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
    9
    185

    —2—
    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
    9— 186

    —3—
    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”.
    9
    187

    —4—
    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
    9
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