ILLINOIS
POLLUTION
CONTROL
BOARD
January
9,
1975
CLEAN
AIR
COORDINATING
COMMITTEE,
Complainant,
vs.
)
PCB 74~284
ENVIRONMENTAL
PROTECTION AGENCY and)
RICHARD
BRICELAND,
Respondents.
Richard N,
Kates, Attorney for Complainant
Marvin Medintz, Assistant Attorney General for Respondent
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
Clean Air Coordinating Committee
(hereinafter CACC)
filed
its
Amended
Complaint charging the Environmental Protection
Agency and its Director, Richard Briceland, with violations of
Rules
403 and 406 of the Air Pollution Control Regulations.
The
Agency sought to have
the
original Complaint stricken or dis—
missed as frivolous.
Following oral aroiruent before
the Board,
the cause was deemed not duplicitous or frivolous and a hearing
was ordered.
CACC was also ordered to amend the Complaint to
provide greater specificity.
The Agency is charged with failure to call air pollution
Watches and Yellow Alerts on July 24 and 26,
1974 and August
8
and 9,
1974.
The parties stipulated
to certain matters, including
exhibits showing ozone levels for
the dates in question and the
fact that the Agency had not called
a Watch or
a Yellow Alert.
The sole contested issue is whether the Agency decision was
reasonable in light of weather forecasts
then available to the
Agency.
Rule 403 of the Air Pollution Control Regulation states:
“A Watch shall be declared for the entire Illinois
portion of any air quality control region,
if any part
of such region meets the Watch criteria.
When part of
a region has acceptable air quality but air contaminant
levels
at one or more monitoring stations are high
15
—
179
enough to call for Alert or Emergency action,
corridors
of the region shall be defined depending upon meteorological
factors, emission inventory data,
and mathematical simu—
lation modeling.
Alerts or Emergencies shall then be de-
clared fer one or more of these individual corridors.~
Rule 406 requires that the Agency Director or his designated
representative shall declare an Air Pollution Watch when:
(1) An Air Stagnation Advisory is received for any area
within the State, or
(2) Any two—hour average of pollutant or product specified
by Rule
406(b)
of this Part at any monitoring station
is equal to or greater than any Watch level and the
official National Weather Service forecast for the
~went-fourhoursdoesnotindicatesubstantial
~vementofconditionswhichcausea~osheric
stagnation. (Emphasis supplied)
The two hour Watch
level for ozone is
0,07 ppm.
When conditions for initiating
a Watch have been met,
Rule
406(c)
requires the Agency to advise and warn governmental agencies,
industry and the public of the air quality conditions.
Facilities
which require significant lead time are to be notified by the Agency
(or a local agency designated by the Agency)
that they may soon be
required to take action to reduce emissions.
The public is also
to be advised that certain actions may soon be required of them to
reduce emissions and that those persons suffering from respiratory
or heart conditions should take appropriate precautions.
When a Watch has been in effect for four hours, and any Yellow
Alert level at any monitoring station
is equaled or exceeded; and
the National Weather Service forecast for the next twelve hours
~tindicatesubstantialimrovem~fconditionswhichcause
~
the Director or his designated representative
is required to declare
a Yellow Alert pursuant to Rule 407.
The
one hour Yellow Alert level
for ozone is 0.10 ppm.
Rule 407(c)
defines what
actions
the Agency and certain emission sources must
take during
a Yellow Alert.
The public would~be~
requested to avoid
unnecessary
use of automobiles
and electricity; power generating
stations and large facilities would reduce emissions and some manufac—
turing facilities would curtail production.
The parties stipulated that the Joliet monitoring station and the
Kenwood and Lindblom stations
(Chicago) detected the following ozone
levels at the times specified:
—
180
~Lv24,l274
Ozone, ppm
Time
Joliet
________
Linciblom
0100
0.021
0.002
0200
3.018
0.021
0300
0.017
0400
0.016
0500
0.016
0600
0.020
0700
0.023
0.001
0830
0.028
0.002
0300
0.036
0.044
1000
0.053
0.110
1100
0,077
0.123
1200
0.094
0.164
1300
0.093
0.095
1400
0.102
0.071
1500
0.107
1600
0.071
0.086
1700
0.059
0.083
1800
0,072
0.075
1900
0.077
0.068
2000
0.062
0.054
2100
0.061
0.037
~2200
p2300
2400
Kenwoo
d
0.024
0. 055
0004
0.004
0.035
0.068
0. 052
0.030
0.080
0 071
Ozone, ppm
Eenwood
Lindblom
0.011
0.001
0.009
0.002
0.012
0.002
0.020
0.003
0.023
0.003
0.022
0.003
0.007
0.002
0.310
0.003
0,015
0.012
0.045
0.033
0.383
—--
0.130
0.125
0. :187
0.139
0.208
0.165
0,135
0.168
0.143
0.162
0.139
0.148
0.122
0.138
0.152
0.126
0.123
0.095
0.073
0.035
0.043
0.009
0.028
0.003
0.015
0.002
August
9,
1974
August 8,
1974
Ozone, ppm
Ozone, ppm
Time
Kenwood
Lindblom
Joliet
Kenwood
Lindblom
Joliet
0100
0.045
0.002
0.044
0.099
0.082
0.055
0200
0.021
0.001
0.042
0.109
0.060
0,041
0300
0.048
0.000
0,046
0.105
0.040
0.039
0400
0.072
0.000
0.029
0.121
0.027
0.030
0500
0.069
0.010
0.025
0.119
0.061
0.033
0600
0,077
0.001
0.027
0.108
0.075
0.028
0700
0.049
0.000
0.028
0.088
0.041
0,028
0800
0.047
0.001
0.029
0.064
0.051
0.031
0900
0.025
0.008
0,023
0.064
0.065
0.046
1000
0,036
0.022
0.033
0.057
0.078
0.058
1100
0.047
0.053
0.046
0.065
0.093
0.070
1200
0.056
0,099
0.059
0.081
0.103
0.083
:1300
0.108
0.075
0.079
0,092
0.107
0.098
1400
0.147
0.111
0.101
0.095
0.105
0.126
1500
0~123
0.133
0.098
0.103
0.102
0.136
1600
0.101
0.112
0.107
0.099
0.097
0.131
1700
0.088
0.009
0.102
0.100
0.095
0.114
1800
0.09~
0.070
0.110
0.099
0.002
0.116
15
—
181
—4—
August
8,
1974
(cont.)
~
1974
(cont.)
Ozone,
ppm
Ozone,
ppm
Time
Kenwood
Lindhlom
Joliet
Kenwood
Lindblom
Jolie.t
1900
0.096
0.057
0.159
0.108
0.097
0.090
2000
0.097
0.069
0.116
0.118
0.096
0,048
2100
0.098
0.068
0.058
0.117
0.098
0,033
2200
0.091
0.078
0.115
0.095
0.033
2300
0.092
0.086
0.109
0.085
0.031
2400
0.095
0.077
0.080
0.064
0.033
It
is
apparont from the stipulated data that ozone levels did exceed
.07
within
the
time
frame
for
Watch
and
did
exceed
.10
within the
time
frame
for
declaration
of
a
Yellow
Alert.
The issue is whether
during those time frames, the official weather forecast did
indicate
substantial improvement of conditions.
Weather reports are interpreted according to the following rating
chart
(CACC Exhibit #4):
+
Poor Dispersion, Air Stagnation
+
I
Moderate to poor dispersion
Of
Marginal
-
Moderate dispersion
-
Moderate
to
good
dispersion
-
31
Good
Dispersion
Conditions
-~
Weather
forecasts
for
the
four
days
in
question
were
as
follows:
Date:
July
24,
1974
Time
Issued:
11
a.m.
Forecast:
This Afternoon.. .Mostly sunny.
Poor dispersion conditions.
Winds easterly 5 to 10 knots
Tonight.. .Partly cloudy.
Poor dispersion conditions.
Winds
southeasterly
3
to
8
knots.
Thursday.. .Partly sunny with chance of thunderstorms late.
Moderate dispersion conditions.
Winds variable
5 to
10 knots.
Stagnation Index:
Plus
2 North and Central and Plus
1 South this
afternoon.
Plus
3 over the State tonight.
0 North
and Central and Plus
1 South Thursday afternoon.
15—
182
Date:
July 26, 1974
Time Issued:
Noon
Forecast:
This Afternoon.. .Partiy sunny with chance of showers and
thunderstorms
late.
Poor dispersion
conditions.
Winds variable 6 to
12
knots.
Tonight.
.
.
Partly cloudy with chance of showers and thunder--
storms.
Poor dispersion conditions.
Winds
variable 6 to 12 knots.
Saturday.. .Mostiy sunny.
Moderate dispersion conditions.
Winds Northerly 6 to 12 knots.
Stagnation Index:
PIUS
2 this afternoon.
.
.Plus
3 tonight.. .and
0 Saturday afternoon.
Date:
August 8,
1974
Time Issued:
11 a.m.
Forecast:
This Afternoon.
.
.Partly sunny and hazy with chance of
a
thunderstorm,
Moderate to poor dispersion
conditions.
Winds Easterly 5 to
8 knots.
Tonight.
.
.Partly cloudy with chance of some showers or
thunderstorms.
Poor dispersion conditions,
Winds
light and variable.
Friday.. .Partly cloudy with chance of thunderstorms.
Moderate
dispersion conditions.
Winds East--Southeasterly
5
to
9
knots.
Stagnation Index:
Plus
1 North and Plus
2 Central and
South
this
afternoon,
,
,Plus
2 North and Plus
3 Central and
South tonight.. .and
0 over the State Friday.
Date:
August 9,
1974
Time Issued:
11 a.m.
Forecast:
This Afternoon,. .Partly sunny.
Moderate to poor dispersion
conditions.
Winds Easterly 5 to
10 knots.
Tonight.
.
.Mostly cloudy with showers and thunderstorms
developing
late.
Poor dispersion conditions.
Winds
Southeasterly 5 to
10 knots.
Saturday.
.
.Variable cloudiness with showers and thunderstorms
likely.
Moderate to good dispersion conditions.
Winds Southeasterly
5 to 11 knots.
Stagnation Index:
Plus
I North and South and Minus
1 Central this
afternoon.
Plus
2 North and Plus
1 Central and
South tonight.
Minus
I North and Minus
2 Central
and South Saturday afternoon.
15
—
183
The only testimony received during the
hearing was from Jack
Coblenz, Manager of Technical Services
in the Agency’s Division of
Air
Pollution
Control.
Coblenz, a graduate meteorologist with
over 20 years
experience,
testified that he is responsible for
the Agency~sair pollution monitoring, data and analysis, emission
inventory,
air pollution episode, air pollution
emergency
and
meteorology
programs.
He is the person within the Agency respon--
sible for implementation
of
Rules 403,
406
and 407.
Coblenz
testified that,
in
his
opinion,
the forecasted change
from
“poor
dispersion
conditions”
on
July
24
to “moderate dispersion
conditions”
on
July 25
indicated
substantial
improvement
of
con--
ditions
(R.
13),
Similar opinions
were expressed
for July 26,
August
8
and
August
9.
Coblenz
stated that there were two reasons
for his opinion on
the July 24 forecast.
First
was
the fact that
there
was
a chance of thunderstorms
on July
25 which would cause
unstable
conditions.
Secondly,
he thought that the weather service
forecasters
were
“swaying
between
moderate
conditions
for
dispersion
and
good conditions
for dispersion”.
Coblenz stated that “if there
were no thunderstorms,
it would be moderate..
.if the thunderstorms
occurred,
it
would
be
unstable
or
good
dispersion conditions,
and I
feel
that
they
must
have
been
halfway
in
between
those
two
places”
CR.
16).
The
word
moderate,
according
to
Coblenz,
means
“reasonably
good,
fair
dispersion
conditions,
halfway
between
good
or
poor
and
good”
CR.
17).
For
the
July
26
date
Coblenz
testified
that
two
factors
in--
fluenced
his
opinion,
First
were
the
words
“moderate
dispersion
conditions” on
the
forecast.
The
second
factor
involved
a
shift
in wind direction
which,
according to Coblenz, indicates the
passage of
a frontal system which is normally followed by unstable
conditions.
Prior to the frontal system passage the area experiences
a “pre—frontal inversion” or lid which causes poor dispersion.
Following the frontal system passage the lid is gone, winds
shift
around, colder air is over warmer ground and air becomes unstable.
For these reasons,
the weather forecasters predict moderate dis-
persion conditions
CR.
21,
22),
Weather conditions and the change from poor to moderate
dispersion for August
8 and 9 were reasons cited by Coblenz for
deciding that the forecast indicated substantial improvement in
conditions.
Coblenz
testified
that
ozone
acts
differently
than
other
pollutants.
Ozone
is usually concentrated at elevations
that
require
mixing
and
dispersion
in
order
to
bring
it to ground
level.
When
the
air
gets
very
stable
ground
level
ozone
reacts
with leaves, buildings and other pollutants causing
the ozone
concentration to be reduced.
According to Coblenz,
a degree of
instability is required
to have higher than normal levels
of ozone.
15—
184
—7—
An important
element
of
the
Coblenz
testimony
relates
to
the
Agency
policy
on
Watches
and
Alerts.
His
testimony
reveals
that
a
policy
decision
was
made
during his
absence
on
vacation
to
handle
the
situation
where ozone
exceeds
0.07
ppm
during
the
afternoqn
hours
and
then
falls
below
that
level
later
in
the
day.
When
the
ozone
excursions
first
began
the
Agency
investigated
literature
sources
to
determine
what
concentration
would affect
the
public
during’such
periods
of
time.
The
resulting
policy
decision
was
that
the
Agency
would
issue
advisories
when
ozone
reached 0.15 for a “short
period”
CR. 58).
To issue an advisory or press release each day when ozone
levels “just barely” exceeded what the Agency was “beginning to
feel were the normal levels
“
would
mean
that Agency advisories
would soon be ignored, according to Coblenz
CR. 57).
Coblenz
admitted
that he
was
on vacation when the “problem
originally arose”. CR.
48, 49).
He was
not
a part to “the original
discussions of the Rule
pertaining
to the twenty-four hours of
continued
stagnation”.
However,
Coblenz
returned
to
work
on
July
15
and
apparently
was
on
the
job
during
the
four
days
in
question
CR.
49).
Evidence
shows
that the weather forecasts
are
usually issued
at 11 a.m.
This was the case for three of the four days in
question.
The Agency receives the forecast by telephone and re-
views
the
forecast
in
light
of
other
relevant
factors.
Reviewing
the
data
sAd
forecast
for
July
24,
we
note
that
the
ozone
concentration
exceeded
the
Watch
level
in
Joliet
at
11
a.m.
and
remained
above
that level until at least
3
p.m.
Kenwood
exceeded
the
Watch
level
from
1
p.m.
until
at
least
4
p.m.
and again from 6 p.m. until
7
p.m.
The
Lindblom monitor
indicated
an excessive ozone concentration from 10 a.m. until
at
least
6
p.m.
except for 3 p.m. when no reading was recorded.
If the Agency, having received the July 24 forecast by
telephone, had reviewed the contaminant data it would have been
apparent that ozone levels
had
started
to climb at all three
stations
around
9 a.m. and the Joliet and
Lindblom monitors
had
already
exceeded
the
Watch
level.
By
1
p.m.
the
ozone
levels
at
Joliet
and
Lindblom
had
exceeded
the
ozone
Watch
level
for
two
hours
and
the
Agency
should
have
reviewed
the
weather
forecast
to
determine
the
outlook
for
the
next
24
hours.
Weather
for
July
24,
and
25
was
forecasted
to
have
poor
dispersion
characteristics
the
remainder
of
the
afternoon
and
through
the
night
and
moderate
dispersion
for
the
next
day.
The
Stagnation
Index
rated
dispersion
for
the
areas
in
question
as
2
for
the
afternoon,
3
at
night
and
0
the
next
day.
15—185
The determination that the .forecast was for substantial
improvement is questionable.
Possibility of thunderstorms
was reportedly an influential element in the Agency~sdecision.
However,
the thunderstorms were not expected until late the
next day and, according to Cob1enz~stestimony, would be pre-
ceded by
a prefrontal inversion that would act like
a lid to
seal in pollutants.
The slight drop in ozone levels early in
the afternoon probably led to some uncertainty at the Agercy.
After
a slight drop the ozone levels~again rose late in the
afternoon.
The situation could be termed marginal, but we
believe it would have been better to inform the public by
calling a Watch on July 24.
On July
26
the Kenwood monitor exceeded the ozone level at
Ii a.m. and continued with high readings until 10 p.m.
A peak
reading of 0,208 ppm was recorded at
2 p.m.
Lindblom data exceeded
the ozone Watch level at 12:00 with high readings continuing until
9 p.m.
The weather forecast showed poor dispersion conditions
for the afternoon and night and moderate dispersion conditions for
the next day.
The
Stagnation
Index
rated
dispersion
conditions
at
+
2
in
the
afternoon,
+
3
at night and
0
for
the
following
after--
noon,
more
than
24 hours after
the
forecast
was issued.
There was
a chance of thunderstorms predicted for the nighttime hours,
July
26 was much like
July
24,
except that peak
levels
of
ozone
were higher.
At
2:00
p.m.
the
ozone
level was nearly three
times
the
standard.
Again,
we believe
the
public
should
have
been informed,
August 8 was another borderline situation.
In many ways it
was similar to July 24, but the ozone readings remain~d high
during the night.
On August
8 and 9 the Kenwood monito~rfor
ozone exceeded
0.07
ppm
from
1
p.m. until
8 a.m.,
a
total
of
19
consecutive hours.
During all of this time the Agency had
available to it a forecast that dispersion conditions would
improve from
“poor”
to “moderate”
on August
9.
When the August
9
weather advisory was received
it
became apparent that this
improvement had not occurred (except in the Central part of
the
State)
and
that improvement would be delayed more
thafl
24
hours.
The
August
9
Stagnation
Index,
issued at
11:00
a.m.,
indicated
that the conditions which had already
caused
such
extended high
readings would not improve until the following afternoon.
On
August
9 the
.07 standard was exceeded at Kenwood from noon
until
midnight,
at Lindblom from 10:00
a.m.
until
11:00
p.m.
andat
Joliet from 11:00 a.m.
until
after
7:00
p.m.
We can understand the doubts which must have existed in the
Agency on July
24 and
26
and on August
8.
in these borderline
cases
we
think
a
Watch
should
be
declared,
especially when one
considers
that
trie
only
ampact
of
that
decision
is
to
give
a
warning
to
the
public.
Declaration
of
a
Watch
does.
not
cause•
any
-adverse
impact
upon
industry.
15
—
186
However, the record
in
this
case
does
~not
allow
us
to
find
that
the
Agency
violated
the
Regulations
on
July
24
and
26
and
August
8.
The
only
expert
testimony
in
the
record
with
regard
to
a
proper
interpretation
of
the
weather
reports
is
the
testi-
mony
of
Jack
Coblenz.
Coblenz
said
the
forecasts
were
for
sub--
stantial
improvement
of
conditions
and
such
expert
testimony
is
controlling
in
these
marginal
situations.
On
those three
dates
the
Agency
a~cted
within
its
area
of
interpretation
and
judgment.
However,
the
decision
to
call
a
Watch
should
have
seemed
obvious
on
August
9.
At
thIt
time
it
was
learned
that
the
August
8
weather
report
had
been
in
error,
that
the
anticipated
improved
dispersion
had
not
occurred
and
that
conditions
which
had
already
caused extended high readings would not abate for more
than
24
hours.
Failure to call a
Watch
at
noon
on
August
9
was
a
violation of the Regulation.
The episode regulations were carefully drawn up to provide
the Agency with
a precise format for protecting the public from
unusually high levels of injurious contaminants.
This planned
format
is intended to provide a maximum of protection for the
public with minimal disruption to industry and utilities.
It
is
a public disservice
to ignore public health regula?ions.
We
are surprised that the Agency which originally sought these
regulations and contributed significantly to their adoption
would arbitrarily change the ozone Watch levels from 0.07 to 0.15
ppm.
There is a proper procedure for amending regulations.
That
procedure does not include
a backroom policy session.
It is important to recognize
in
these
proceedings
the
efforts
of
the
Complainant.
Because
of
the
watchfulness
of Complainant,
the
Agency was discovered to be arbitrarily ignoring regulations
it
is
bound
by
law
to
uphold.
The
public
is
indebted
to
CACC
for its diligence.
One
final
matter
remains
to
be
handled.
When
the
CACC
called
Coblenz
as
an
adverse
witness
the
Agency
objected
at
that
point
and
continued
to
object
throughout
the
remainder
of
the
record.
The
Assistant
Attorney
General
argued that Coblenz
was not eligible to be called as an adverse witness under Section
60 of the Civil Practice Act because he was
“a mere employee of an
agency employing approximately 600 individuals”
CR.
37).
The
Hearing Officer allowed the cross examination to take place.
In its closing argument the Agency claims Coblenz testified
in the capacity of “an interested citthen”.
To allow this
“interested
citizen”
to
be
called as an adverse witness was
improper
and
the
entire
record
from
page
41
on
should
be
dis-
regarded
and
stricken,
according
to
the
Agency.
75
—
187
—10—
The
Board
finds
that
Coblenz
had
a
status
in
this
case
different
from
that
of
other
interested
citizens.
He
is
the
Manager
of
the
Technical
Services
Section
in
the
Air
Pollution
Control Division and the
person
responsible
for
implementing
provisions of
the
episode
regulations.
Section
60
of
the
Civil
Practice
Act
provides
that
any
party
or
any
person
or
officers,
directors,
managing
agents
or
foreman
of
any
party
to
an
action
may
be
called
and
examined
as
if
under
cross
examination.
Having
reviewed
the
record
thoroughly
it
is
our
opinion
that
no
improper
questions
were
allowed
by
the
Hearing
Off.icer
during
questioning
of
Coblenz
as
an
adverse
witness.
The
ruling
of
the
Hearing
Officer
shall
stand
and
the
record
shall
not
be
stricken
or disregarded.
The
Board finds
that
Respondent
did
violate
Rules
403
and
406
of
the
Air Pollution Control Regulations on August
9,
1974,
Respondent shall
be
required to cease and desist from these
violations.
We do not find
a violation
on
July
24
or
26,
1974
or August
8,
1974.
This Opinion constitutes the findings of
fact
and
conclusions
of law of the Pollution Control Board.
ORDER
it
is
the Order of the Pollution Control Board that
the
Illinois
Environmental
Protection
Agency
shall
immediately
cease
and desist from violations
of
Rules
403 and~406 of
the
Air
Pollution
Control
Regulations.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certif
the
above
Opinion
and
Order
was
adopted
this
~
of
,
1975
by
a
vote
of
~toO.
15— 188