ILLINOIS POLLUTION CONTROL BOARD
October 17, 1974
MODINE MANUFACTURING CO.
)
v.
)
PCB 74-14
ENVIRONMENTAL PROTECTION AGENCY
Mr. Richard J.
iissel,
Attorney, on behalf of the
Petitioner;
Mr. John T. Berbom and Mr. James Schlifke, Attorneys, on
behalf of the Environniental Protection Agency
OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):
This Opinion and Order results from the Board’s September
29, 1974 decision to reconsider the Opinion and Order entered
on July 11, 1974 in the above named variance petition.
Nodine Manufacturing Company (Modinc) filed a variance
petition on January 9, 1974 seeking relief from Water Pollution
Regulations Rules 208(a) as it applies to zinc until December,
1974, three stage lagoon exemption, and such other rules
applicable so as to allow the Agency to grant construction
and operating permits. The Agency filed a recommendation on
February 21, 1974, recommending that the variance be denied.
A hearing was held April 26, 1974 at which time Modine
amended its variance petition. Briefs were submitted by
both parties.
On July 11, 1974, the Board granted Modine certain
relief consisting of a variance from Rules 408(a) as it
applies to zinc and Rule 1002. The Board reclassified the
unnamed tributary into which Modine discharges as a Secondary
Contact Water as per Rule 302(k) at the point at which it
receives r4odine’s discharge. A request for a variance from
Rule 404 was dismissed as moot because the Board had reclassified
the stream.
The Agency filed a Petition for Reconsideration on
August 15, 1974. On September 11, 1974, Modine filed a
Response to the Agency’s Petition for Reconsideration. The
Board voted to reconsider the July 11, 1974 Opinion
14
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169
—2—
and Order on September 27, 1974. The case was then reassigned
to Mr. Dumelle. This present Opinion will incorporate much
of the original Opinion and Order as it applies to the
description of Mouine’s facility and to the granting of the
variance from Rules 408(a) and 1002.
Modine owns and operates a facility which produces air
conditioning condenser and evaporator coils at Ringwood in
McHenry County, Illinois. These coils are aluminum heat
exchangers for the automotive, commercial, and residential
market CR. 8). Modine employs approximately 180 people at
an annual payroll of approximately $1,300,000.
The instant variance request centers around discharges
from Modine’s present, and anticipated future, treatment
system. Exhibits 1 and 2 are flow diagrams depicting present
and future waste flow respectively. Mr. Schwartz (environ-
mental officer for Modine) testified as to both of these
exhibits.
Modine’s Exhibit #1 shows that the waste flows are
generated from a number of sources. One source is blowdown
from a scrubber used as an air pollution device on Nodine’s
Red-Ray Oven. Approximately 200 gpm of water is used as the
scrubbant. This water is recirculated after neutralization
with the exception of a 50 gpm blowdown which enters the
first stage of a three—stage lagoon (R. 19). A second
source of waste is in the form of quench water from Modine’s
Water Quench Chamber. This system consists of once through
water used for cleaning and cooling of parts and is approximately
on the order of 200 gpm. This quench water also goes to the
head of the three-stage lagoon. The only other flow to the
three-stage lagoon is domestic waste, which has been treated
by extended aeration (R. 19). The three-stage lagoon presently
handles about 390,000 gpd with the influent and effluent
rate the same (R. 21). The discharge is then to an unnamed
tributary to Dutch Creek. The present discharge is of the
following nature CR. 23);
Flow
390,000 gpd
BOD5
5-10 ppm
D.O.
Neon Saturation 7-8 ppm
Zinc
1—30 ppm
Fluoride
2-2.5 ppm (calcium fluoride)
Suspended Solids 4 ppm
Total Solids
800 ppm
pH
7—8
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—3—
Modine’s Exhibit #2 details the proposed waste flow.
The essential difference is the 90—95 of the influent to
the first lagoon will be recycled for reuse, leaving the net
flow to the receiving stream of less than 40,000 gpd CR.
27)
Mr. Schwartz testified as to his experience with
I4odine’s Clinton, Tennessee plant, which is presently using
similar technology CR. 28)
.
He re1a~edthat the Clinton
operation is essentially the same as the Ringwood, Illinois
plant, with the exception of size. The Clinton plant was
designed in 1972 and initially started up in October, 1973.
Mr. Schwartz related that this waste operation is a novel
approach (R. 33), and that is a main reason why the Illinois
plant did not construct in parallel with the Clinton, Tennessee
plant. Based on Clinton experience, Mr. Schwartz anticipates
the following effluent criteria (R. 35)
Flow
40,000 gpd
BOD5
5-10 ppm
D.O.
8.0 (Petition Pg. 8)
Zinc
1 ppm
Fluoride
2.5 ppm
Suspended Solids 4 ppm
Total Solids
2000—2500 ppm
pH
8.5 (Petition Pg. 8)
The cost of these improvements was stated as about
$190,000 (EL 36), and would have a startup date of December
of 1974.
Mr. Schwartz then went on to discuss what he felt were
alternate technologies which could conceivably be used. The
two alternates mentioned were reverse osmosis and total
evaporation, both of which Mr. Schwartz felt were not feasible
(R. 42). Mr. Donald Schwegel (Baxter & Woodman Engineering)
also testified that he felt the alternatives were not feasible
(R. 80).
Modine’s Exhibit #3 is a map of the northeast region of
Illinois (from Illinois Water Survey Bulletin 57). The
unnamed tributary in question is not noted on the map. It
was generally accepted that this would indicate a seven-day
once-in-ten-year low flow of zero (R. 83, R. 93 Taylor).
Mr. Robert Taylor (Environmental Protection Agency biologist)
testified that in his normal round of duties he visits
Modine approximately six to ten times per year, and that the
tributary upstream of Modine’s discharge has been without
flow 35—40 of the time.
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—4—
One of the major points of contention in the instant
case is which classification shall be given to the tributary
into which Modine discharges. From, the abovementioned
expected effluent parameters, one can see that the applicable
water standards will be met if the stream is considered
secondary contact, but will not meet general water quality
standards, e.g.:
Modine’s Expected Discharge
Rule 203
Rule 408
BOD5
5-10 ppm
4 ppm*
4 ppm*
Suspended Solids 4 ppm
5 ppm*
5 pp~*
Zinc
1 ppm
1 ppm
1 ppm
Fluoride
2.5 ppm
1.4 ppm
2.5 ppm
Total Solids
2200 ppm
1000 ppm
3500 ppm max
pH
8.5
6.5—9.0
5—10
Part III of Chapter 3 defines secondary contact waters.
Rule 302(k) (as amended Februaryl4, 1974) states:
“Secondary Contact and Indigenous Aquatic Life Waters:
Secondary contact and indigenous aquc life waters
are those waters which will be appropriate for all
secondary contact uses and which will be capable of
supporting an indigenous aquatic life limited only by
the physical configuration of the body of water, characteristics
and origin of the water, and the presence of contaminants
in amounts that do not exceed the applicable standards.
The following are designated as secondary contact and
indigenous aquatic life waters;
(k) All waters in which, by reason of low flow or
other conditions, a diversified aquatic biota cannot be
satisfactorily maintained even in the absence of contaminants.’
Rule 205 then states the criteria to which a secondary
contact and indigenous aquatic life water must conform.
*If 404(f) applies, however, Pfeffer exception is 10 mg/i
BOD5, 12 mg/i SS
—
and Petition is seeking a 404(f) (i)
exception.
14
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—5—
Modine contends that Rule 302(k) applies to its receiving
stream. The burden of proof rests squarely with Modine.
The Board in its Opinion on this matter said:
“Part III contains water use designations. All waters
are designated for general use except those in the
restricted category, which has here been broadened in
response to testimony to include waters whose flow is
too low to support aquatic life. This should relieve
the burden of treatment beyond the effluent standards
for discharges to intermittent~streams. Such extra
effort is difficult to justify when it will not result
in a satisfactory aquatic life because of insufficient
flow.” (Vol. 3, p. 765).
r~dinemust show that a diversified aquatic biota cannot be
rniintained in the absence of contaminants in the unnamed
t ftutary to Dutch Creek.
Modine’s theory of reclassification centers on the
h ;lorical seven-day ten—year low flow of zero and Dr.
~kio1a’s testimony regarding the lack of stability in the
st~am in question. Testimony and exhibits were presented
b~Lr. Wahtola of Lixnnetics, Inc., who was engaged by Modine
to study the aquatic biota present and the chemical constituents
present in the stream. The results of Dr. Wahtola’s study
was submitted as Modine’s Exhibit 5. Concentrations for
zinc and ammonia nitrogen are listed in excess of Water
Quality Standards contained in Rule 203 (Modine Ex. 5,
Tables 1 and IX). The contaminant levels shown as present
in Modine’s discharge and the decreasing levels as found by
Dr. Wahtola indicate that Modine’s discharge does raise the
levels of contaminants in the unnamed tributary and in Dutch
Creek (Modine Ex. 5). However, as of the date Dr. Wahtola
tested, Modine’s discharge was not causing or contributing
to a violation in Dutch Creek of any water quality standards
for the eight contaminants listed in Exhibit 5.
Dr. Wahtola’s aquatic study was designed to observe
members of the various trophic levels: the phytopiankton,
z~oplankton, benthos, and fish which were present. As a
x sult of his aquatic study, Dr. Wahtola testified that he
f und a diversified aquatic biota present immediately down-
~ ream from the Nodine plant on December 27, 1973, the date
I sampled the stream (R. 116). Dr. Wahtola would have the
1: ard expand the requirements of Rule 302.(k) to encompass
the concept of stability. Dr. Wahtola testified that due to
the nature of the stream, he did not feel it could support a
diversified aquatic biota at times and thus should fall
under Rule 302(k). His reasoning is set out on pages 4
through 6 of the Board’s former Opinion (R. 123-126).
14
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In summary, Dr. Wahtola would include stability within
any definition of or application of Rule
302(k). Dr. Wahtola
stated that only aquatic environments which are free from
stress (physical or chemical) and which are very old would
truly support a diverse aquatic life (EL 123—126). He gave
the deep ocean aquatic community as one which is relatively
free from stress, and thus very stable (R. 124). Lake Baikal
was given as an example of a very old aquatic community
which has a very large diversity because the genetic pool
has remained throughout millions
o~f
years (R.
126). Dr.
Wahtola stated that a United States lake, which was only ten
thousand
years old, would not be a very diverse system (R.
125). He then moved further down the stability scale and
stated that a river system “as compared to a lake would not
be considered as diverse” (R. 126). He concluded by stating
that because the genetic pool would not have the opportunity
in all instances to replenish and become diverse, that
the
stream
in question would not through eons of time maintain
diversity even though through sampling on any one day you
could find a diverse aquatic community present (R. 126).
The Board cannot accept this line of reasoning in the application
of
Rule
302(k). Applying this line of reason would lead to
the unescapable result that every stream that has a historical
seven—day ten—year low flow of zero would be reclassified
even though a diversified aquatic biota was present. Such
was not the Board’s intent when Rule 302 (k) was adopted.
No mention of “stability” is present in the Rule or in the
Opinion accompanying the adoption of the regulation. Permanence
or near permanence of the aquatic biota is not required.
Biological surveys were conducted by Mr. Matsunga, an
Agency biologist, on March 23, and April 3, 1974. Evidence
concerning these two days of surveys is contained
in Agency
Exhibits 6 and 5, respectively. These biological survey
results clearly show that a diverse aquatic biota was present
on both days when the surveys were conducted. Numerous types
of microinvertebrate were found, including fish, both upstream
and
downstream of Modine’s discharge (Agency Ex.
5
and 6).
The organisms collected by Mr. Matsunga include those intolerant,
moderately tolerant and tolerant to pollution (Agency Ex.
5
and 6). Fish life was observed by Mr. Natsunga in the
unnamed
tributary both upstream and downstream of the discharge
point of Modine (Agency Ex. 6). This evidence, when compiled
with that presented concerning Dr. Wahtola’s study, shows
the existence of a diversified aquatic biota in the unnamed
tributary to Dutch Creek, on the three days the stream was
observed (two days upstream and three days downstream of
Modine’s discharge).
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—7—
Dr. Wahtola stated that the
stream would not support a
diversified aquatic biota when it was dry (R. 117)
.
Dr.
Wahtola testified on cross examination that if the stream
never went dry below Modine’s discharge, that it could
“support” a diversified aquatic biota (R. 139). Dr. Wahtola
was unable to testify as to whether the stream was ever dry
below Modine’s discharge (R. 138 and 139). Mr. Taylor, an
Agency employee, testified that he had seen the stream
without flow above Modine’s discharge (R. 155)
The Agency presented sufficient eviden,ce to rebut Dr.
Wahtola’s conclusion that the stream at the point of discharge
shotld be reclassified as secondary contact. The Agency
presented the results of a biological survey of the stream
which found numerous microinvertebrates present upstream and
dowrstream from Mbdine’s discharge (Agency Ex. 5 and 6).
The results from this sampling technical agree with those of
Dr. Wahtola because the presence of microinvertebrate indicates
that there are things to eat present. A food supply must be
pre~entfor higher forms of life to exist CR. 181). Mr.
TucJ.er, an Agency aquatic biologist, testified that finding
of ruicroinvertebrates implies that zooplankton, phytoplankton
and fish exist in the aquatic biota (R. 182)
.
Mr. Tucker
agreed with Dr. Wahtola that different trophic levels need
to exist in order that a diversified aquatic biota could
exist (R. 181). The Agency clearly established that a
diversified aquatic biota in fact existed in the unnamed
tributary.
The Agency also presented evidence that aquatic life
could remain within pools CR. 185) or continue to live in
spring holes back in the bank and return once water began to
flow (R. 186). Aestivation, the ability to continue to
exist in the muds of a stream, while the stream is dry, was
also discussed as a way that organisms could repopulate an
intermittant stream CR. 186). In addition, organisms can
drift downstream or migrate upstream to repopulate an area.
The Agency witnesses testified that a diversified
aquatic biota was present, and that the potential for it to
exist should be there CR. 184). This is a consistent limnological
response because few if any small streams would maintain a
diversified aquatic biota over their entire length; but
would maintain a diversified aquatic biota in certain areas,
and over the whole would have to be said to contain the
potential to maintain a diversified aquatic biota. Mr.
Tucker stated that a stream is a continually changing thing
and as such is not stable (R. 182). He said that stability
is not necessary to show that a diversified aquatic biota
exists CR. 182).
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—8—
As previously stated, the Board does not find that long
term stability must be included with the definition or
application of Rule 302(k) as suggested by Dr. Wahtola. In
determining if Rule 302(k) should be invoked, the Board will
first examine the evidence to ascertain if a diversified
aquatic biota is present in the stream. In this case it was
uncontroverted that such existed. If a diversified aquatic
biota is found to exist, then the Board will examine the
testimony to determine if it can be maintained. A finding
of the existence and testimony of the potential that a
diversified aquatic biota could be maintained would normally
be controlling. Such was the testimony in this case.
The intent of Rule 302(k) was to provide relief where
because of naturalconditions, such as temperature, lack of
habitat, flow, etc. a diversified aquatic biota could not be
maintained. In the present case, this determination is not
required because a diversified aquatic biota was found to be
present. The Board finds that Petitioner’s request for the
reclassification of the unnamed tributary is not supported
by sufficient evidence to warrant the application of Rule
302(k)
The next major point of contention is the applicability
of Rule 404(f). Petitioner contends that it will be entitled
to a 404(f) (i) exemption in that it operates a three-stage
lagoon. If granted, this would allow discharges of 30 mg/i
BODS and 37 mg/i S.S. to gain exception for .a three-stage
lagoon, the following four conditions must be met:
A) The untreated waste load is less than 2500 population
equivalent; and
B) The source is sufficiently isolated that combining
with other sources to aggregate 2500 population
equivalent or more is not practicable; and
C) The lagoons are properly constructed, maintained
and operated: and
D) The effluent does not, alone, or in combination,
cause a violation of applicable water quality
standards.
Each of these conditions must be studied separately for
applicability.
Item (B) is generally accepted to have been met
(Agency Brief Pg. 10—11.).
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—9—
Item CC) was contested by the Agency. Tjnder direct
examination Mr. Schwartz testified that the lagoons are and
will be properly maintained and operated (R. 44)
.
The
Agency, however, felt that the lagoon was not properly
maintained and operated. The Agency offered little proof of
this statement, nor did the Petitioner with the exception of
the Schwartz statement. The Agency contended that results
of the Matsunga tests show that the condition of the stream
changes from unbalanced to semi—polluted~across the Modine
discharge point (covered in environmental impact portion of
this Opinion)
,
and that this could be due to poor lagoon
operation (Brief Pg. 11). The Board had no strong indication
that the lagoons are properly or improperly maintained. Had
the Agency doubted the validity of Schwartz’s statement,
they had every opportunity to rebut it at hearing.
Item (D) is not met because the Board has rejected
reclassification. Dr. Wahtola’s testing found values for
zinc and ammonia nitrogen in excess of water quality standards
(Modine Ex. 5, Tables 1 and IX).
Item (A), in addition, does not seem to be met. This
rule states that the untreated waste load must be less than
2500 P.E. (one P.E. 100 gpd)
.
In Petitioner’s case the
untreated waste load is 390,000 gpd. or 3900 P.E. This load
will be discharged even after the compliance plan is completed.
One may argue that this definition is excessively strict in
light of the fact that Petitioner intends to recycle 90 of
its effluent. However, using this theory the calculation
point would be at the head of the second stage lagoon.
The Board in adopting this rule noted that three-stage
lagoons are ‘oependab1e’~ and economically reasonable.”
Opinion on R 70—d, 71—14, 71—20,
.
This language was Jncorporated
to indicate that economics are a concern in allowing such an
exemption. In the instant case the economics does not
indicate that an exception allowing 30 mg/l B0D5 and 37 mg/i
S.S. should be allowed. Our function is to preserve the
environment, and granting such an exemption would not be in
keeping with this dictate. Petitioner’s discharge will meet
a 5-10 mg/i BOD5 and 4 mg/i S.S. level which is well within
the bounds of a Pfeffer exemption of 10 mg/i BOD5 and 12
mg/i S.S. The Board feels that upon application for permit
to the Agency, ±-~etitionerhas met the requirements for a
404(f) (ii) exemption, and that one should be granted. In
light of the fact that no economic burden is placed on
Petitioner, other than to operate its lagoon as it says it
can, the strictest interpretation of Rule 404(c) (iii) (A)
should be drawn. The Board therefore feels that no variance
is required from Rule 404(f) in that under the dictates of
404(f) there is no present violation.
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_1 fl_
The only question left to be decided is whether Petitioner
has fulfilled its burden under Section 35 of the Environmental
Protection Act to be granted a variance from Rule 408 as it
regards zinc and, because of the broad request for a variance,
any other relief necessary for the Agency to grant operating
and construction permits. We must then explore the areas of
compliance plans, hardship, and environmental impact in
reaching this decision.
Compliance Plan: As mentioned above, Petitioner has
submitted a compliance plan which will reduce the zinc
concentrations to within the applicable regulations. No
compliance program absent reclassification was presented as
to fluoride and total dissolved solids.
The delay of starting this compliance plan was explained
by Mr. Schwartz by comparing the instant plan with that used
in the Clinton, Tennessee plant. Mr. Schwartz claims that
the concept of recycle was novel to the industry (R. 33),
and that it would not have been economically feasible to
upgrade both (Clinton and Ringwood) plants at the same time
(R. 51)
.
This was because of the novelty of the processes
the risk was rather high, and two mistakes could have been
made.
Petitioner, after work was completed on Clinton, in
November, 1973, engaged a consulting firm to detail plans
for a similar addition to the Ringwood plant. Mr. Schwartz
feels the possibility of a December, 1974 startup is very
good. (R. 55).
Due to the novelty of this process, the Board feels
that the technical approach taken to gain compliance
-
e.g.,
learning
from
experience and then applying it to Ringwood
-
was viable and shows the necessary elements to be termed
good faith.
Hardship: In its Petition for variance, Petitioner
alleges that an arbitrary and unreasonable hardship would
ensue should variance be denied, due to the following situations:
1.
Without a variance Modine, would be subject to an
enforcement case which would jeopardize its operation
and effect the livelihood of 158 employees.
2. Modine’s contribution to the tax base and gross
income of the community could be curtailed.
The Agency does
not refute these allegations, but
rather rather states that alternate technology was not
explored in sufficient detail to show undue hardship would
result if it were used. The Board notes that the thrust of
alternate technology is directed toward compliance with Rule
203. The Board finds that, although marginal, a hardship
case is evident.
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—11—
Environmental Impact: As mentioned, many findings in
this case were difficult to render. Quite a bit of our
decision rests on the potential for environmental harm
presently or anticipated to be caused. by Petitioner’s
discharges.
The Agency introduced Exhibits #5 and #6 which are
sumaries of stream analyses made around Modine’s discharge.
The conclusion drawn from these exhibits was that the area
directly above Modine’s discharge was termed unbalanced, and
those directly below and 1/4 mile downstream semi-polluted
and polluted, respectively. These determinations were based.
on the existence or lack of existence of tolerant species.
The following definitions help in interpreting these findings:
“Balanced environment: one in which conditions are
maintained which are capable of supporting a variety of
organisms, mostly intolerant species from diversified
taxonomic groups.
Unbalanced environment: one in which the balance of
life as described for a balanced environment has been
disrupted. but not destroyed.. The population numbers of
some of the intolerant forms are reduced., and an increase
becomes apparent in some of the more tolerant forms.
Semi—polluted environment: one in which the balance of
life found in a balanced environment is destroyed.
Intolerant forms are completely absent or reduced to a
minimum. The environment is predominantly tolerant
forms.
Polluted environment: one in which only the very
tolerant forms are able to exist. These are usually
present in great numbers unless excluded from the
environment by severe conditions.”
(R. Pp. 162—163)
Under cross—examination there was much discussion as to
how tolerant and non-tolerant organisms are determined.
From the record it was clear that there is some possibility
of error which could have led. to misclassification of the
streams. The following examples of testimony reflect this:
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—12—
“-Q.
Let’s take Page Cl of EPA Exhibit No. 6, line
20,
which has, ‘Nidge Larvae, 11’.
A. I would not be ab1~.tosay.
Q.
You mean just identifying a rnidge larvae doesn’t
mean it is tolerant, does it?
A. As a general group, midges are tolerant, but
——
0. Could there be some midges in this sample that
were intolerant?
A. There might have been.
Q.
Could it be 11?
A. It is possible.
Q.
So that it is possible that that is 11 intolerant
organisms rather than tolerant, isn’t it?
A. That is possible.”
(R. 174—175)
However, Mr. Tucker states that midge larvae are almost
universally classifieci as intolerant and that the sample and
classification are correct, e.g.:
“ç. In ±act, how many of the midge larvae, or approximately
how many of the midqe larvae species are tolerant, and
how many are intolerant?
A. I don’t know the exact number. But I only know of
one midge larva that is intolerant, and it is a little
skinny red one.
Q. And about how many species of midge larvae that
you know of?
A. Oh, upward of 30 or 40.”
(R. 189)
Mr.
Tucker also statec
that his determinations were based
upon 18
years of
ex;cerience plus input from review of available
literature
(R. 157).
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—13—
The inference from these discussions is that Modine’s
discharge as it exists is at least contributing to the
streams degradation. It is very important to note, however,
that both Tucker and Matsunga (both Agency witnesses) tended
to hedge on whether Modine’s discharge was the direct cause
of the apparent degradation CR. 183, R. 167 (“probable cause
not definitive”)).
Dr.
Wahtola testified ~R. 127) that in his opinion it
i~well documented that zinc concentrations presently found
i: Modine’s discharge can be lethal; however, at the time of
hi. sampling he found no adverse effects on the aquatic
bi~ta, and Nodine’s discharge had very little detectable
effect on the stream. It must be remembered that the compliance
pLLn calls for a 1.0 mg/i zinc concentration by December,
lY4, which would be acceptable. Dr. Wahtola next addressed.
h~.self to the fluoride discharges (R. 128)
.
He
cited a
st dy conducted by the Colorado School of Mines (and work by
Mci.ee & Wolfe of California) stating that calcium fluoride
is, much less toxic than other forms of fluoride. It is
substantiated in the record that Modine’s discharge is high
ir calcium (R. 23)
Modine lacks a program for compliance with Rule 203(f)
as to fluorides and total dissolved solids because the Board
has found that Rule 302(k) does not apply. Normally this
would defeat a variance request and, therefore, would
prohibit the attainment of permits. However, in the present
case, Nodine is currently in compliance with Rule 203 (f) as
it applies to total dissolved solids. Modine’s discharge
will only exceed the limits once they begin to recycle their
effluent. Such conservation of ground water is to be commended.
The Board takes judicial notice of the declining ground
water table present in northeastern Illinois. The Board
does not approve of the use of dilution to achieve compliance.
Because of Rule 402, Modine must produce an effluent that
complies with the water quality standards found in Rule
203(f). This alternate effluent standard for total dissolved
solids is 1000 mg/l. Rule 401(b) provides relief for dischargers
whose discharge effluent limitations because they engage in
practices which cause background concentrations of contaminants
to be increased because of evaporation. This is the reverse
of the old adage of “dilution is the solution to pollution”.
Noine’s projected recycle system is also the reverse of
ciLution in that because they are taking steps to conserve
grcund water by recirculation, their effluent will result in
a ‘.iolation of the numerical limitation for suspended solids
and fluoride. The Board decided to apply the logic found in
Rule 401(b) to evaluate the effects of Modine’s recycle
system in order to grant a variance from this numerical
effluent limitation of 1000 mg/i of total dissolved solids.
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—
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—14—
Because the testimony as to the reduced toxicity of
calcium fluoride and because the Board is currently considering
a regulatory proposal, R 73-15, that proposes to raise the
water quality standard for fluoride above that expected by
Modine, the Board has decided to grant Modine a variance
from Rule 203(f) as it applied to fluoride. Modine is
currently in compliance with the effluent standard for
fluoride but will violate the standard when they start up
their recycle system in December of 1974.
From all of the above the Board draws the conclusion
ti at after completion of the compliance plan Nodine’s discharge
slould have a negligible effect on the receiving stream. It
c~nalso be concluded that in the interim period (between
nc
.~
and December, 1974) the effect on the stream should be
irdcior. The Board will on the basis of facts elicited, grant
tk.~ requested variance relief. The variance from Rule 203(f)
aE it applies to fluoride and total dissolved solids will
bc ~ome effective when Nadine begins its recycle system.
A bond will not be required because Modine should have
al.eady completed the program to recycle its effluent. Any
future recuest to extend this variance must show that Modine’s
discharge has not caused a degradation of the stream and
must contain a thorough exploration of alternate compliance
alternatives.
This Opinion constitutes the Board’s findings of facts
and conclusions of law.
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OR~ER
IT IS THE ORDER OF THE Pollution Control Board that:
1. The unnamed tributary into which Modine discharges is
not classified as secondary contact water as per Rule
302(k)
2. Variance from
Rule 404 is dismissed as moot in that the
Board determines that under the dictates of Rule 404(f) (ii)
no violation exists.
3. Variance is granted to Modine from Rule 408(a) as it
applies to zinc until January 15, 1974.
4. Variance is granted to Modine from Rule 203(f) as it
applies to fluoride and total dissolved solids until
October 10, 1975.
5. Variance is granted from Rule 1002 so as to allow
Petitioner to file a project completion schedule.
The granting of the variance from Rules 203(f) and 408(a) is
conditioned upon the filing of construction and operating
permit applications; and Modine’s discharge is not to exceed
2.5 mg/i of fluoride and 2200 mg/i of total dissolved solids.
IT IS SO ORDERED.
Mr. Marder dissents.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order
were a~optedon the
fl~\
day of October, 1974 by a vote
of
L4_\
rk
Illinois Pollutio Control Board
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