ILLINOIS
POLLUTION
CONTROL
BOARD
January
6,
1971
MARQUEflE
CEMENT
MPG
•
CO.
)
)
v.
)
#70—23
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
Opinion
of
the
Board
(by
Mr.
Currie):
Marquette
Cement
Manufacturing
Co.
filed
a
petition
for variance October 1*,. 1970.
After a hearing we grant
the petition subject to several conditions enumerated be-
low.
Marquette operates in Oglesby, Illinois, a large and
elderly cement manufacturing plant whose emission of cement
dust concededly “far exceeds” the limits set by the particulate
emission regulations adopted by the old Air Pollution Control
Board in 1967.
The regulations (Rule 2—2.31) required the
submission by April 15, 1968, of afirin program (ACERP)
for bringing emissions into compliance.
On September 1,
1967 Marquette filed a letter of intent (this and the
following communications
are
combined in EPA Ex.
3) stating
that because the plant was “obsolete” the company was
“studying feasibility of completely rebuIlding this plant
or building at a new location” and promising
that an ACERP
would be filed on or before the date prescribed.
Just be—
tore that date, hcwever, the company requested an extension
of time to study the alternatives, which had been “narrowed”
to “five or six” and which now included “upgrading the existing
plant to meet operating and air pollution requirements.”
An extension was granted until December 15, 1968.
In December of that year Marquette wrote that a committee
of its Board of Directors
had
concluded that “the plant
should
be
enlarged
and
modernized
with
the
first
phase
to
include
completely
new
kiln
department
and
a
completely
new finish grinding
department,”and
that
the
new design
“will include the installation of the most modern and effective
dust collection equipment available,” which would “be de—
s~.gnedto fully meet the Illinois code.”
This program was
to
be
recommended
to
the
company’s
Board
of
Directors
in
February,
and
“it
is
expscted
that
approval
will
be
given
1
—
145
and
an appropriation
of funds made.”
A letter
a few weeks
later listed five firms that had submitted proposals
to
build
the new facilities,
stated the belief that the
company
would
“be in
a position within the next week to make
a final
selection of an engineering firm for the Oglesby project”
and would then “enter into
a contract,”
and included
a
schedule as follows:
“(1)
Detailed engineering
to start
not
later than
April
30,
1969.
“(2)
Construction to start May
1,
1970.
“(3)
Construction
to be completed
in September,
1971.”
On
the basis of these assurances
the Air Pollution Control
Board approved the air contaminant emission reduction program
January
30,
1969, requiring the filing of annual progress
reports beginning July
1,
1969.
Then the vacillations
began.
After obtaining
state
approval
of
the program the company’s Board of Directors,
confronted
by what Marquette described
as
“a sharp increase
in the interest rates for
long term capital borrowing,”
voted only “conditional” approval of the plan the company
had submitted,
making
the whole program contingent upon
“arrangements
to increase the company’s
long term
debt
on a basis approved by
the
Administrative ,and Advisory
Committee of this Board of Directors.”
If
no such arrange-
ments could be made,
the officers were authorized
to install
control equipment on the existing kilns,
(Letter of March
12,
1969).
Six weeks later
a telegram informed
the Air Board
that
the company
had made the decision to install control
equipment on exiting facilities and that
a letter contain-
ing
a new program would be submitted the following week.
But
no letter was submitted,
and neither was the pro-
gress report required
by the order approving the original
program.
On August 29,
1969 the Board wrote
to Marquette
urging that
the report
be filed immediately to avoid en-
forcement action.
On September
10
the company responded
that
it regretted
the “oversight”
and placidly reported that
after two years and a half of studying alternatives
(and
polluting the air)
it was right back where
it
had started.
This letter
is
so blatant
in its assumption that
the company
could get away with whatever
it pleased that
I quote it rather
extensively:
“We are proceeding with detailed Oglesby en-
gineering and financial studies along two
lines,
both of which would include satisfactory air pollution
control.
The
first encompasses modernization
of
the present plant, and the second installing
new
air pollution control equipment on the present plant.
“Discussions with the institutions from which
we have secured
our present
long term debt indicate
that financing the modernization of
the present
plant may become
a problem,
and this has raised
the question about
our ability to continue with
this plan which your Board
has approved.
Should
we find
it necessary to take the alternative course
of installing satisfactory air pollution
control
equipment
on the present plant, we shall present
to you and
the Board for your consideration an
amended Air Contaminant Emission Reduction Program
and time schedule.”
That was the
last heard from Marquette Cement Manufacturing
Company about fixing up its
air pollution problems until
the present petition for variance was
filed
in October, 1970——
three and
a half years after the regulations took effect.
Pollution continues unabated.
Now the company has presented
a plan that,
if
it were
not for the delay, would seem satisfactory.
The new plan
calls for replacement of the eight oldest kilns with
a
single
new one (complete with electrostatic precipitator)
to be completed by December
31,
1972, and
for fitting the
two other existing kilns with precipitator
by March
31,
1972,
The Environmental Protection Agency agrees that
this
program will bring Marquette into compliance with
the
particulate regulations.
Moreover, although the Agency raised
questions as
to whether the timetable proposed could be
expedited,
the only evidence in the record supports
the
company~s schedule.
Precipitator suppliers,
the testimony
shows, ar& presently overcommitted;
substantial demolition
work must
be done to make room for the new installations
in a crowded work area; provision must
be made
for
a new
electrical supply
(R.
29,
~I2,
66, 71,
82—83,
88).
On this
record we accept the uncontradicted testimony that,
given
today as the starting date,
the schedule is as tight as we
can require.
The statute provides
for
a variance to be granted only
if the petitioner carries the burden of proving that
to comply
with the regulations would impose an “arbitrary or unreasonable
1
—
147
hardship”
(~35),
The evidence as to hardship
if the plant
were closed during installation
of the pollution control
equipment
is convincing,
although one is tempted
to say the
hardship was self-~inflictedby the company’s long record
of unnecessary delay.
To close the plant would of course
cause
the loss of business for two
years,
and
the company
maintains that
it would never be able to reopen the plant
if the variance were denied
(R.
62).
More importantly,
the
closing of the plant would deprive over
400
people
of their
jobs
(R,
17),
in an area that has few obvious opportunities
for reemployment
(R,
100).
On the other side
of the balance,
while there have been a number
of. complaints about dust
emissions from the
cement kilns
(FL,
8), there
is
no
evidence
that they are acutely
toxic, and
no one has asked us to
shut
down the plant while controls
are being installed
To the
contrary, there was overwhelming community sentiment in
favor
of
the
grant
of
the
variance.
The
manager
of
the
regional
chamber
of
commerce
(R.
97—101),
the
mayor
of
Oglesby
(R,
104),
the
local Roman
Catholic
priest
(FL.
112)
and Protestant minister
(FL,
127), vice—presidents of
a local
bank
(FL.
115) and of
a local savings and loan association
(FL,
125),
the president
(FL,
149—50)
and recording secretary
of the union representing Marquette’s employees
(FL.
150)
and another citizen
(FL,
153) all testified that they hoped
the variance would be granted.
Two other residents of Oglesby
voluntarily
testified
that they objected
to
air
pollution and
noise
from
trucks
serving
the
cement
plant
but that
they did
not
object
to
the
grant
of
the
variance
(f.
139.,
146).
This community sentiment cannot
be
ignored.
The
people
who
will suffer most
1.~rom continued pollution during the next
two
years
while
controls
are
being
installed
have
told
us
in
no
uncertain
terms
that
they
would
suffer
much
more
if
the
plant
were
closed.
We
think
hardship
is
amply
shown and
the
variance
must
be
granted.
This does
not, however, mean that we simply give
the
company what
it asked for with no strings attached,
To
begin with,
the
s
.~
atute expressly limits any variance to
one year
(836
(b)),
in accord with
the salutary ~policy of
requiring the petitioner to come back within a reasonable
time
arid demonstrate that
it
has made satisfactory progress
toward
completing
its program.
We will grant
the
variance
for one
year, and Marquette may obtain an extension as the
statute provides upon
a timely petition and proof that
it
has made satisfactory progress
and has complied with the
conditions of today’s order.
Moreover, today’s variance order does not authorize
violations of
anything
other than
the
particulate regulations,
or
by
any
equipment
other
than
that
covered
by
the
variance
request.
Questions
were
raised
during
the
hearing
con-
cerning dust
and
diesel smoke
(as well as
nocturnal
noise)
from trucks entering and leaving the plant through a re-
sidential area (e.g., R.
l39—~I7),and concerning carbon monoxide
and sulfur dioxide emissions as well (R.
511—56).
We urge
the Environmental. Protection Agency to investigate whether
Marquette’s operations cause violations other than those
involved in the present case and to take appropriate action
if such violations are found.
While the present proceeding
does not permit usb
issue orders against such violations,
we have not been asked to allow them, and
our
order today
does not do
so.
Finally, the statute explicitly authorizes the Board ~o
“impose such conditions as the policies of this Act
may
require” when granting a variance
(~
36 (a)).
Several
donditions are required here to further the purposes of
the statute.
First, we shall require Marquette to submit
quarterly progress reports in order to assure that it is
living up to its promised schedule and so that prompt
corrective action can be taken if it is not.
We do not
wish
to be in the position, a year from now, of discovering
for the first time
that
there have been further delays.
For
the
same
reason,
we
shall
insist
not
Only
that
the
company
aim
toward
ultimate
compliance
by
the
end of
1972
but
that
it
meet
several
interim
deadlines,
in
accord
with
its
own
variance proposal, in order to give, us intermediate
checkpoints
against
which
to
measure
progress.
Third, since this is a case in which the hardship is
temporary and the sole reason for the variance is the need
for time in which to install control equipment, the statute
(~
36 (a)) requires the posting of security to assure that
the company meets the dates it has set itself.
There is
some suggestion in the record that bonding companies
may
be reluctant to give security for this purpose, partly
because the idea is a novel one with this statute and partly
because the details of the required bond are
not
spelled
out in the statute (R. 117—23, 128—31). There Ss even
a suggestion that the security requirment maybe un9onstitutional
(Petitioner’s summation,
p.
11), but no constitutional principle
is cited in support of this contention, and the argument is
patently without merit.
We have required security in
comparable past oases
(e.g., Nestle Co. v. EPA, #70—22,
decided December 22, 1970), and statutory bond requirements
are in fact quite common and accepted in other fields.
1-149
As
for
the alleged reluctance
of bonding companies,
the
statute
and today’s order leave
the Agency considerable
flexibility in working out
the details of the security;
it may be that
a commercial bond will not be required.
The purpose of the bond requirement
is
to provide
an additional
incentive to the variance holder to meet his
deadlines,
by imposing the
threat
of forfeiture
if he does
not.
The amount must
be high enough to make
it more
unattractive
to default than to spend the money
for control
equipment.
While the cost of the equipment may be an
adequate measure of this amount in some
cases,
it
is not
so
here since much of the
cost of the new installation
is
for
new kilns,
We think a security in the amount of $50,000
will suffice,
to be forfeited
if the plant
is operated
without
a further variance
and without controls after
January
6,
1972.
Finally,
the purposes
of the statute require that we
impose
as
a further condition
of this variance the provision
that Marquette pay to the
State of Illinois
the sum of
$10,000 as
a penalty for its inexcusable dilatory tactics,
To
let Marquette walk away without even
so much as
a slap
on the wrist would suggest that
the State does not mean
business about pollution and would encourage other emitters
to delay controlling their processes until
the
last possible
moment.
For Marquette, as
amply
shown by this record,
publicly thumbed
its corporate nose at the State of Illinois
for at least
one and
a half years.
After requesting and
receiving
a nine—month extension of a year’s grace period
to devise
a plan for compliance,
the company received approval
of
its plan only
to
change its mind and procrastinate,
It
is
not as
if
the
old Board had granted
approval
of
a program
whereunder
the company was to study the problem for another
year
or
two;
the
ACEFLP
submitted
and
approved
in
January
1969 contemplated
that Marquette
would
replace
the
old
kilns with
new
ones equipped with adequate controls by
September,
1971.
The failure
of the company’s
Board of
Directors
to endorse the program the State had approved
put an end to that program,
and the company did
not submit
another——or even request another time extension——for more
than
a year and
a
half thereafter,
Rather the company kept
putting off the Air Pollution Control Board wi~hassurances
that
it was still
“studying”
the problem.
But the time
for
study had long passed.
The Air Pollution Control Act did
not grant people an indefinite period in which to make up
their minds,
Marquette was given plenty
of time
to decide
how to bring its plant
into compliance,
and without leave
it proceeded
to take twice as long as was allowed.
The re-
sult
is
that
the company was
in clear
and flat violation
of the particulate regulations,
from February
1969, when
the Board of Directors refused to endorse the ACERP that the
State had approved, until the submission of the present
1
—
150
plan and its approval today.
The failure to live up to
the
ACER? and the failure to
submit
the progress report
required
in
July,
1969
were
additional
violations
for
which
penalties
may
be imposed.
To ignore these violations would
frustrate the purpose of the statute to “restore, maintain,
and enhance the purity of
the
air”
(8
8), by encouraging
delays
that
are
prejudicial
to
the
entire
control
program.
As
we
said
last
month
in
Ozark—Mahoning
Co.
v.
EPA
(#70—19, decided December 22, 1970), the time may come when
this Board refuses to accept a plea of hardship on behalf
of one who has deliberately brought about his own plight
by delaying the installation of control equipment.
Today
we choose not to deny the variance on this ground, but we
think it necessary to impose a penalty as
a
condition
of
our variance order so that in the future people will under-
stand that deligence in
pursuit
of
a
program
of
compliance
is required.
By
dragging
its feet Marquette
has
postponed
for over a year and a half (since the original approval of the
ACERP) the spending of the three million dollars it plans
to invest in control equipment.
The interest thus saved
amounts to a pretty penny.
While it is true that some of
this saving is offset by rising construction costs, this
could not necessarily have been foreseen at the time.
It
remains true that the company that
delays
making
expenditures
for air pollution control is likely to benefit financially
at the expense of its innocent neighbors, and a penalty
must be imposed as a deterrent.
The
sum
of $10,000 is
peanuts to a company undertaking a $15,000,000 construction
program;
I would be inclined to favor a penalty of $50,000.
But
the Board is of the opinion that a $10,000 slap will
serve as adequate warning to those in similar positions
in the future who might be tempted similarly to delay.
Future penalties may not be so trivial, for the statute
(8
42) permits penalties of $10,000 plus an additional
$1000 for each day a violation continues.
Accordingly, the variance will be granted upon the
conditions stated above, including the payment of $10,000
to the State as a penalty for emitting particulate air
contaminants in violation of the regulations promulgated
by the Air Pollution Control Board and without pursuing a
program of delayed compliance as authorized by those re-
gulations.
The ACERP approved by that Board is no defense,
for the regulations
plainly
provide
that
there is such a
de-
fense
only
so
long
as
the
program
is
being
implemented
(Rule
2—2.41).
The protective mantle of that program expired
1
—
151
when the company board refused to endorse it in February,
1969.
The violation continued at least until the filing
of the present petition in October 1970,
and the penalty
assessed is easily within the amounts authorized
over this ex-
tended violation period by either
the Environmental Protection
Act
or its predecessor.
I conclude by quoting from the recommendation of the EPA:
“The Agency can only conclude that petitioner
was using
the program to delay as long as possible
the
time when
it must bring itself into compliance.
.
Petitioner’s only real progress,
since submitting its
January 1969 program,
is to have finally decided what
it
is going to do,”
This opinion constitutes the Board’s findings
of
fact
and conclusions
of
law.
ORDER
The Board, having considered
the transcript and exhibits
in this proceeding,
hereby grants the petition of Marquette
Cement Mfg.
Co.
for
a variance,
subject to the following
conditions.
1.
This order
shall shield the company from proceedings
for enforcement of
the particulate emission regulatians
adopted
by the Air
Pollution
Control
Board
and preserved
by section 49 of the Environmental Protection Act, with
regard to emissions from the
kilos for which control plans
were submitted
in the petition for variance filed in this
proceeding,
from the day of this order until January
6,
1972,
provided that the other conditions of this order are complied
with.
2.
Marquette shall adhere
to the following schedule, as
set
forth in its petition for variance:
Evaluation of bids and application for permits
(for
collection
equipment)
.
.
.
February
1,
1971
Start of construction work
.
.
,
.April
1,
1971
Completion of dust collection
on two old kilos
...,.,...
March 31,
1972
Completion
of construction,
total compliance
.
,,,,,,,.
December 31,
1972
3.
Marquette
shall file progress reports with the Board
and with the Agency on April
6,
1971, and every three months
thereafter, and shall apply for
an extension of the variance,
if necessary,
no later than October
6,
1971.
!4~
Marquette
shall
post with the Environmental Protection
Agency,
on or before March
1,
1971, and
in such form
as
the
Agency may
find satisfactory,
a bond or other adequate security
in the amount of $50,000, which sum shall be forfeited
to
the State of Illinois in the
event
that the plant
in question
is operated after January
6,
1972, without an extension
of this variance and without control equipment sufficient
to reduce emissions to those permitted by
the regulations.
5.
Marquette
shall pay
to the State
of Illinois,
on or
before
March
1,
1971,
the
sum
of $10,000
as
a penalty for
continued
violations
of
the
statutes
and
of
the
regulations
with
regard
to
particulate
emissions
from
the
plant
in
question
from
Feb:ruary,
1969
until
October,
1970.
6.
Emissions
closed
in
the
its letter of
variance.
~bal1 not he increased above
the levels dis—
forms
submitted by Marquette in
connection
with
intent
(EPA Ex.
3) during the period of this
7.
The failure of the
company
to
adhere
to
any
of
the
con-
ditions
of
this
order
shall
be grounds
for revocation of
the
variance.
ICQ~UR
-~
•-~
_
__-
I,
Regina
E.
Ryan,
certify that
the Board
adopted
the
above
soinion
and
order
.January
6,
1971.
/
-
~2
I
DISSENT
-
L~
A
/
~
~
1
—
153