ILLINOIS POLLUTION CONTROL BOARD
September
2, 1976
CATERPILLAR TRACTOR COMPANY,
)
Petitioner,
v.
)
PCB 76—169
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Young):
This matter comes before the Board on the variance petition
filed on June
9,
1976 by Caterpillar Tractor Company seeking
relief from Rules 404(b) (ii)
and 408 of Chapter
3:
Water Pollu-
tion Rules and Regulations
for its foundry located in Mapleton,
Illinois.
An Agency Recommendation was filed on August
6,
1976
and Caterpillar filed its Objection to the Agency Recommendation
on September
1,
1976; no hearing was held
in this matter.
Approximately 3,200 persons are employed at the Mapleton
foundry which processes, melts and casts ferrous metals.
The
foundry products are processed in other Caterpillar plants for
ultimate use with Caterpillar’s final products, which are earth—
moving and construction equipment and diesel engines.
The foundry
produces an industrial wastewater resulting from various plant
processes including metal removal, cleaning and coating operations,
the processing and electric induction melting of raw materials,
and from the foundry’s sanitary waste treatment plant.
These
discharges,
all of which are tributary to the Illinois River,
occur through four outfalls, a clear water waste outfall, sani-
tary treatment plant outfall,
foundry industrial waste outfall,
and West Lake
Dust
Collection Lagoon outfall.
The current treatment
for each outfall
is as
follows:
The
effluent at the industrial outfall
is given sedimentation, aera-
tion,
chemical coagulation and flotation treatment and its sludge
is transported for land disposal.
The effluent from the sanitary
sewer is treated in a package activated sludge treatment plant
with chlorination.
Dust collector wastewater
is sent to the West
Lake Lagoon for suspended solids removal.
Caterpillar alleges
that although it has been diligently attempting to comply with
Rules 404 and 408,
its attempts have proven unsuccessful.
Caterpillar is in the process of building an addition to
the existing foundry which will double the overall size of the
facility and a new wastewater treatment plant
is also being con-
structed
(at
a cost of $10.3 million) which will serve both the
existing foundry and new addition.
23—401
—2—
Instead of improving its existing wastewater treatment plant,
Caterpillar chose in 1972 to forego such improvements in favor of
constructing an entirely new wastewater treatment plant facility
in conjunction with the planned expansion to its foundry.
Cater-
pillar contends that it would have been a useless act to attempt
compliance on ~n interim basis
in view of the fact that by the
time adequate upgrading of the existing treatment plant could be
completed,
construction of the new waste treatment plant would
already be underway.
Caterpillar also considered and rejected
the alternative of constructing a new waste water treatment facility
with the capability of handling the new foundry addition, yet to
be designed.
This alternative was rejected because Caterpillar
felt it would be impractical
to attempt to design a new treatment
plant in “the dark”.
The alternative selected by Caterpillar was
to proceed with the design of the new foundry and waste treatment
plant in an integrated manner without instituting interim control
measures which Caterpillar alleges would have been wasteful and
economically unjustifiable.
Before reaching a discussion of this petition on the merits,
it should be pointed out that the petition did not satisfactorily
explain, or even attempt for that matter, why this petition was
not filed
in 1972 when Caterpillar’s plans were being formulated.
After a delay of four years, and with only two years remaining
before the new treatment plant is operational, this petition was
finally submitted.
By following this procedure,
Caterpillar has
certainly removed from the Board any flexibility which it could
exercise
in the grant of this variance.
Conditions that may have
been economically reasonable for the Board to impose in 1972 for
the six years interim period may not be practicable for the two
year period yet remaining.
Caterpillar alleges four reasons why the variance should be
granted (Petition p.
12,
13).
(1)
Caterpillar has diligently been engaged in efforts
to design and construct a new waste treatment plant
which will serve the entire expanded
foundry.
had
Caterpillar embarked on a course of compliance in
1972 by upgrading its existing waste treatment plant,
a substantial waste of effort and money would have
resulted.
(2)
The request for a variance until August
31,
1978,
is a reasonable term for design, installation and
testing of the new waste treatment plant.
(3)
During the period for which the variance is sought,
there will be no significant environmental harm.
23
—
402
—3—
(4)
Without a variance, Caterpillar may be subject to
an enforcement case which could jeopardize its
entire operations and affect the livelihood of its
3,200 employees.
The Board does not agree that Caterpillar’s only reasonable
course of action was to delay construction of the new treatment
plant until after the new foundry addition was designed.
Further-
more, the Board is unable to find that a substantial waste of
effort and money would have resulted if Caterpillar had embarked
on a course of compliance in 1972.
Simply stated,
there are no
facts or data in this petition supporting the allegation of the
high cost of attempting interim compliance.
Absent such data
in the petition,
the Board is unable to find that interim com-
pliance,
from 1972 to 1978, would have imposed an arbitrary or
unreasonable hardship on Caterpillar.
For that matter,
the Board
is unable to find that requiring interim compliance
for the re-
maining two years, until August 1978, would impose an arbitrary
or unreasonable hardship on Caterpillar.
While the Board finds that the second allegation is important
in determining the length or duration of a variance, this allega-
tion alone does not assist in the threshold determination whether
Caterpillar is entitled to a variance.
Only after the Board
determines that Caterpillar is entitled to a variance does the
Board concern itself with determining the duration of the grant.
As support for the third allegation Caterpillar supplies data
indicating the present water quality of the river prior to the
Mapleton discharge
is virtually identical to that after the dis-
charge
(Petition,
Exhibit C).
Downstream concentration values
for the various parameters were arrived at through the use of
theoretical calculations, no actual testing data was supplied.
While the Board certainly has no rule against the use of such
calculations, the Board places a great deal of weight to the
manner or method used to arrive at these theoretical values.
In this instance, Caterpillar did not provide its method except
to state that
the concentration of
the
parameters
in
its
dis—
charqe
was based on the
1975 average.
W
I
thout
t he
i
nd
US 100
of
I Ls
theoretica
I model
,
the
Board
is
unable
Lo de
Lurmine
whether
Caterpillar’s theoretical values are proper or acceptable.
Additionally,
the Water Quality Standards must be met at the edge
of the mixing zone and no information relative thereto was presented
in the petition.
Without this knowledge,
the Board is unable to
decide what effect the discharge may have on the Illinois River,
and the Board certainly is not able to find that the discharge
will not cause any significant environmental harm.
Additionally,
no data concerning the volume of daily effluent discharges were
provided making any meaningful analysis impossible.
Regarding Caterpillar’s fourth alleged hardship, the Board
agrees with Caterpillar that if this variance
is denied, Cater-
pillar could be subject to an enforcement action.
By definition,
—4—
a variance
is
a shield from prosecution.
The Board does not wish
to engage in speculation, however,
as to whether such action could
jeopardize the entire plant operation.
Whatever the case may
be,
it appears to the Board that Caterpillar assumed the risk
in 1972 when it deliberately decided to follow its present
course of action, and for that reason, whatever hardship that
may exist is self-imposed.
In consideration of the foregoing, the Board finds that
this petition must be dismissed.
Caterpillar simply has not met
the burden imposed on those requesting a variance from the regu—
lations.
While the Board has given considerable attention to
the fact that Caterpillar has instituted what appears to be a
satisfactory program to finally achieve compliance, that fact
alone is not enough to entitle Caterpillar to this variance.
This variance request is basically concerned with interim
standards, standards that would apply until the new treatment
plant is operational.
The institution of a program to achieve
compliance in the long run does not excuse one from utilizing
reasonable methods of control on an interim basis.
Although
Caterpillar alleges that it would have to bear an arbitrary and
unreasonable hardship if forced to presently comply with the
regulations, absolutely no facts or data were presented supporting
this contention.
While Caterpillar alleged that its discharge
would cause no significant environmental harm,
no data other than
unsupported theoretical values and no information regarding the
concentrations at the edge of the mixing zone were presented
supporting such a conclusion.
Without the benefits of Caterpillar’s
modeling and method, including the theoretical calculations, the
Board is unable to reach any decision as to possible environmental
effects.
Lastly, on the basis of the record presently before us,
the Board finds that whatever hardship Caterpillar presently faces
appears to be self-imposed.
This situation is the direct result
of a management decision made in 1972.
If Caterpillar can remedy these inadequacies and submits a
new variance petition, they should include in that petition reasons
for choosing the particular interim discharge limitations requested.
After study of the discharge data supplied
(Exhibit B1-B5),
the
Board is unable to understand why such high interim limitations
(p.
4)
are needed.
As with other parts of this petition,
facts
supporting their conclusions are necessary.
Although Caterpillar requested a hearing in its Objection
to the Agency Recommendation filed September
1,
1976, this request
must be denied for two different and unrelated reasons.
First,
the Board finds the petition to be inadequate and concludes that
no meaningful hearing could occur with the present petition as its
basis.
Caterpillar states in the Objection that the 1975 effluent
data
(and the data to which a hearing on the present petition
would be limited)
is no longer current or reliable.
No useful
purpose could be served by having a hearing on data which Cater-
pillar admits is no longer relevant.
While it may be useful to
have
a hearing concerning 197~data,
in order to allow for proper
23
—
404
—5—
preparation for such hearing by the Agency and the Board,
the
1976 data must be submitted in advance of such hearing as part
of a variance petition itself.
Second, even if the Board con-
cluded that a hearing would be useful, in absence of a waiver
of the 90—day decision period, the request for hearing would
be denied because the request came at such a late date
(84th day)
that it would be impossible for the Board to schedule a hearing
within the statutory decision period.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Petitioner’s, Caterpillar Tractor Company, petition for
variance from Rules 404(b) (ii) and 408~ofChapter
3
is hereby
dismissed without prejudice.
IT IS SO ORDERED.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereb
certify the above Opinion and Order were
adopted on the
~
day of
S~terr~’oe-
,
1976 by a
vote of.5-~
.
I
Christan
L. Moffett, Cl
Illinois Pollution Control Board
23
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405
I