ILLINOIS POLLUTION CONTROL BOARD
December 12, 1972
ENVIRONMENTAL PROTECTION AGENCY
)
#72—215
V.
WELDON
FARMERS
GRAIN
CO-OP
THOMAS
A.
GENGEL
AND
DELBERT
HASCHEMEYER,
ASST.
ATTORNEY
GENERALS,
ON
BEHALF
OF
ENVIRONMENTAL
PROTECTION
AGENCY
LAWRENCE
EATON,
ON
BEHALF
OF
RESPONDENT
EVAN
A.
STRAWN
OF
MERKER
AND
ADLER,
ON
BEHALF
OF
INTERVENOR
OPINION
AND
ORDER
OF
THE
BOARD
(BY
SAMUEL T.
LAWTON,
JR.):
Amended complaint was filed against Respondent alleging that
between November
3,
1971 and
the
date of the close of the record,
Respondent,
in the operation of its Clipper-Randolph Dryer, grain
load—out booms, receiving stations and conveyors located in Weldon,
Illinois, emitted contaminants into the atmosphere causing air
pollution in violation of Section
9 (a)
of the Environmental Protec-
tion Act and violated Rule 3-3.111 of the Rules and Regulations
Governing the Control of Air Pollution
(Air Rules).
The complaint
further alleges that Respondent’s failure to file a Letter of Intent
and an Air Contaminant Emission Reduction Program
(Acerp) violated
Rules 2-2.22 and 2—2.41 of the Air Rules.
We find the evidence
sustains the allegations of the complaint with respect to the causing
of air pollution,
as defined in the Act.
We find that the evidence
does not sustain the allegations of violation of the Rules as alleged,
in that Respondent has adequately rebutted the Agency’s proof with
respect to particulate emissions based upon standard emission factors,
and
since
no regulatory violation has been
proven,
Respondent
has
no obligation to file a Letter of Intent or Acerp as provided by the
Rules.
Before discussing the merits of the case,
it
is necessary to
dispose of certain procedural matters raised by the pleadings and
motions filed.
The Environmental Protection Agency’s complaint was
filed on May 22, 1972 and later amended pursuant to motion on
August
24,
1972.
Answer to the amended complaint was filed denying
the essential allegations of the amended complaint.
On the same day,
two motions to dismiss were filed by Respondent, the first motion
attacking the basic air regulations as being arbitrary, capricious
and unreasonable,
in failing to distinguish between existing physical
conditions for different contaminant sources for different geograph-
ical areas, failing to distinguish between elevators
in metropolitan
6—433
and country areas and failure of the Board to consider the techni-
cal feasibility and economic reasonableness
in the promulgation
and enforcement of the regulation under consideration.
The’motion
further asserts that the regulations are void in that they fail to
consider the effect of contaminants from different sources on plant,
animal and human life and property, regulate emissions from processes
instead of emissions into the air “off of respondent’s premises”
and that requiring reduction of emissions would impose an unreasonable
burden upon
Respondent
and
deprive
it of property without due process
of
law.
The second motion to dismiss contends that the rules
requiring
the
filing
of
a
Letter
of
Intent
and
Acerp
places
an
unreasonable burden on Respondent and deprives it of equal protection
of the laws.
We find both motions wholly lacking in merit and
accordingly deny them.
The Environmental Protection Act continues in effect all regula-
tions promulgated by the Air Pollution Control Board until repealed,
amended or superceded
(Sec.
49(c).
Section 33(c)
of the Act with
respect to enforcement orders provides that in making any order or
determination,
the
Board
shall
take
into
consideration
all
facts
and
circumstances
bearing
upon
the
reasonableness
of
the
emissions,
together with the character and degree of injury to the protection
of the health, general welfare and physical property of the people,
the social and economic value of the pollution source, the suitability
of the pollution source to the area in which it is located and the
technical practicability and economic reasonableness
of reducing
or eliminating the emissions.
The totality of the statutory and
regulatory framework compels the Pollution Control Board to give
consideration to all of the elements alluded to in Respondent’s
motions which it thas done.
Nor does any reason suggest itself why
the Letter of Intent and Acerp provisions,
a program in effect for
over five years, constitute
an undue burden as applied to Respon-
dent.
Petition to intervene was filed by the Illinois Agricultural
Association which was opposed by the Agency but permitted by order
of the Hearing Officer.
Hearings were held in Clinton, Illinois
on October
2,
3 and 17, 1972.
Briefs were filed by all parties
at the close of the hearing.
Section 31(c)
provides that the complainant has the initial
burden
of
establishing
violation
of
any
provision
of
the
Act
or
Regulation
and
once
such
proof
has
been
made,
the
burden
shall
be
upon Respondent to show that compliance with such regulation would
impose
an arbitrary or unreasonable hardship.
Respondent has
successfully met the Agency’s contentions with respect to violation
of the particulate and Acerp regulations,
but has not overcome the
—2—
6
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434
proof
that
air
pollution
has
resulted
in violation of the statute
nor
has
it
adequately
demonstrated
that
elimination
of
such
pollu-
tion would
impose upon it an arbitrary or unreasonable hardship.
Petitioner operates a grain elevator
in Weldon,
Illinois,
storing corn,
soy beans, oats and wheat.
Grain
is brought to the
elevator
by truck, taken from the truck by mechanical process,
conveyed
to specified portions of the facility depending on what
grain
is
involved, dried, stored,
removed from the storage loca-
tion and placed in freight cars or trucks for ultimate delivery
to consumers.
Dust and particulate emissions occur at every stage
of the operation.
Frank Rudisill, Manager of the grain company,
testified at length with respect to the operation of the facility
(R.30 through 57).
The operation is described as a place in which
farmers bring their grain to market for storage and ultimate dis-
position.
Approximately two million bushels of grain were stored
during the past year,
of which 1.4 million were corn,
300,000 were
sOy beans and the balance wheat and oats
(R.31)
.
While approximately
one-half of
the grain
is received in the fall subsequent
to harvest,
the operation of the elevator continues throughout the entire year.
As many as
280 truckloads are received in a single day during the
harvest season.
Truck capacities range between 100 and 400 bushels
per truck.
Upon arriving at the grain elevator, the grain is
weighed and its moisture content determined.
The grain
is dumped
from the truck into
a pit where it is fed by gravity into
“legs”,
carried to the top of the elevator and then by gravity feed, trans-
ported to a specified bin.
There are seven dumping areas at the
elevator,
although only five are in general use (Joint Ex.
1,
R.36-37).
Cyclone equipment has been installed at the legs and an
aspirator has been installed on the Clipper-Randolph Grain Dryer
(R.
39).
After such storing and processing
as takes place within the
elevator,
the grain
is loaded into railroad cars or trucks through
load—out spouts which are equipped with canvas bags to minimize dust
emissions.
The allegations of the complaint fall in two
geitieral classifications
and require separate treatment.
The Agency’s contentions with respect
to air pollution are premised on the nuisance allegedly caused to
adjacent residents and the downtown area generally,
as a consequence
of Respondent’s operation.
In this respect,
we believe the Agency
has sustained its burden of proof, which has not been overcome by
Respondent’s evidence.
Proof with respect to violation of the
particulate regulations was based on the employment of standard
emission factors by the Agency which we have held on many occasions,
to be
a proper means
of establishing violation which, however, can
be rebutted by persuasive evidence on behalf of the Respondent.
—3—
6
—
435
See EPA v. George E. Hoffman
& Sons, Inc.,#71-300(Dec.12,l972)5 PCB
see Environmental Protection Agency v. Norfolk
& Western Railway,
#70—41,
1 PCB
,
(May 26, 1971).
With respect to this aspect
of the complaint, we believe Respondent has successfully rebutted
the testimony of the Agency based on standard emission factors,
thereby negating a finding of violation of particulate regulations
and
precluding the need for compliance with the Letter of Intent
and Acerp provisions.
Each aspect of the complaint will be
considered separately.
Numerous witnesses living in the vicinity of the plant testified
to the impact upon their daily lives consequential to the elevator’s
operation
(R.
64 through .172).
Contrasted with other cases,
there
is no need to speculate as to the source of the emissions,
as
witnesses observed the particulate and dust generation eminating
from the various loading and unloading operations inherent in the
elevator operation.
Chaff and beeswings were the principal dust
emissions.
Witnesses
in the vicinity of the elevator testified th their
inability to ever keep their windows open,
the thick dust settling
on their houses and property
(R.
69), the constant need for cleaning
their properties, the cloud of dust observed over Section A of the
plant
CR.
99)
seen on various occasions over an eight—year period,
the need to skim off the chaff and dust from the swimming poo1 and
the observed emissions
in the downtown area
(R.
105).
No useful
purpose would be served by particularizing the observations of each
neighboring witness.
The totality of the observed evidence manifests
that Respondent’s operation,
particularly in its loading and unload-
ing areas, has eminated dust,
chaff and beeswings emissions that
have constituted a severe burden on the homes of nearby residents
and carried over into the downtown area.
The difficultyin breathing,
the inordinate amount of cleaning necessary to keep their homes order-
ly,
the preclusion of outdoor activities and the need to keep windows
closed throughout the entire year clearly constitute the degree and
character of interference with enjoyment of life and property that is
contemplated by the air pollution definition within the Environmental
Protection
Act.
Coupled
with
this,
we
find
that
Respondent
could
take
significant
steps
at
minimum
cost
to
ameliorate
this
condition.
Maintenance
and
improvement
of
existing
facilities
such
as
the
canvas
bags
in
the
loading
area
would
go
far
to
abate
this
nuisance.
Testimony
with
respect
to
the
need
for
an
expenditure
of
$113,000
to
install
new
air
pollution
abatement
equipment
indicates
that
this
figure
is
far
more
than
necessary
than
needed
to
eliminate
the
nuisance
since
by
this
proceeding,
we
are
not
finding
a
violation
of
the
regulations,
but
only
a
violation
of
the
air
pollution
provisions
of
the
statute.
Respondent’s
thrust
should
be
directed
toward
repairing
and
improving
its
existing
facilities
including
the
maintenance
of
the
primary
—4—
6
—
436
cyclones
and installation and repair of its canvas bags used in
minimizing
the
dust emissions from loading and unloading operations.
In our
view,
the abatement of the primary nuisance can be achieved
with
relatively slight expenditure and by improved housekeeping
practices without the need for installation of expensive new air
pollution abatement equipment.
We
shall order Respondent
to submit
a program to achieve
this result and ask for its evaluation by
the
Environmental Protection Agency.
With
respect to violation of the particulate regulations, we
believe
the
Agency has made initial proof of violation based on
standard emission factors only with respect to the Clipper-Randolph
Dryer, which the Respondent
has
successfully
rebutted.
We
believe
that
the
computations
for violation from the shipping
and
receiving
sources
and
the
transfering and conveying sources
to be based on
the
activities
of
a too speculative nature
to justify
a finding
of violation.
Accordingly,
there
is no need
to go
into the evidence
presented
by
Respondents
relative
to
the
computation and validity
of
the
standard emission factors employed.
Each
area of activity
will be considered
separately.
The Environmental Protection Agency endeavored
to prove viola-
tion
of
the
particulate
regulations
with
respect
to
the
Ciinper-Randolph
Grain
Dryer,
the
conveying
and
transfe~ingequioment
and
the
receiving
and
shipping
operations
(R.
191)
using
standard
emission factors.
We
have
held
in
prior
cases
that
although
not
specifically covered
by
the
old
Air
Rules
as
they
are
in
the
newly-adopted
emission regula-
tions,
standard
emission
factors
may
be
used
to
prove
a
violation
of
particulate
regulations
which
Droof,
however,
is
subject
to
rebuttal.
Environmental Protection
A~gpcy v.
Lindgren
Foundry Co.,
#70-1,
1 PCB 11,
(September
25, 1970); Environmental Protection
Agency
v.
Norfolk
&
Western
Railway,
#70—41,
1 P05
,
(May26,
1971)
.
~niss
ion factors with resnect
to country elevator sources
are
the
following:
Drying
-
7 pounds per ton
Shipping
or
Receiving
-
5 pounds per ton
Trans ferring
and Conveying
-
3 pounds per ton
—5—
6—
437
based upon Table 6-4 of AP-42
“Compilation of Air Pollutant
Emission
Factors”.
Using
these
factors,
the
maximum
process
operating
rates
for
compliance
calculated
by
the
Agency
are
the
following
(R.
208—209)
Drying
--
33.2
bushels per hour
Shipping
and
Receiving
--
19.57
bushels
per
hour
Transferring
and
Conveying
--
92.14
bushels
per
hour
Assuming a
40
collection efficiency for the settling chamber of
the Clipper-Randolph Dryer and a rated capacity of 1,000 bushels
per hour of the dryer, the calculated emissions would result in
117 pounds per hour against an allowable rate of
38.1 pounds per
hour.
Respondent countered this testimony by evidence of tests
performed
on
a
similar
Clipper-Randolph
Dryer
of
twice
the
capacity,
showing an emission factor of
.99 pounds per ton
(EPA Ex.
7)
as
contrasted
with
the
standard
emission
factor
of
seven
pounds
per
ton found in AP-42 employed
by
the Agency.
This test was performed
in February of 1972.
The dryer in question had the same type of
pre—cleaner as Respondents, but also an exhaust filter which was•
accounted for in the test.
With an emission factor of
.99 pounds
per ton as applied to the Respondent’s dryer, computed emissions
would be 27.8 pounds per hour, which would be below the maximum
allowable emission rate of
38.1 pounds per hour
(H.
194) and
indicate compliance of this facility with the applicable regulations.
The Agency endeavored
to demonstrate violation of the parti-
culate regulations with respect to the shipping and receiving process
by showing that the Respondent cpuld receive as many as 280 loads
of grain per day
(H.
33)
from vehicles ranging from 100 to 325
bushels
each.
Based upon a representation that these vehicles are
unloaded in a minute and one-half or two minutes, the Agency conclude
that such evidence establishes that the receiving points exceed the
19.57 bushels per hour process rate permissible.
We find the compu-
tation involves too many assumptions and speculations with respect to
truck loading,
frequency of operation and manpower to justify
a find-
ing of violation from this operation.
Likewise, with respect to the transferring and conveying equip-
ment,
thu
Agency’s computation has failed to take into account the
efficiency of the cyclones employed in the legs, and accordingly,
the ~‘ltimatee:riission rate has not been shown.
We do not feel that
the
Agency
has
established violations of the particulate regula-
tions based on the standard emission factors.
To the extent that
it
has established a prima facie case with respect to the Clipper-
Randolph Pryer,
Respondent has successfully rebutted this showing.
With
respect to the shipping and receiving operations and the trans-
ferring
and
conveying facilities,
we do not believe that the initial
burden has been established to demonstrate a violation.
We do not
‘-6—
6
—
438
fault the Agency in this respect but recognize the extreme diffi-
culty in establishing violations
through the use of standard emis-
sion factors for processes that are,
in part, manual, diversified in
character
and
spread
out
in
location,
as
distinguished
from
a
single
mechanical
facility
with
rated
operation.
We
find
Respondent
not
to
be
in
violation
of
the
particulate
regulations
or
the
provisions
for
filing
of
a
Letter
of
Intent
and
Acerp.
However,
the
nuisance
created
by
Respondent’s
operation
must
be
abated
and
we
will
direct
that
it
file
a
program
to
correct
this
situation,
to
be
approved
by
the
Environmental
Protection
Agency.
This opinion constitutes the findings of fact and conclusions
of
law
of
the
Board.
IT
IS
THE
ORDER
of
the
Pollution
Control
Board:
1.
Respondent,
Weldon
Farmers
Grain
Co—Op,
is
found
not
to
be
in
violation
of
Rules
2-2.22,
2-2.41
and
3-3.111
of the Rules and Regulations Governing the Control of
Air
Pollution
based
upon
the
evidence
presented
in
this
proceeding.
2.
Weldon
Farmers Grain
Co-Op
is
found
to
have
violated
Section
9(a)
of
the
Environmental
Protection
Act
by
causing air pollution as therein defined.
Penalty in
the
amount
of
$500.00 is assessed against Weldon Farmers
Grain
Co-Op
for
the aforesaid violation.
Payment shall
be made by January 16, 1973
by check or money order
to:
Fiscal Services Division, Environmental Protection Agency,
2200 Churchill Drive, Springfield,
Illinois 62706.
3.
Within 30 days from the date hereof, Weldon Farmers Grain
Co-Op
shall
submit
to
the
Board
and
the Agency, a program
for abatement of the air pollution and nuisance caused by
its
facility
as
demonstrated
by
the
record
in
this
proceed-
ing.
The Agency shall evaluate the program so submitted
and
submit
its report thereon to the Board within 15
days
after
receipt
thereof.
The Board retains jurisdiction
of
this
cause
for
such
other
and
further
orders
as
may
be
appropriate.
I, Christan Moffett, Clerk of the
Illinois
Pollution
Control
Bojird,
certify that the above Opinion and Order was adopted on the j~~
day of December,
1972, by a vote of
,~3
to
O
@~~rY\
~qrt4.
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.
S