ILLINOIS POLLUTION CONTROL BOARD

September 11,

1986

FRITZ ENTERPRISES,

INC.,

)

Petitioner,

)

v,

)

PCB 86—76

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent,

DISSENTING OPINION

(by B.

Forcade):

I respectfully dissent from the majority’s action reversing

the Agency’s denial of

an air operating permit

for Fritz

Enterprises, Inc.

(“Fritz”).

The primary reason

the Agency

denied the permit was an observed exceedance of the opacity

limitations of

35 Iii.

Admn. Code 212,123, on May 6,

1986.

Thus,

the two primary questions are:

1) was the May 6 observation

accurate and reliable,

2)

is an observed opacity exceedance

adequate justification for permit denial without

a

contemporaneous opportunity for demonstrating compliance with the

mass emission limitations.

The majority answers no

to both

questions, although

a portion of that holding

is by way of dicta.

On May 6, 1986, an Agency employee observed the Fritz plume

in question.

The record demonstrates that the employee was

competent and qualified

to make plume observations, and had made

many such observations

in the past.

The Agency employee

testified that he made

the observation

in accordance with the

relevant reference method, Method

9,

and that the observation

showed an exceedance of the limitations of Section 212.123,

Opposing testimony was presented by a witness for

Fritz,

The

record discloses that this witness was competent and qualified to

make plume observations, and had made many such observations in

the past.

I find no basis

to conclude that one witness was more

qualified or more experienced than the other,

However, the Fritz

witness was evaluating an observation he made on July 18,

1986,

after permit denial,

The Agency witness was evaluating

an

observation

he made on May 6,

1986.

The Agency witness was asked whether

it was ever possible to

obtain

a valid,

i.e., Method

9, opacity reading of the Fritz

plume.

He replied that

it was, based on personal observation and

under

the weather conditions at the time of his observation

(R,

231).

The Fritz witness was repeatedly asked

the same question,

was

it ever possible

to obtain

a valid opacity reading of the

plume.

His most descriptive answer was, “,,.if the conditions

were

at all similar

to the day

I was there,

it would be highly

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improbable

for

a certified smoke reader

ever

to get valid visible

emission readings.”

(R. 179).

He also stated:

It would be very difficult at best to ever

read this plume, though

I suppose it’s within

the realm of possibility that it could be read

if there weren’t,

for instance,

if there

wasn’t visible water vapor

in the plume or

if

the observer could discriminate for instance,

if the emissions were black

and detached

visible water vapor plume

(R.

149)

Therein lies the controversy.

One qualified observer says

“I saw

an exceedance on May 6”.

Another qualified observer says,

“if

conditions on July 18, were similar

to

May 6,

it would be

improbable to get accurate readings.”

I would

not find that an

absolute “Yes,

I saw it.” is adequately refuted by a conditional

statement of improbability,

To further discount the validity of the Agency observation,

the majority cites certain irregularities

in following Method

9.

To

understand these

issues it

is necessary to read Method

9

(40 CFR Part 60, App. A, Meth.

9,

1985) which sets out the

following for procedures

for visual observation:

2. Procedures.

The observer qualified

in accordance with

paragraph

3 of this method shall

use the

following procedures for visually determining

the opacity of emissions:

2.1 Position.

The qualified observer

shall stand at

a distance sufficient to

provide a clear view of the emissions with the

sun oriented

in the 140

sector

to his back.

Consistent with maintaining

the above

requirement, the observer shall,

as much as

possible, make his observations from a

position such that his line of vision is

approximately perpendicular

to the plume

direction,

and when observing opacity of

emissions from rectangular outlets (e.g.,

roof

monitors, open baghouses, noncircular stack),

approximately perpendicular

to the longer axis

o,f

the outlet.

The observer’s line of sight

should not include more than one plume at a

time when multiple stacks are involved, and

in

any case

the observer should make his

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observations with his line of sight

perpendicular to the longer axis of such

a set

of multiple stacks

(e.g.,

stub stacks on

baghouses).

2.2 Field records.

The observer shall

record

the name of the plant, emission

location, type facility, observer’s name and

affiliation, and the date on

a field data

sheet

(Figure 9—1).

The time, estimated

distance

to the emission location, approximate

wind direction,

estimated wind speed,

description of the sky condition (presence and

color of clouds), and plume background are

recorded on

a field data sheet at the time

opacity readings are initiated and completed.

2.3 Observations.

Opacity observations

shall be made

at the point of greatest opacity

in that portion of the plume

where condensed

water vapor

is not present.

The observer

shall not look continuously at

the plume, but

instead shall observe the plume momentarily at

15—second intervals.

2,3.1 Attached steam plumes.

When

condensed water vapor

is present within the

plume as

it emerges from the emission outlet,

opacity observations shall be made beyond

the

point

in the plume at which condensed water

vapor

is

rio longer visible.

The observer

shall

record

the approximate distance from the

emission outlet

to the point

in the plume at

which the observations are made.

2.3.2 Detached steam plume.

When water

vapor

in the plume condenses and becomes

visible at a distinct distance from the

emission outlet,

the opacity of emissions

should be evaluated at the emission outlet

prior

to the condensation of water

vapor

and

the formation of the steam plume.

2,4 Recording observations.

Opacity

observations shall be recorded

to the nearest

5

percent

at

15—second

intervals

on

an

observational

record

sheet.

(See

Figure

9—2

for

an

example.)

A

minimum

of

24

observations

shall

be

recorded,

Each

momentary

observation

recorded

shall

be

deemed

to

represent

the

average opacity of emissions for

a 15—second

period.

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2.5 Data Reduction,

Opacity shall be

determined as

an average

of

24

consecutive

observations recorded

at 15—second

intervals.

Divide the observations recorded

on the record sheet

into sets of

24

consecutive observations.

A set is composed

of any 24 consecutive observations.

Sets need

not be consecutive

in time and in

no case

shall

two sets overlap.

For each set of 24

observations, calculate the average by summing

the opacity of the

24 observations and

dividing this sum by 24.

If an applicable

standard specified an averaging

time requiring

more than 24 observations, calculate the

average for

all observations made during the

specified time period.

Record the average

opacity on a record sheet.

(See Figure 9—1

for

an example.)

The majority first asserts

that by using

the attached plume

method of reading there

is an assumption of visible water

vapor.

In fact, Sections 2.3, 2.3,1, and 2.3,2 are the only

guidance on observations and all three mention condensed water

vapor.

To be

in compliance with the regulatory guidance you must

use those

sections,

The majority claims that the Agency did not calculate the

dew point on the day of the stack test or on the day of the

inspection

(and opacity observation),

Method

9 makes no

reference to recording dew points

as

a necessary condition for a

valid opacity

reading.

Additionally,

the majority claims that the record

“indicates”

that the Agency did not follow the required

methodology as regards data reduction.

The data reduction

concept

is

a method of adding up and averaging

a series of

observations to see

if the resulting number violates the average

limitation.

Since the majority did

riot expand on this

“indication”,

I cannot determine the nature of the problem.

However, data reduction only becomes operable

to determine

if a

series of observations result

in an opacity of greater

than 30

for more than

8 minutes in any

60 minute period.

The same

section that establishes this concept

(

Section 212.123

(b)) also

sets an absolute maximum opacity of 60

which

is never

to be

exceeded. The Agency witness testified that several observations

exceeded 60

opacity

(R.

229).

No data reduction technique is

employed when evaluating compliance with the absolute 60

limitation,

This point seems lost on the majority.

The majority finds the testimony of the Agency witness

regarding the opacity observations

to be inconsistent and

contradictory,

I do not,

The contradictions that occur are

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between what the witness stated

and the checkrnark options on

a

preprinted Agency

form.

Any disparity that exists reflects

consistent statements by the witness

as

to what occurred but

a

failure of the form to have adequate options

to cover

every

nuance.

After

reading

the testimony of the Agency witness, my

impressions of his observations are clear.

I then attempted

to

complete the Federally approved “Record of Visual Determination

of Opacity

“(

40 CFR Part

60, App,

A, Meth.

9, Figure 9—1

& 9—2,

pp.

551—553

(1985)).

I could not provide

a complete unambiguous

description within the confines of the form,

and without such a

form

the observation would not be

in compliance with Method 9,

believe the Agency witness’ statements were

an appropriate effort

to explain what he had seen and were not inconsistent with the

rudimentary data contained on the form.

While the majority sees

great inconsistency from

the Agency witness,

they see none from

the Fritz witness,

I find some inconsistency in a witness who

claims accurate observations of the Fritz stack would be highly

improbable,

and then writes notes on how

to properly read the

Fritz stack

(Respondent’s Ex.

1),

The majority conveniently

avoids this problem by excluding the evidence from the record.

In summary,

I find the opacity issue distills into

a seeming

conflict

in testimony of two people relating

to what was seen or

could have been seen on May

6.

I would

find in favor of the

person who actually made that observation.

I would find an

opacity violation did occur on May 6.

I believe the majority had

to expend substantial effort to

reach

the conclusion

it wanted

in this proceeding,

That effort

reflects substantial discomfort with two aspects of the case,

First,

the majority has substantial discomfort with the opacity

regulations because

it places such high reliance on the veracity

of the observer.

Second, the majority does not appear willing

to

endorse permit denial based on regulatory violations.

The

majority would

prefer that permits be issued where compliance is

technically possible and that any violations of the regulatory

framework be handled through

the enforcement process.

Neither of

these concepts are inherently bad policy.

However,

their

legality and wisdom should be subject to debate

in a regulatory

proceeding

rather

than

implementing

them

on

a

case

by

case

basis

by

factual

manipulation,

Accordingly,

I

dissent.

Bill’ S.

de

Member

of

the

Board

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—6—

I,

Dorothy

N. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the

ab,ov

issenting Opinion was

submitted on the

.71Z

day of

~‘

j~-~-~

,

1986,

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7~

Dorothy

M. Gunn,

Clerk

Illinois Pollution Control Board