested
relief.
The Agency concedes that Modine’s explanation of the
zinc exceedances
is probably true, but states that Modine
presents the results from no test to prove this theory, and the
Agency asserts that there are other alternatives Modine could
apply in the interim before the requested October
1,
1990
expiration date.
The Agency goes on to assert the following:
Modine)
is undertaking a project that will correct a
newly—discovered violation,
and
.
.
.
the easiest “fix”
is to include this new problem in the variance
13
The
Board
notes
that an
independent
basis
exists
for
denying relief as to zinc:
120 days after August
9, 1990 is later
than the requested termination date of October
1, 1990.
Dismissal
of the request as moot would be appropriate.
124—169
14
proceeding already underway.
However, the Agency and
the Board have a responsibility to protect the
integrity of the variance system.
Variances should not
be granted simply because it is expedient and
convenient.
Modine has demonstrated no hardship
regarding other solutions to its zinc problem.
Modine
has not even proposed a limit for zinc for the duration
of the variance.
Agency’s Amended Recommendation at 3—4
(filed Sept.
12,
1990; emphasis added).
The Board observes that Modine’s August 9,
1990-requested
zinc variance would have expired October
1,
1990
if granted.
•The
request apparently was for an inception date of December 31,
1987.’~ Thus, Modine seeks relief for possible past violations
as of this date.
Modine’s assertions in favor of a zinc variance are
essentially this:
we have discovered apparent violations of
Section 304.124(a)
in our monitoring numbers; we believe that
there was no violation, rather there was a problem in the
monitoring numbers themselves; and we have a means of complying
within 53 days; therefore,
give us a variance from this
provision.
Nowhere does Modine aver that compliance with the
zinc standard would impose an arbitrary and unreasonable
hardship, and nowhere does Modine cite facts of record that would
support such a finding; Modine simply requests the variance.
In light of these facts, the Board must hold that Nodine has
failed to present adequate proof that immediate compliance would
impose an arbitrary and unreasonable hardship for the purposes of
Section 35(a).
Ill. Rev.
Stat.
1989 ch.
111½, par. 1035(a).
Nodine has therefore failed to justify a grant
?~
variance, and
the Board will deny variance relief as to zinc. ~
ORDER
The Board hereby grants a variance to Modine Manufacturing Co.
from the following:
14
See supra note 2.
15
The Board notes that should an enforcement action arise,
Modine
has
itself
observed
that
proof
of
an
“arbitrary
and
unreasonable hardship” can stand as a defense to that action.
See
Amended Petition for Variance at 5; Iii. Rev.
Stat. 1989 ch. 111½,
par.
1031(c).
For the purposes of this proceeding,
Nodine has
failed to submit a record that could justify the finding necessary
to result in a variance for zinc.
124—170
15
A.
the ammonia nitrogen
(NH3-N)
standards of 35 Ill.
Adm. Code
302.212,
304.105, and 304.301 for the period from Nay 24,
1988 through October
1,
1990;
B.
the un-ionized Ammonia standard of 35
Ill. Adm. Code
302.212(b)
for the period from May 24,
1988 through October
1,
1990;
C.
the biochemical oxygen demand
(BOD5)
standard of 35 Ill.
Adm. Code 304.120(c)
for the period from Nay 24,
1988
through May 31,
1990;
D.
the total suspended solids
(TSS)
standard of
35 Ill. Adm.
Code 304.120(c)
for the period from May 24,
1988 through May
31,
1990;
and
E.
the fluoride standards of 35
Ill. Adm. Code 302.208, and
304.105 for the period from September 21,
1989 until May 31,
1990.
During the term of this variance, Modine Manufacturing Co. shall
discharge no effluent that exceeds the following limitations:
4.4 mg/l
(NH3-N)
(daily maximum)
May through
September
3.2 mg/l
(NH3-N)
(monthly average) May through
September
4.4 mg/l
(NH3-N)
(daily maximum)
October through
April
4.4 mg/l
(NH3-N)
(monthly average)
October through
April
0.08 mg/i un—ionized ammonia
60 mg/l
(BOD5)
(daily maximum)
May through
September
25 nig/l
(BOD5)
(monthly average)
May through
September
70 mg/i
(BOD5)
(daily maximum)
October through
April
35 mg/l
(BOD5)
(monthly average)
October through
April
30 mg/l
(TSS)
(daily maximum)
12 mg/l
(TSS)
(monthly average)
5.6 mg/l fluoride
(daily maximum)
4.0 mg/l fluoride (monthly average)
124—171
16
Modine Manufacturing Co.
shall execute a Certificate of
Acceptance and return an executed copy of that document to the
Agency addressed as follows:
Kathleen C.
Bassi
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois
62794—9276
Nodine Manufacturing Co. shall return the executed copy to the
Agency within 45 days of the date of this Opinion and Order.
The
Certificate of Acceptance shall take the following form:
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 88—25, dated July 25,
1991.
Petitioner
Authorized Agent
Title
Date
APPEAL OF FINAL BOARD ORDERS
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat.
1989 ch.
111½, 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.
124—172
17
J.D. Dumelle concurred.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby certify that the above
pinion and Order was
adopted on the
~
day of ____________________________
1991,
by a vote of
________.
~
,,~.
/I~
Dorothy N. G4n,
Clerk
Illinois Poi~tionControl Board
124—173
