ILLINOIS

POLLUTION

CONTROL

BOARD

September

2,

1971

DALE

H.

MOODY

#PCB70~~36

and

v.

)

fPCB71—67

FLINTKOTE

COMPANY

DENNIS

A~

GROSS,

~

FOR

PETITIONER

RICHARD

0,

PETRARCA

and

EDN1N

IL.

STRUGALA,

ATTORNEYS

I OR

RESPONL)LNI’

KENNETH

LILNASTER,

ATTORNEY

FOR

ENVI RONIENTAL

PROTECTiON

AGENCY

OPINION

OF

THE

BOARD

(BY

fIR.

KISSEL):

On

November

12,

1970,

Dale

H.

Moody

filed

a

comoinint

anainat

the

El intkote

Ccmaany

(Elm

theta)

iioging

vie

ation

of

Section

5

and

9

(b)

of

the

Environmnnta;i

ProtncL~ on

Act.

The

al

need

vic,iat

occurred,

as

a

result

of

the

oacraticn

of

an

as’:hnlt

:ccc’Jri,nc~

~nates

Ida

rmar~u

Ito

taring

plant

in

Chicac;o

He ~~tLs.

ITo

contended

that

on

nos~ ILy

C’

ci

lq

d

8\

~i

CC

I

5

,

91

5

~nJ

i~

cy~

Oc

o

1970

•

FlLinthote

has

been

and

is

emittr~ nLj

a

v:uiioent,

ca’haltt-snel

iiroj

sm;ke

whJ eL

is

laden

with

2 ±restone~-I ike

dust

and

tarry

art~ Cu I ate

droplets

Moody

sought

a

cease

and

desist

order

ITOUL

the

‘Beard,

and

the

imposition

of

a

monetary

rcenaltL’

for

the

violation.

lIe

asked

that

the

Board

im’aose

a

nenath

for

each

day

the

violotion

thai

be

shown

to

nave

conttnued

unless

Flintkete

could

produce

ev

conce

that

it

has

a

meaningful

erograrn

for

reduction

of

emissions

and

.1 a

current

in

carrying

out

that

aroqram,

Cu

Larch

15

,

1571

,

the

Ens

mental

Protection

Aqency,

througa

its

attorney,

the

Attorney

Genera

or

the

S tate

of

Ilainois,

intervened

~n

LhG

case

by

fals

ng

a

coript

c(iflt

alleging

the

following:

1.

Violation

of

Section

9 (a

of

the

Environmental

Protec~’

tion

Act;

2~

Violation

of

Section

3

of

the

Air

Pollution

Control

Act;

3,

Violation

of

Sections

2—3,1

and

3~-3.11l

of

the

Rules

and

Regulations

Governing

the

Control

of

Air

Pollution;

4.

Failur~

to

obtain

a

permit

for

modification

of

equipment

in

accordance

with

Section

9 (b)

of

the

Environmental

Protection

Act

and

Sebtion

3~~2~1l0

of

the

Rules

and

Regulationa

Governing

the

Control

of

Air

PolILu

Lion;

and

2—~41

---

5.

Failure to

file with

the Technical Secretary of the

Air Pollution Control Board an Air Contaminant

Emission Reduction Program in accordance with

the

Sections

2-2.31(f)

and 2-2.4

of the Rules and Regula-

tions Governing the COntrol of Air Pollution.

In the course of the proceedings,

the Agency amended its complaint

to include the following alleged violation:

6.

Failure to obtain a permit for the installation or

construction of hood enclosures

on its saturators

in violation of Section

9 (b)

of the Environmental

Protection Act and Section 2-3.110 of the Rules and

Regulations

Governing, the Control of Air Pollution.

The Agency asks that this Board enter

a cease and desist order and

impose monetary penalties under the Environmental Protection Act

and under

the now-repealed Air Pollution Control Act.

The petition

for intervention was allowed.

On March

30,

1971,

Flintkote requested

a variance from this

Board until June

30,

1972

to bring its saturators, oxidizing facili-

ties,

and limestone-loading operation

into complete compliance with

the applicable rules

and regulations.’

The Agency’s evaluation of

Flintkote’s variance petition recommended denial.

The enforcement

and variance proceedings were ordered consolidated

for hearing pur-

poses.

Flintkote’s

Operations and Facilities

Flintkot&s

Chicago Heights plant manufactures asphalt roofing

products,

asbestos-cement siding, insulating siding,

and asphalt

emulsions

and cutbacks.

The Chicago Heights facility forms

a part

of the nation-wide building products operations

of the Flintkote

Company.

Basically,

three manufacturing operations

at

the Chicago

Heights facility were the subject of the present proceeding:

asphalt

saturating,

asphalt reducing

(oxidation),

and the limestone unloading.

The asphalt saturator facilities include three operating lines,

#2

—

4

roofing machines.

Flintkote’s basic production process

for roofing

materials

is as

follows:

Flintkote purchases asphalt,

a residue of

petroleum,

from

a refinery,

receives it in tank trucks, and then

pumps

it into one

of several heated storage tanks on

its premises.

1 The variance application was subsequently amended to advance

the compliance date to March

31,

1972.

2

—

342

---

Asphalt

is kept heated

to 350—400° F.

in the storage tanks

by the

use

of steam,. emersion burners,

or by

a connection to the super-

heater.

When operations begin,

the asphalt passes from the

storage tanks into the saturators.

Dry roofing felt is fed

into

the

pre—saturators

and saturator

tanks where it

is first sprayed and

then coated with hot asphalt.

The passage of the felt through the

tanks creates continuous agitation.

The moisture content of the

felt, approximately

5 to 10,

flashes off during the spraying

process.

No control devices exist on the asphalt saturator tanks.

The fumes generated by the saturation process are vented through

natural draft vents directly to the atmosphere.

For example,

Saturator

No,

3 has five vents

of Varying~sizes.

The emissions from

the saturators contain the steam flashed off and particulate matter

from the light ends

of the oil;

the steam-oil vapors carry

a charac-

teristic odor

and are brownish-gray to white in color.

After being

impregnated with the asphalt,

the saturated sheet passes

to the

drying-in

section,

a series of steam—heated rolls which serve to drive

any surface saturant into the

sheet.

This process too occurs under

natural draft conditions whereby asphalt fumes containing particulate

matter may

be emitted.

Th~product then goes either

to the cooling

looper section or to the coating rolls.

The asphalt flux for the reduction department arrives at the

Flintkote premises

in tank cars or trucks and

is placed

in blow

stills,

The asphalt

is agitated mechanically

and by

the circulation

of air

in the blow stills themselves.

This blowing process increases

the hardness of the asphalt for use in shingle saturant or

as coating

asphalt,

by

removing

the light ends of the

oil from the asphalt.

The

exhaust from

the blowing process

is manifolded through

a

fume condenser

which operates as

a control device.

The fumes pass through an oil

path,

then through

a coke condenser, where there is

a water

spray.

The three blow stills operate with

a forced draft of about

1000 cfm

each.

A white plume is emitted from the coke condenser; these vapors

contain particulate matter

and moisture due

to the. introduction of

water from the water

sprays,

and carry

the same characteristic

asphaltic odor to the atmosphere.

In the coating section,

an asphalt mixture containing 50

oxidized asphalt and

50

very finely

groutid limestone is ‘applied

to the saturated felt.

This limestone

is delivered to Flintkote

by truck

and discharged

into

a hopper enclosed on three sides

and on

the top.

Two exhibits introduced into the record are photographs

of

the unloading process,

and illustrate

the dust generation that

occurs at that time.

(See Complainant’s Exhibits 14 and

l4a).

After

the felt has been treated with the fill coating,

it

is surfaced

with granules and conveyed through

a water—soray cooling section.

A vapor, which Flintkote contends

is steam having

a pronounced white

plume,emanateS from this process and vents unrestricted into the

atmosphere.

2

—

343

---

Contaminant

Control Methods

As of the date of the hearing in this case, none of the three

Plintkote processes which are the subject. of this variance had

adequate operating control devices for reducing air contaminant

emissions.

The oxidizing stills do vent to a coke gondenser followed

by a water spray; but Flintkote, in its variance petition, freely

admitted that, though

tl!te

control units collected substantial

amounts of petroleum distillates, particulate matter having a

characteristic

odor

was

being

emitted.

The

request

for

a

variance

filed

by Flintkote called for elimination of these emissions from

the asphalt conversion operation by the purchase of already-converted

asphalt.

Flintkote indicated that it had found

and

obtained a commit-

ment from l4merican Oil as a source of supply beginning July 1, 1971.

Flintkote has no plans to continue asphalt conversion operations on its

Chicago Heights premises after September 1, 1971.

As’ regards the limestone unloading operation, Flintkote presently

has equipment to receive pneumatically-delivered limestone powder.

By September 1,

1971, all limestone will be delivered in pneumatic-

blo’zer trucks.

This delivery process, and several standard bag collec-

tors presently installed on the limestone storage silos, are’the

intende6 control techniques for the limestone operation.

The abatement equipment to be employed on the saturators is a

combination of a thermal oxidizer and’an indirect heater.

The

thermal oxidizer will, in effect, incinerate the fine oil mists

contained in the asphaltic

fume.

Control equipment has been installed

and is presently operating on saturator No.

3 with debugging to be

completed by September 30, 1971; Flintkote stated a deadline of

March 31, 1971 for saturators Nos.

The

Issues

The issues presented in this case, the enforcement case,are as

follows:

whether Plintkote has an approved Air Contaminant Emission

Reduction Program

(ACERP) and, if so, whether this acts as d defense

to the imposition of monetary penalties; ‘~hetherFlintkote’s oper-

ations violate Section 9(a) of the Environnontal Protection Act;

whether the particulate emissions from the three saturators and the

oxidizing stills violate Rule 3-3.111 of the Rules and Regulations

Governing the Control of Air Pollution; whether Flintkote has violated

Section 9(b)

of the Environmental Protection Act and Section 3—2.110

of the Rules and Regulations Governing the Control of Air Pollution

by kts failure to obtain a permit for the installation of hoods and

enclosures on Saturator No.

3.

2—314

---

The

ACERP Questionj

The Air Pollution Control Board,

this Board~spredecessor

body,

instituted the Air Contaminant Emission Reduction Program

(ACERP)

in

1967.

(See Rule 2—2.4 of the Rules

and Regulations

Governing

the Control of Air Pollution).

This basically called

for

those operations

and, processes which were being conducted in vio-

lation of

the applicable regulations to submit

a plap detailing

air pollution control activities and proposed installations, indi-

cating dates of compliance.

The ACER? program bore

a great deal

of

similarity

to the present allowanc~for v’~riancesunder

the En-

vironmental Protection Act.

(See Title

IX).

Just as the present

grant of a variance

acts

as

a “shield”

to an enforcement action,

so also an approved

ACERP acted to protect the person receiving

it from being found

in violation

of the Rules and Regulations

Governing the Control of Air Pollution provided that the approved

program was being implemented.

In generic terms then,

the Air

Contaminant Emission Reduction Program was

a variance under

the

Air Pollution Control Act

arid

is

a variance under

the Environmental

Protection Act,

It should be noted, however,

that such

a variance

under both Acts only continues

in existence “for

a period of one

year.

Flintkote

and Asphalt Roofing Manufacturers Association

(APY~A),

of which Flintkote

is

a member,

commenced their dealings and corre-

spondence with the Air Pollution Control Board

(A?CB)

in September,

1968,

At

that time the APCB was considering

the

adoption’ of

a

“no

plume,

no odor” regulation

for asDhalt roofing saturators.

On

Seetember

18,

1968,

Flintkote read

a statement to the APCB stating

Flintkote~s opposition,

as based on technical feasibility,

to the

proposed

“no plume, no odor” standard.

Subsequently,

the APCB

decided

not to adopt such

a standard,

leaying the asphalt roofing

manufacturing industry subject to the existing regulations already

in force in

1967.

On December

30,

1968,

the Environmental Control Committee of

ARMA asked

the requirement

for submission of Air Contaminant Emission

Reduction Programs

be suspended until June

30,

1969.

CFlintkote

Ex.

23).

On January

30,

1969,

the APCB denied the request of

ARiIA

for

a

time extension

for the submission

of ACERPe.

The Board stated

its belief that all time extensions should be dealt with on

an in-

dividual,

rather than

a group basis,

(Agency Ex.

37A).

On Febru-

ary 26,

1969, Flintkote responded

to the APCB!s request and sought

an extension to complete

its studies regarding asphalt saturator

emissions

and promised

to discuss

its program by June

30,

1969.

(Agency Ex.

37C).

On March

3,

1969,

the APCB wrote to Flintkote

stating

its understanding that

the company intended to submit

a

formal request for an extension of

~:imewithin which

to submit

an

ACER? for

the asohalt saturators.

Such

a request was

to contain

detailed

inforantion

relating to Fiintkotc

s contribution toward

research activities and projects

for controlling emissions,

(Agency

Ex.

37D).

On March

21,

1969, Flintkote complied with that request

2—

---

for control equipment informatIon and again stated its willIngness

to discuss

its program by June

30,

1969.

~Flintkote

Lx.

42A),

On

May 2,

1969.,

the APCB granthd Flintkoto an extension of time until

August

15,

1969,

to submit

its reduction program pertaining

to

asphalt saturators.

On September 23,

1969,

the Chicago office

of

the

APCB received the following letter, dated September

22,

1969,

from Flintkote:

“Gentlemen

In accordance with previous correspondence re~garding

Air Pollution Control, we wish

to advise you that we

are

maintaining

an

active

program of process

and. equip-

ment evaluation to reduce

zmci control asehalt saturator

emissions.

Our preliminary engineering design of hoods and enclo-

sures is presently being modified on the basis of studies

and evaluations at our Los Angeles, Ca3ifornia

and Port-

land, Oregon installations.

Our primary objective

is

the reduction

and cpntaininci of our flow consistent with

safe and efficient oncrations.

he estimate completion

of

this project by December,

1971.

As indicated in our corresuondence

of March

21,

1969,

we

are continuing

the

evaluation

of

the

air

pollution

control

equi;anent

in

ooeration

at.

our

Los

Angeles

California

and

Portlueci, Ore~,a nients,

Our

engineer-

ing

and

maitufacturi

cersoonaf are

continuing

to

develop

the

basic

data

required

for

the

selecteon

and

design

of

the

equi

gpe.nt:

comitorcots

of

teese

installa-

tions

for

t tili7at

on

at

Cc_c

a

0ci

~iit

,

ll~rc

We

estimate

the program

for

ecl,cctlng

ace

enstal.

isp

control.

eauiartciit will

be ecepcted

by

late

1972

d5

early

1973.

Very truly yours

THP

FL1NTKOTt

COdPi.NY

Though

the

letter

is

addressed

to

the

S~rinpfIcl,d

office,

there

is

apparently

no

record

of

receipt

there,

The

dir

Poiluid

on

Control.

Board

never

reseo~ided

to

the

September

22

letter,

The

Air

Pollu-

tion

Control

Act,

Chapter

111

1/2,

Section

240.12,

in

effect

at

that

time,

provides

in

part

as

follows:

“Upon

the

failure

of

the

Technical.

Oecretnrv

to

take

action

within

60

days

after

a

reqeest

for

in-

stallation

permit,

petition

for variance or cert~f~

—

cate

of

exemption,

.

.

.

the person

seeP foe en

such

actions

shall

Ps

on a

LIlaC

~o treat

poses

such

ac~lute

cc

cut

as

a

~rant

at

thu

~a~uot ted

permit,

variance

or

exemption

2—348

---

This hiatus in the administrative process has in effect awarded

Flintlcbte an ACERP.

:The

~gency.

catends thu the abovi letter.

does

not

constitute

a~Aix

Contaminant

Emission

Reduction

Program

because

it:

does

not

contain

certain

information

in

accordance

with

Rule

2-241

of

the

Rules

and

Regulations

Covc~rningthe

Control

of

Air

Pollution

•

Thfl

rule

provides that the program filed “shall schedule

over

a reason-

able

period

of

time

eithêzt

an

installation

of

gas

cleaning

devices~

apd/or

replacement

and/or

alteration

of

specified

facilities

such

that

emissions

of

aiX

contaminants

are

reduóed

to

the

levels

re-

qtred

.

.

.

“‘~

Though

it

is. true

that

the

flintkote

letter

of

Se~’

teaber

22,

1969

did

not

contain

spedif ice

as

to

control

devices

or

as

to

a

phase-in,

phase-out

schedule,

Flintkote

was

never

informed

by

the

Air

Pollution

control

Board

or

by

any

representative

thereof

that

Its

submission

did

not

fulfill

the

requirements

of

Rule

2-2.41.

As

a

matter

of

fact,

until

the

instant

case

arose,

no

representative

of

any

State regulatory agency, neither the Air Pollution Control

Board

nor

its

successor

body,

tha

Environmental

Protection

Agency,

had

made

any

contact

whatsoever., with

Plintkote

either

to

question

the

existence

of

an

ACERP

or

to

inquire

into,

the

company’s corn-

plianca

therewith.

The

Agency

further

contends

that

the

alleged

ACER?

was

not

“detailed”

as

to

“cntch

source

operation

in

accordance

with

Rule

2-2.31(c),”

but

the

same

lack

of

response

greeted

this

omission.

In acl’iition, we believe that l’lintkote’s year—long series

of

correspondence

with

the

APCB $stifiably led it to conclude that

its

submission

in

fact

,Culfillôd

the

ACEEP.

requirements.

Numerous

references

were

made

by

both

parties

throughout the correspondence

regarding

the

submission of

an

ACERP

for

the

asphalt

saturators;

‘nhcn

the

extension

was

granted

to

August

15

for

the

submission,

the

APCB

letter

made

specific

reference

to

an

“Air

Contaminant

Emission

Reduction

Program.”

Due

to

the

lack

of

a

response,

Plintkote

was

entitled to rely ,qn their progrwff having b’een tacitly approved by

the

K?CB

~nd on

thejr

being

able

to

proceed

with

an

implementation

plan geared to “late 1972 or early 1973.”

The

mere

fact

that

the

September

22

letter

was

definitely

filed

with

the

Chicago

APCB

and

apparently

not with

the

Springfield

office

is in no way determinatite.

Tue

September

22,

1969

letter

is

stamped

as received by the thicago office

-

that is sufficient.

We must view

the

mpan’s

month—late

fi ling as also having been excused by the

APCB.

In

the

case of EPA

v.

Commonwealth

Edison

(PCB7O-4),

this

Board

held that under qection 11 of the AiFPollution Control Act, the

AflE could grant variances only for one year.

Since Flinticote’s

ACER? was in affect approved on,November 22, 1969,

and

never renewed,

2—317

---

it

is

therefore

no

defense

to

any

enforcement

action

prosecuted

sub~

sequent

tO

November

22,

1970,

although,

as

the

Board

has

stated.

oreviously,

“it

is

clear

thaL

we

would

not

be

inclined

to

imrose

nancy

aenalties

on

anyone

who

in

good.

faith

had

adhered

to

an

arorored

program.”

(EPA

v.__Commonwealth

Edison,

PCB7O—4).

It

should

also

be

stressed

at

this

point

that

the

ACJcRP

only

acts

as

a

defense

to

those

contaminants

which

it

presumed

to

abate

and

control

in

the

ACERP

itself,

Thus,

the

instanb

case,

2lintkote’s

‘shield”

against

prosecution

would

only

extend

to

asphalt

saturator

~emissions

as

rr~’s

tioned

in

the

letter

of

September

22,

1969,

Presumably

this

coull

cover

fumes

from

the

oxidizing

stills,

though

it

is

doubtful

it

could

be

extended

to

cover

dust

from

the

limestone—unloading

opera-

tions,

It

is

apparent

from

the

Lostinar~y

and

the

staLed

variance

recjrast

that

Flintkote

will

be

in

comeliance

at

least

one

year

ahead

of

its

inuacated

ACERP

deadline

hci~ri

~t

is

true

L

~

insta?c

Lie

~r

hoods

and

enclosures

was

not

comnletecl.

until

Ztnril,

1971,

riot

Doceaw

bor,

1970,

as

the

ACEBji

statol,

this

delay

will

eeL

resu~t

in

new

delay

in

the

overall

wroject.

In

addition,

Fiintkotc

ins

evidently

changed

the

type

of

control

uihuisoent

i.t

intands

to

I so. Psi I

,

nor

will

this

delay

the

coowrticm

dalu:

ChIc

Clix

tAaI-e

shrill

Lava

~e

Li fi~d

ii

Aqonc~

~i

,

ii

+

rr

tOd

foi

all

tire

urcu~a

1

ii

I

r

Pt

believe

that

the

stowocuil

a

Ia I

on

so:

do

c

al ef

11

p~imit: ha~

o~

‘

a

tnouTh

t~

coy

~na

sc

\

facturer’s

2ssociat:iori

(EPC

ins,

do,

2

,

22)

cislili

:1

iCc: I

incineration

uipecint

suSli

sc

I

a

thai:

ow

mis

alt::

to

ins

1:112

available

as

early

as

Is 62

ii cii

‘a i:o

a

the

Tea

dccl

Erase t~~s

to

resoond

again

cxc aerates

C

1st

:a La

,

car

it

O:sira:

C

be

1:

:reh

I

t~

C

State

gave

sooroval

Cc

:1

2a

I a~2e,

In

:u ‘mni~

,

I

nfl

a

a

ii

a

t~ined

Lb

I1~CO~c

1

1

1

1

x

I

the

i5ioo~itjon

os

menctasy

era

maucs

ci

lair

und?e~ this

hi

r

Ij~uL:ws

Control

Act

or

the

ilnvircnsoxitc:

Protection

Act:

2

The

Agency

also

arCs

th~:

this

board

find

Clinthote

in

vioati

on

of

Section

3

of

the

dir

loll

as:

on

Control

AoL.

(Cheater

111

1/2,

SaC-~

tio~

240

3

fll

°~v

10

VL’

S

c

i

APi

c~

L~

a

variance,

Flintkotc:

has

ii)

cc loch

s000ivoc

a

shield”

from

prosocu-~

iion

oiLer

the

Air

ci

i

ian

~

t~l

I

sober

Srilion

2~2 ~l

of

tJ1~

Eel

ci

and

Regolations

Covernlnc:

rho

Con Cool

ci

Air

Pollution

which

stateS

when

an~emIssion

reduc lion

pros raw

has

been

aeerovcci

,

the

~l

I

i~ca:~:ng th

i

r

in

~(

~siOfl

c~

h~

c~

Li

o~

o

~

U

the

E

OCLO

wd

s

b~

a

am

~i

c~te3

ix

~

led

1

Cs

/ CLPP

in

Sooto~~i

0

i969

nc~ t0~ IC Pil

oula

con

taxi

iri’offcct

sar

one

yacir,

that

~‘1li

cc~a:

CiInllatc’~

shirT:

~arh

date

of

rascal

for

the

Air

Co

laIrs:

Coalsal

Z

—

348

---

Violation

of

section

9(a)

of

the

Act

Quite

separate and distinct from the consideration of violation

of

the

rules

and

regulations governing ‘the operatjon of Flintkote’s

plaLt

is

the

consideration

whether

Flintkote

violated

the

&iviron-

mental

Protection

Act.

It

is

entirely clear from a reading of the

Act

that

a

person

can

be

guilty

of

a

violation

of

the

basic

prohibj-

tions

set

forth

in

the

Act

even

though

he

is

complying

with

the

regulations

which

are

applicable

to

his

particular

emission

or

dis-

charge

sourc3.

For

thc

Act

specifically

provides

that

any, person

is

prohibited

from

discharging

contaminants

into

the

atmosphere

which

“causo

or

tend

to

cause

air

pollution

.

.

.

or

.

.

.

violate

regulations

or

standards

adopted

by

the

Board

under

this

Act”.

(Section

9(n)

of

the

Act).

While

at

first

blush

this

may

seem

to

impose

a

double

standard

on

persons

who

discharge

contaminants

into

the

atmosphere

the

logic

of

it

is

abundantly

clear.

There

are

many

situations

where

avon

though

a

person

is

complying with

the

regula-

tions,

lip

still

could

cause

“air

pollution”,

and

we

have

so

held

in

a

cesc

previously

decided

by

the

Board,

EPA

v.

Southern

Aspha3 t

COTLVfl~,_Inc.,

PCB71-3l,

dated

‘June

9,

l9Yl.

In

that

case

we

said:

“TI

is

rnn:~tlCest from

the

testimony

that’ Respondent’s

c~eration, even

if

conducted

within

the emission limits

of the.

roçplations,

would

constitute

a

severe

nuisance

and

greatly

interfere

with

the

enjoyment

of

life

and

property

of

the

resicsents

in

tho

inunediate

vicinity.”

The

Act itself

further

recognizes

the

possibility

that

a

person

may

be

subject’to

a

complaint

charginq

him with

violation

of

the

broad

prohibitions

of

the

Act,

cveii

though

lie

is

complying

with

the

regu-

lations,

because

it

makes

compliance

with

the

regulations

a

“prima

facie”

dafenEe.

(Sectien

49(e)

of

the

Act).

Compliance

with

the

regulations

centa~inkyi~ a

legitinate

deker.se

in

any

~ction

brought

etgair~stany

person

hut

3 t

is

not

a

complete

defense.

Because

if

it

was

a

complete

defense,

the

Act

would

have

said

so.

The

question

to

decide,

then,

is

whether

Ylintkote

is

guilty

in

this

ease

of

violating

section

9(a)

of

the

Act,

notwithstanding

the

fact

that

there

is

compliance

by

most

of

the

facility

with

the

regu-

lations

governing

their

operation.

section

9(a)

of

the

Act

states

as

follows:

“No

person

shall

cause

or

threaten

or

allow

the

discharge

or

emission

of

any

contaminant

into

the

environment~in

any

State

so

as

to

cause

or

tend

to

cause

air

pollution

in

Illinois,

either

alone

or

in

combination

with

contaminants

from

other

sources,

or

so

as

to

violate

regulations

or

standards

adopted

by

the

hoard

under

this

Act.”

2—

34

---

Air

Pollution

is definéd.as Xolicss:

“Air

Pollution”

is.

the

presence

in

tho

atmos-

phere

of

one, or

more

contaminants

in. sufficient

~1,tan”-

tities.

and

of

such

charaäteristjcs

and

duration

as

.to

be

injuriots

to

human,.-pltnt,

or

animal

life, ta

health,

or

to

froperty,

or

to

unreasonably

interfere

with

the

enjoyment

of life or property.”

Numerous

witnesses

appeared

at, the

hearing

and

testified

to

the ediz

which

‘existed

beyond ‘the boundaries

of ~he

plant.’

Withess

after twit

ness

talked

about

the

“tarry”

odoI

which

~made

thorn ‘nauiecsus,

and

caused

their

eyes

to

water.

Two

o~the

nbst

detcriptive

witnesses’

on

the

subject

were

Elizabeth

Blackwell

and

.flale

Moody,

the

originfl

co~lainant.

Blackwell,

w~olives

near

the

plant,

described

a

“pungent,

acrid,

‘tarry”

smell

which

mzt~ebreathing

difficult.

Site

identified

the

odor

as

coning

from

the’ Flintkote

plant

‘because

of

the

direction

of

the

wind

when

she

nofices

the

odor.-

She

aläo

estab’

lished

property

damage

t;

roofs,

sh±ubberyand

automobiles

as

a

re-

suit

of

the

tarry

emission

from

WliiItkote.

Dale

Moody

works

neiw

the

?lintkote

plant.

He

has

noticed

what

be

terms

an

unbearable

asphalt

type

odor

tchen

the

wtnd

is

co~Mng’fronthe

direction’

of

the

Fiintkote

plant.

Prolonçed

cx.;Qsure

to

the

odor

has

r~roducodeyc

irritation

and

,

.u~ic~i

has

actually

intozerc~

with

his

work

•

Ho,

like

the

other

wi t:iosses,

)t~s

noticcd

smoke

craning

fron

the

Flintkote

plant.

Moody

has

also

identifIed

a

on ‘his

autombbile

as

coming

‘from

tpo

!Slintkote

~iant.

The

particulate

accumulates

on

his

windshield

(and

other

PaNts’ of

his

car)

and

as

a

result

his

wind~hiold

szipecs

wear

gut

more

quickty.

All

of

this

testimony

cionc.tusit’ci:T provas

that

the

omissions

from

the

Flintkote

plant

“interfere

with

etc

onjoy~::ontof

li2e

or•property”

of

the

neighbors

and

thosu

who

come

ncicir

the

plant..

The

solo

qu~stion

re’maining,

then,

,is

to

dotc.:nine

whcthe~~u~h

interference

is

“u:rc~::on—

able”

as

required

by

th~Act.’

it

is

the. position

of

thiu

Board

tNz’t.

air

contaminant

emissions

are

“urirezsonable”

within

the

moaning

of

the

Act

when

there

is

proof

that

there

is

an

interference

with

ii~c

and

property

and

that

.

economical ly

re4sonable

technology

is

qvailnb.e

tp

control

the

contaminant

eraissi ons.

We

find

that .bath

elements-

were

proved

in

this

case.

The

interference

has

been. previously

documuntod

in

this

opinion.

And,

in

the

instant

case,-

the

Agency

firmly

ost.~b-

lished

~

control

technolo2y

for

such

odbrifeious,

and

particu~.tc

emissions

has

been

avai&ab)e

and

in

use

since

l9U.-

On

September

22,

196$,

Flintkoto

informed

the

ZPCJ3

that

it

had

“just

spent

a -consider-

able

amount

of

mor1ey

on

an

Sçrineering

study

to

encilose

itnj

satura-

tors

and,

when

enolqsed

(rlintkote

is

presently

contemplating

burw-

ing

the

fumes

because

of

thcr

inefficiency

o2

the

scrubbing

and electro-

static

systims

nag

baing

offered”

(?flintkote

Ex.

32).

Yet

it

was

not

a

—

---

until

two

Chicago

firms

installed

and.

omerated

with

fume

incinera--

tion

in

1970 that Flintkoto

really

commenced

its own installation,

Furthar,

earticulale

controls have been available

to Plintkote

for

at

least

10

years

using

either

of

the

methods

adopted

at

its

own

faci1itio~

in

Los

Angeles

or

Portland,

and

P lintkote

‘s

own

variance

c

a

~

‘~ac edlaLs

~iintlotc~s

ah~l~t~and

intent

to

control

~ho

odorous

and

harmful

emissions.

This

control

of

uarticulehr~ would

have

significantly contributed

to

the

control

of

odors

Chicago

Heights

on

the

limestone

operation.

The pneu—

nab

c

unlos ding

e:U:~pIeent has

been

in:3 tailed

for

some

time

but

has

not

been

fully

used

due

to

a

lack

of

trucks

with

pneumatic

devices,

Tin

this

area,

too,

llintkote

could

have

moved

ahead,

for

the

equip—

cent

was

available,

Thus,

Tflintkote

s

interference

with

the

life

and

:o:~rt~

of

ifs

neighbors became

unreasonable

when

its

own

lax-

ity

and

d.tlatorineas

stalled

the

installation

of

control

eguinment

A

cease

and

desist order

shall

be

issued

against

llintkote

which

order

slieLl

reguirs

control

devices

to

be

installed

as

further

out-

lined

in

th~

s

opinion.

Flintkote

shall

be

permitted

to

onerate

its

mob ILIty

as

long

as

it

comnle~cs with

the

timetable

for

the

in--

stallation

and

operation of

the

control

eguipreent

as

outlined.

The

Particulate

Regulations

—

Violation

SecL~en

3—3,111

is

applicable

to

asohalt

roofing

operations;

it

previous

as

foilows

“Partioul

ate

matter

emissions

from

any

erocess

shall

be

lbpited

by

process

weight.

in

accordance

with

Table

1

of

Cheater

III

.

On

canes

I

-

7

of

the

Rules

end Regulations Governing the Control

of

A~

a

a ~

I

i~

Th

LO~3

c

~

iOP5

Cle

gL~n

“Process

Weight:

The

total

weight

of

all

nater~als

nrac

~ci

ii

so

e

source

e~eratao r

Cs

chaste

a’

s

cc)

“Process

Pci gaL

Hate

(b)

For

a

cyclical

operation,

the

total

plocoss

weight

for

a

period

that

cove us

a

comobete

eec ration

or

an

ifltec!rai nuieker

of

cyches,

dithcT~cTh by

the

hours

of

actual

process

opera-

tion

during

sach

a

period.

Where

the

nature

of

any

process

or

operation

or

the

design

of

any

equipment

is

such

as

to

permit

core

than

one

interprotation

of

this

definition,

The

i~itersretation

that

results

in

the

minirum

value

for

a

losable

emissions

shall

anuly.

2

—

351

---

Flintkote’ s

operations

are

such

that

a

continuous

but

varying

amount

of heated asphtlt must be repeatedly injected into the

saturator

tanks

in

order

that

a

certain

ternerature

can

be

main-

tained

Thiring

operations.

The

saturation

process

occurs

as

follows:

The

saturator

is

composed

of

two

tanks,

a

south

and

north

tank,

which

are

interconnected

by

a

pipe.

Ahead

of

the

south

tank

is

a

pre-saturator

section

consisting

of

a

set

of

sprays;

following

the

nozth

tank

is

the

soaker

section.

Asphalt

is

pumped

into

the

south

and

north

tanks,

and

from

there

is

con-

veyed

to the spray and,soaker sections

•

The

spray and

the

soaker sections are similar to trays whose overflow is drained

back

into

the

south

and

north

saturator

tanks

respectively.

The

asphalt

used

in

these

four

sections

flows

from

a

50,000—gallon

holding

tank.

The

asphalt

is

pumped

out

of

the

holding

tank

and

through

the’ superheater.

The

discharge

from

the

superheater

can

go

three

directions:

it

would

normally

flow

into

the

south

and

north

tanks,

but

when

the

temperature

of

the

asphalt

reaches

above

a

certain

set

point,

the

automatic

temperature

control

flow

valve

opens

and

discharges

the

asphalt

back

into

the

hold-

ing

tank.

Flintkote

contends

that

this

“recycle”

factor

should

be

taken

into

accqunt

in

computing

allowable

emissions.

It

con-

tends

that

the

more

asphalt

recycled

or

“introduced”

into

the

saturator operations, the greater the quantity of emissions.

We

believe that such an interpretation is in flat contradiction to

the

final sentence of the definition of “Process Weight Rate”.

If we were’to allow Flintkote’s interpretation to stand, that would

mean

that

every

time

a .product

of

an

operation

were

removed

from

the ‘production process, e.g. for weighing on’ a scale, then a

recomputation of process weight would necessarily have to take

place. ‘As further illustration of the unreliability of such a

standard,

Flintkote

itself

admits

that

the

recirculation

rate

in

a

machine

may

vary

dependin9

upon

the

amount

of

heated

asphalt

the

“thermostat”.

determines

is

necessary

to

maintain

the

proper

temperature.

(a.

2924-26)

Further,

such

a

standard

would

be

subject to the vagaries of a manufacturer’s operation even if

the

same

machine

were being used

and

the

same

amount

of end

product

turned

out.

The

definition

which

Flintkote

advocates

would

place

an

unreasonable

burden

on

the

regulatory

enforcement

process.

Further,

such

a

definition

flies

in

the

face

of

the

regulation

which

calls

for

minimal,

not

maximum,

emissions.

In

a

simplistic form, process weight must be whatever is brought to

the

company~s

loading

dock

and

then

once introduced‘into a

process.

As Flintkote’s own witness admitted on cross-examination,

“In the case

o~ saturators,

I

would

think

the

controlling

factor

in emissions would be the open area of the,tanks”.

(a.

2928)

The

controlling factor,therefore, is not recycle, but is the

amount

of asphalt introduced into the process.

2—fl

---

In

computing

the

process

weight,, the

felt

introduced

must

also

be

added’in.

Using the Compilation of

Air

Pollutant

Emission

Factors,

dated April,

1971

(EPA

Dx.

18),

the

Agency

engineer

con-

cluded

that

only

saturator

No.

3

was

in

violation

of

the

applicable

regulations.

Using

both

felt

and’asphalt,

the

allowable

emissions

on Saturator No.

3 are 35.4 pounds per hour; actual calculated

emissions using the federal table are 50 pounds per hour.

In an

attempt

to determine the actual emiàsions and thereby refute the

computation

made

by

the

Agency,

Flintkote

obtained

t4e

serviCes

of

a

testing

company.

Its

results,

however,

were

so

contaminated

by

improper

testing

methods

that’ th~y are

in

effect

worthless.

We

are

then

thrown

back

to

the

Compilation

of

Emission

Factors

data

for

a

determination

of

actual

emissions.

Flintkote

attempted

to

challenge

the

data

in

‘the

federal

document

and

differentiate

the

operations

sampled

therein

from its

Chicago

Heights

operations.

The

federal

document

bases

its

sampling

on

plants

having

forced

draft

ventilation,

whereas

Plintkote

operates

with

thermal

draft

venting.

In

the

case

of

EPA

v.

Norfolk

and

Western

Railway,

PCB7O-4l,

the

Board

determijio5

that

the

iailroad

had

successfully

differentiated its operations

from

those sampled in the federal

document by introducing results of tests of equipment more nearly

representative

of the actual emissions in the case than the more

generalized standard factors offered by the Agency.

We see no

such

significant

differentiation

here.

Flintkote

repeatedly

sought

to

establish

‘that

in

the

plant

and

on

the

premises,

particulate

deposits

were

signif±cant,

and

possibly

in

the

amounts

as dis—

charged

to

the

outside

vicinity

of

the

plant,

but

was

never

able

to so conclusively prove.

Thus, Flintkote never showed why forced,

as opposed to thermal, draft makes a difference.

The similarity

of operations therefore holds and, due to the failure of the con-

ducted tests, Saturator No.

3 must be held in violation of the

applicable regulation.

On the question of a violation of the regulations by the oxi-

dizing

stills,

the

record

is

not

clear

that

a

violation

has

been

proved.

Using the 1967 data and the Compilation of Emission Factors,

the Agency could not determine whether a violation existed.

The

Agency

environmental

engineer

testified

that

due

to the ‘presence

of collectors on the stills,

the efficiencies of which were neither

known to him nor available using the Compilflion of Air Pollutant

Emission Factors, he could

make

no calculation of emissions.

The

test which Flintkote conducted on the oxidizing stills was similarly

contaminated

by

the

testing

methods.

In

summary,

the

Agez~tcyhas

shown

that

Saturator

No

•

3

was ‘in

violation

of

the

Rules

and

Regulations

Governing

‘the

Control

of

Air

Pollution.

2—363

---

Permit

Violations

The

Aqency

has

dropped

Count

4

of

its

initial

ccmclThnt.

On

Count

5,

the

Board

has

ruled

herein

that

Flintlote

did

ccnnjv

with

the

ACERP

filing

requirements.

Count

6

of

the

complaint,

as

amended

during

the

course

of

the

hearing,

concerns

Flintkote

~s

failure

to

andy

for

an

installation

permit

for

the

hoods

and

enclosures

on

the

saturators.

tiihote

concedes

that

the

panels

were

installed

as

part

of

the ACLk7 and

evidence

the

company~s

ongoing

~batemept

urogram.

I2lintkoto~s

failure

to

obtain

an

installatiod

permit

for

these

as

yet non-

functional

devices

must

be

viewed

only

as

a

deminimis

trensc~res—

sion of Section 3—2 .110 of the Rules

and

Reoulationa

~rerrbno

the

Control

of

Air

Pollution.

The

permit

has

since

becn obtainod

and

certainly

no

penalty

can

be

imposed

though

a

violation

does

exist,

Flintkote~s

Variance

Flintkote,

as

we

previously

indicated

in

this on~nion

,

filed

a

petition

for

variance

with

the

Board.

The

variance

ous

recoded

by

subsequent

testimony

in

the

course

of the hearin~~. The dote

for

final

comaliance,

as

amended,

is

Retch

31,

1972.

The

issue

then

is

whether

the

variance

should

be

grunted.

The

Environmental

Protection

Act

states

that

a varianc: ebeli be

granted

to

a

petitioner

it hd

proves

that

cosruliance

re

t;h

ru~ hot,

the

rules

and

regulatioss

promuigated

thereunder,

or en order of

the Beard creates an Thrbitrary

and

unreasonable

her’dsh±~

(Sec-

tion

35,

Environmental

Protection

let)

.

We

have held

on onerous

occasions that

in detormininq whether

such

a

hardshi

en

s to, we

will

balance

the

benefits

and

detriments

to

the pub:

C

aoainst

the

benefits

und

dcr

~i

~c~ts to

tth cc~itic~e’~

bL

~JL

stated

that

this

is

not

en

enual

balance

The

Board

nil

look

to

the

benefits

to

be

afforded

to

the

public

as

being the strongest

of

factors.

After

a

review

of

the

evidence as pres~otOd, we

feel

that

the

variance

should

be

erantod

in this cane

noon cer-

tain

conditions,

which

will

be

dealt

with

:c5p0ratl~

First,

the

bulk

of

Flinthote

S

oporatiens,

Saturator

No.

3,

the

oxidizing

stills,

and

the

liruestone—unlostiino o~eoution, oh

1

all

be

in

compliance

by

the

end

of

September,

1971.

kliutkote

has stated a deadline of

March

31,

1972

for

IostailutI en

and

neratior

of

tee

thci~el

oi~

dotreri ~

t an s~cu

ii

one

ho.

4.

While

there

will

he

some

dischaa

ye

of

con

L~uninunts

to

the

atmosphere

during

the

tire

when the

project

is

hel no

cor:octed,

2

—~

354

---

we

feel

that this is permissible since

the

alternative

to

not

granting

the

variance

would

be

a

shutdown

of

the

plant.

The

economic impact would be too great to allow for the little bene-

fit to be gained if the discharges were to be continued for a

short

time

-

less than 3 weeks for tho limestone-unloading

and

oxidizing stills, and 1 1/2 months for Saturator No.

3, with all

three operations gradually being brought into compliance as the

deadline date approaches.

flintkote

onploys

250 people

and

its shutdown would also affect cperatiorw in Mount Camel, Illi-

nois.

This constitutes an annual payroll of over $2,000,000 ~in.

the State of Illinois.

Perhaps shutting down the plant until

compliance is achieved would be a viable alternative if the pollu-

tion caused by the industry were so great

and

the prospect was

that it would gontinue, unabatc~3,for scwa

time;.

Such is not

the case here.

As a flatter of fact, the saturators on which com-

pliance will be delayed the longest, Saturators No.

2 and No. 4,

were not even found by the Agency to be in violation of the

applicable regulations.

In

the

course

of

the

proceeding,

Flintkoté

indicated

that

it

contemplated

that

tie-in

of

the

control

unit

on

Saturators

No.

2

and

No.

4

would

begin

a

month

later,

Decer~cr 1,

1971,

than

originally

scliciftled,

but

would

be

finished

two

months

ear—

liar, January

31,

1971,

than

scheduled.

The month postponement

was

mnant

to

:~ushtin

tie-in

closer

to

the

time

when

the

plant

ts

not

opcr?iting

at

fuLl

capacity.

(a.

2827—30).

The

installa-

tion

of

such

abatement

equipment

has

waited

long

enough

without

additional

postponet~ents.

Tie-in

work

shall

begin

as

scheduled

on

the

bar

graph

(Flintkote

fix.

66)

and

s:iall

be

completed

by

December 31, 1971.

Flir’tkotc shall

have

until

January

31, 1972

for any further adjustm~zitsor revisions.

Testimony

~t

the

hearing

also

elicited

the

possibility

that

significanL omissions may be emanating from the asphalt storage

tanks.

Each of theno several tanks

is equipped to keep asphalt

in a heated ~tat~and operates without any control device,

free-

venting

through

a

safety

vent

to

the

atnosphere.

Flintkote

shall conduct a study of these emissions, their quantity and

quali?y

and

uub;ait

a

report

to. the

gnvironmental

Protection

Agency

within

six

months

iLcacatb~g the

company’s

evaluation

of

the

need

for

particulate

and

odor

control

devices

on

the

storage

tanks.

Flintkote

shall

post

a

bond

in

the

sum.of

$245,000

as

a

condition

of

the

variance;

in

all

other

respects,

the

variance

shall

2—356

---

IProcedural :4atters

Several procedural matters remain to be resolved.

First,

Flintkote sought to call William Blazer, the Director of the

Environmental Protection Agency,

as

an

adverse

withcss.

We

sus-

tain the Hearing Officer’s quashing that Notice to Appear in

the

absence

Cf

any

showing

by

?lintkcte

that

Blaser

was

possessed

of

any

specific

or

relevant

personal

knowledge

of.the

Plintkóte

case, complaint or situation.

The Bearing Officer also ordered the Complainants to pay

the transportation expenses from

New

York

City

of

one

:~onte

Carpenter,

the

general

Manager

of

the

Building

J:roducts

~rou!? of

the

Plintkote

Company.

The

Board

be) ieves

th~

t

it

has

tht~author-

ity

to

compel

the

appearance

of

an

out—of—state

:et~resent~ti.ve

0!

a

business

authorized

and

licensed

tc

do

busin.~:;sin

the

State

of

Illinois.

In

this

case,

the

transportation

coats

wen~rjc.btsy

assessed

to

the

calling

party

since

the

1:e~ue~tits~tlf

w&a.

•~nJy

made

on

the

first

day

oi

the

proceedincjs.

2Th:~•cc.mpany

skiould

not

be

put

to

the

burden

of

assuming

the

cx~ensuu ~ff

a

belutadly-

called

witness.

Bo~hMoody

and

the

Attorney

General

have

souqht

Order

s

of

Default

issued

for

Flintkote’s

alleged

tailurct

to

rc::ooxri

-~t~ickly

and

conclus3.v3ly

to

the

several

sets

of

ints~rrogatorics

e:tc.h

presented.

We

should

mention

that

panics

acc:ust.ctcc:d

to

tr’rin~

cases

an

other

foru;is

will

n~st

likely

find

the

oxsactltfi ous

tr: al

proceedings

of

the

Pollution

Control

BDard

a

bit

hurriso:.a.

The

crucial

test

on

the

entry

of

a

default

order

ia

wiethc•r

or

:sot

the parties so claiming were prejudiced.

)7o

showing

of

ç.rcjudic:c

has been wade .by either of the affected Darties.

i’ron thc: four-

teen-day record of ?roceodinqs,

it.

is apparent thaL SCth cor

plainants ware able to try their cases in full

(and

somet:u

.es

perhaps too fully).

The motion for default is denied.

One further comment should be wade.

This is one of

the

fir;;t.

of the

citizen

co~api~iinLs

to

be filed and tried before the

Bc:ard

under the Environmental Prctection Act.

•As can be seen from thG

Board’s findings, the standard of proof in such cases as these is

not

necessarily

simple.

Citizen

complainants

under

the

Act

have

the

sar.)e status as governmental agencies;

it

fellows

th2n

that

they

are

put

to

the

same

burden

of

proof

as

any

other

?arty.

Citizen

participation

in

proceedings

bcfcxe

this

Board

is

en-

couraged

by

the

Act

andwelcomed

by

this

Boax~~. In

the

cud,

Dale

6oedy,

private

citizen,

can

take

heart that his complaint uitimabcl:7

resulted

in

the

filing

of

a

variance

by

Flintkote.

The

hearing

at

least

has

caused

pollution

control

tquipment

to

be

installed

2 —3M

---

t:i

Chireg’~;:~~~ts

.

:Siitc:.

..~

D:•

~

3~

•~H...,

rathei

than

“L~.tc

1972

cr oariy

l’~73”,

ts

ur...i~:it

‘.n

;

~:.

.

TL~o

b.)OtC.

cc..:~jtnteq

t’

.....,c.r

~

ch.c’u.uz

c~tact. and

con—

clu..don of

iz,i.

This

rr.tnion

....

~

..‘~.

in

;cccrc,.zcu

vith

the

Order

of

the

Pollution

Contro

P’jari,

e’tpa.

co

i,utuai

1.3,

1971.

I,

Re’;~naE.

R,’~n

Crrk

o!

the

W,art,

certi1y

that the

rd

hrts

:.. ‘?~

c:’~i

‘.e

UtOs”

Ct.in!on tJ2

.i

_Th1

Cey

of Septetbet,

li71.

F

2—357