13—17
A. There might have been.Q. Could it be 11?
A. It is possible.Q. So that it is possible that that is 11 intol-
A. That is possible.”
(R. Pp. 174—175)
that you know of?
A. Oh, upward of 30 or 40.”
CR. P. 189)

ILLINOIS POLLUTION CONTROL BOARD

July 11, 1974

MODINE MANUFACTURING CO.

PETITIONER

)

PCB 74—14

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

MR. RICHARD 1, KISSEL, ATTORNEY, 

behalf

of MODINE MANUFACTURING

co,

MR. JOHN T, BERNBOM & MR. JAMES SCHLIFKE, ATTORNEYS, in behalf of

the

ENVIRONMENTAL PROTECTION AGENCY

OPINION AND ORDER

OF THE BOARD 

(by Mr. Marder)

This action involves a request for variance

filed January 

1974k

by Modine Manufacturing Co. (Petitioner).

Relief

is sought 

from

Rule

408 (a) as it applies to zinc

until 

December 1974, 404 (f) unless

the

Board considers Petitioner’s

lagoon to be a 404 Cc) (iii) exemption,

and such other rules applicable so as to allow

the

Agency to grant

construction and operating permits,

The Agency filed its recommendation on February 21, 1974, stating

that the variance should be denied.

The Agency also states that

Pet-

itioner’s receiving stream is 

not entitled to be classified as second-

ary contact

and

therefore certain other parameters

of

Petitioner’s

discharges

will not comply with applicable discharge standards.

Hearing was held on April 26, 1974, at which time detailed testi-

mony was elicited on the above points.

Modine Manufacturing Co. owns and operates a facility which produces

air conditioning condenser and evaporator coils at Rinqwood, Illinois

(McHenry County). These are aluminum heat exchanges for the automobile,

commercial, and 

residential market (R. 8)  Said facility employs approx-

imately 180 employees at an annual payroll of approximately $1,300,000.

The instant variance request centers 

around discharges from Petition-

er~s present, and anticipated future, treatment system. Petitioner~s

Exhibits I and 2 are flow diagrams depicting present and future waste

flow respectively. Mr. Steven Schwartz (environmental officer 

for Mod-

me) testified as to both of these exhibits.

Petitionervs 

Exhibit

#1 shows that

waste flows are generated from a

number of sources.

One source is blowdown from a scrubber used as an

—

air pollution device on Petitioner 

s Red—:Ray Oven. ApproximateLy 200

ppm of

water 

is used as the scrubbant. This

water 

recirculated

after neutralization

with the exception of a 50 ppm hiowdown which

enters the first stage of a three—stage lagoon 

CR, 19) A second source

of waste is in the

form of quench 

water from Petiiioner~s

Water 

Quench

Chamber.

This 

system consists of once through water used for cleaning

and coo:Ling of parts and is approximateLy on the order of 200 gpm.

Th:is

~aenca water a~s ares *o the head uf a1’ e ar~ree-~tnge lagocn

The

r~j ~,

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 qpd with the influent and effluent rate the same

(R.

21)

The discharge 

is then to

an

unnamed tributary 

to Dutch Creeh,

The present discharge is of the following nature (R. 23)

Flow

390,000 pgd

BOD5

5-10 ppm

D,O.

Neon Saturation 7-8 ppm

Zinc

1—30 

ppm

Fluoride     

2-2.5

opm (calcium fluoride)

Suspended Solids 4 ppm

Total Solids

800 ppm

7-8

Petitioner~s Exhibit #2 

details

the proposed waste f:Low, The essen-

tial difference is that 

90—95 of the influent to the first lagoon 

will

be recycled 

for reuse, :Leaving a net flow to the receiving stream of

40,000 

gpd (R. 27),

Mr.

Schwartz testified as to his

experience with Modine’s Clinton,

Tennessee, plant, 

which is presently using similar technology (R, 

28),

He related that the Clinton operation

is

ess~ntia1ly 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, i973,~

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 ex-

perience, Mr. Schwartz anticipates the following effluent criteria

(R.

35)

Flow

40,000

gpd

BOD

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 (R, 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 men-

tioned were reverse osmosis and total evaporation, both of which Mr.

Schwartz felt were not feasible (H, 42)

Mr.,

Donald 

Schwegei (Baxter

—

—3—

Woodinan

Engineering) also testified that he felt. the alternatives

were not feasible (R. 80).

Petitioner’s waste discharges into an

unnamed

tributary of

Dutch

Creek.

Petitioner’s Exhibit 13 is a

map

of the northeast region of

Illinois (from Illinois Water Survey Bulletin 

57). The 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 Mod-

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.

One

of the major

points 

of contention in the

instant

case is which

classification shall be given to the tributary into which 

Modine 

dis-

charges. 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 qual-

ity

standrds, 

e.g.:

Petitioner’s Expected Discharge

Rule 203

Rule 

408

BOD

5-10

ppm

4

ppifl   

4 ppfl*

Su$ended Solids

4

ppm

ppm*  

5 ppm*

zinc

ppm

1 ppm  

1 ppm

Fluoride

2.5

ppm

1.4

ppm

2.5

ppm

Total Solids

2200

ppm

1000 ppm 3500

ppm max.

8.5

6.5—9.0

5—10

If 404 (f) applies, however, Pfeffer exception is 10 mg/l BOD5, 12

mg/l SS 

and

Petitioner is seeking a 404 (f) (i) exception.

Part 

III of Chapter 

3 defines secondary contact waters. Rule 302

(k) (as 

amended February

14, 1974 states:

“Secondary 

Contact and 

Indigenous 

Aquatic Life Waters:

Secondary contact and indigenous aquatic life waters

are those waters which will be appropriate for all sec-

ondary contact uses and

which

will be capable of support-

ing an indigenous aquatic life limited only by the physi-

cal configuration of the body of water, characteristics

and origin of the water, and the presence of contaminants

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 satis-

factorily maintained even in the absence of contaminants.”

Rule 

205

then 

states the

criteria which a secondary

contact 

and in-

digenous aquatic life water

must 

conform with.

13—17

Petitioner contends that Rule 302 (k) app:Lies to its receiving

stream.

The burden of proof rests squarely with Petitioner.

The

Board

in its Opinion on this matter said:

~Part III contains water use designations.

All waters

are desfgnated for general use except those in the re-

stricted category, which has here been broadened in re-

sponse to testimony to include waters whose flow is too

low to support aquatic life, This should relieve the bur-

den of treatment beyond the effluent standards for dischar-

ges to intermittent streams. Such extra effort is diffi~’

cult to justify when it will not result in a satisfactory

aquatic life because of insufficient f1ow.~ (Vol. 3, P. 765)

Petitioner is then faced with the task of proving a very important

element before obtaining such a reclassification:

That a diversified aquatic life could not be present, absent Pet-

itioner’s presence of contaminants.

This Board does not treat reclassification of streams lightly; each

case must stand on its own firm foundation. Each case must be proved

up on an individual basis. The concept of hitchhiking on past Board

determinations will not suffice as adequately fulfilling a burden of

proof~

Petitioner’s allegations of proof centered about the testimony

of Dr. Wahtola (Limnetics, Inc.)., who was engaged by Petitioner 

study

the aquatic 

biota as well as chemical~constituency of the

sub—

jectstream.

Petitioner’s

Exhibit 

is a summary report of this

work. Dr. Wahtola 

testified that the study conducted was oriented

to observe members of the phytoplankton, zooplankton, benthos, and

fish which were present. In his

opinion a diversified aquatic biota

is that not only should there be the presence of the various trophic

levels but that there should be also some sort of balance between

the organisms (R. 115).

Dr. Wahtola conducted his test on December 27,

1973, 

and found

that at that time a diversified aquatic biota was present.

However,

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 fail

under 

Rule 301 (k),

He based his opinion on the

following statements:

“1,

If

you were to have all members of trophic levels

present which includes the phytoplankton,

zooplank-

ton, the benthos, the fishes, and if you go further

and

say

that you must have in your definition of di-

versified

aquatic biota the stipulation that there be

stability,

then you are talking probably of a system

—

which is well addressed in a paper by

Howard

Sanders.

And he discusses diversity.

The

title of the paper is ‘Marine i3enthi~ Diversi-

ty (Note Pet.

Ex. 6) :  

A Comparative Study.’

(P. 119)

2. “THE WITNESS: 

When

considering diversity, di-

versity also has to have in 

it a

function of

stability, or a time clause.

And

Odum, who is a well-known ecologist. 

Wil-

ham

and

Dorris, 

who have done a great deal of

work with diversity,

and Shannon—Weaver,

web

have developed an index which is probably one

of the better known indices, have all expressed

opinions on what diversity really means, And

diversity is a dimensionless number.

So, wheth-

er one is talking about plants, animals, marine

organisms, fresh water organisms, the number

that you derive eventually will give you 

an an-

swer

that relates to diversity.

And diversity as described by Sanders and de-

scribed by others is one that if you have a corn-

munity, the con~nunity itself is dictated or can

have its function, ecological function dictated.

And what I mean by that is that you have commun-

ities which are physically controlled,

and you

have those which are biologically accommodated.

And to elaborate on that, a community that is

physically controlled is one that undergoes sev-

ere physical stress, 

that

the biological commun-

ity can do

nothing about the physical system. 

And

an example of that would be the inter—tidal shore

as far as an ocean is concerned and where it goes

from wetness to dryness in a 

matter of hours on a

daily basis,

Another example could be the creek that Modine

is discharging into, that when it goes dry that

there is a 

severe biological stress placed on it,

or a physical stress placed on 

the

biological corn—

munity.

Temperature will do the same thing, extreme

fluctuations in temperature. So that a community

that is physically controlled usually has a very

low diversity in comparison with 

one

that is bio-

logically accommodated. An example of a biologi-

cally accommodated community would be one, the

deep oceans where you have very, 

very

narrow lim-

its on the physical community so the biological

community is allowed to progress and become more

diverse.

13— 19

—6—

One of the theories proposed about diversity

is that with time, you will have a greater divers-

ity provided the biological community is allowed

to progress without the physical interference.

And now those are the two extremes.

And

if

you are talking of all

the entire spectrum,

streams, lakes, rivers, all fall into different

categories. To bring 

it to fresh water, Lake

Baikal is several million years old. The species

diversity within that lake is tremendous simply

due to the fact that the genetic pool is allowed

to remain and stay throughout millions of years

so that there is adaptation. There is evolution

going on within that system.

So that if you now look at a fresh water sys-

tem such as Lake Baikal, coming here to the Uni-

ted States and say we have a lake that is only

ten thousand years old, in comparison it is not

a very diverse system.

If you go even further, then, and go to a

rivering system, the organisms in a river as com-

pared to a lake would not be considered as diverse.

And if you go even further down the scale, and

that being to Modine Creek or the creek, the 

un-

named tributary into which Modine is 

discharging,

the genetic pool in that instance would not have

the opportunity in all instances to replenish and

become diverse.

So that through sampling on any one day, you

could find if or 

if not a community is diverse

in

terms of

the formula. But will it~through

eons of time maintain that diversity, and the an-

swer is in this particular instance probably not.

So that is the basis for

my

decision.”

(R. 123—126)

Dr. Wahtola 

concludes

that because of the stress placed on the

stream, stability is impossible, and therefore a consistent diverse

aquatic biota is also non-existent.

Under cross-examination counsel brought up the concept of aesti—

vation (hibernation) of aquatic organisms and suggested that even if

the stream had no flow a gene pool could exist due to small pools of

entrapped water and the concept of aestivation. Dr. Wahtola replied

that “not all organisms aestivate” (H. 136) 

and that even if small

pools were present, this would not change his opinion on diversity

(R, 140)

When Dr. Wahtola was

asked if he felt 

there

were any biologists

—

20

—7

who would agree 

that a diversified aquatic biota could include a

stream that did not exhibit different trophic levels, he replied,

“I don’t believe so” (R. 148)

The Agency called Robert Taylor and Wallace Matsunaga (Environmental

Protection Agency biologists) to testify as to the condition of the un-

named stream and its ability to carry a diversified aquatic biota. Mr.

Matsunaga testified as to a stream survey conducted around 

Modirie

‘S

outfall. He testified that his sampling consisted of macroinvertobrate

population, which does not include ~hytoplankton, zooolankton, 

or fish.

Mr. Matsunaga made no determination of whether the stream was or was

not supporting a diverse aquatic biota (P. 173)

Mr. Tucker stressed that sampling of only macroinvertebrates is a

good indication that different levels of trophic life exist (and thus

a diversified biota) 

that the presence of macroinvertebrates indi-

cates that there are things for 

them to eat, and

this indicates a food

chain for higher forms of life (H, 182)

Mr. Tucker testified as to

the potential for 

the stream to maintain a diversified aquatic biota,

e.g.

:  “In some areas it exists, the potential 

should be

there’ (H. 184)

“Question: Would you

say that diversified aquatic

biota exists in this stream even when it is not

flowing?

Answer: I would say that the potential for the

stream to rev~taIize itself is there as soon as

the water runs.” (H. 185)

The weight 

the evidence is strongly in favor 

of Petitioner

on

this point. It would seem that in the instant case, 

Dr. Wabtola’s

testimony would lead the board to grant the 302 (k) classification.

However, as mentioned above, such a determination cannot be 

made

lightly. In the instant case the flow is said 

he non-existent

35—40 of the time. This, 

coupled with

Dr. Wahtoia’s 

testimony,

along with testimony 

stating that Modine’s flow has (and will have)

a minor if any effect on the stream (see below) 

allows 

the Board to

grant the 302 (k) exception, and we shall so order. It must be remem-

bered that the Board’s point of reference in this discussion is just

upstream of Petitioner’s discharge,

Another 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 

HOD5 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 popu-

lation equivalent; and

B) The source is sufficiently isolated that combin-

ing with other sources to aggregate 2500 popula-

tion equivalent or more is not practicable;

and

C)  The lagoons are properly constructed, maintained,

and operated; and

13

1))

The

effluent does not, alone, or in conibin—

ation, cause a violation of applicable wat-

er quality standards.

Each of these conditions must be studied separately for applica—

bility.

Item

(B) is generally accepted 

to have been met (Agency Brief Pg.

10-li)

Item (C)

is contested by the Agency. Under direct examination Mr.

Schwartz

testif:Led that the lagoons are and will be properly main-

tained 

and

operated (P. 44). The Agency, however, felt that the 

la-

goon s not properly maintained and operated. The Agency offers no

proof

of this statement, nor does the Petitioner, The Agency con—

Lends that

results of the Matsunaga tests show that the condition

olt,riu

stream changes from unbalanced to semi-polluted across the

hodinc discharge point

(covered 

environmental impact portion of

this

Opinion) 

and that

this could be due to poor lagoon operation

(Brief

Pg. ii). The Board has no strong indication that the lagoons

are improperly maintained. Had the

Agency doubted the validity of

Schwartz’s statement, they

had every opportunity to rebut at hearing.

Item (D) is met, considering our 

above finding that rule 307 (k)

applies

item (A)

however, does not seem applicable to the 

Board. 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 PB. 

Thi~

load will be discharged even after

the compliance plan is completed. One may argue that this definition

excessively strict in light of the fact that Petitioner intends to

recycle 90 of its effluent. Using this theory the calculation point

would be at the head of the second stage lagoon. This argument has

merit and could be accepted by the Board were other conditions exist-

ing.

The

Board in adopting this rule noted that three-stage lagoons are

“dependable

and economicaLLy reasonable.” Opinion on R-70—8, 71-14,

71-20, Pg. 17. This language was incorporated to indicate that econ-

omics are 

concern in allowing such an exemption. In the instant

case the economics do not indicate that an exception allowing 30 mg/l

BOD5 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 keep-

ing with this dictate. Petitioner’s discharge will meet a 5-10 mg/i

HOD5 and 4 mg/i S.S. level which is well within the bounds of a Pfeff-

er exemption of 10 mg/i HOD5 and 5 mg/i S.S. The Board feel that upon

application for permit to the Agency, Petitioner has met the require-

ments 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 in-

terpretation 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) (ii) there is no present violation.

13—22

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.

must then explore the areas of compliance

plans, hardship, and en-

vironmental impact 

in reaching this decision.

Compliance Plan:

As mentioned above, Petitioner has submitted

a compliance plan which will reduce the zinc concentrations

within the applicable regulations.

Subject to the above finding

that 302 (k) applies, this plan wiLi bring about compliance in all

respects.

The delay of starting this compliance plan was explained by Mr.

Schwartz by comparing

the instant plan with that used in the Clin-

ton, Tennessee, plant. Mr. Schwartz claims that the 

concept of re-

cycle was novel to the industry (R. 33)

and that 

would not have

been economically feasible to upgrade both (Clinton and Rinqwood)

plants at 

the same

time (R. 

51). This was because due to the novel-

ty 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 addit-

ion to the Ringwood plant. Mr. Schwartz feels the possibility of a

December 1974 startup is very good (P. 55).

Due to the novelty of

this process, the Board feels that the 

tech-

nical approach taken to gain compliance

e.g., learning from exper-

ience and then applying it to Rinqwood

was viable and shows

the

necessary elements to be termed good faith.

________

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 affect the livelihood of 158 em-

ployees.

2. Modine’s contribution to the tax base of 

the

community and the

gross income of the community

could be curtailed.

The Agency does not refute these allegations,

but 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 compli-

ance with Rule 203. Having found that 302 (k) will apply in the

instant case, this point is moot.

13

—

—

10

—

The Board finds that, although marginal, a hardship case is 

evident.

Environmental Impact: As mentioned, many findings in this case were

diffiR~ultto render. Quite a bit of 

our decision rests on the poten-

tial

for environmental harm presently or anticipated to be caused by

Petitioner’s discharges.

The Agency introduced Exhibits #5 and #6 which are summaries of

stream analysis made around Modine’s discharge. The conclusion drawn

from these exhibits was that the area directly above Nodine’s dis-

charge was termed unbalanced, and those directly below 

and

1/4 mile

downstream semipolluted and polluted respectively. These determina-

tions were based on the existence or lack of existence of tolerant

species. The following definitions

help in interpreting these find-

ings:

“Balanced environment: one in which conditions are main-

tained which are capable of supporting a variety of org-

anisms, mostly intolerant species from diversified taxo—

nomic groups.

Unbalanced environment: one in which the balance of life

~~liescribed

for a

balanced environment has been disrupt-

ed 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.

Semipolluted 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 se-

vere conditions.”

(P. Pp. 162—163)

Under cross-examination there was much discussion as to how toler-

ant 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 stream. The following examples of

testimony reflect this:

“Q. Let’s take Page Cl of EPA Exhibit No. 

6, line 20,

which has, ‘Midge larvae, 11.’

Are those all intolerant organisms?

A. I would not be able to say.

Q. You mean just identifying a midge larvae doesn’t

mean

it is tolerant, does it?

A. As a general group, midges are tolerant,

but

——

Could there be some midges in this sample that

were

intolerant?

13 —24

—

11

—

A. There might have been.

Q. Could it be 11?

A. It is possible.

Q. So that it is possible that that is 11 intol-

erant organisms rather

than

tolerant, isn’t

it?

A. That is possible.”

(R. Pp. 174—175)

However, Mr 

•

Tucker stated thai

midge

larvae are almost

univers-

ally classified as intolerant

and

that the sample

and

classification

are correct, e.g.:

“Q. In fact,

how

many of the midge larvae, or ap-

proximately

how

many of the nidge larvae spec-

ies 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.

And

about how 

many

species of midge larvae

that you know of?

A. Oh, upward of 30 or 40.”

CR. P.

189)

The inference from these discussions is that 

Modine’ 

s discharge

as it exists is at least contributing to the stream’s degradation.

It is very important to note, however, that both

Tucker

and

Matsun-

aga (both 

Agency 

witnesses) tended to hedge on whether Modine

‘5

discharge

was the direct 

cause of the apparent degradation (R. 183,

R. 167 (“probable cause not definitiv~”).

Dr. Wahtola testified (R. 127) that in his opinion it is well doc-

umented that zinc concentrations presently found in Petitioner’s 

dis-

charge

can be lethal; 

however, 

at the time of his sampling he found

no adverse effects on the aquatic biota, and Modine’s discharge had

very little effect on the stream. It must be remembered that the

compliance plan calls for a 1.0

mg/l 

zinc concentration by

December

1974, which would be acceptable. Dr. Wahtola next addressed himself

to the fluoride discharges (R. 128). He cited a study conducted by

the Colorado 

School 

of Mines (and work by McKee & Wolfe of 

Californ-

ia) 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 in calcium (R. 23).

From

all of the above 

the

Board draws

the conclusion that after

completion of the compliance plan Petitioner’s

discharge

will have a

negligible effect on the receiving stream. It can also be concluded

that in the interim period (between

now

and

December

1974) the effect

on the stream should be minor. The Board will on the basis of facts

elicited grant the requested variance.

13—

—

In closing the Board

will again detail the reasons for its unique

decision to grant reclassification

pursuant to Rule 302 (k). In the

instant case there can be no doubt that 

the stream in question is in-

termittent and thus was a potential 302 (k) candidate,

But the mere

fact that it is intermittent 

does not suffice alone

to

grant

reclass-

ification. Proof must be elicited that the stream could not support

a diverse aquatic biota absent Petitioner’s contaminants. Here Pet-

itioner presented expert testimony which was essentially unrebutted

by Respondent. It

is the very important 

fact

that such testimony was

not adequately countered that prompts 

the Board

to take the reclassi-

fication action. Future cases of this nature will require a 

similar

bi~denof proof and

adequate rebuttal testimony will naturally weigh

heaviLy in the Board’s final decision~

This Opinion constitutes the findings

of fact and conclusions of

law of the

Board.

ORDER

IT IS THE ORDER of the Pollution Control Board that:

1. The unnamed 

tributary

into which Modine discharges will

be classified as secondary contact water 

as per

Rule 302

(k) at the point at. 

which it receives Nodine’s discharge.

2. Variance from Rule 404

is dismissed 

as moot in that the

Board determines that under 

the dictates of

Rule 

404 (f)

no violation exists..

~3.

Variance is granted to Petitioner

from Rule 408 (a) as

it applies 

zinc until 

January 15, 1975,

4.

Variance

is granted from Rule :Lo02 so as to allow Petition-

er to file a project completion schedule,

Mr. Dumelle

dissents.

I, Christan L Moffett, Clerk of the Illinois

Pollution Control

Board, certify th~t the above Opin~Lon and Order was adopted by the

Board on the

day of

l974~ by a vote of

—26