ILLINOIS POLLUTION CONTROL BOARD

September 6, 1972

RICHARDSON CO.           

)

##72—41,72—l44

ENVIRONMENTAL PROTECTION AGENCY

Mr. Douglas T. Moring, Assistant Attorney General, for

Environmental Protection Agency

Mr. Alan Abrams, for the Richardson Co.

Opinion of the Board (by Mr. Currie)

Richardson applied to us for a variance to permit

continued operation of its ~henolic laminate plant in DeKalb

until December, 1972 while completing an emission control

program approved by our predecessor the Air Pollution Control

Board. We granted the variance only until September 9 be-

cause of doubts as to whether the company should have

accelerated the purchase of the last incineration equipnent, requir-

ed by the program, expressly inviting further proceedings in which

if our doubts were answered the variance could be extended

to December. Richardson Co. v. EPA, #72—41 (May 3, 1972).

The Agency had in the meantime filed a complaint against

the company alleging particulate violation 

72-14 4) 

the

company filed a request for extensionof the variance, the

two matters were consolidated, and a hearing was held.

The original compliance program contemplated installation

of afterburners to reduce solvent and other emissions from

phenolic laminate treaters. The first unit was installed but

proved defective (see Stipulation, p. 4) 

The initial

variance petition contemplated the rebuilding of the defective

unit by July 1972, which has since been accomplished (id.,

p. 7) 

and the ordering of the remaining equipment in time

for completion by the end of 1972 “if granted sufficient time.”

We indicated that this seemed to imply that Richardson was

delaying in curing its pollution problems until it obtained

a variance and made clear that this would be no excuse.

We asked for an explanation of why the equipment was not

ordered earlier.

The record does indicate that Richardson was motivated

at least in part by the desire to get approval of continued

operation before making the necessary commitments to clean

up (R. 30). To the extent that such was the case, it does

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not represent diligent action to abate pollution as rapidly

as is practicable as the law requires. We appreciate the

company’s reluctance to spend substantial sums only to dis-

cover later that it must shut down its plant and make the

expenditures in vain. But such a prospect misconceives

what actually happens when variances are denied. The in-

stances in which this Board has ordered going businesses

closed for polluting are few indeed; the almost invariable

practice, in the absence of a most considerable nuisance or

health hazard or utter disregard of the law, is to leave

the petitioner open to money penalties commensurate with the

seriousness of the delay but to permit continued operation.

See, e.g., Marquette Cement Mfg. Co. v. EPA, *70-23 (Jan.

6, 1971). We emphasize once more that we expect those who

petition for variances approving deferred compliance to

proceed posthaste, as many have done, see, e.g., A.E. Staley

Mfg. Co. v. EPA, #71-174 (Sept. 30, 1971), to achieve com-

pliance as soon as possible while their petition for variance

is being considered.

We find, however, that in the present case the delay was

to a significant extent mitigated by the company’s legitimate

concern that the bugs should be taken out of the first

incinerator before substantial sums were committed for the

purchase of more of the same equipment (R. 39—42). The

timetable Richardson was following, moreover, was such as

to achieve compliance, despite the delay, within the period

approved by the predecessor Board. (See Exs. 7, Il)

Finally, the remaining equipment was promptly ordered upon

entry of our earlier order (R. 42) 

Under these facts we

think no great purpose would be served by requiring the

payment of a penalty for this relatively brief delay or by

leaving the company open to a further prosecution on that

account. The variance will therefore be extended to

December 1972, the earliest date on which the program can

now be completed (R. 51-52).

The Agency’s complaint is based upon a different matter.

Agency evidence brought out, and the company conceded, that

the incinerators as presently designed will control emissions

only from the curing ovens and not from other sources such

as dip trays and recirculation tanks, from which the evidence

is clear certain gaseous contaminants are emitted. (R. 18—19,

42-43, Ex. 28). The Agency asks us to require control of

these sources as well. The company responds that from

preliminary sniffing at vents on the roof it believes

these emissions will not independently cause any odor problem

but declares itself willing and able to connect these sources

to the incinerators if a problem should be found to exist in

lhe future (R. 42-43). Ascertaining whether or not there

will be such a problem is complicated by the fact that the

more obvious oven emissions have not yet all been brought

under control.

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The principal difficulty with the Agency’s case is that

the only violation charged is under the process weight table

of Rule 3—3.111 of the old air regulations, which expressly

applies only to particulate emissions. The evidence is that

the only particulate emissions from the plant come from the

curing ovens (Ex. 28) 

which are covered by the company’s

existing program. Emissions from the dip trays and re-

circulating tanks, so far as the evidence shows, are entire-

ly of gaseous solvents (Id.) and therefore not covered by

the rule in question. There was no allegation ‘of statutory

air pollution, and indeed no adequate proof that existing

odors were caused even in part by these sources rather

than by the ovens themselves (R. 21). But the basic princi-

ple that governs here is that the Agency may not allege one

violation and prove another, for to do so deprives the res-

pondent of the notice indispensable to a meaningful oppor-

tunity to defend. See EPA v. McHugh, Healy & Keeny Con-

struction Co. & City of Chicago, (# 71—291) (May 17, 1972).

We therefore find the EPA has failed to prove any violation it

has alleged.

The evidence does establish, however, that there are possibly

significant odor sources within the plant that are not be-

ing controlled by the present program, even though the

original compliance program (See Ex. 3) did indicate an

intention to deal with emissions from the “coating head

and oven combination.” We think it appropriate, therefore,

to ma’Ke it a condition of the variance that the Intent of

the original program be carried out insofar as is necessary

to prevent an odor nuisance. If such a nuisance continues

to exist as a result of other sources after the ovens are

fully controlled, the company will be required to connect

those sources expeditiously to the afterburners and to take

any other steps necessary to eliminate the problem. Cf.

Greenlee Foundries v. EPA, #70-33 (March 17, 1971).

ORDER

1. The complaint in #72—144 is hereby dismissed for want

of proof of the violation alleged.

2. The variance granted to Richardson Co. (#72-41) May 3,

1972 is hereby extended to December 31, 1972, subject

to all conditions 

of the order of May 3, 1972 and to the

following additional condition:

3. In the event that an odor problem continues to exist

after completion of the installation of afterburners on

the curing ovens, Richardson shall expeditiously take

such steps as are necessary and practicable to abate

such problem, including the duct~ing of emissions from

the dip trays and recirculating tanks to the afterburners.

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I, Christan Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion this

__________day of September, 

1972, by a vote of

d/_C~

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