ILLINOIS POLLUTION CONTROL BOARD
February
3,
1972
U.
S.
INDUSTRIAL CHEMICALS COMPANY
#71—44
V.
ENVIRONMENTAL PROTECTION AGENCY
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(BY MR.
LAWTON):
On October 14, 1971,
the following order was entered pursuant
to petition for variance filed by
U.
S.
Industrial Chemicals Company:
“IT IS
THE ORDER of the Pollution Control Board that petitioner
be granted a variance
to exceed the particulate emission limitations
set forth in the Rules and Regulations Governing the Control of Air
Pollution,
subject to the terms,
conditions and time schedules
hereinafter
set forth:
1.
Variance
is granted to petitioner to operate its
four
uncontrolled coal—fired boilers
in
a manner causing
emission of particulates
in excess of the regulation
limits pending the installation of five electrostatic
~recipitators, the first of which has already been
installed.
Two
additional precipitators shall be in-
stalled and in operation by
May
30,
1972.
Emissions
from all boilers on which precipitators have or will
be installed shall meet particulate emission limits
as
set forth
in the regulations.
This variance shall extend
to October 13, 1972,
prior to which
date petitioner shall
have initiated installation of the two remaining electro-
static precipitators on Boilers
4~’4 and
#5 for operation by
May
30,
1973,
and shall petition this Board 90 days
in
advance of expiration for an extension of this variance
demonstrating
that
it
has diligently pursued the
time
schedule
for
total
installation
as
set
forth
in
its
variance
petition.
2.
Variance
is granted
to March
30,
1972 to operate the
sulphuric acid plant in
a manner causing particulate
emissions
in excess
of those allowed in the Rules and
Regulations Governing the Control of Air Pollution
pending operation of the direct hydration alcohol plant.
On March
30,
1972,
the
sulphuric acid plant shall be
shut down.
No virgin acid shall be manufactured for sale
at. any time when
emissions
from the sulphuric~acidplant
3
—
557
exceed maximum emission limits presently in force and
effect in the Rules and Regulations
Governing the Control
of Air Pollution.
3.
if.
S.
Industrial Chemicals Company,
through an independent
recognized consultant,
shall establish, operate and
maintain continuous monitoring stations for SO2 for the
period from April
1,
1972
to September 1,
1972,
in the
area where crop damage has occurred in the past.
Within
30 days after September 1,
1972, the company shall file
with the Board and Agency
a program for the alleviation
of excess SO2 levels sufficient to cause plant damage.
The Board shall issue a further order as required.
4.
The Company shall, within thirty—five days after receipt
of this Order, post with the Agency
a bond or other security
in the amount of $500,000.00,
in a form satisfactory to
the Agency, which sum shall be forfeited to the State of
Illinois in the event that the conditions of this order
are not complied with
or the facilities in question are
operated after, expiration of these variances in violation
of regulation limits.”
On December
27,
1971,
pursuant to motion of petitioner for Stay
of Order pending review of the October 14,
1971 order,
asserting
that petitioner and the Environmental Protection Agency had been
unable to agree on the form of bond,
we entered the following
Order:
“We stay our Order of October 14,
1971
as
to the’bond,
to
January
17,
1972,
and
direct
the
petitioner
and
the
Agency,
respec-
tively,
prior to said date,
to submit to the Board the form of bond
proposed
by
each
party.
After
receipt
of
the
proposed
bond
forms,
we shall issue
a further Order directing the form of bond to be
posted, and such
further order as
to stay as shall be appropriate
in the circumstances.
In all other respects, the motion for stay
of our October 14,
1971 order is
denied so that petitioner may
proceed with its program of compliance
as contemplated by our
order.”
On January
10,
1972,
petitioner moved for amendment of the original
variance order.
On January 25,
1972,
the Board,
in response to that
motion, entered the following Order:
“1,
That petitioner’s motion for amendment of paragraph
1
of the Order entered on October
14,
1971 be granted by
the
addition
of
the
words
“or
the
two
boilers
on
which
these precipitators are to be installed shall not be
operated after May
30, 1972 so that emissions from these
two boilers exceed maximum emission limits presently in
3
—
568
force
and
effect
in
the
Rules
and
Regulations
Governing
The
Control
of
Air
Pollution”,
following
the
words
“two
additional
precipitators
shall
be
installed
and
in
operation
by
May
30,
1972”
presently
in
said
order.
In
all other respects,
the motion is
denied.
2.
Variation heretofore granted
as amended shall not be
effective until bond in the amount of $500,000.00 has
been approved by. the Board.
Petitioner is directed to
comply with the Board’s Order of December 27,
1971 in
this
respect.”
Petitioner has neither complied with the order of December 27,
1971
nor with the order
o.f January 25, 1972.
The Agency has responded
with its proposed form of bond.
In view of the company’s failure to
comply with our order, this Board must assume that,
as the Agency
states,
the major point of contention between the Agency and the
company is over whether a surety should be required as part of the
bond.
(See letter dated November 30,
1971 to James
F.
Lemna, Attorney
for U.
S.
Industrial Chemicals
Company from Fred Prillaman of the
Agency, said letter attached to the Agency’s proposed bond form).
We find no reason why a surety should not be provided.
Such has been
the procedure followed in many cases.
IT IS HEREBY ORDERED that variance
as heretofore
granted
in
the
Board’s order of October 14,
1971,
as amended on January
25, 1972,
shall not be effective until bond in the amount of $500,000.00 has
been posted with the Agency
according to the form attached hereto.
I, Christan Moffett, Clerk of the Pollution Control Board,
certify
that the Supplemental Opinion and Order of the Board was adopted
on the
~3
day of February,
1972, by a vote of
~-
o
C~L~
~
3
—
569
ILLINOIS POLLUTION CONTROL BOARD
U.
S.
INDUSTRIAL
CHEMICALS
COMPANY,)
a
Division
of
National
Distillers
and
Cheirtical
Corporation,
PCB
71—44
v.
ENVIRONMENTAL
PROTECTION
AGENCY
PERFORMANCE
BOND
KNOW
ALL
MEN BY THESE
PRESENTS
THAT
WE,
U.
S.
Industrial
Chemicals
Company
(the
“Company”),
and
________________________________________
(the
“Surety”),
are hereby held~andfirmly bound to the Environmental
Protection Agency of the State of Illinois
(the
“Agency”)
in the sum
of $500,000.00,
for the payment of which we bind ourselves
and. our
successors
and assigns.
The condition of this obligation is such that:
WHEREAS,
an Order and ,accompanying Opinion has heretofore been entered
in the above-entitled case
(the
“Order”)
by the Illinois Pollution Con-
trol Board (the “Board”)
granting the Company a variance to emit parti-
culate matter,
gases and other contaminants from sources described in
the Order beyond the
limitations prescribed in applicable rules and regu-
lations and beyond the proscriptions of Section
9(a)
of the Environmental
Protection Act pending installation of certain control devices and faci-
lities, which Order is by reference incorporated therein;
and
WHEREAS, said Order was
conditioned, among other things,
upon the
posting with the Agency by the Company of
a bond in the amount of
$500,000.00, which amount shall be forfeited to the State of Illinois in
the event that the Company shall
fail to comply with any of the conditions
of the Order or any of the conditions of this bond.
NOW, if the Company,
its successors and assigns,
shall:
1.
Cease operation of the sulphuric acid plant by March
30,
1972;
AND
Install
and
have
in
operation
by
May
30,
1972,
two
additional
electrostatic
precipitators
on
its
coal—fired
boilers;
or
so
operate
said
two
boilers
after
May
30,
1972
so
that
emissions
from said two boilers
shall not exceed the allowable limits
of the Rules
and Regulations Governing the Control
of Air
Pollution.
3—
570
2.
Comply with all further conditions of the Order within the
dates specified in the Order;
and
3.
Show this obligation
as
a liability in all of its corporate
financial statements prepared for shareholders and in all of its cor-
porate reports to regulatory agencies published hereafter;
then this
obligation shall be. void;
otherwise it shall remain in full force and
effect.
PROVIDED THAT failure of the Company to comply with any term of
this bond shall not result in any forfeiture if occasioned by Act of God
or the public enemy, accidental fire or explosion,
flood, war, riot,
sabotage,
accident,
government priority or other action by any state
or federal governmental authority or local governmental agency other than
relating to pollution control, strike,
slowdown,
lockout,
or work stoppage
or labor trouble of any kind whatsoever,
failure of supply of materials,
parts,
or equipment,
or failure, delay,
or refusal of any designer,
fabricator, or supplier to design,
fabricate, deliver or install
as
agreed any equipment specified herein, provided such failure,
delay,
or refusal
is not due in whole or in part to fault of the company, or
if occasioned by any other circumstance,
whether of like character
or different character from those enumerated above, which circumstance
is beyond the reasonable control of the Company.
The Board shall be the determiner of any disputed
facts arising here-
under,
including but not limited to any issue of forfeiture which may
arise.
Should the Agency decide that grounds exist for a forfeiture
of this obligation,
the Agency shall notify the Company and
the Surety by
Certified Mail
to the
addresses listed below, whereupon the Company
shall, within seven days after receipt of said notice, pay to the
State of Illinois through the Agency, the amount of $500,000.00; provided,
however,
that if the Company disputes any alleged forfeiture hereunder
by
filing, within seven days after receipt of said notice,
a Petition
for relief with the Board,
any amounts
to be paid hereunder shall not be
due and payable until resolution of all issues of forfeiture by the
Board;
and provided further that no such
legal proceeding may be brought
by the Agency unless initiated within six months from the time of dis-
covery of the
grounds giving rise to such claimed forfeiture.
Provisions
of the Environmental Protection Act and Procedural Regulations of the
Board regarding the conduct of proceedings before it shall govern the
conduct of the disputed
forfeiture hearing.
Any determination by the
Board pursuant to this instrument
is subject to the right of review
thereof
as provided by law.
Notice to the Agency shall be
to:
3—
571