ILLINOIS POLLUTION CONTROL BOARD
November 15,
1973
ALLIED
METAL
COMPANY
PETITIONER
v.
)
PCB
73—244
ENVIRONMENTAL PROTECTION AGENCY
)
RESPONDENT
BENJAMIN
R.
COHEN,
ATTOF~NEY, in
behalf
of
ALLIED
METAL
COMPANY
KENNETH
J.
GUMBINER, ASSISTANT ATTORNEY GENERAL,
in
behalf
of
the
ENVIRONMENTAL
PROTECTION
AGENCY
OPINION
AND
ORDER OF THE BOARD
(by Mr. Marder)
This action involves a petition for J”tearing on denial of ap-
plication for operating permit.
Petitioner seeks relief from an
Agency denial of operating permits for its Chicago facilities.
Allied Metal Company owns and operates a metal processing
plant
in
a
Chicago
industrial
area.
In
the
course
of
its
activi-
ties Allied operates two reverberatory furnaces, two sweat furnaces,
two melting pots for zinc and one for lead,
a boring drier and an
afterburner.
Allied Metal Co., Petitioner, filed a Petition for Hearing on
Denial of Application for Operating Permit on June 12, 1973, pursuant
to Section 40 of the Environmental Protection Act
(Illinois Revised
Statutes,
Chapter ill 1/2, Section 40) and Pollution Control Board
Procedural Rule 502.
Permits were denied by the Environmental Pro-
tection Agency,
Respondent herein,
for Petitioner’s Sweat Furnaces
#1 and #2 and Reverberatory Furnaces
#1 and #2 because said emission
sources are not in compliance.
The Petition states that the emissions
from its plant
were in compliance with the Pollution Control Board’s
Air Pollution Regulations.
The Respond~entfiled a Motion for Judg-
ment on June 29, 1973, stating that the issues raised in the above-
mentioned Petition were all res judicata because of the Pollution
Control Boardts decision in
a case concerning these same parties on
a
similar
fact situation rendered on June
7,
1973,
in favor of the
Respondent, said case’s caption being: Environmental Protection Agency
vs. Allied Metal
Co. PCB 72—164. The Petitioner filed a Response to
said Motion on July 6,
1973, stating that this case raised a differ—
~nt issue than PCB 72-164 because Respondent’s permit denial failed
10
—87
—2—
to specifically identify or relate to the issues previously adjudged
in PCB 72-164 to the instant case.
The Board denied the Respondent’s
Motion for Judgment and allowed the case to come to hearing.
When
a determination
is made by the Board,
in an Enforcement act-
ion, that an emission source
is not in compliance with the Environmen-
tal Protection Act and the Regulations related thereto,
there is
a high
possibility that
a permit denial case on the same emission source will
be considered res judicata unless there has been substantial change
in the circumstances.
An operating permit cannot be issued for an em-
ission source that has been found to be in violation in an enforcement
action.
A second hearing on the permit denial is therefore repetitious
and unnecessary.
At first glance,
the present case appears to fall un—
der this general rule.
There was an enforcement action, the abovemen—
tioned PCB 72—164, which
found the emission sources in question in the
instant case in violation of the Act.
However, unlike the general
rule,
the Board here found that there was an issue which the enforcement
action had not made res judicata.
The case therefore went to hearing
and is now before the Board on that issue.
The question of Petitioner’s
compliance with the Pollution Control
Board’s Air Pollution Regulations was first raised by the filing of
an enforcement action by the Respondent on April
20,
1972,
in the
abovementioned case of PCB 72-164.
In that case the Board’s June
7,
1973, order adjudged the Petitioner guilty of causing air pollution,
violating permit requirements and allowing excessive particulate
emissions
as charged in the complaint,
The issue in this case con-
cerns the Respondent’s May 22, 1973,
denial of Petitioner~sapplica-
tion for an operating permit.
The Petitioner’s amended application
in issue here was filed on April 26, 1973
(R.
108).
The issue now
before the Board is different than the issues raised in PCB 72-164.
PCB 72-164 concerned whether there was a violation of the Air Pollu-
tion Regulations.
This
case
is concerned with whether there
is
a
legal basis for the Respondent’s denial of the Petitioner~spermit
application for its sweat furnaces #1 and #2 and reverberatory furn-
aces
#1 and #2.
The finding of
a different issue in this case
is un-
ique to the general rule stated above and will probably not be found
to warrant a hearing on the permit denial in many cases.
A
hearing
was
held
on
this
case
on
September
24,
1973.
The fol--
lowing facts were ascertained at the hearing.
No members of the pub-
lic were present at the hearing.
Mr. Rama K. Chaturvedi was the Re-
spondent’s engineer in the Permit Department that processed the per-
mit application
(R.
17).
Mr. ~haturvedi stated that the modified
stack test provided by the Petitioner with the application did not
show how many sources were running at the time the test
was
conducted
(R.
50).
In addition the Petitioner’s modified stack test was plus
or minus
50
of generally accepted isokinetic conditions.
This
is
in
excess of allowable tolerance.
The Federal Environmental Protection
Agency recommends plus or minus 10
(R.
31).
The Permit Department
In
~,
—
—3—
does not make
a stack test but rather studies the application for a
permit
submitted
and
asks
for
more
information
if
the
application
is
incomplete
(R. 58-59).
In this case the application was sent back
because
inadequate
information
was
given
concerning
the
modified
stack test.
Information was requested as to whether the whole opera-
tion was running during the test, on how many sections of the plant
was the stack test done, and several other deficiencies in the ap-
plication
(R.
61).
Mr. Chaturvedi indicated that the amended appli-
cation sent back by the Petitioner gave none of the information re-
quested concerning the modified stack test
(R.
62).
Mr. Chaturvedi testified that he used Document AP-42, Compila-
tion of Air Pollutant Emission Factors,
in his analysis of Petition-
er’s application and that the factors in AP—42 are valid
(R.
64)
.
Mr.
Chaturvedi testified that another reason the Petitioner’s stack test
was invalid was because the application did not indicate whether all
of the fans were running at the time of the test
(R.
75).
In order
for the Respondent to form an opinion with regard to a permit applica-
tion,
the Respondent needs the whole stack test.
If the application
is deficient,
then the Respondent
is obligated to write the applicant
and tell the applicant exactly what information is needed in order to
give the applicant an opportunity to perfect their application,
if
that
is possible
(R.
77).
This
obligation was carried out in the
instant case.
Mr. Marvin Fink,
a Vice-President of Petitioner, stated that the
stack test was made under normal operating conditions
(R.
87)
Mr. Charles Licht,
a
consulting
engineer
for
Petitioner,
testi-
fied that he aided Petitioner in the filing of the application for op-
erating permit.
Mr. Licht testified that the emissions from Petition-
er’s plant were well within the limits of the applicable Regulations
(R. 95—96)
On recall,
Mr.
Chaturvedi testified concerning how a
permit
ap-
plication
is accepted and analyzed by Respondent’s Permit Department.
The principal document used to determine whether all sources are in
compliance with the applicable Regulations
is AP-42
(R.
110).
Mr.
Chaturvedi used
AP-42
to
analyze
the
Petitioner’s
claim
that
the
building
itself was a pollution control device because its 75
f.cot
high ceiling acted as
a settling chamber.
It was determined that Pe-
titioner had mistakenly made its analysis on the basis of volume
rather than by weight
(R.
113).
This resulted in an incorrect analy-
sis by the Petitioner.
Mr. Chaturvedi testified that the Petitioner’s
settling chamber theory
is incorrect because the emissions coming out
of the different sources are of the sizes which are much less than
what a settling chamber could collect.
1~r.Chaturvedi
also
determined
from
the
Respondent’s
Surveillance
Group
that
no
solid
materials
were
deposited
in
the Petitioner’s building
(R. 116-117).
Mr. Chaturvedi
testified that in his extensiv,e industrial experience and his exper—
10—89
—4—
ience
with
the Environmental Protection Agency the applicable table
in
AP-42
does not indicate anything besides
size distribution by
weight
(R.
130)
The Petitioner contends that the Respondent’s opinion denying
its permit is not based on valid criteria.
The Board finds that the
Respondent relied on valid scientific criteria in its analysis of the
Petitioner’s permit application.
Under Section 40 of the Environmen-
tal Protection Act the burden of proof
is on the Petitioner, and the
Petitioner has not sustained its burden in contesting the decision of
the Respondent.
The data provided to the Respondent by the Petition-
er was incomplete and inaccurate.
The Petitioner’s so-called modif-
ied stack test was incomplete as
is evidenced in the above testimony
and could not be relied on.
The Petitioner’s theory that its building acted
as
a settling
chamber was incorrect on its face.
The Petitioner made an error in
its application of a table in AP-42 by using volume rather than
weight in its analysis.
The Petitioner questioned the Respondent’s
use of AP-42, but it was apparent that
Mr.
Chaturvedi was well quali-
fied in the use of the table, and Petitioner provided no credible ex-
pert testimony refuting Mr. Chaturvedi’s use of AP-42.
The Permit Department of Respondent gave the Petitioner more than
one opportunity to perfect its application.
Evidence shows that the
Respondent tried to give the Petitioner
a reasonable opportunity to
present the facts before its opinion was rendered.
Here the Petition-
er was given the right to amend its application; however, even a third
application failed to provide the data that would have justified the
issuance of a permit.
Once an applicant does not avail itself of such
opportunity,
it
is
fair
to
assume
that
no
data
is
in
existence
to
justify
the
issuance
of
a
permit.
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 the May 22,
1973,
action
of
the
Respondent
denying
the
Petitioner’s application
for operating permit
is affirmed.
Allied Metal Company’s petition
is
hereby
denied.
IT
IS
SO
ORDERED.
Mr.
Seaman
was
not
present.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board, certify th~tthe above Opinion and Order was adopted by
the
Board
on
the
~
day
of
~
1973, by
a vote
of
______
to
0
fY)6JJ,~
10 —90