ILLINOIS POLLUTION CONTROL BOARD
April 17, 1973
ENVIRONMENTAL PROTECTION AGENCY
)
)
#72—468
v.
ELIZABETH STREET FOUNDRY,
INC.
)
DENNIS R. FIELDS, ASST. ATTORNEY GENERAL, APPEARED ON BEHALF OF
ENVIRONMENTAL PROTECTION AGENCY
RICHARD J.
TROY OF GEOCARIS, SNIEDER
& TROY APPEARED ON BEHALF
OF RESPONDENT
OPINION AND ORDER OF
THE
BOARD
(BY SAMUEL T.
LAWTON, JR.)~
Complaint was filed against Elizabeth Street Foundry, Inc.,
operator of an iron and steel melting facility located in Chicago,
alleging that during the period beginning on or before August 25, 1971
and continuing to the date of the filing of the complaint,
Respondent
operated its facility so as to cause emissions of particulate matter,
in violation of Rule 2-2.54 of the Rules and Regulations Governing
the Control of Air Pollution and, accordingly, violated Section~9(a)
of the Environmental Protection Act.
An answer was filed by Respondent denying violation of the Rule
and alleging that it had instituted procedures so as to bring its
operation into compliance, and further alleging that the relevant
Regulations discriminated against small foundries because of the rela-
tively short
period, of time each week that the operation was conducted.
The answer also denies that the Respondent operates a steel melting
facility but admits that it operates an iron melting facility.
Hearing was held on the complaint and answer.
A motion to re—open
proofs to offer additional evidence with respect to possible rezoning
of the subject and adjacent properties was denied.
The foundry operated
by Respondent has been in existence since 1889.
The cupola in which
the scrap and iron are melted is uncontrolled so far as any installation
of particulate emission abatement equipment is concerned.
35 people
are employed on a five-day week.
The cupola is at least 23 years old
and
perhaps
older,
the
evidence
being
unclear
on
this
particular
point.
It
is
rated
at
6
tons.
The Agency’s proof of violation of the relevant particulate emis-
sion regulations was based on Table 7-10 from AP-42 “Compilation of
Air Pollutant Emission Factors”,
Environmental Protection Agency
Exhibit
2.
7
—
593
We hav~~eviouslyheld that proof of violation
may
be based
on standard’~ñissionfactors
(See Elwironmental Protection Agency v.
Lindgren Fo~t
y Co.,
#70-1, lPCB 11
(September 25, l970))although
such evidenc
is subject to rebuttal by Respondent upon proper
showing of inapplicability of such standard emission factors.
(See
Norfolk
& Western Railway v. Environmental Protection Agency,
#70-41,
1 PCB 281,
(March
3,
1971)).
~The.process rate for the foundry based on information submitted
by its manager was determined to be 4.54 tons per hour or 9,080 pounds
per hour.
The metal charge rate was
4 tons per hour
(R.ll)
On the
basis of standard emissions of 17 pounds per ton of metal charge from
the foregoing table,
an emissLon rate was determined by the Agency to
be 68 pounds per hour.
Allowable emissions from the cupola under
Rule 2—2.54 are 15.6 pounds
per
hour.
On this basis,
a violation is
fully demonstrated.
In rebuttal, the Respondent submitted evidence that the computed
emissions were inaccurate because of the sand-blasting of the scrap
steel employed by Respondent which removed scales, dirt and oily matter
from the scrap, the screening of the limestone to renxve fines and
the use of hazd coke and hand loading to decrease breakage and
resulting emissions
(R. 156).
It is Respondent’s contention that the
foregoing procedures are unique to its operation and are not reflected
in the emission factors above referred to.
Respondent therefore
asserts that the 17 pounds per hour factor used is not representative
of Respondent’s operation.
Respondent also makes
two
further conten-
tions
that must be considered.
It asserts that the Regulations do
not properly give consideration to small operators who do not conduct
their operations on a continuous basis and postulates from this that
large
operations
could
comply
with
the
Regulations,
and.
at
the
same
time,
emit
an
inordinate
amount
of
particulates
into
the
atmosphere,
whereas the small operator operating only a few days a week, who
exceeds
the
allowable
limits,
would
be
in
violation
of
the
Regulations
while emitting a relatively small amount of pollutants
into the atmos-
phere.
We do not find this contention lacking in merit but nonetheless
are confronted with the need for a regulatory scheme that will be
applicable to all industries
of
the same nature for which measurement
and computation can best be controlled on an hourly emission rate basis.
See In the Matter of Emission Standards,
#71-23
(April 13,
1972).
Since the hourly emission rate computation is the most appropriate
for determining violations or compliance for industries of this nature,
we must resort to this method even though,
in its application to
specific operations,
it may appear to be unduly restrictive.
Certainly,
consideration to this contention will be given in the matter of assess-
ment of any penalties or other action taken by the Board.
The second assertion made by Respondent is that because of likely
changes
in
zoning
classification,
it
is
in
danger of becoming a non—
conforming use.
Here ‘again, we do not minimize this problem.
We recog—
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—
594
nize that lenders are not eager to advance mortgage funds for uses
that may only have a limited period of legal existence and that abate-
ment provisions in zoning ordinances limit the legal life of entities
that are non—conforming.
However, we have previously held that the
likelihood of acquisition by eminent domain proceedings does not serve
as
a justification for continued pollutional discharges.
See Environ-
mental Protection Agency v
Litton Power
Thansmission Division, a
division of Litton Systems, Inc., a Delaware corporation,
a wholly
owned subsidiary of Litton Industries,
Inc.,
a Delaware corporation,
#72-147
(March 8,
1973).
By the same token, we cannot grant exemp-
tion
from
the
regulatory
scheme
to
entities
that
are,
or
may
be,
non-conforming
under
the
relevant
zoning
ordinances.
Indeed,
the
upgrading of the zoning might, by its very nature, suggest the need
for greater compliance than for less.
The Respondent has also introduced into evidence financial data
both with respect to the cost of compliance consequential to the
installation of scrubber and baghouse installations, and a
summary
of
it’s own financial position, demonstrating a deficit condition
for fiscal 1971.
Respondent’s banker has stated that it would not
loan $100,000 for pollution abatement equipment, but might consider
a loan on a more moderate scale
(Respondent’s Exhibit
6).
The foregoing facts present a situation that is difficult for
the Board to resolve.
We do not believe that Respondent’s evidence
with respect to sand blasting, use of hard coke and hand loading,
are sufficient to rebut the Agency’s case demonstrating violation
of particulate regulations based on standard emission factors.
On the other hand, Respondent has demonstrated that it
is employing
procedures not employed in other foundries,
that could have a substan-
tial lessening of particulate emissions.
The trouble is that we do
not know how much
is being achieved and in view of the absence of any
abatement equipment of any nature, we are justified in assuming that
the unabated emissions continue,
in violation of the Regulations.
What
is needed is a definitive test to determine exactly what is
going into the air and believe that a company that has been in existence
for 84 years should take the necessary steps to ascertain precisely
what its emission measurements are.
The record does not indicate that
Respondent has created any air pollution nuisance in the neighborhood
and none has been charged.
In consideration of Respondent’s financial plight, the possibility
of it being classified as a non-conforming use under the zoning
ordinance and its apparent good faith in employing housekeeping
procedures with a view of minimizing its pollutional discharges, no
penalty will be imposed.
However, we believe that Respondent must be
directed to cease and desist the violation of the Regulation.
The
difficulty is that without a stack test no one knows the extent of the
emission or the amount of abatement equipment that must be installed
to achieve compliance.
We cannot sanction continuing violation.
It
will be incumbent upon the Respondent to make a determination of what
its emissions are and what is needed to reduce them to a level consistent
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7
—
595
with the applicable regulations.
In the event inordinant expendi-
tures appear necessary,
the Board would be receptive to consideration
of a variance petition.
However, on this stage of the record,
neither the degree of emissions nor the cost of control are known.
It
may
be that with the procedures being employed by Respondent,
expensive emission equipment need not be installed.
This Respondent
must so ascertain.
It will be our Order that within 60 days from the
date hereof Respondent cease and desist its pollutional discharge so
as to violate Rule 2—2~54 and shall report to the Agency on or before
said date,
the nature and extent of its pollutional discharge,. and
its program for compliance.
This opinion constitutes the findings of fact and conclusions
of
law
of
the
Board.
IT IS THE ORDER of the Pollution Control Board that:
On or before June 17, 1973, Respondent shall cease
and desist its pollutional discharge from its foundry
operation so as to violate the relevant Regulations
and statutory provisions with respect to air pollution.
Prior to said date, Respondent shall submit a program
of compliance on the basis of tests conducted by it
demonstrating the extent of its pollutional discharge
and the equipment it
proposes to install to achieve
compliance.On or before June 17,
1973,
the parties. shall
conduct such testing as is necessary to ascertain that
Respondent is
in compliance with all relevant regulations
with
respect
to
the
Rules
and
Regulations
Governing
the
Control of Air
Pollution.
I, Christan Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adopted on the
/~~“
day of April,
1973, by a vote of
~
to
o
‘1 ~
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7
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