ILLINOIS POLLUTION CONTROL BOARD
OZARK-MAHONING CO.
v.
/k;3
#70—19
ENVIRONMENTAL PROTECTION AGENCY
December
22,
1970
Opinion of the Board
(by
Mr.
Currie):
This
is
a petition for variance
to permit the emission of
particulate air pollutants from a fluorspar processing plant
in Rosiclare, Illinois in excess of the regulation limits until
June
1,
1971, while installing equipment
to bring the operation
into compliance.
We grant
the petition,
subject to conditions
stated below.
Fluorspar is
a mineral widely used in the manufacture of hydro-
fluoric acid and
in the fluxing of steel
(R.
22
(corrected); petition
for variance).
According to the undisputed testimony,
fluorspar
is in short supply today
(R.22).
It
is mined and processed by
Ozark-Mahoning in Hardin County, near the Ohio River in extreme
southern Illinois.
In
the process the product
is dried before
shipment in rotary dryers which cause the emission of
fine particles
of fluorspar.
CR. 9—10).
Existing collection equipment is not
wholly adequate
to avoid emissions in excess
of those allowed.
The
regulations of the former Air Pollution Control Board, which remain
in force under section 49 of the Environmental Protection Act,
limit particulate emissions
from such facilities
(five tons per
hour capacity each,
see
R.
52)
to twelve pounds per hour.
Regulations
Governing the Control of Air Pollution,
Rules
2-2.21,
3-3.111
and
Table
I.
Stack tests performed for the company showed emissions
from one of its two dryers
to be in compliance with th~regulations
(9.9 lb/hour)
and the other not
(16.8).
(R.78).
The regulations governing particulate emissions took effect
April
15,
1967.
They gave
a one—year grace period
for bringing
existing equipment into compliance,
in recognition of the hardships
that would be imposed
if plants were required
to shut down during
installation of control equioment.
Moreover,
an additional grace
1
—
121
period was offered to particulate emitters who,
by filing a timely
letter of intent
(by October
15,
1967 outside the Standard
Metropolitan statistical Areas)
followed by
a timely air con-
taminant emission reduction program
(ACER?)
(by Ann?
15,
1968),
evidenced
the need
for more time and diligent efforts
toward
meeting their obligations.
See Rules and Regulations,
supra,
2-2.22,
2-2.3,
2—2.4.
Many pollution source ooerators followed this
schedule, many programs were approved, and
a number of sources
have been successfully brought into compliance.
Ozark-Mahoning filed
a letter of intent in November,
1967
CR.
24)
setting forth information
as
to emission sources within its
Rosiclare plant,
(ex.
1)
•and disclosing
that one of the dryers
was discharging
in excess
of the regulation limits, but so far as
the record discloses
no ACER? was submitted by the April,
1968
deadline,
Indeed,
the next communication by the company to the
air pollution authorities apparently took place
in 1970, when
application was made to the
new Environmental Protection Agency
for approval
of the present program.
On September
29,
1970
Ozark filed with
the Agency the present variance petition.
On
October
8 the Board voted
to authorize
a hearing to determine the
facts relevant to the petition, calling particular attention
to the question whether the company had complied with the ACER?
deadlines
and,
if not, why not.
See Minutes of Board meeting,
October
8,
1970.
Mr. Walter Romanek was appointed hearing officer,
and
a public hearing was held in Elizabethtown November
25,
1970.
At the hearing the
comPany
established
the
above
facts
respect-
ing
the
nature
of
its
operations
and
emissions
as
well
as
facts
about its proposed control program and
the hardships that would
he inflicted
if the petition for variance were denied.
The
plan
is
for the installation of new cyclone primary collectors,
followed by haghouse
filters,
to achieve
a removal of 99
of
the particulate matter that would otherwise escape
the
dryers.
(P.
18,
31)
The collected material will be recycled.
(P.
74—75)
Purchase and installation contracts have been concluded; many of
the bills have been paic1~ the equipment
is
on the premises;
installation
work
has becun.
(P.
14-16,
65;
Ex.
10).
Completion of
the project and compliancu with
the regulations are promised by
June
1,
1971
(P.
22,
56—57,
69).
The company presents-~evidence, which was not disputed,
that
denial of the variance would require the immediate shutdown of the
dryers and, within
a
few weeks, of the entire plant.
The consequence
would he to put the comoanyts 181 employees out of
jobs,
to deorive
the com~anyof the fruits
of six months’
production, and to require
customers
to seek alternative sources
of su~~lyin
a short market.
Ozark
is the principal inc~ustrialemployer in Hardin County,
and
there was evidence
that other
lobs for laid-off employees would
be hard
to come
by
CR.
19--2l,
27—29,
70-71).
1
—
122
The
benefit
that
would
result
from
denying
the
variance
is
an
immediate
end
to
pollution
from
the
plant.
The
Environmental
Protection
Agency,
pursuant
to
its
stautory
duty
to
investigate
the
harm
that
is
done
by
emissions
from
sources
for
which
variances
are
sought,
filed
with
the
Board
two
letters
objecting
to
pollution
from
Ozark—Mahoning.
‘The
first,
dated
July
8,
1970
and
signed
by
eighteen
persons,
requested
the
Agency
to
take
action
against
the
company
because:
The
short
smokestacks
at
this
mill
pour’
out
smoke
and
dust
at
ground
level,
covering
the
entire
residential
area
around
and
near
this
mill.
We
are
greatly
concerned
about
our
health
and
that
of
our
children,
because
of
this
smoke
and
dust
that
we
breathe
daily.
The
second
letter,
written
October
15
in
response
to
the
Agency
newspaper
notice
requesting
the views
of’
affected
citizens
respect-
ing
the
variance,
says
that
“the
obnoxious
odor
from
the
mill”
can
sometimes
be
smelled
twelve
highway
miies
away;
that
the
newspaoer
notice
would
not
produce
much
adverse
comment,
because
many
would
not
understand
the
notice
and
others
who work
f’or
the
company
would
be
afraid
to
speak
up;
and
that
“it
would
be
in
the
best
interests
of
people
everywhere
if
Ozark—Mahoning’
s
request
were
denied”.
(Both
letters
are
Exhibit
9).
The
Agency
after
inspecting
the
pliant
and
talking
to
both
company personnel
and complaining residents
r’eccrnmended
that;
the
variance
be
granted
subject
to
the
posting
of
a
performance
bond
to
assure
completion
of
the
project
by
the
promised
date.
The
Agency’s assessment
of
the
harm
caused by present emissions
and of
the
attitude
of
the neighbors was that
“no physical
or
material
harm” was caused but
that
the emissions did constitute
a “nuisance”;
and
that
the
residents
who
were
interviewed
‘cit
“the
variance
request-
ed
was
reasonable
only
if
the
emissions
were
to
cease
by
June
Ii,,
1971”.
(P.92).
To
subject
the
public
to
another
Few
months
of
this,
the
Agency
thought,
was
justified
by
the
hardshir
that
cbs
lug
the
plant
would
impose
upon
the
entire
community.
We
agree.
We
note
in
addltion
that
the Agency
assured
us
that
the
people
who
riled
written
objections
also
agreed,
on
condition
that
unlawful
emissions
cease
by
June
1,
1971
(P.
85).
Thus
although
grant
of
the
petition
would
inflict
continuing
discomfort
on
the
public,
no
one
asks
us
to
deny
the
variance
at
this
coint.
This
is
some
evidence,
subject
to
the
very
real
reservations
expressed
by
the
letter
of
October
15,
that
the
people
who
must;
live
with
this
company
for
better
or
for
worse
Feel
the
community
would
suffer’
much
more
by
shutting
down
the
plant
than
by
putting
up with
a final few months
of
excessive
emissions.
~‘fhile
the
absence
of
vigorous
community
obj ection
to
the variance
is
not
decisive,
the
evidence
in
the
record
leads
us
to
conclude
that
‘denial
of
the
petition
would
indeed
impose
an
arbitrary
and
un-
reasonable
hardship
on
the
community
as
a
whole.
The
harm
done
by
present
emissions
appears
to
he
significant
but
not
devastating;
present
emissions
are
not
grossly
in
excess
of
the
standard.
The
time
remaining
for
installation
is
relatively
short,
and
the
company’s
good
intentions
are
demonstrated
by
the
facts
that
i,t has
al—
1
—
123
ready paid most of
its
bills for
the job and
that the equipment
is
already
on
the
premises.
On
the
other
side
of
the
balance,
the
economic
hardship
to
the
entire
community
from
the
closing
of
its
central
industry
would
be
extreme.
A
variance
must
be
granted.
In
EPA
V.
Lindgren
Foundry
Co.,
#70—1
(September
25,
1970),
we
denied
a
variance
that
would
have
permitted
operation
of
a
particulate emission source during the
time controls were being
installed.
We believe the facts
of this case are substantially
different.
First, in Lindgren there was overwhelming citizen
opposition
to the grant
of the variance
and persuasive citizen
testimony
that continued pollution during the installation period
would
be intolerable.
Here
there was
no citizen testimony
at
all,
and the residents who had initially complained about Ozark—
Mahoning reportedly were reconciled
to
a
short variance.
Second,
emissions from the Lindgren plant would
have been wholly uncontrol-
led and nearby seven times those allowed while the control equip-
ment was being installed,
In the present case emissions from one
dryer were apparently in compliance,
and from the other only
a
third more than allowed,
as
a result of existing control equipment.
Third,
the compliance period here requested is somewhat shorter
than
in Lindgren,,
and compliance with the remaining schedule
is
made more certain by the fact
that the equipment
is already
paid for and
on the premises.
Fourth,
the degree of hardship
is greater in the present
case,
largely because we deal here with
the
quest,ion of closing down an existing business,
We will not
hesitate to do
this
if it becomes necessary,
but the hardship
of throwing 181 persons
out of work is considerably more signifi-
cant than the hardship in Lindgren, where
the plant had been
closed for
some months and the
issue
was reemployment
of an
undetermined number
of former employees,
Fifth, there
is stronger
evidence here
of a hardship on the company’s customers due to
a world-
wide shortage
of fluorspar.
Finally,
in Lindgren any hardship
suffered by the owners was thought
to be self—inflicted,
since they
had bought the business
and invested additional
time and money
with reason to know they
had to comply with
the emission limitations.
In sum, denial of the petition in this
case, when the benefits of
immediate compliance are considered
in light of the costs, would
cause
an unreasonable
hardship; denial in Lindgren did not.
We think, however,
that
the date
for compliance
in this case
should
be not June
1
but
May
1,
1971.
The company’s general super-
intendent testified that
it would
be the company’s intention
to complete
the installation
in advance of the proposed date;
he conceded
that,
“if pressed,”
he believed
“it would be possible”
by adding
a
“few
more employees for soot work”
to
have
the
system
in
operation
by March or April; and he said that
the company
by putting men
on the installation job full time “probably could” finish by
May
1
(P.
55—56).
The company vice—president confirmed
this
prediction:
subject
to
the weather,
he estimated
that the project
could be completed “possibly sone time in April”.
(R.77)
The
six months’ request,
the company admitted, was designed to afford
a margin of safety:
“ye would prefer to have
this in case something
would happen where
tb’~,s schedule would be interrupted.”
(P.
55),
1
—
124
We do not think ±ttoo much to
ask
a petitioner
to work
full time to eliminate
a nuisance
as quickly as
he can when
we allow operation during installation of controls.
May
1,
by the
company’s own testimony,
is
a likely target date.
If adverse
weather, unexpected
strikes,
or other circumstances render compliance
with this schedule impossible,
the
company can ask
us
for
more
time.
But we think
it
should bear the burden of hastening
:Lts
activity
and
of proving at
a
later date any
such circumstances
that
make
completion by May
1 impossible.
Moreover,
we
agree
with
the
Agency
(P.
87—88)
that security for
the company’s performance
is
in order.
The statute provides
for
the
posting of bond
or other
assurance
as
an additional incentive
to
adhering to
the installation schedule.
The threat of automatic
forfeiture
of
the
posted
sum
or
a
part of
it,
in
the
stead
of
a
protracted
enforcement
proceeding,
is
a
valuable
tc’ol
for
securing
compliance.
The
amount
of
the
bond
should
be
high
enough
t;o
make
it
more
expensive
for
a
petitioner
to
default
than
to
per~~’orm;in
the
ordinary
case
this
might
require
a
bond
somewhat
in
excess
of
the
cost
of
the
control
equipment
and
of
its
installation.
:~
the
present
case
the
equipmnent
has
been
paid
for;
default
would
save
the
company
only
the
cost
of
installation
work
by
its
owe
employees,
which
it
estImates
at
15
of
the
$110,000
oa:id
to
contractors
for
the
equipment
and
services.
A
bond
or
other
security
in
the
amount
of
$20,000,
we
think,
will
suffice.
The
bond
should
provide
for
forfeiture
of
the
entire
sum,
in
add it ion
to
liability
for
the
penalties
provided
by
statute
in
an
enforcevent
orcceeding,
in
the
event
that
the
plant
is
operated
without
the
new
controJ
equipment
after
May
1
,
1071
.
The
det;aiJ
;;
of
this
secur’ltv
should
be worked
out
between
the’
company
and
brie
Ageric,y w~thin the
next
thirty
days.
,lt
remains
to
discuss
a
serious
i esue
‘trust
has
troubled
us
throughout our
oonsideraticrm
Cf
thi;’;
csse
,
ana
whica
will
arise
in
a
number’
of
variance
proceedings
in
toe
near
futu,t’e
.
That
Irsue
is
what
we
should
do
about
particulate
cmi ~te,os
who
failed
ho
r;ubmn
t
control
rjrograms
on
the
date
roqu
irco
by
t he
,rc~::u7Lat
I ons.
lo
t~e
‘rr’esent
case
it
appears
that
no
pr’ograus
oar
Filed
for
more
thom
two
years after the
generous
twe
1’ie—month
per l~h
a,
bowed,
The;-e
15
00
explanation
of thJs
lapse
in
the
record.
lilt
is
made
clear’
chat
the
company
began
its
efl’ortm;
to
locate
a
satictoctcry control
devic:
even
before
the
regulations
were
actopteci
,
arid
that
it’s
orog,r’e or
toward
LOstCblOti
~
was
bo~
17
J
3
~—
io
t~
t~
uO~ ~fl
I
P
Pot
neither’
of
these
facbc
exc;ses
e~’~e
apparent
failure
to
File
toe
recuired
orogram.
The
reguia’J
Iora~
crc
v’Ldod
a
rrcoced’,;ro
whereby
any
comoarhr
with
a
legitivate
c lairs
of
icardship
requirilio~s
additional
compliance
tIme
could
obtain
it
,
arid
it
is
di f’f’icul’t
to
condone
‘or
to
understand
those
who
chose
nc t
to
take
odvant;aee
of
it,
Toe
failure
to
submit
the
nrc gram
on
cc hd’od~
Is
irt self
a
violation
01
t
05
±~
or
‘riio
cli
rem
t
1
lv
fl
/
I
t
p
Alpha Portland Cement Co.,
#AFCB
69—3,
decided
by
our
predecessor
Board February
25,
1970.
Ignorance of the requirement cannot be an excuse;
for notices
were
sent
to
all
industrial
emitter’s
shortly
after
the
regulations
were
adopted,
arid Ozark indicated its awareness of the rules
by filing
its
better of intent.
Today’s opinion should serve as notice,
once
again, that anyone who has
not yet filed the program of emission re-
duction required by
the regulations
had better do
so,
for every
day
of
failure
to
file
constitutes
an
infraction
for
which
penalties
can
he
imposed.
The
Agency
in
this
case
has
not
conterclaimed
for
penalties
on
account
of
the
failure
to
file
a
timely
program,
and
we
refrain
from
imposing
them
without
being
asked
to
in
light
of
the
fact
that
the
record
is
incomplLete
on
thiS
issue.
But
it
should
be
said
for
the
benefit
of
those
who
remalmi
in
violation
of
their
obligations
that
the
time
may
come
when
this
Board
refuses
to
accept
a
plea
of
hardship
on
behalf
of
one
who
has
for
his
own
gain
deliberately
delayed
commencement
of a control program.
Those
who
have
done
nothing
in
three years
to abate
their pollution have brought about their own
hardship;
and.~as we held
in
EPA
v.
Lindgren
Foundry
Co.,
supra,
a
self—inflicted
hardship is
not
ground
for
a
variance.
In
such
a
case
the
hardships
imposed
on
innocent
employees,
customers,
and
others
when
the
plant
is
shut
down
will
be
attributable
to
the
company’s
default,
riot
to the state’s regulations.
In the present
case
we give
the
petitioner’ the benefit of the doubt,
hut
to
ignore deliberate
delays
in future cases would unfairly penalize those many responsible
companies which, often at great expense, took prompt action to bring
their
emissions
under
control.
We shall return to this issue
in the near
future.
For now
let
it
be known that while we may
find
it
necessary to impose penalties
on those who
have not fIled
to
date,
we expect
to he much more severe
with those who do not file
in
the very
near future.
This opinion constitutes
the Board’s findings
of fact
and
conclusions
of law.
ORDER
Ozark—Mahoning Co.
is authorized
to emit particulate
air con-
taminants in excess of those permitted by the Rules and Regulations
Governing the Control of Air Pollution from
its
two
rotary dryers
located at Rosiclare, Illinois, until
May
1,
1971, subject
to
the
following conditions:
1
—
126
1.
The
company
shall
within thirty days
post with
the
Environmental
Protection
Agency
a
bond
or
cther
adequate
security
in the amount of $20,000, which sum
shall
be
forfeited automatically
in
the
event
that
the
dryers
are operated after
May
1,
1971,
without
the
controlL
equipment
specified
in
the
oetition
for
variance
and
in
the
record;
2.
The
company
shall
file
progress
reports
with
the
Agency
on
or
before
March
1
and
May
1,
1971,
and,
if
the
control
equipment
is
not
in
operation
by
May
1,
1971,
a
final
report
when
the
control
equipment
is
in’
full
operation;
3.
Until
the
new
control
equipment
is
in
operation,
the
comnany
shall
not
operate
the
dryers
in
question
without
their
present
control
equipment
and
shall
not
increase
emissions
from
the
dryers beyond their
present
level;
~4.
After
May
1,
1971,
the
dryers
shall
riot
he
ope:r’ated
so
as
to
cause
emissions
in
excess
of
those
permitted
by
the
regulations;
5.
Failure
to
comply
with
these
conditions
shall
he
grounds
for’
revocation
of
the
variance
and
the
iinnornt’tion
of
penalties
under
the
Act:.
I
concun’o~
dliiSOltt
I,
Regina
E,
Ryan,
certifv1”that
the
Board
has
adooted
the
above
Opinion
thisJl~
day
of’,
r,,1970.
a
,~
~
-y~(’
~-‘
~
i’,~
R~gitia
E1,
Ryar~
/
CZerk
of
the
~ard
1
—
127