ILLINOIS POLLUTION CONTROL BOARD
September
6,
1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
PCB 72—315
FREEM~AN
COAL MINING COMPANY,
Respondent.
Thomas Cengel, Assistant Attorney General for the EPA
Richard
R. Elledge, Attorney for Respondent
OPINION AND ORDER OF THE BOARD
(by Mr. Henss)
The Environmental Protection Agency filed a Complaint
alleging that Respondent at its Crown Mine located near
Farmersville in Montgomery County, Illinois had:
caused or
allowed excessive particulate emissiohs from its coal fired
boilers
(violation of Rule 2-2.53 of the Rules and Regulations
Governing the Control of Air Pollution); emitted smoke which
appeared to have been #2 or darker on the Ringelmann chart
(violation of Rule
3-3.122); failed to abide by
the time
conditions of Respondent’s Air Contaminant Emission Reduction
Program
(violation of Rule 2-2.41);
and had installed air pollution
control equipment without permit
(violation of Rule 3-2.110).
Freeman Coal filed a Motion
to Dismiss which was denied
by this Board on May 17,
1973.
The evidence indicates
that the Crown Mine began operations
around 1950 with over 90
of its coal production going to a
Chicago utility.
Three coal fired boilers were used to provide
hot water for the coal wash house and heat for the various
buildings at the site.
Emissions from the three boilers were
exhausted through two stacks.
The mine was closed down on
September 30, 1971 and operation of the coal fired boilers
ceased in August 1972.
When Freeman submitted its Letter of Intent to the Air
Pollution Control Board in 1967,
it portrayed the Crown Mine
as “marginal” because of its age, and the difficulty of competing
with strip mine operations.
Nevertheless, Freeman indicated
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plans for reducing emissions from the two stacks would be
filed in 1968.
On October 10, 1968 Respondent stated that
multiclone dust collectors would be installed to reduce
emissions.
Work on the project was to be completed about
July 31,
1969
(Complainant’s Exhibit #16).
The Air Pollution
Control Board approved the program and sent Freeman some forms
to be used in applying for an installation permit (Complainant’s
Exhibit #17).
On January
17, 1970 the APCB reminded Freeman of the
July 1969 completion date and requested the Company to say
how much longer the project would require before completion
(Complainant’s Exhibit #19).
Respondent’s reply did not explain
the delay, but promised completion and operation of the first
multiclone by March
1,
1970 and the second multiclone two weeks
later.
Respondent notified the APCB on March
25,
1970 that both
multiclones had been installed and were operating.
Permits were granted for installation and operation of the
“north side” multiclone
on May
6,
1971 and the “south side”
multiclone onMay
7,
1971.
Respondent presented no evidence whatsoever to explain why
the multiclones were installed
7 months behind schedule or why
the Company failed to secure the required permits for over one
year after the equipment was already installed.
Therefore,
we
have no alternative but to find Freeman guilty of violating
Rules 2-2.41 and 3—2.110 as charged.
Former Agency Investigator Brass testified that he had
attended a smoke reading school near St. Louis and had subse-
quently been certified to “read smoke”.
Brass said he had
investigated Respondent’s plant on several occasions and had
observed smoke densities up to and including #4 Ringelmann on
February 25,
1971, up to and including #3 1/2 Ringelmann on
March
4,
1971,
up to and including #4 Ringelmann on April 14, 1971
and in excess of
#2 Ringelmann on September
9,
1971.
Agency
photographs taken on these dates show dense black smoke.
We cannot determine from
the
evidence why the smoke emissions
were dense.
Again, Freeman chose to present no evidence re-
garding its operation or emissions on the dates in question.
In its Post Hearing Brief, Freeman contends that the Agency
method of obtaining evidence of Ringelmann violations deprived
Freeman of due process
in that smoke readings were taken “with-
out warning or notification
to Freeman”.
We
find this argument
to be without merit.
Agency surveillance personnel are not
required nor should they be required to notify suspects that
they are about to be observed for possible violations.
Freeman
knew or should have known what the law required in relation to
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its emissions.
The Company had the option of installing
a
smoke monitoring device on its stacks and presenting data
in rebuttal of the EPA evidence.
No such rebuttal
was
made.
Therefore,
we find that the Ringelmann violations occurred
as charged.
The most important
(and the most troublesome) allegation
was that Respondent had emitted excessive particulates in
violation of Rule 2—2.53 after installation of the miilticlones.
The EPA calculated that Freeman’s particulate emissions,
after
installation of the multiclones, were about 5.05 lbs. per million
Btu input as compared to an allowable rate of 0.8 lbs. per
million Btu input.
In making these calculations the Agency rated
the multiclones at zero efficiency.
The parties stipulated that the design efficiencies of
the
multiclone collectors were 89
and that an operating efficiency
of 84.148
would bring Respondent into compliance.
The Agency’s
use of zero efficiency instead of the design efficiency of 89
in its calculation is a key issue in this case.
Agency investigators examining the physical arrangement of
the boilers, multiclones and associated duct work noted that,
in addition to new duct work leading from the boilers to the
multiclones, original duct work leading from the two boilers to
the north side stack was still in place.
Investigator Eckhardt
testified that this original duct work “essentialy by—passed
the multiclone and fan and went from the boiler to
the
stack”
(R.
98).
No device capable of blocking the flow through this
original duct work was visible on the outside sections of the
duct work and the EPA therefore took the position that the
multiclones were not in use.
The investigator did not attempt
to view the inside of the duct work.
However,
an EPA surveillance engineer testified regarding
plugging problems which had occurred in the multiclones
(R.
105)
This, we believe,
shows that the multiclones had been in use for
at least some period of time and that barriers had been installed
to block the flow in the original duct work.
The suspicions of
the Agency are not sufficient to prove that the multiclones were
inoperative.
If the investigator suspected that the original duct
work was not sufficiently blocked to prevent the boilers from
discharging directly to the stack, he should have satisfied that
suspicion by asking to observe the internal section of the duct
work.
This he did not do.
The hearing officer
,
in his report
to this Board, noted that there was no question as to the
credibility of the surveillance engineer “but his testimony
left
much to be desired and somewhat beclouded the EPA case”.
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The Agency contends
that Freeman was bound by
a ‘~uleof
inconvenience”
to provide answers about
the
dual duct work.
Proof sufficient to establish
a prima facia case would have
indeed compelled Freeman
to come forward with evidence,
but
in light
of
the Agency’s failure to establish
a prima facia
case
of excessive particulate emissions,
Freeman was not com-
pelled to do anything.
The claim that
the multiclones had been by-passed was
not proved.
Therefore,
we
dismiss
the charge that Resuondent
allowed excessive particulate emissions
in violation of Rule
2—253
For the ACERP, permit and Ringelmann vloiations
we
believe
a penalty of ~i500
is appropriate.
ORDER
It
is
the
order
of
the Board that:
1.
Freeman Coal
Mining
Company
shall
pay
to the
State
of Illinois
by October
15,
1973
the
sum of $1500
as
a penalty
for
the
violations
found
in this proceedinq.
Penalty payment by
certified
check
or
money
order
payable
to
the
State
of
Illinois
s~iall
be
maie
to:
Fiscal
Services
Division,
Illinois
EPA,
2200
Churchill
Road,
SprincTfield,
Illinois
62706.
2.
Respondent shall cease
and
desist from any
further violations
of
the type found in this
proceeding.
Mr.
Odell
abstains.
I,
Christan
L.
Moffett,
Clerk of
the Illinois Pollution Control
Board,
hereby
certify
the
above
Opinion
and
Order
was
adopted
this
___________day
of
__________
1973
by
a
vote
of
~
to
0
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