ILLINOIS POLLUTION CONTROL BOARD

October

 28, 1971

ENVIRONMENTAL PROTECTION AGENCY

v,

)

 PCB 71—108

MODERN FOUNDRY

AND

MANUFAC-

TURING COMPANY

Jim D, Keehner, Attorney

 for the Environmental Protection Agency

William D.

 Stiehi, Attorney

 for Modern Foundry and Manufacturing

Co.

Opinion of the Board

 (by Mr. Kissel):

On May

13,

 1971,

 the Environmental Protection Agency

 (the

“Agency”)

 filed

 a Complaint with

the

Board alleging that

 the Modern

Foundry and Manufacturing Company

 (“Modern Foundry”)

 has since

July

18,

 1967 emitted certain contaminants

 into the atmosphere

so

as to violate the Air Pollution Control Act,

 the Environmental

Protection Act and the rules and regulations promulgated there-

under.

 The Agency requested that

 a cease and desist order be

entered against Modern Foundry requiring

 it to stop all the alleged

violations

 and further,the Agency requested that money penalties

be assessed against Modern Foundry.

 A hearing on the Complaint

was held in Belleville,

 Illinois on August

 12 and 13,

 1971, before

George Faber,

 the duly appointed hearing officer.

Modern Foundry operates

 a gray

 iron casting shop in Mascoutah,

Illinois,

 In this process it uses

a

 #5 Whiting cupola in which scrap

iron is melted after being charged with coke.

 The melted iron is

then poured into sand molds,

 allowed to harden;

 then the molds

are

shaken out.

 The principal problem from

 a pollution standpoint in

the operation of the Modern Foundry plant has been the emissions

from the cupola.

 Based upon

 the computations made by

 the Agency,

and testified

 to by Mr. Telford, Modern Foundry emits 65 pounds per

hour of particulate matter, when the regulations only permit them

to emit 17 pounds per hour.

See

 Rules and Regulations Governing the

Control

 of Air Pollution, Rule 2-2.54. Modern Foundry did not deny

that it had violated the law at least since 1967 when the regulations

went into effect;

in

 fact,

 it admitted on the record that it was

guilty of air pollution from 1967

 to the date of the hearing.

The

only reservation which it imposed was that it felt that because of

the statute of limitations the Board could not impose penalties

on

/21

paragraph

 12 relating to the completion of plans and specifications

18 months before the completion date

 for tertiary facilities

and

award of the construction contracts

 12 months before the completion

date.

 In other words, the City is under

 a requirement to provide

tertiary treatment by July,

1972

 and it is under

 a further re-

quirement to submit plans by January,

1971

 and award construction

contracts by July,

 1971.

 Under the regulations the City has

 a legal

duty at this

 time to

 let contracts and commence construction

to

meet

 the BOD and suspended solids effluent standards and the chlorina-

tion requirement

 by ~uly,

 1972.

 With

 its petition, the City asked

for

 a six-month extension of the SWB-l4 timetable

 for construction

of needed facilities.

The organic load on the plant is more than twice the designed

capacity

 (R.37,44)

 The plant

 is handling an average monthly popula-

tion equivalent of 97,000

 (EPA Ex,

3)

 although

 the city engineer

estimated that it was currently

 at 80,000

 (R.37)

industrial waste surges sometime peak the plant

 a popula-

tion equivalent

 of 150,000

 (R,44)

 The facilities

 are thus stressed

by an incursion of up to 400

 of the contaminants which

 the plant

was designed to handle,

The problem at the plant is one of industrial waste

 loading.

In an effort to deal with

 the difficulty and redistribute the

cost of treatment,the

 City passed an industrial waste ordinance

on February

11,

 1970.

Mr.

 Jack Faggetti,

the

 City Engineer,

 stated

that “If all the plants would comply with the Industrial Waste Ordi-

nance,

 we would be below the design population equivalent of the

plant,”

 (R.45)

There

 are three principal industrial waste dischargers

 to the

Olney plant.

 A chicke~.processing plant,

 Kralis Poultry Company,

Inc.

 (Kralis)

;

a

dairy

products

 company, Prairie Farmer Dairy,

 Inc.

(Prairie)

and

a

metal

fabricating

plant,

AMF

 Incorporated

 (AMP)

Kralis dresses 16,000 chickens

per

 day, employs

 100 persons

 (P.12)

and is responsible for

 a population equivalent load of

 26,000

on

the treatment plant

 (R.44)

 The company’s effluent contains

 £ at

and

 grease and chicken viscera

(P.11)

 Kralis

 is proceeding

install pretreatment facilities which

 are due

 to be operational

in

the early part

 of December,

 1971.

AMP

 is also presently working

on its

pretreatment

~iant

and

plans

 operational

by

December,

1971,

too

(P.10,

33-34)

 Prairie has apparently done nothing.

Mr.

Cloren Jourdan,

 the treatment plant superintendent,

 testified

at

the hearing

of

 a recent sample

 of Prairie’s effluent which contained

a suspended solids concentration of 12,000 mg/I

 (P.79)

 probably due

to

 a loss of sugar.

 Obviously,

 the City must take some steps

 to be

assured that abatement through pretreatment will be effected at

Prairie.

 The City must pursue the matter assiduously

 for its pro-

posed program to succeed.

—

722

Modern Foundry did not meet the

 date of September,

 1970,

for

the installation and operation of the wet scrubber system on

the

cupola.

 It wasn’t until recently that they did have the equipment

installed and operating.

 The Board was advised by letter from

Modern Foundry that all pollution control equipment was installed

 by September

15,

 1971, and recently advised the Board that stack

tests

 on the facility indicate that the emissions were within the

permissible limit of the regulations,

Since the pollution control equipment has been installed,

and is apparently operating properly, the only issue before the

Board at this

 time is whether a money penalty should be assessed

against Modern Foundry.

 The evidence in the record establishes

that the operation of the Modern Foundry plant did have an effect

on the life

 and property of the neighbors.

 Although there was

some dispute about this, one witness was quite emphatic about the

dust emissions from the plant and he described

 the odor from the

plant as “rancid and sulfurous”.

(R.

95)

 Other witnesses, mostly

employees

 of the plant, said they had never heard complaints

about the operation of the plant.

 While we

 are certain this testi-

mony was made in good faith,

 it must certainly be somewhat dis-

counted when weighed against the testimony of an independent

witness who brought pictures

 to prove

 his allegations.

 In addition

to the testimony from the neighbor, Modern Foundry admitted the

fact that they were in violation of the statute

 and the applicable

regulations,

 and further, didn’t contest the calculations of the

Agency witness that the emissions from the cupola were 65 pounds

 per hour and the allowable particulate emissions by regulation was,

and is,

 17 pounds per hour based upon the process weight of Modern

Foundry.

 Based upon the foregoing,

 a penalty

 is called for in this

case, but the question still remains as to the

 amount.

We have

 long held that, while

 an ACER?

 is not valid for longer

than one year,

 it is

 a defense in an action for penalties against

the person holding the ACER?,

EPA

 v. Commonwealth Edison Co.,

PCB 70-4,

 dated February

17,

 1971.

 In this

 case Modern Foundry

did have an effective ACERP which allowed it until September of 1970

to install and have in operation the pollution control devices;

therefore,

 until

 that date no penalty can be assessed

 for Modern

Foundry’s

 failure to complete its program.

 While

 the record does

show that Modern Foundry did

 “drag its

 feet” during this time,

the

fact is they hired

 a contractor to do

 the job and were proceeding

with

 the program.

 The ACERP also required that Modern Foundry

submit “periodic reports” which

 it forgot about,

 But the record

does show that Modern Foundry did send letters

 to the Agency and

its

predecessor advising the Agency,

 et al,

 of the progress of the

—

723

installation of the wet scrubber.

 Certainly,

 this is minimal com-

pliance with

 the requirement to submit “periodic reports”, but

nevertheless,

 it was

 an attempt of

 the kind that would say that

Modern Foundry was not consciously avoiding and not following the

terms of the ACERP,

 If they had so avoided the conditions

 of the

ACERP,

 the ACER? would no longer be

 a defense to any action

for

penalties.

If penalties

 are to be assessed, it must b~ for the

 period

of time beginning in September,

1970

 to September,

 1971,

II

 when

the equipment was finally installed.

The

 ACER?

ran

 out in

 1970,

and

although Modern Foundry was specifically advised by

 the Agency that

it

 must

 file

 for a variance,

 it didn’t.

 This

is

 a conscious dis-

regard for the

 law and forms

the

 basis

 for the imposition

of

a

penalty since during this period Modern Foundry, by

 its own admission

and the evidence previously described,

 was emitting contaminants

which were

 in excess

 of the regulation and causing “air pollution”.

Modern Foundry attempted to explain the delay

 in installation and

operation of the equipment on these ground:

 first,

 it said that

it

 discovered

 that the ~ity would not be able

 to supply sufficient

quantities of water and

 this caused Modern Foundry to install

a

water tank

 which

 took an additional month

or

so;

 second,

 the con’~

tractor changed the design of

 the wet scrubber; and third, the

equipment was

not

 delivered on time.

 We think that none

 of these

reasons are valid

 after the

 fact,

 Modern Foundry should have,

as it was

 advised

 to do,

 filed for

 a variance long

 ago.

 These

may,

 or may not, have been reasons for granting

of

the

 variance

at that time, but are not reasons for not imposing

 a penalty

 now,

But the penalty must

 indeed

be

a

 small one because of the financial

condition of the company.

 In 1971,

 for example,

 the company

 sus-

tained

 a loss of $10,140.69,

 and the equipment which has

 just been

installed will impose an additional financial burden on the company.

Further,

we

 take into account that

 some teetimony indicated that

the effect of the emissions

 on the community were negligible.

We,

therefore, after consideration of all circumstances outlined in this

opinion impose

 a penalty of $1,000.

 If the financial circumstances

of the company were different the penalty would be higher,

1

 Since the time period

 for the penalty involves only the

last year,

 it is not necessary to deal with

 the point made by

Modern Foundry’s attorney that the statute of limitations applicable

to penalties under the Environmental Protection Act is

 18 months,

—

724

This opinion constitutes

 the findings

 of fact and conclusions

of law of the

 Board.

ORDER

Based upon the evidence and exhibits

 in the record,

 the Board

hereby makes

 the following orders:

1.

 Modern Foundry shall cease and desist from the

 operation of its cupola at Mascoutah,

 Illinois,

so

as

to violate the Act or the applicable regulations.

2.

 Modern Foundry shall submit to the Board and

the Agency the final specific results of the stack

test recently done on the stack with

 the pollution

control equipment.

3.

 Modern Foundry shall pay a penalty to the

State in

 the amount of $1,000 for the reasons

stated in the opinion,

I, Regina

E.

 Ryan,

 Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion and Order this

28

 day of

 October

 1971,

~E.Ryan,Clerk

2

—

725