ILLINOIS POLLUTION CONTROL BOARD

January

14

,

1976

SANDWICH IRON FOUNDRY,

INC.,

an Illinois corporation,

Petitioner,

)

v.

•)

PCB 75—213

)

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

Mr.

Scott Courtin, Reid, Ochsenschlager,

Murphy

&

Hupp, appeared

on behalf of Petitioner

Mr.

Peter Orlinsky appeared on behalf of Respondent

OPINION AND ORDER OF THE BOARD

(by Mr.

Young):

On May 22,

1975,

Petitioner filed

a petition for variance

seeking relief from Rule 203(d) (7) (C) (1) of the Board’s Air

Pollution Regulations.

On May 29,

1975,

the petition.was found

to be inadequate by the Board because it did not include infor-

znation concerning the effect upon nearby residences if the variance

were granted, and because it failed to include information pertaining

to the criteria required by Train

V.

NRDC,

Inc.,

43 USLW 4467,

~Supreme Court No.

73-1742, April

16,

1975).

On July

3, 1975, Petitioner refiled its petition of May

22,

1975, with some additional data, and on September

4, 1975, Peti-

tioner filed a second amended petition for variance seeking relief

therein from Rule 203(a)

of the Air Pollution Regulations and

supplied supplemental information required by the Board Order of

May 29,

1975.

A hearing was held on November 18,

1975 at which

time a Stipulation was entered into between the parties.

Sandwich manufactures grey iron castings at its Piano plant

and presently operates

a

2

1/2 ton cupola which is the subject

of this petition.

The Agency has estimated that particulate

emissions from this cupola are 20.4 lbs./hour,

far exceeding the

limit set by Rule 203(a)

of 3.15 lbs./hour.

On June 25,

1975,

Petitioner entered into a contract for the

installation of a Venturi scrubber at a cost of $89,000 and expects

the equipment to be installed and operable by July of 1976.

Peti-

tioner submits the reason it has been dilatory in its pollution

19—665

---

—2—

control efforts is that prior

to January, 1974,

the controlling

shareholder had thwarted any such effort.

A change in the control

of the corporation occurred

in

1974 and the present controlling

shareholder has taken an active interest in bringing the cupola

into compliance.

The nearest residence to the foundry

is estimated to be 150

feet away and Petitioner alleges that it has not received any

complaints from the neighboring citizens with regard

to the opera-

tion of the cupola.

Petitioner thereby concludes that it would

appear that the operation of the cupola, in violation of Rule 203

(a) would have little effect,

if any, on the citizens who live

in the vicinity.

In data supplied by Petitioner,

however,

the 1974

annual geometric mean particulateconcentration was found to be

92

micrograms per cubic meter at the Agency’s Plano monitoring station,

exceeding our standard of

75 micrograms per cubic meter.

Petitioner alleges that a denial of this variance petition

would force

a complete shutdown of the foundry, causing the dis-

missal of its

23 employees,

and placing Petitioner’s customers in

a difficult,

if not impossible position of attempting to replace

Petitioner with another supplier.

The Agency, on page

3 of its Recommendation,

is of the opinion

that Petitioner’s compliance program should bring the facility into

compliance with Rule 203(a), and that Petitioner’s project completior

schedule is reasonable,

considering the magnitude of the project.

The Agency does not oppose the grant of

a variance.

The Board, however,

does not feel the Petitioner has met the

burden on those seeking

a variance.

With the data supplied by

Petitioner,

it has not been established to the satisfaction of the

Board that particulate emissions from the cupola will not contribute

to an air quality violation in the surrounding area.

Petitioner concluded that the operation of the cupola in vio-

lation of Rule 203(a) would have little effect on the citizens who

live in the plant vicinity because no complaints had been received

from the neighboring citizens.

We reject this conclusion.

Peti-

tioner cannot be authorized to operate its cupola

in violation of

Rule 203(a)

just because it is located in a neighborhood with non-

complaining citizens.

Although Petitioner alleges that

a denial of this variance

petition would force a shutdown of the plant, the allegation is

unfounded.

The Board has consistently held that a denial of a

variance petition does not constitute

a shutdown order.

The Peti-

tioner can still operate although subjecting itself

to possible

enforcement action

(ABC Great States

v.

EPA, PCB 73—39; Unarco v.

EPA, PCB 75—289).

19—666

---

—3—

While Petitioner alleges that it has recently pursued a

solution to its oroblem and regrets the inaction of

the earlier

controlling interest, the corporation

is, nonetheless, bound by

the earlier officer’s inaction even thouqh it has now embarked

on a satisfactory program to bring the plant into compliance.

While proof of such circumstances might carry some weight when

presented in mitigation in an enforcement. action, the allegations

do not establish a hardship on which a variance can be granted.

It follows from this finding that to deny this variance request

would not irfl~os? a

hardship

on Petitioner which could be considered

unreasonable

01

arbitrary.

Any hardship that results from a

refusal to take necessary steps toward compliance is self—imposed,

and that the hardship imposed by denying a variance is not un-

reasonable or arbitrary if it was earlier within the power of

the

Petitioner

to comply

(City of Danville v~EPA, PCB 72—335).

For the forecoing reasons the Board denies Sandwich Iron

Foundry’s petition for variance.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

It is the Order of the Board that the petition of Sandwich

Iron Foundry, Inc.

be and is hereby dismissed.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the

J4~”

day of

_________________________,

1976

by

a vote of

_________

Christan L. Moffett4

lerk

Illinois Pollution

trol Board