ILLINOIS POLLUTION CONTROL BOARD

May

29,

1984

MODINE

MANUFACTURING COMPANY,

Petitioner,

v.

)

PCB 82—ill

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MR.

ROY HARSCH OF MARTIN, CRAIG, CHESTER

& SONNENSCHEIN APPEARED

ON BEHALF OF PETITIONER;

MR. DAVID RIESER APPEARED ON BEHALF OF THE RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by

3.

Marlin):

This

matter comes before the Board upon a September 13,

1982

petition

for

variance filed by Modine Hanufacturing Company

(Modine)

requesting relief from 35 Ill. Mm.

Code 302.212 and

304.:L~5

ammonia nitrogen and

un—ionized ammonia water quality

standards

(WQS);

Section 304,120(c) biochemical oxygen demand

(BODç)

and total suspended solids

(TSS) effluent standards.

Additionally; Modine requests

a three lagoon exemption from the

deoxygenating waste standards pursuant to Section 304.120(c).

The

Illinois

Environmental Protection Agency

(Agency)

filed

its

recommendation

to deny the requested variance,

Hearings were

held

:Lr~ Cary,

Illinois on July

6,

7 and October 20,

1983.

HISTORY

The

subject

matter

of

this

proceeding

is one decade old.

Modine

orlginally

wanted

to

model

its

wastewater

treatment

system

after

:~.ts sister

plant

in

Clinton,

Tennessee~

The

proposed

recirculation

system

would

meet

neither

the

primary

nor

th

secondaru~ WQS

for

total

dissolved

solids

(TDS)

~R 54, 55).

Modine

needed

relief

t~

meet

the

secondary

WQS

and

a

variance

~:rQrnt~e

TDS

standard,

If

the

recirculation

system

were

used,

~~Transcripts

of

the

record

in

PCB

82—111

are

denoted

as

R.

Reference

to

~Chapter

2

Effluent

StandarcV’

should

be

secondary

WQS

2

Zinc and fluoride discussion will be limited as the

standards

are

currently being met.

58~207

---

—2—

Modine would meet the effluent standards for zinc, BOD5 and

ammonia nitrogen

(R 57).

The first proceeding that will be mentioned is PCB

74—14,

(13 PCB

15,

1974),

A variance was granted from the zinc

effluent

limitations,

The unnamed ditch was reclassified from primary

to

secondary contact water,

The Agency filed a motion for rehear-

ing which was granted.

Upon reconsideration the Board modified

the variance to include fluoride and pS

but reversed its prior

reclassification,

14 PCB 169

(1974),

Meanwhile, because of the

less than

1 year variance,

Modine began to construct the recir—

culation system and applied to the Agency for the construction

permit concurrently (R55),

Based on the Board~sreversal of the

reclassification of the stream, the Agency denied the construc-

tion permit.

Modine had already finished construction of the

system

(R 130).

Modine appealed

the Board’s Order and

the

appellate court upheld the

Order.

Modine Manufacturing Co.

v.

Pollution Control Board,

40

Ill,

App.

3d

498,

351 N.E.

2d 875

(2d Dist.

1976).

During the above appeals, Modine added improvements to the

present wastewater treatment

system,

all without the

benefit of

the recirculation system

(R57).

R79—8 was filed to have the

Board redesignate the stream as secondary contact waster and

PCB

7~112was filed to obtain a variance from the BOD

effluent

standard

(R62).

After filing,

a corporate decision was made

not

to expend funds for pollution control

(R42),

Modine withdrew

from the R79—8 proceeding

(R70),

46 PCB 247

(1982).

After four

hearings were cancelled

in PCB 79-112 and after numerious motions

to dismiss by the Agency,

the Board finally dismissed the pro-

ceeding, stating that Modine had misused the variance process

and that compliance plans were to he ready before filing the

variance petition.

47 PCB 519,

520

(1982),

The variance pro-

ceeding herein,

PCB 82—111,

was filed

approximately

1 month later.

FACTS

The Modine plant is

in Ringwood, Illinois where air con-

ditioning condensers and evaporators are fabricated,

There

is

only one similar plant in the United States that uses this type

of manufacturing process--a sister plant

in Clinton, Tennessee

(R52Y.

Modine’s manufacturing process is patented (Petition

at

2).

Its own well water is used and recycled

in this process

which

results in a dicharge of 229,000 gallons per day

(R51),

Dis-

charge

is to a 3—stage lagoon treatment system.

The wastewater

is chlorinated and discharged from the final

lagoon into an

unmaned

ditch which flows into Dutch Creek,

a tributary of the Fox

River.

Orders for Modin&s products declined drastically during the

recession and the company considered closing the Ringwood plant.

3Note:

mistake

in order at 14 PCB 183;

zinc variance

until

July 15,

1975,

not 1974.

58~208

---

—3—

PRELIMINARY ISSUES

Three preliminary issues will be disposed of

initially.

They relate to the following:

a 3-lagoon exemption, petitioner’s

request that the Board regulations he made inapplicable to its

discharge, and that these regulations are arbitrary,

capricious

and unreasonable as applied to petitioner.

Modine requests relief from the deoxygenating waste

standards of

35

Ill. Mm.

Code 304,120(c)

and requests a

3—lagoon

exemption under that Section,

The Agency states that petitioner

has not submitted a request for a 3—lagoon exemption to the

Agency

as required by Technical Policy WPC—1, Rules

404(C)

and

(F)

of Chapter

3

(Agency Brief at 17),

Therefore, Modine’s

request for a 3—lagoon exemption

is

denied.

Even with an

exemption,

Modine would not have been in compliance with BOD5

(See Modine Exh.

19. Table

12).

Modine also requests in this variance proceeding that the

Board declare the regulations in question not applicable to

its

discharge.

The Agency argues that this would result

in a

permanent variance,

The Environmental Protection Act sets up a dual system of

either variance or site—specific relief.

A temporary reprieve

from compliance may be allowed in

a variance proceeding, but no

longer than

5 years.

Ill, Rev, Stat,

1983,

ch.

111½, par.

1036.

When the temporary reprieve would not help meet compliance

and

permanent relief is desired,

the proper proceeding

is a

site~specificproceedings.

Id,

at pars.

1027,

1028,

There

is

no

need to mix and match these separate systems.

Petitioner

cites

Monsanto Co.

v. PCB, 67

Ill.

2d

276,

367 N.E.

2d 684

(1977)

in

support of its supposition.

In fact,

the Illinois Supreme

Court

stated otherwise:

The concept of

a variance which permanently liberates a

polluter from the dictates

of a board regulation is wholly

Inconsistent with the purposes of the Environmental

Protection Act,

Id, at 688.

Additonally, petitioner would like the Board to construe

its

regulations as arbitrary, capricious and unreasonable as to its

plant

(Modine Reply Brief at 17), citing ~

82

III. App,

3d

793,

403 N.E.

2d

83

(2d Dist.

1980),

The ~

court held that this issue when raised in a variance proceeding

is to be considered by the Board in that proceeding.

The

evidence supporting the regulation should be made

a part of the

record.

Id. at 15.

This issue was neither raised in the

pleadings nor at the hearing as claimed

(Modine Reply Brief

at

17),

The issues that have been raised throughout are whether

the

regulations are applicable to Modine~sdischarge

(Modine Reply

Brief

at 16; 540—5)

and whether the Board can grant

site—specific

relief

in a variance proceeding.

These latter two issues

have

58~209

---

—4—

e~r ~scussed

above.

The issue of the Board regulations

being

~,

capricious and unreasonable as

to Modine in the

Cary

c

is not before the Board,

DISCUSSION

i~ ~n any variance proceeding the burden of proof

is

on

the

~erto show that compliance with the Board’s rules

and

tions would impose an arbitrary or unreasonable hardship

ev~Stat.

1983,

ch,

111½,

par.

1035,

As part of this

toe petitioner must assess the economic and technical

t dity of

its proposal and other available options, as

well

environmental impact if the variance would be granted.

35

All

Code

104,121,

)uring the past decade Modine has looked at several waste—

watet

treatment systems for the Ringwood plant,

The first

option,

t~e ~ecirculationsystem that worked in the larger Clinton

plant,

wonUt violate at least the TOS and ammonia nitrogen general

u e hOt

R54) as well

as the BOD5 effluent standard

(R200),

It

~

iificult to tell what other parameters would be violated.

Langu ~

in the appellate opinion and in the record wherein

~

~i~y contact WQS are equated with effluent standards have

nI~y

ni~usedmatters

(Modine,

351 N.E.

2d 875,

slip op.

at 2,

3,

There is no evidence

in the instant record whether

i

jetem could be started up and at what cost,

e ~econd option, which Modine prefers,

is to retain its

C

astewater treatment system.

The effluent concentrations

r~bedin Table

12 of Modin&s Exhibit

19 and at pages

4

~

the record.

This system is exceeding the effluent

ienn for BOD5 and TSS.

The WQS being exceeded are

ammonia

and un—ionized ammonia,

The stated pH range of 8—10 in

-1

tier will cause

an un—ionized ammonia WQS violation at

e~pH range.

r~e has not overly addressed the issue of whether its

e~:t

~ uould violate the un-ionized ammonia WQS,

Substituting

ropriate information into the equation of section 302.212,

~er

un-ionized ammonia values can be computed as shown

in

Ic below:*

8

9

10

0.06

0,44

1,21

0.20

1,48

4.04

0.40

4.12

8.07

0,61

4.45

12.1

Ammonia values for Modine discharge

in mg/i at 20°C.

U

sed to calculate these values were taken from Modine

Exh.

9

oI~ 10, Table 12, Modine Exh,

22, and transcripts at

443-5.

58410

---

—5—

to~erringto the above Table the more probable un—ionized

~aIues are under the ph

9 column,

The pH and ammonia

~r

con

concentrations of the effluent have been consistently

lo’ e

~nce

plant improvements were added

(discussed below).

~

r

tthe 12 months ending September

30,

1983, effluent pH

Ievo~z~have been

9 or less

(Modine Exh,

19,

22),

The third

col

of pH 10 values

is included for comparison.

Because

un~io~zed ammonia concentrations are temperature and pH

co~rdent, there are 2 worst case scenarios,

T e highest expected un—ionized value in the summer

is cal-

culated from a pH of

9, 20°C,and

5 mg/i ammonia nitrogen.

Summer

armor i~anitrogen readings closely approximated

5 mg/i during the

12 io~thperiod above,

The calculated value is 1.483 mg/i

un~ i~edammonia.

~ce highest expected un—ionized ammonia value

in the

winter

on ated from a pH of

9, 5°C,and

10 mg/i ammonia nitrogen~

hcot ammonia nitrogen value

in the same 12 month period

inter reading of

7,8 mg,i,

The calculated value is

I un—ionized ammonia.

:

c existing system has been recently improved.

Following

cUations by consultants, Modine began reusing

slurry

~ U

dumping

it into the system,

The slurry caused

chemical levels

in the system and interfered with other

(Modine Exh.

5 at 7),

Another recommendation was to

the pH of the clarifier, which was done

(R425),

This

I levels

of ammonia nitrogen, fluoride and zinc (R426),

ingering problems with the system have been

2

The first is that a seasonal pond pattern exists

~c

n~

Uxh

5 at

17)

Algal growth

in the summer increases

~I~dsolids discharge and chemical oxygen demand while

in

ammonia nitrogen and zinc levels,

The obverse occurs

~

cer, when biological activity declines because of lower

~perature (R466)

and ammonia nitrogen discharge increases.

n

problem is that this biological pond system is only

c

~

days a week instead of the desirable

7 days.

The

r recommended a flow equalization device

(R434) with a

~st of between $50,000 and $100,000

(R434),

A third

~

measuring BOD5 by the standard method when another

‘

~ild have been used because of either inhibition

(R200,

~oalcitrant organics

(R442),

An acclimated seed was

~otrect the BOD5 readings

(R272),

~.

~ird

option for a wastewater treatment system is a

~ystem which includes the use of

2 rotating biological

anirs and is further described in Modine Exh.

20,

The

‘ystem will not meet the following:

BOD

; TSS unless a

oremption is granted;

and ammonia nitrog~n

WQS

in the

~octtneExh,

20 at 7).

58411

---

—6—

ENVIRONMENTAL

IMPACT

stoted

avove,

petitioner

must

assess

the

environmental

i

on

the

stream

before

a

variance

can

be

granted,

Modine

con~cted

for

a

study.

tiiipling

locations

1

through

9

are

noted

in

Modine

Exhibit

U,

~,

3,

where

the

Modine

discharge

is

between

stations

1

and 2

rn~I

another

corporation,

Morton

Chemical,

discharges

above

~i

5

in

another

ditch,

Both

ditches

join

each

other

before

t~,

onfluence

with

Dutch

Creek

(See

also

Modine

Exh,

17).

dine

asserts

throu9h

its

consultant

that

there

is

bajar’ .eJ

indigenous aquatic life present

both

above and below

the

1’,

Ji

discharge

(R252,

375),

This conclusion is based on two

ti~

~cal studies,

one in

1973,

the other in i979;

the results

of

~

latter

in Modine Exhibit

ii,

The aquatic

life included

fiU

chellfish,

benthos

and

others,

A

chlorine

malfunction

and

U.

i~ncconcentration during sampling in

1979 may explain the

her of macroinvertebrates at stations

2 and

3 and the

of fish at station

2

(R230).

Sampling was done both

r3~r

~tatively and

qualitatively

(R228),

Agency argues that environmental harm is occurring

of

Modine~s discharge

(Agency Brief at 20),

The Agency

~c

a

qualitative

one

where

the

diversity

of

organisms

was

(Modine

Exh,

17,

R324),

C

Agency

concludes

that

there

is

no

balanced

indigenous

c

i

of

aquatic

life.

It

states

that

a

quantitative

study

ougl--—that quality is also

important

(R323).

It

asserts

ocbaetes

are pollution tolerant organisms

and

that

they

~

ii

c

ctation

2

(R324).

The

Agency

and

one

of

Modine~s

i.

~e’

disagreed

on

whether

to

expect

oligochaete

in

organic

i~

(R

364,

377).

The

Agency

witness

argued

that

the

silt

cS,.

detritus

bottom

should

contain

no

oligochaetes

and

that

“no

oresence

at

the

station

below

the

Modine

discharge

denoted

~pcI~iuted

stream,

The

difference

appears

to

be

one

of

Uon of

organic

detritus

(R382—4),

in—ionized

ammonia

concentrations

calculated

above

are

Concentrations

above

0,04

mg/i

may

be

toxic

to

sensitive

~cUs

(In

the

Matter

of

Amendment

of

Ch.

3:

Rule

203(f)

~

45

PCB

~

Proposed

Opinion

and

Order,

1982),

The

highest

expected

or

1,483

and

1,31

mg/i

likewise

would

be

toxic

to

sensitive

U

necies,

Board does not accept the petitioner’s argument that

the

‘o

from the Ringwood Plant does not cause adverse environ—

?

~r3pact, The Board is cognizant of the fact that con—

ion of the status quo will probably not cause further

c ation of tlstream,

However,

the Act does not accept

quo~as equivalent to no adverse impact.

58412

---

—7—

tiodine

‘5

motion to strike

the

testimony

of

the

Agency

witness

is denied and the Board affirms the ruling of the

hearing

officer.

This

motion

involves

credibility,

the

weight

afforded

the

testimony of a witness.

As is true in

any

endeavor,

education can be gained through experience.

The testimony of the

HARDSHIP

As stated above, petitioner must demonstrate an arbitrary or

unreasonable

hardship

for

a

variance

to

be

granted.

Modine

asserts

that

there

is

no

technical

means

to

ccmply

with

the

standards

and

limitations

and

would

like

to

retain

the

present

wastewater

treatment

system.

Modine

states

that

they

have

demonstrated

that

there

will

be

no

adverse

environmental

impact

with

this

system.

Additionally,

Modine

argues

that

there

would be no

environmental

benefit

if

the

retrofit

system

was

installed (Modine

Reply

Brief

at

13,

15).

When

the Board

denied

stream

reclassification

and

the

Agency

then denied issuance of a construction

permit

for Modine’s

recirculation system, Modine appealed to the appellate court.

The court affirmed the Board Order.

351 N.E. 2d 875,

supra.

The

Agency

argues

that

the

Board,

not

the

appellate

court,

was

the

proper

forum.

The

Agency

further

argues

that

this

failure

to

appeal

to

the

Board

for

additonal

relief

coupled

with

Modine’s

claims of technical

and

economic infeasibility are self—imposed

hardships (Agency Brief at 14).

Modine

counters

that

no

appeal

was

made

to

the

Board

because

there

was

no

basis

on

which

to

do

so.

Only

half

the

requested

relief

was

granted

and

without

stream

reclassification

the

recirculation system would not have

operated

in ccmpliance

(Ilodine Reply Brief at 3).

The Agency asserts that Modine’s prior corporate decision

not to expend funds for pollution control

and

its failure to

prosecute its actions before the Board contributed to any

hardship (Agency Brief at 15).

Modine’s decision to terminate expenditures for environ-

mental control at Ringwood has delayed a resolution to this

long-standing controversy.

This decision is probably also

related to the

poor

internal controls at the plant

which

allowed

resumption of practices

which

adversely

impacted

the

plant’s

treatment

system.

While

the

Board

will

stop

short

of

ruling

that

Modine’s

hardship

is

solely

self-imposed,

it

will

accept

nothing

less

than

good

faith

efforts

on

the

part

of

the

petitioner

to

bring

this

matter

to

58-213

---

—8—

The Agency argues that Modine should have identified the

recalcitrant

organics

in

the

wastewater

which necessitated the

use

of

an

acclimated

seed

procedure

for

measuring

BOD

(Agency

Brief

at

19),

Modine

states

that

this

would

be

extre~ely

expensive

and,

in

the

opinion

of

Modine~s consultant,

not necessary

(Modine

Reply

Brief

at

5),

Modine

has

shown

that

there

is

presently

no

technically

feasible

alternative

to

treat

its

unique

waste

stream

so as to

come

into

full

compliance.

As

to

economics,

the

cost

of

the

retrofit

system

would

be

$408,000

plus

$9,500

for

construction

of

a

road

to

reach

the

system.

The

operation

and

maintenance

costs

would

be

increased

from

$32,000

to

$90,725

annually

(Modine

Exh,

21),

The

Board

finds

that

to

deny

the

variance

or

impose

construction

of the

retrofit

system

and

its

attendant

cost

on

Modine

with

neither

a

noticeable

environmental

benefit

nor

compliance

with

the

Board

rules

and

regulations

would

impose

an

arbitrary

or

unreasonable

hardship.

The

Board

will

grant

the

petitioner

a

variance

for

nine

months,

during

which

it

shall

develop

some

additional

information

about

various

means

of

bringing

the

plant’s

effluent

into

com-

pliance.

If appropriate,

this information might be used in a

petition

for a site—specific rule,

Prior to the expiration of this variance and prior to

seeking additional relief from the Board the petitioner shall

provide the Agency with additional technical and economic

information regarding the following:

1)

use of the recirculating system,

2)

separating some of the waste streams at the plant,

3)

making immediate changes to the existing processes

or equipment at the plant,

4)

making changes to processes or equipment as it

is

replaced over time,

5)

controlling wastewater flow so that it enters the waste

treatment system continuously rather than being con-

centrated over only 5 days per week,

Also the Board would expect Modine to address the economic

health of the Ringwood plant and the Company overall.

Modine

is granted a variance for a period of

9 months from

35

Ill, Adm. Code 302.212 and 304,105 as it relates to ammonia

nitrogen and un—ionized ammonia; Section 304,120(c)

as it relates

to BOD

and TSS,

all subject to the conditons set out in the

Order ~elow,

The request for a 3-lagoon exemption under

35

Iii,

Adm, Code 304,120(c)

is denied.

58414

---

—9—

This constitures the Board9s findings of

fact and conclusions

of

law,

ORDER

Modine Manufacturing Company is hereby granted a

variance

for its plant in Ringwood, McHenry County,

Illinois, until

March

1,

1985 from the terms of

3

ill, Adm, Code 302,212

and

304,105 as it relates to ammonia nitrogen and un—ionized

ammonia;

Section 304,120(c)

as

it relates to BOD5 and TSS;

all subject

to

the

following conditions:

1,

That,

prior to the expiration of this variance and

no

later than December

1,

1984,

Modine shall provide the

Agency with information on the following with emphasis

on technical and economic feasibility and impact on

effluent quality:

a)

use of the recirculating system

b)

separating some of

the

waste

streams

at

the

plant

c)

making immediate changes to the existing

processes

or equipment at the plant

d)

making changes to processes or equipment as

it is

replaced over time

e)

controlling wastewater flow so that it enters the

waste treatment system continuously rather than

being concentrated over only

5 days per week.

f)

list all un—ionized ammonia values

g)

any other reasonable means

of improving effluent

quality.

2,

That Modine shall not exceed the floowing effluent

limitations and water quality standards

(mg/I):

BOD5

NH3—N

Un-ionized NH3

Summer

5

1,48

20

15

1.31

3,

Within forty~fivedays of the date of this Order,

Petitioner shall execute and forward to the Illinois

Environmental Protection

Agency, Compliance Assurance

Unit, Water Pollution Control Division, 2200 Churchill

Road,

Springfield, IL 62706,

a Certificate of

---

—10—

Acceotance

and

Agreement

to

be bound to all

terms and

corditions

of

this

variance.

This

forty—five

day

period

shall

he

held

in

abeyance

for

any period

during

wh~chU’Us ~n~ter is being appealed.

The form

of this

cer~”Ucate shall he as follows:

CERTIFICATE

having read the Order

of the Illinois Pollution Control

Board in

PCB 82—111,

dated

______

_____________________________

understand ard accept the s~Thrder, re~Tfiingthat such

acceptance renders all terms and conditions thereto binding

and

enforceable.

I

Chr,.~atan

r

,

Not

fett, Clerk of the Illinois

Pollution

Control Board, ~iere,by

certify the above Opinion and

Order were

cd nted

a the’day

of

~

1984 by a

vote

of~U

Christan

L,

Moffe~~I

lerk

Illinois

Pollution

ontrol Board

58416