ILLINOIS POLLUTION CONTROL BOARD
Nay 22~1975
GREAT LAIES
CARBON CORPORATION,
)
Petitioner,
v.
)
PCB 75-85
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Zeitlin):
This Petition to Extend Variance was filed by Great Lakes
Carbon Corporation (Great Lakes) on February 21,
1975.
Great Lakes seeks to have extended a prior Variance from
Section
9(a)
of the Illinois Environmental Protection Act
(Act),and Rules 203(b) and 203(f)
of Chapter
2: Air Pollution
of the Pollution Control Board
(Board)
Rules and Regulations.
I11.Rev. Stat. ,Ch.lll 1/2, Sec.1009(a)
(1974);
PCB Regs.,
Ch.
2, Rules 203(b),
203(f).
Petitoner’s prior Variance,
(for
which one extension has already been granted), will expire
on May 24,
1975;
this further extension is sought until
December 30,
1975.
Great Lakes operates a plant on the south side of Chicago
at which it is engaged in the ca1cining~ofanthracite coal
and petroleum coke.
Its plant consists of four rotary
calcining kilns, four rotary cooling drums, conveyors for
the handling of raw calcined coal and coke, enclosed storage
silos, and open storage piles of raw coal and coke.
In its
original Opinion concerning this facility,
the Board found
that particulate matter is emitted from the kiln stacks,
cooler stacks,
transfer points in the material handling
process, and the open storage stacks of coal and coke.
(The operating details of Petitioner~splant are more fully
set out in our prior Opinions.
EPA v. Great Lakes Carbon Corporation,
Great Lakes Carbon Corporation v.
EPA, PCB 72—48, 72—431,
(consolidated),
(May 24, 1973); Great Lakes Carbon Corporation
v. EPA, PCB 74-75,
(July
18,
1974)
.
Insofar as Petitioner
has incorporated by reference the records compiled in those
prior cases,
it would serve no purpose to reiterate those
facts.)
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The Environmental Protection Agency
(Agency) originally
filed an enforcement action against Great Lakes on February
9,
1972.
That Complaint alleged violations of Sections 9(a)
and 9(b)
of the Act and Rule 33.111 of the old Rules and
Regulations Governing the Control of Air Pollution promulgated
by the Air Pollution Control Board-predecessor of this
Board. Thereafter on November 1,
1972,
Great Lakes filed a
Petition for Variance from the Act and those Regulations
relating to particulate emissions which governed the operation
of its kilns, material handling systems and storage piles,
and
from the permit requirements under the Act and the Old
Rules.
Those cases were consolidated, and a decision was
reached in the matter by the Board on May 24,
1973.
PCB 72-
48, 72—431,
(consolidated),
supra.
In reaching its decision in those matters,
the Board
approved a Stipulation and Proposal for Settlement which was
submitted by Great Lakes and the Agency.
That settlement
envisioned a long-term compliance program which involved
shutting down approximately one-half of Petitioner Great
Lakes’
capacity at the c~1ciningplant, after which extensive
backfitting was to have been undertaken to achieve compliance
with the applicable particulate standards.
It was estimated
at the time that the backfitting of kiln #1, (of four), which
provides 50
of Petitioner’s capacity at the Chicago plant,
would be completed within 16 months of the Board’s action in
that matter.
At that time,
kilns #2,#3, and #4 were to have
been shut down,
and possibly also backfitted,
to achieve
compliance.
The Board in that Order noted the length of
time which Petitioner’s compliance program would require,
and made specific provision for the possible extension of
the Variance granted there.
In PCB 74-75, the Board found
that Great Lakes had made adequate progress on the compliance
plan, and the Board therefore extended Petitioner’s Variance
until May 24,
1975.
Great Lakes now alleges that it has been unable to complete
the construction of emission control equipment, as required
for compliance under our prior Orders, due to circumstances
beyond its control.
Petitioner alleges that it has been
unable to obtain delivery of vital components,
steel, and
baghouse and refractory items. Great Lakes alleges that
delivery delays with certain items have compounded the
problem,
in that items on
a short delivery schedule have had
to be delayed to meet the schedules of the larger items.
Petitioner now states that it will be able to obtain delivery
of all necessary items and,
should this further Variance
extension be granted, achieve complete compliance with the
applicable standards by December 30, 1975.
—3—
The Agency,
in a Recommendation filed April
4,
1975,
states that it is of the opinion that Petitioner’s revised
compliance schedule is reasonable.
The Agency also feels
that the delivery delays alleged in the instant petition
were,
“for the most part,
beyond petitioner’s control”
(Rec.
2).
The Agency notes that Great Lakes’
facility is located
in a heavy industrial area,
near three steel mills and two
grain elevators.
Further, the Agency states,
there are few
residences
in the area which might be affected by emissions
from Petitioner’s plant, and that it had received no objections
to the extension of this variance.
The Board did,
however receive one objection to the
grant of such an extension from a private citizen.
That
objection, received by the Board from a Stephen R.
Sturk on
April
7,
1975,
asks that the Variance not be granted due to
the high levels of particulate loading present on the south~ast
side of Chicago, citing the Agency’s “Air Quality Data”
reports.
Mr.
Sturk’s conclusion was that the Environmental
Protection Agency itself has provided proof that the granting
of
a variance would adversely affect the entire population
on the southeast side of Chicago.
The facts alleged by Mr.
Sturk are not properly in the record here, therefore the
arguments presented in the objection stand somewhat weakened.
The Environmental Protection Act conditions the extension
of previously granted Variances on a showing of progress
toward compliance; both Petitioner and the Agency have
demonstrated that such progress has in fact been achieved in
the instant matter. That being the case,
the Board would
normally grant this extension.
Since the ~filing of the
Petition herein,
however,
the United States Supreme Court
handed down its decision in the case of Train v. National
Resources Defense Council,
43
tJ.S.L.W.
4467
(U.S., April
16,
1975)
As we interpret that case,
we may not grant either a
new Variance or an extension of an existing one, absent a
showing that such
a grant will not cause or contribute
to a
violation of the national ambient air quality standards.
There has been no such showing in this case.
In the Petition in this case,
Great Lakes states:
Petitioner submits that the effect on the public
will continue to be minimal should the Board
approve the proposed backfit schedule.
The complete
shut down of Petitioner’s facilities would not
alter existing contaminant levels in any measurable
way because of the continued operation of many
other neighborhood stationery sources.
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—4
Further, the Petitioner
in this matter has expressly incorporated
matters which were part of the record in the prior cases.
Although the record in the present case, with the record
compiled in our previous determinations with regard to this
facility, would indicate that the emissions from Great Lakes
calcining plant do not individually present a great hardship
to the public,
or to the public health, we are bound by the
law as we see it in the Train case.
We therefore will grant
the instant variance for only two of the seven months requested.
Without the showing mandated by the Train case,
this Board
is constrained to deny any air variance beyond July 31,
1975.
While the Board feels that in reaching this decision it
is pursuing its proper course under the law,
we feel that
this situation is unfortunate.
Petitioner here has apparently
made a considerable good faith effort to achieve compliance.
Great Lakes alleges that it has spent in excess of $300,000
to date,
and has firm contractual
obligations presently
outstanding in excess of $1,600,000, all in its effort to
achieve compliance by May 30,
1975. While it
is not our
desire to deprive Petitioner of
a shield from enforcement
during the last five months cf a compliance effort extended
due to circumstances beyond its control, we must do
so.
cf.,
King Seeley Co., Thermos Div.,
v.
EPA, PCB 75-159
(April 24,
1975)
(Interim Order of the Board).
Insofar as we are finding here that Petitioner has
demonstrated the necessary progress, and shown the requisite
hardship, we will extend its Variance for the period for
which we may do
so.
In reaching our finding here, we do not
withdraw our prior approval of Petitioner’s compliance plan.
The bond and conditions
to which the prior variance and its
extension were subject will remain in effect for the period
of this further extension.
Should petitioner return to the Board,
in a further
Petition for Extension of Variance, with a showing as is
required under Train, we would be disposed,
for the reasons
given above, to grant a shield from enforcement for the full
period requested here,
until December 30,
1975.
We may not
do so now, however.
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144
—5—
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD THAT:
1.
Petitioner Great Lakes Carbon Corporation is
granted a Variance from Section
9(a)
of the Environmental
Protection Act and Rules 203(b)
and 203(f)
of
Chapter Two:
Air Pollution of.,the Board’s Rules
and Regulations for the period May 24, 1975 until
July 31,
1975.
2.
Petitioner Great Lakes Carbon Corporation shall
arrange with the Environmental Protection Agency
to maintain in effect the performance bond required
under the Board’s previous Orders with regards to
this matter, PCB 72-48,431
(Consolidated), and
74-75. Said performance bond to be continued in
force and extended for the period of time of this
Variance extension.
~.
The Variance granted here shall be subject to all
terms and conditions required by this Board’s
prior Orders with regard to this matter.
4.
Within
30 days
of’ the adoption of this Order
Petitioner shall execute and submit to the Illinois
Environmental Protection Agency, Variance Section,
2200 Churchhill
Road,
Springfield, Illinois 62706,
a Certificate of Acceptance,
the form of which
shall be as follows:
CERTIFICATION
I(We),
,
have
read and fully understand the Order of the Illinois
Pollution Control Board in PCB 75-85,
Gr~a’t’~Lakes
‘Ca’rJ~onCo~rp’ora’t±onv.
EPA, and hereby
accept the Variance granted by said Order, understanding
that such acceptance renders all terms and conditions
of said Order binding and enforceable.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board hereby certify that the above Ojinion and
Orde)r of the Board was adopted on thç
~
day
of
,
1975 by a vote of ~
to
~
aiL.Ls~
IY) ~
Christan L. Moffet~/A~Lerk
Illinois Pollution (e~trolBoard
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