ILLINOIS

POLLUTION

CONTROL BOARD

July

ii,

1974

MODINE MANUFACTURING

COMPANY

)

PCB 74~14

ENVIRONMENTAL PROTECTION AGENCY

DISSENTING OPINION

(by Mr.

Dumelle):

This case hinges about the reclassification of~•~~~e

receiving stream

to

a use lesser than

general

use,

I

dissent

in

this

case

for

basically

four

reasons.

They

are:

1.

The

reclassification

is

vague.

2.

The reclassification

is

of

doubtful

legality.

3.

The reclassification is contrary

to

the intent

of

the

Regulation.

4.

The reclassification is poor public policy.

~ness

The discharge of Modine

is

to an unnamed tributary to

Dutch Creek,

Nowhere

in the opinion or order is the length

of it given.

The order

(par.

1)

itself reclassifies

the stream

“at the point at which it receives Modine~sdischarqe~. Clas-

sification

for any use cannot be at

a

“point”

hut

must be

for

some stated length which is not given.

Doubtful Legality

The Environmental Protection Act discusses the classification

by the Board of waters of the State

(Sec.

27)

.

The

intent

is

obvious that reclassifications are to be handled in requlatorv

and not in adjudicatory proceedings.

How was the public to know

that

a

stream

was

to

he

downgraded

in

u~a

from

a public notice

on

this

variance

proceeding?

Did

the

“reclassification” procedure

meet the Federal notice requirements in order

that

it be acceptable

to the Administrator of the

U.S. Environmental Protection

Agency?

Will the Illinois Environmental Protection Agency now submit this

variance case to the Administrator pursuant to Sec.

4(m)

of the Act

and ask that Federal approval be given to this change in the Illinois

implementation plan?

To ask these questions is to answer

them.

The “reclassification” imposed in the instant case is probably

null and void and of no legal effect.

13—27

---

—2—

Intent of the Regulation

When Rule 302(k) was adopted I was an active participant

in the Board discussion at the time,

I

can

attest

that

I

asked

for Rule

302(k)

to prevent the unneeded construction of expensive

ammonia removal processes at waste treatment plants.

I cited

the example of shallow streams without adequate shade where,

in

hot spells, the water temperature essentially follows air tempera—

tures~

In these cases,

fish could not live and strict adherence

to

the

onmonia

water quality standard

(1.5 mg/l

—

Rule

203(f))

would

be exeensive and not

needed.

In this

erocceding

both

the

petitioner

and

the

Agency

have

misreut Rule

302 1k)

.

Their testimony has centered around the

low flow characterastics upstream of Modine~sdischarge and

whether or not

a

balanced

aquatic

biota

could

be

maintained

in

these

watcrcc under low flow

conditions.

Below

Modine

and

by

virtue

at

its

discharge,

the

flow

is

continuous.

If

the

contarcetc;

in Modine

s discharge were absent,

a diversified

antic

biota

certairhLy

would

result.

The

intent

of

Rule

302

()

was

to

require

continuous

dischargers

(as

Modine)

to make their

effluecitu

free

from

contamrnants

so

as

to

be

sufficient

to

sunnaru

a diversified

aquatic

biota

absent

physical

impediments

such

~sslack of

shade

or lack of depth.

Is

poor ~uhlic police

to

reclassify

waters in

a

variance

procece Inc even assuming it were somehow legal to do so

Suopos.e

some dicchnrqe.r asked

that anca~orriver

(the .rdssissippi

,

the

1111

eec.

)

or a

lake

(Lake hickman)

be rocl.ass:Lfied. in

c

~

I

~

2on~ cn~~ocr tt~s

)~

ceur~~

lIen. how

can. it

reciass:L.fv

icc this case?

The

i.ntent of Rule

302 (1) was to make disetiarpers meet. water

a

~ras

e

nlIlnccc~e

~ecc~sccsn~r~ ~

~

~

o~xxix

Icr

~ o~.~-ca~c,pcrlI~ a

~ccc’

c~_ccr

of

S 000

toxic mineral

,

~~sence

of habitat,

etc.

)

mitigate against

creation of

a diversli:icd aquatic blota,

I, Christan L. Moffet~~~

Clerk

of

the

Board,

hereby

certify

that

the

above

Dissenting

Opinion

was

submitted

on

this

day of ~

C

ristan

L.

Moffet~t

Clerk of the Board

Submitted he:

0.

Dumelle

13

—28