ILLINOIS POLLUTION CONTROL BOARD

October

3,

1972

ENVIRONMENTAL PROTECTION AGENCY

)

 #71—338

CPC INTERNATIONAL,

 INC.

Mr.

 Prescott E. Bloom,

 Special Assistant Attorney General for

Environmentai Protection Agency;

 Mr. James W. Gladden, Jr.,

for

CPC International,

 Inc.

Opinion of the Board

 (by Mr. Currie)

The Agency’s complaint charges CPC with various violations

of regulations and statutes

 in regard to emissions of air

contaminants from its corn processing plant in Pekin.

 We find,

among other things, that during 1971 CPC by its own testimony

violated applicable standards governing the emission of particulate

matter from its boiler C and enter a remedial order,

 as more

fully described below.

The complaint was in two counts:

 violation of particulate

emission standards by coal—fired boilers and statutory air

pollution

 (which consists of interference with the comfort,

health,

 or property of other persons)

 (Environmental Protection Act,

p9(a)) ,as a result of emissions from the boilers, from wastewater

treatment facilities, and from the corn milling processes them-

selves.

 CPC denied any violations and raised several legal de-

fenses, which we reject.

The standard arguments are made that the air pollution

 standard is vague and that the Board cannot

 constitutionally be

given power to impose money penalties; we have rejected these

before.

 EPA v. Granite City Steel Co.,

 #70-34

 (March 17,

 1971);

EPA v.

 Modern Plating Corp., #71-38 (April 14,

 1971).

 CPC argues

that because it was following an approved Air Contaminant Emission

Program

 (ACERP)

 it cannot be held in violation of ~he law under

Rule 2-2.41 of the Air Pollution Control Board rules, but the

principal violation we find is not the violation the program was

seeking to correct.

 We agree that an approved ACER? was the equivalent

of

 a variance excusing the emissions covered by the program while

the company goes about correcting

 them,

 see EPA v. Commonwealth

—

541

—2—

Edison Co.,

 #70-4

 (Feb.

17,

 1971).

 But the existence of an ACERP

cannot excuse excessive emissions

 from equipment that was claimed

 to be in

compliance in 1967 and for that reason excluded from the program.

It is urged that compliance with the numerical standard for corn

wet milling dusts

is

 a complete defense against an air pollution

complaint concerning

 them.

 As we held in the Granite City Steel

case,

 supra,

 the statute makes compliance with numerical standards

only a prima facie defense, not a complete one;

 the regulations

cannot repeal the statute by authorizing the creation of an

active nuisance.

 See also our opinion in In

the

Matter of

Emission

 Standards,

 #R7l-23

 (April 13,

 1972)

 The suggestion that

more stringent standards where required by more severe adverse

effects violate the equal protection clause refutes itself;

 see,

in addition to the opinion in #R71-23, supra, that in In the

Matter of Effluent Standards,

 #R 70-8

 (Jan.

6,

 1972).

 We find no

fault with the complaint itself;

 it adequately informs CPC of the

charges it must defend, and it has done so with vigor.

 As we held

in EPA v.

 Iowa—Illinois Gas

 & Electric Co.,

 #72—216

 (July 25L

1972)

 the statute of limitation in Ill.

 Rev.

 Stat.

ch.

83,

 ~ 15

is inapplicable to complaints by government agencies.

 As for

the 18-month limitation of

ch.

38,

 3-5, that is a part of the

Criminal Code applicable only to criminal prosecutions;

 it has

been held inapplicable,

 in the only analogous case we have found,

to a debt action for a penalty for violation of a municipal ordin-

 ance.

 City of Chicago

v.

 Enright,

27

 Ill. App.

589

 (1889).

The

present proceeding

 is administrative,

 not criminal.

 In any case,

the principal violation we find took place during the year 1971,

all of which was within 18 months prior to the filing of this

complaint.

The record contains no evidence as

 to the alleged problem

with the wastewater treatment facilities.

 When the Agency attempted

to elicit testimony as

 to odors in the vicinity of CPC’s plant,

the company’s objection was sustained on the ground that the

Agency had said nothing about odors in answering interrogatories

seeking information

 as to what the Agency would seek to prove

(R.

 30—32).

 We sustain the hearing officer’s ruling; CPC was

entitled to adequate notice as to what it had to defend against.

Cf. EPA v. Commonwealth Edison Co., supra.

 The only evidence as

to air pollution from corn milling equipment concerned isolated

incidents,

 conceded by CPC,

 in which extraordinary conditions caused

nuisance deposits of corn material (gluten)

 on neighboring property.

(R. 66—69,

 154,

 200,

 360—61).

 That these incidents constituted

air pollution we have no doubt,

 as there was uncontradicted evidence

they interfered with the neighbors’

 comfort.

 See EPA v. General

Iron Industries, Inc.,

 #71—297

 (March

7,

 1972).

 We think it

sufficient, given the sporadic and apparently accidental nature of

these events and the rather minor harm they caused, to require the

company to exercise all reasonable care to prevent such incidents

in the future.

5

—

542

—3—

The important question in this case concerns boiler

emissions.

 CPC has three boilers; the evidence is clear that

boilers A and B have been brought into compliance in conformance

with the company’s ACER? and that there is no cause for imposing

any penalties on their account

 (R. 126—27,

 214—15; CPC Exs.

10,

12).

 It is Boiler C that isin serious dispute.

Boiler

C

 is and has been since the 1950’s equipped with

mechanical particulate collection devices of the multiclone

variety

(R.

 313).

 The company submitted emission estimates in

connection with its compliance program indicating that it believed

Boiler

 C already met the applicable standard of 0.6 pounds of

particulates for each million btu of heat input

 (CPC Exs.

6,

8,

10)

 The Agency questioned the company’s assumption that the cyclones

removed 90.8

 of the particulate matter

 (CPC Ex.

 15); CPC res-

ponded by determining the particle size distribution of the

boiler emissions and referring to a manufacturer’s graph that

predicted collection efficiencies of 92.5

 with the size

distribution it had measured

 (CPC Ex.

 16).

 Computing probable

emissions on the

 basis of the ash content and heating value of

the coal used at the time and using the 90.8

 collection figure,

CPC concluded that Boiler C’s emissions were just about what the

standard required

 (0.6056 lb/mbtu) and therefore that it need not

take further action to achieve compliance with the boiler

 (CPC

Ex.

 10).

EPA’s case is based upon citizen evidence that CPC’s

boilers are or have been causing annoying dust or soot de-

posits on neighboring property

(R.

29,

 72-73, 88-90, 154—56,

166-68,

 177),

 which we find to be the case,

 and upon the Agency’s

own estimates of Boiler C’s emissions.

 The Agency rejects the

92,5

 estimate of efficiency on the basis of standard publications

and long-standing EPA guidelines suggesting an upper limit in

installations such as this one of

83

(R.

 111,

 122—25)

 Using

a 75

 efficiency factor,

 EPA calculated estimated emissions of

2.08 lb/mbtu when burning coal such as was consumed in 1971

(CPC Exs.

2,

3)

 Since on EPA’s assumption

 as to efficiency 25

of the particulate is uncollected and on CPC’s only 7.5,

the

reason for the great discrepancy in estimates is apparent.

As we have held from the beginning,

 estimates of emissions

based upon standard emission and efficiency factors determined

from experience with similar facilities are accept.able,

 in the

absence of more specific information,

 to prove compliance or

violation.

 EPA v. Lindgren Foundry Co.,

 #70-1

 (Sept.

 25, 1970).

We have also made clear that such estimates are subject to re-

buttal on the basis of more specific information.

 EPA v. Norfolk

 Western Ry., #70-41

 (May

 26, 1971).

 In the present case EPA’s

generalized efficiency estimate, drawn from recognized authorities,

was sought to be rebutted by

 a particle size test and its application

to a performance chart supplied by the equipment manufacturer

(CPC Exs.

16,

39;

R.

 293—97).

 There

is

 nothing in the record

5

—

543

—4—

to substantiate the manufacturer’s chart; what it is based upon

~cedo not know.

 If this were the only rebuttal information in

the record, we should be hesitant to find it adequate.

Cf.

ommonwealth Edison Co.

v.

 EPA,

 #72-150

 (Aug.

8,

 1972).

 We should

be inclined

 to ask for proof that the chart represented actual

experience rather than mere expectations or manufacturer’s claims.

The best evidence as to actual emissions

 is an actual stack

test,

 and one was taken very recently, showing emissions of

2.53 lb/mbtu under present operating conditions

(R,

 277-89).

Working backward from the test result and from the ash and heat-

ing values of the coal used in the test

 (see CPC Ex.

40.

R.

 292-93)

~e conclude that the test tends to confirm a cyclone efficiency,

now,

 in the range of 90.

 More importantly,

 since the Agency did not

significantly shake the accuracy of the test on cross-examination,

the test establishes to our satisfaction that Boiler C was in

compliance with the emission standard on the date of the test.

:?c

 acknowledged that possible turbulence at the point where the

samele was taken could distort the sample and testified that

standard precautions were taken, by increasing the number of samples

taken,

 to compensate by obtaining

 a complete cross section

(R.

31—22,

 337)

That Boiler C complied as of the date of the test does not

excuse any past violations that may have occurred.

 CPC acknow-

edges that in the fall of 1971 it inspected the cyclones, found

holes

 in several of them,

 and repaired them

(R.

 353-54; CPC Ex.

 44).

~:oevidence is given to enable us to determine that nothing could

 have been done earlier to correct this condition.

 It is thus clear

from CPC’s own evidence that during at least part of 1971 the

collector was not operating at the efficiency concededly necessary

to assure compliance, which the test and CPC’s original estimates

both show was barely acheived at optimal efficiency.

 We must there-

fore direct CPC to take every precaution

 in the future to inspect

the cyclones and to maintain them atamaximurn efficiency.

 We do

tot rely on the deterioration of the cyclones in assessing penalties,

because the evidence as to fault in this regard

 is unclear, and

because there

 is another and much more unmistakable reason for

tenalties which we deem sufficient

 in itself.

CPC’s original conclusion that Boiler

 C was in compliance

xas based upon the use of coal with an ash content of 8.3

(as

fired) (CPC Exs.

6,

7,

8,

10)

 Well knowing from its own

calculations that continued compliance depended upon using coal

of

 a relatively low ash content, CPC in “early 1971”

(R.

 355) by

~ts own evidence purchased and burned in Boiler C coal containing

ash

 (as fired) (CPC Ex.

 2), almost 20

 more than that on

whIch hare compliance depended.

 According to standard equations

accerted by both parties

 (EPA Ex.

20;

R.

 114),

 the amountof

5

—

544

--5—

particulate matter to be collected is, other factors being equal,

closely proportional to the ash content of the coal.

 By increasing

the ash content, CPC increased its emissions correspondingly;

and

even CPC’s own calculations, based on 92.5

 efficiency, which is

better than the later test showed, reveal emissions

 in 1971

(0.626 lb/mbtu

 (CPC Ex.

41)

 in excess of the standard.

Belatedly recognizing the problem about November,

 1971, CPC

has switched to low—ash coal

 (6.6

 as fired) (R.

 355; CPC Exs.

40,

45-46), and the stack test indicates that Boiler

 C will comply

so

 long as it

 is properly maintained and low-ash coal

 is used.

We

shall

 so order.

 We must also impose money penalties

 for the

company’s serious neglect of

 its recognized responsibilities.

It

is not enough to equip a boiler with adequate collection equip-

ment;

 the boiler must also be operated so as to assure compliance.

It was CPC’s duty

 to burn coal sufficiently low in ash to fulfill

the promise of its estimates.

 There can be no plea of lack of

knowledge,

 since CPC’s own ACER? revealed it knew compliance

could be achieved only by burning low-ash coal.

The harm done by this violation cannot be accurately assessed.

CPC’s boilers have interfered with the neighbors, but we cannot

say how much this was due to Boiler C when it was out of com-

pliance, how much due to Boilers A and B before they were con-

trolled

 (see

R.

 224)

 and how much due to emissions permitted by the

old regulations under which this case was brought.

 For the future

we think it adequate to warn CPC that more stringent emission

standards must be met in the next couple of years under our new

regulations, and that the date for filing a control program is not

far off.

 See PCB Regs,

Ch.

2.

 But the penalty question must be

determined largely in terms of the degree of fault displayed by

the company and in terms of the significant amounts of money

CPC saved by burning inferior coal to the detriment of its neighbors.

We think the complete inattention to this question,

 in light of

the

 clear warning in CPC’s own ACERP documents,

 is serious indeed.

We note that CPC testified that low—ash coal such as is now being

used

 is costing it an extra $12,000 per month above its former

fuel costs

(R.

 356).

 Given that the violation and consequent saving

extended over many months of 1971, we could easily justify a penalty

of $50,000 or more

 to assure that the company did not profit by

overlooking its obligations to the public.

 But because this

is

a first offense, because there is no suggestion it was deliberate,

because no catastrophic pollution resulted, and because of the

commendable attitude of CPC in correcting the problem once it

recognized what was happening, we limit the penalty to $15,000.1

This opinion constitutes

 the Board’s findings of fact and

conclusion of law.

1.

 After the hearing the Agency moved to amend its complaint by adding a

charge that CPC improperly suppressed

 information as to the actual efficiency

of the Boiler C cyclone.

 CPC objected on grounds of lack of opportunity to

defend.

 Since we find the later stack test the best evidence of actual per-

formance and impose penalties for the admitted use of high-ash coal,

 we think

nothing significant

 is added by the proposed amendment and deny the motion to

amend, without prejudice to the filing~ such future complaints as EPA may

choose to file.

5

—

545

—6—

ORDER

CPC

shall

take

all

reasonable

precautions

prevent

further

incidents

involving

the

deposit

gluten

material

neighboring

property.

CPC

shall

maintain

satisfactory

operating

condition

the

cyclone

collection

devices

Boiler

shall

burn

Boiler

coal

sufficiently

low

ash

content

and

high

heating

value as to assure compliance with applicable regulations, and

shall cease

and

 desist from emissions fran Boiler C in excess of

0.6 lb/mbtu.

3.

 Within 35 days after receipt of this order,

CPC

shall

pay

 to the

State

 of Illinois, in penalty for the violations

found in the Board’s opinion, the sum of $15,000.

Payment

shall be by check payable to Fiscal Services Division,

Environmental Protection Agency,

2200

Churchill

 Road, Springfield,

Illinois 62706.

I, Christen Moffett, Clerk of the Pollution Control Board, certify

that

the

Board

adopted

the

abo!e

Opinion

this

~‘

 day of

September,

1972

vote

(-‘A,c’~.C:’-’

~‘4hcjrt’

5— 546