ILLINOIS POLLUTION CONTROL BOARD
December 20, 1985
NATIONAL MARINE SERVICE, INC.,
)
Petitioner,
v.
)
PCB 85—94
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent~
MARTIN, CRAIG, CHESTER AND SONNENSCHEIN (MR. JOSEPH S. WRIGHT,
JR., OF COUNSEL) APPEARED ON BEHALF OF THE PETITIONER.
MR. WILLIAM D. INGERSOLLL~ ATTORNEY AT LAW, APPEARED ON BEHALF
OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by W. J. Nega):
This matter comes before the Board on the July 1, 1985
Petition for Permit Review filed by National Marine Service, Inc.
(National Marine). The Petitioner has asked the Board to review
the Illinois Environmental Protection Agency’s (Agency) denial on
May 28, 1985 of an air operating permit for Pond #1 which is
located at the Petitioner’s Shipyard Division in the City of
Hartford, Illinois.
On September 26, 1985, a hearing was held at which testimony
was heard and the Respondent’s Exhibit A (i.e., the Agency
Record) was admitted into evidence. (R. 7—8). No members of the
public attended this hearing. (R. 4; R. 16).
On October 9, 1985, the Petitioner filed a Motion to
Consolidate the Decisions in PCB 85—94 and PCB 85—108 which was
denied by the Board on October 24, 1985.
The Petitioner is a corporation which is in the business of
cleaning, repairing, and servicing barges, tugboats, and other
river-going craft.
National Marine cleans the interiors of
barges and other vessels in order to facilitate a change of cargo
or to expedite necessary repairs and maintenance. The cleaning
operation is accomplished by spraying the insides of the barges
with steam and/or hot water produced by Boiler #1. The washwater
and materials rinsed from the barges are then pumped to Pond
#1. The organic compounds and water separate in Pond #1.
(See: Opinion and Order of November 7, 1985 in PCB 85—108,
National Marine Service, Inc. v. IEPA).
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National Marine initially installed and operated its
Hartford Shipyard lagoon system pursuant to Permit #1969—EB—l28
which was issued on March 3, 1969 by the Illinois Sanitary Water
Board. This Sanitary Water Board permit granted the Petitioner
permission to operate Pond #1, Pond #2, and Pond #3 in accordance
with the conditions specified in Permit #1969—EB—128. Since
1969, National Marine has added an aeration system, levee
additions, and Pond #4 as improvements to its facilities which
treat washwater from its cleaning plant. In a letter and permit
application to the Agency dated December 3, 1984, National Marine
applied for a permit to operate its Pond #1. On March 1, 1985,
the Agency denied this permit application. On March 22, 1985,
the
company reapplied to
~.he
Agency for the requisite permit and
the Agency denied the reapplication on May 28, 1985. The
Petitioner has requested that the Board determine whether or not
the
permit application for Pond #1 was properly denied by the
Agency.
In the Agency’s May 28, 1985 denial of the Petitioner’s
operating permit application, two basic reasons for the denial
were given. The first reason was that: “The Pond #1 does not
have the 85 emission reduction required by Section 215.141(a)
when cleaning barges containing photochemically reactive material
or highly odorous materials.” 35 Ill. Adm. Code 215.141(a) reads
as follows:
SUBPART C: ORGANIC EMISSIONS FROM
MISCELLANEOUS EQUIPMENT
Section 215.141 Separation Operations
a) No person shall use any single or multiple compartment
effluent water separator which receives effluent water
containing 757 1/day (200 gal/day) or more of organic
material from any equipment processing, refining,
treating, storing or handling organic material unless
such effluent water separator is equipped with air
pollution control equipment capable of reducing by 85
percent or more the uncontrolled organic material
emitted to the atmosphere. Exception: If no odor
nuisance exists the limitation of this subparagraph
shall only apply to volatile organic material.
National Marine has attacked the rationale for the Agency’s
permit denial decision by
emphasizing that Section 215.141(a)
does not actually refer to “photochemically reactive material”
but instead refers to “volatile organic material”. Thus, the
company has argued that no air pollution control equipment is
required and that its permit was improperly denied.
However, a careful consideration of this matter indicates
that the phrase “photochemically reactive material” was
inadvertently included in the Agency’s permit denial letter. It
appears that the accidental citing of “photochemically reactive
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material” instead of “volatile organic material” in the permit
denial letter did not cause National
Marine
any prejudice, since
the facts reveal
that the Petitioner handles both classes of
material at its facility and does indeed handle “volatile organic
material”.
Testimony at the hearing by the Agency’s permit reviewer,
Mr.
James D. Cobb, P.E., clearly indicated that National Marine’s
facility handled volatile organic material such as gasoline,
aviation gas, and other substances that are cleaned from the
barges and sent to Pond #1. (R. 8—10). Other materials handled
by the Petitioner’s facility, such as xylene, toluene, and
styrene, are photochemically reactive. (R. 10). The facts
indicate that about 35 to 40 different substances are cleaned
from the barges and many of these materials are volatile
organics. (See: the attachments to Exhibits 4 and 11 of the
~gency Record). While the Petitioner brought out on cross-
examination that it was possible that a mixture of some of these
substances would be neither reactive nor volatile, the fact
remains that the opposite possibility is just as likely, if not
more likely, given the variety of different materials handled at
various times by the Petitioner. (R. 12).
In support of its position, National Marine has heavily
relied on a September 4, 1984 test report from Industrial Testing
Laboratories, Inc. (ITL) pertaining to its analysis of two oil
samples from Pond #1 submitted to it by the Petitioner. The
cover letter to the report, dated September 5, 1984, states that
“the physical properties of the sample submitted were not
conducive to the performance of a vapor pressure, the results of
which
would have been less than 1.0 had the material been
tested”.
35 Ill. Adm. Code 211.122 defines “volatile organic
material” as “any organic material which has a vapor pressure of
17.24 (2.5 psia) or greater at 294.3 K (70 F). National Marine
contends that since the material tested in 1984 had a vapor
pressure of less than 2.5 pounds per square inch absolute (psia)
all the contents and materials in Pond #1 are not volatile as
that term is defined in Section 211.122. (See: Agency Record,
Exhibits 3 and 9).
Upon analysis of the facts in this case, the Board believes
that National Marine is incorrectly asserting that, because a
1984 report by ITL claims that the vapor pressure of the pond
material is less than 1.0 psia, then no volatile organic
materials are actully handled. The Board notes that National
Marine has presented no proof or evidence showing that the two
oil samples taken in 1984 were actually representative samples.
It is clear that National Marine handles a large variety of
miscellaneous substances which are not fuel oil and are
volatile. Different materials are cleaned from the barges at
different times, and each substance or combination of substances
would have a different vapor pressure and different ultimate
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analysis. When National
Marine took
its samples, there apparently
were no Agency personnel or representatives present to monitor
the sampling; no evidence was presented as to an unbroken chain
of custody from the time the samples were taken by the Petitioner
to the time they were delivered to ITL; there were no “control”
samples taken; and the samples were taken from the surface of a
1.4 acre pond which is completely exposed and open to the
atmosphere.
Even if the test results were accurate and that specific
sample had a vapor pressure of less than 1.0 psia, there is no
guarantee that a more representative sample, or a sample taken at
a time that other substances were being handled at the company’s
facility, would show similar results. Moreover, Section
215.141(a) should not be misinterpreted to imply that the
volatility of a material is to be determined at some unspecified
time long after some particular substance or miscellaneous
material has been handled, Any truly volatile materials would
have long since evaporated and thus would not necessarily show up
in testing at a future date. Section 215.141(a) refers to
effluent from any “equipment processing, refining, treating,
storing or handling organic material” (emphasis supplied), and it
is clear that National Marine’s equipment falls within the
purview of that rule.
The Board notes that nowhere in the record does National
Marine dispute that it handles many substances which are clearly
volatile organic materials, The fact that the effluent water
containing that volatile organic material is pumped to Pond #1
for separation is also undisputed. The company is also not
disputing that Pond #1 is not equipped with any air pollution
control equipment. Accordingly, it is clear that Section 215.141
requires air pollution control equipment for such separation
operations as conducted by National Marine, and the Agency
properly denied the Petitioner its air operating permit because
such equipment was lacking.
In its legal arguments, National Marine has also stressed
that, according to the exception delineated in Section
215.141(a), the rule calls for control of only volatile organic
materials “if no odor nuisance exists”. The Petitioner claims
that there was only one incident of an odor nuisance from its
facilities which was an isolated incident which occurred in
1976. (See: Agency Record, Exhibit 1). Thus, National Marine
argues that there is no odor nuisance involved in this case.
Even if the Board were to conclude that the Petitioner’s
contentions pertaining to the lack of an odor nuisance are well—
founded, the fact that there are no odor problems does not change
the well—established fact that there are volatile organic
materials handled by National Marine’s facility which warrant the
installation of the necessary air pollution control equipment
pursuant to Section 215,141(a).
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National Marine has also attacked the rationale behind item
#2 of the Agency’s permit denial letter which states “this
application does not include all the air emission sources
requiring an operating permit. Based on inspections by Agency
personnel, an operating permit is needed for the barge cleaning
operation, and fuel or waste storage tanks...” In support of its
position, the Petitioner cites 35 Ill. Adm. Code 201.144 which
reads as follows:
Section 201.144 Operating Permits for Existing Sources
No
person shall cause or allow the operation of any existing
emission source or any existing air pollution control
equipment without first obtaining an operating permit from
the Agency, except as provided in Section 201.146. Dates on
which permits were required are shown in Appendix C.
Since Section 201.144 requires operating permits for any
existing “emission source”, the Petitioner refers back to the
definition of “emission source” in 35 Ill. Adm. Code 201.120
which reads:
“Emission Source”: Any equipment or facility of a type
capable of emitting specified air contaminants to the
atmosphere.
From this definition of “emission source”, the Petitioner
argues that the Board’s Air Pollution Regulations contemplate a
permit application for a single item of “equipment” such as a
pond without the necessity of including each item within the
facility because the conjunction “or” connects the phrase “any
equipmcn~ or facility”.
In analyzing the Petitioner’s contention pertaining to the
aforementioned definition, the Board finds that National Marine
has misinterpreted both the intention and the language contained
therein. The presence of the conjunction “or” between the words
“equipment” and “facility” in the emission source definition of
Section 201.102 does not mandate that, in a specific case, the
Agency must treat a particular facility or various equipment as a
unified whole and, in actual practice over a period of 15 years,
the Agency has often required separate operating permits for
individual pieces of equipment or for various portions of a
specific facility. The idea behind the regulations is to insure
that every potential source of pollution has the necessary air
pollution control equipment to control environmentally
detrimental emissions; and the necessity for obtaining a specific
operating permit from the Agency is to provide the Agency with a
readily accessible means for the monitoring and regulation of all
possible sources which may have an adverse impact on the
environment.
In
the
Agency~spermit denial letter, item #2 refers to the
necessity of permits for the barge cleaning operation, and fuel
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or waste storage tauks~ The record clearly shows that the
Petitioner’s operat.io\~ of Pond #1 is directly linked and
intricately interrelated to the operation of the other sources
memtioned by the Agency. Washwater effluent is brought to Pond
#1 for separation as a direct result of National Marine’s barge
cleaning Operations. (See: Opinion and Order of November 7,
1985 in PCB 85—108, National Marine Service, Inc. v. IEPA). The
floating hydrocarbons and various other materials and substances
are then removed to storage. Were it not for the operation of
these other sources, Pond #1 would not be utilized as a
separator. According~y, since the Petitioner’s various
operations are so int:~:re1atedand directly interwined, it was
appropriate for the Ay to mention other sources in its
letter.
And, although the .~‘etitioner has even asserted that the
letter should not havE:~ ~ientioned“inspections by Agency
personnel”, such inspe~Lonsare a vital part of the permit and
monitoring process and ~an legitimately be referred to by the
Agency. Moreover, the Lgency is not authorized to issue an
operating permit unlesB the applicant has demonstrated that the
operation of the source in question will not cause a violation of
the Illinois Environmental Protection Act (Act) or Board
regulations thereunder.
Since the Petitioner’s operation of Pond #1 was in
conjunction with, and contemporaneous to, the operation of the
other sources, the Agency correctly determined that the use of
Pond #1 indicated the unpermitted use of the other sources,
thereby indicating a possible or actual violation of the Act and
applicable regulations.
Additionally, the Petitioner has challenged the Agency’s
reference to Section 9 of the Act in its permit denial letter.
However, it is obvious that the Agency’s reference to Section 9
is included to relate the Board’s Air Pollution Regulations to
the applicable portion of the Act, since this entire matter
involves air pollution regulations and permits. Furthermore, the
Petitioner has all but ignored the importance of other items
mentioned in the permit denial letter, such as the Agency’s
Division of Land Pollution Control’s concerns pertaining to
National Marine’s failure to develop and implement a groundwater
monitoring program for surface impoundments used to manage
hazardous waste; violation of interim status standards; and
possible burning of RCRA hazardous wastes.
The Board hereby finds that the Agency’s permit denial
reason #1, citing Section 215.141(a), was proper based upon the
record before the Agency. Moreover, the Board finds that the
Agency’s permit denial reason #2, citing other emission sources,
was proper because of the relationship of the sources to one
another. The Board believes that the Agency’s denial of the
Petitioner’s operating permit application for Pond #1 was proper
because National Marine obviously handles many substances and
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materials which are volatile and these materials go to Pond #1
for separation. It is clear that National Marine’s operation
falls with the control requirements delineated in 35 Iii. Mm.
Code 215.141(a). Since National Marine has admittedly not
installed any air pollution control equipment, the operation of
Pond #1 violates Section 215.141(a).
Accordingly, the Agency’s May 28, 1985 denial of an air
operating permit for Pond #1 at the Petitioner’s Hartford,
Illinois facility is hereby affirmed.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Agency’s May 28, 1985 denial of an air operating permit
~or Pond #1 at National Marine Service, Inc.’s Hartford, Illinois
facility is hereby affirmed.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Op~ion and Order was
adopted on the
______________
day of
2~t~
,
1985 by a vote
of
____________
Dorothy M. ~‘Gunn,
~7),
Clerk
~
Illinois Pollution Control Board
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