ILLINOIS POLLUTION CONTROL BOARD

July

8,

1971

Environmental Protection

 Agency

PCB 71—43

Lipsett Steel Products, Inc~

J,H, Keehner, Assistant Attorney General of Illinois

for

the Environmental Protection Agency

R,E.

 Robertson,

 for L±psettSteel Products,

 Inc.

Opinion of the

 Board

 (by Mr.

 Dumelle)

This

 enforcement action

 was filed on March

9,

 1971 and alleged

violations of section 9(a)

and

 9(c) of

 the Environmental Protection

Act

 (Act)

 ill,

 Rev,

 Stat.

ch.

 111—1/2

 ~ 1009(a)

and

 1009(c)

and

Rules

 2-1~1

 and 2-1~2 of the Rules and Regulations Governing the

Control of Air Pollution,

 Specifically the complaint alleged that

the respondent Lipsett Steel Products,

 Inc.

 (Lipsett)

 conducted the

open

burning

 of various railroad cars

 and related equipment on seven

separate occasions, December

 :L6,

 1970, January

26~

27

 and 28,

and

February

1,

9,

and

20,

 1971,

 The Environmental

 Protection Agency

(EPA)

 asked that the company be ordered to cease and desist its open

burning and that the company be

 aenalized un

 to $10,300

 for each of th~

alleged violations

 (plus $1,000 per day

 for each

day

 that the viola”

lion continued)

At

the

hearing

 held on

May

 in Alton

Lipsett

responded

to

six

of

the

assertions

of

violation

by

admitting

 that~~~urnii~q~

 in the

oven had

occurred

the

seven

days

questlon

(R~

20)

each

day

the burninq had

been

blower

assisted

and

counsel

for

the

company

characterized

 the EPA

prosecution

of

the

open

:ourning

such

s:L~uaticn

 as the ‘technical~application of the

law

 (R~25)

 As for

the

 date in December 1970,counsel

 for the company stated that no

violation could be charged

as

 the company was

 then operating under

a variance

 granted

by

 the old Air Pollution Control Board.

We

 have

 had occasion to consider Lipsetts operations in an

earlier case~

On

March

22,

2971

decided

against

granting

 the compan

variance

 continue

open

burning

connection

 with

its

salvage

operations

(PCB#70—50)~

At

that

time

wereviewed

Lipsettts

opera-

lions.

 The Granite City site

 is part

substantial

interstate

enterprise

 at which several hundred railroad

 cars

Per

 year have

been burned

 since

 1957.

 The cars

 are burned

 to recover their scrap

2— 81

iron

 (and other metals)

 content for sale as raw material

 to metal

reprocessors.

 Just north of

 the salvage operation are

 a number of

residences whose occupants have vigorously complained about

 the air

pollution emanating from Lipsett’s operations.

 What we said in our

earlier opinion is well repeated on this occasion.

1

Lipsett is

 no small polluter, and the

 site of

its burning operations

 is not remotely located.

The neighbors made clear, and the EPA confirmed,

that the results of blower—assisted burning are

rather

 foulS

 Each car

 contains 6000 to 7000

pounds of wood

 (R,21),

 There is tar ib

 boxcar

roofs

 and grease on the axles

 (R.246)

 and oil

is used

 to ignite them (R~l69),

 Refrigerator

cars, which the company also wants

 to burn, are

even worse, since they contain not only wood but

“other non-metallics such as the insulation”

 (R,38).

All

 50 cars now stored on the

 site are refrigera--

tors

 (R,74).

 Petitioner’s Exhibit

 I is

 a film

showing two boxcars burning side—by—side,

 one with

a blower in operation and the other unassisted.

After an initial startup period during which time

emissions from the car being burned with

 the aid

of

 a blower are as thick if not thicker than

those

 from the other

 car, there

 is an obviously

noticeable visual difference in the opacity of the

emissions from the

 two cars.

 The company’s wit-

nesses

 said this startup period lasted only “twenty

or thirty seconds”, or

 “30 tO

 45 seconds”

 (R,169,

220), but they were contradicted not only by EPA

testimony that the dark emissions

 lasted for ten

minutes

 (R.286), but by the persuasive visual evidence

of

 the company’s own film.

 In either event we are not

prepared to require the community to endure even

thirty seconds

 of such foul

 air.

 An EPA engineer

testified that the smoke emitted during the startup,

even with

 a blower, was #5 Ringelmann

 (R.286), and

we think that the public should not have to bear

exposure to emissions of this

 sort.

The film leads us to believe

 that the blower

assistance greatly reduced the duration of

the

emissions of thick black smoke from the burning car.

Total burning time is two hours

 (R.247), and the

emissions after the initial startup period, while

significantly reduced,

are

 far from pleasant.

 Even

~

3.

 References are

to

pages

 in the transcript which is Complainant’s

 Ex. A in the

instant case.

2

though

 the blower-assisted burning may

be

better than unassisted burning,

 we are not pre-

pared to say that the effect on the community

of

 the emissions from this process is tolerable,

Driving at 70 m.p.h. in a

 60 m.p.h.

 zone may not

be as dangerous

 as driving at

 80 m.p.h. would be,

but it is

 in any event unacceptable

and

 a clear

violation of the law.

Nor is all harm avoided by burning only when winds

are from

the

 north;

 not only can

 a wind shift cause

odor and

 dirt problems

 on residential property

(R.l80-l8l), but the visual nuisance and

the

considerable contribution

 to the serious particu-

late problems of the

 St. Louis

 area remain.

We

cannot say that clouds of smoke

 (R.182)

are

acceptable within sight of downtown St.

 Louis just

because they are blown away from the nearest

homes~

The history of delay and inaction in complying with the law

against open burning is abundantly clear in this

 case.

 Open burning

salvage operations have been outlawed in Illinois since

 1965.

Not

until May

of

 1969 did Lipsett file

 a program for reducing air contami-

nants

 (ACERP)

 with one

 of this Board~spredecessor,

 the Air Pollution

Control Board.

 In their program the company stated that they would

cease

the

 practice of open burning no later than December

31,

 1970,

the

date by which the company was granted permission to continue its open

burning operations exempt from the

 operation

of

 the law.

 On December

28,

1970 Lipsett filed

 a variance application requesting

 to have its

ACERP exemption extended until June

30,

 1971.

 Quite obviously such

a

request could not be considered before the company’s freedom from

prosecution ran out two days after the date of filing of their petition.

The company well knew that their variance expired

 on December 31,

1970.

 The company came before the Board at the Board’s regular

meeting on January 18,

 1971 and in effect argued an ex parte motion for

emergency relief to be allowed to open burn with impunity until

their variance request, filed on December

28,

 1970 had been acted

upon in the normal course of events.

 The Board voted to deny the re-

quest for expedited consideration of

 the company’s request

 (January 18,

R.39)

and

 a hearing was subsequently held on the company’s variance

petition.

 The Board denied the variance request on March

22,

 1971.

We have discussed

 the operation and viability of continuing ACERP’s

in other cases

 (See EPA v.

 Commonwealth Edison,

 PCB 70-4;

 EPA v. M,S.

~

 PCB 71-50)

 and have stated that although the protection

afforded by such

 a program can only extend for one year from the date

of its inception

 (May 1969 in this case)

 this Board is not inclined

to impose money penalties on

 a company who

 in good faith has adhered

to an approved program.

 We therefore agree with Lipsett that they

should not be penalized for the open burning violation on December

16,

1970,

 As for the other

 dates

 it is beyond dispute that the company

undertook the

 6 specific instances of burning knowing that they were

not: in any manner covered by the previous exemption from prosecution.

2

—

83

Lipsett contends and

 it is uncontroverted that on the

six

occasions

 in which they burned railroad boxcars an improved

method of incineration was used.

 Gas—fired blowers were employed

which Lipsett stated was

 a 90

 more effective method

 than the simple

ignition and unaided combustion of boxcars in the open.

 This assisted

combustion is apparently

 the reason why Lipsett refers to its viola-

tion as “technical”.

 We find such combustion of boxcars to be

open burning and legally no less onerous than the unassisted incinera-

tion of salvaged railroad cars.

 Ample evidence of the character

of such burning is contained in the record of the variance hearing

and has been referred to above,

 Because the salvage operation by open

burning, even when assisted by the gas—fired blower,

 cannot be ade-

quately controlled,

 the wood and other combustible material must be

removed in some other acceptable, manner or not removed at all.

Our principal determination in this case is thus not whether

or.

not a violation has occurred,

 for six violations

 are admitted to, but

rather what is an appropriate penalty for the violations.

The

Environmental Protection Act specifically states that

 “No person

shall.. .conduct any salvage operation by open burning”

 and further

provides for penalties as much as $l0,00~per occurrence plus $1,000

for every additional day~ofviolation. 2~

 Lipsett’s violation of

the open burning ban was intentional and with full knowledge of the

possible consequences.

The

 six separate violations are serious

infractions of the open burning ban for which we impose

a

 fine of

$1,000 per’occurrence for

 a total penalty of $6,000.

 Further we order

Lipsett to cease and desist any and all open burning salvage opera-

tions.

This opinion constitutes the Board’s findings of~factand

conclusions of law.

I.

 A penalty in the total amount of $6,000 is assessed against

Lipsett Steel Products,

 Inc. for

 six separate occurrences

of open burning in contravention of the Rules

 and Regulations

Governing the Control of Air Pollution and the Environmental

Protection Act,

 8 1009 (c).

 The penalty shall be paid to the

State of Illinois on or before August

9,

 1971.

2.

 Respondent

 is hereby ordered to ceath and desist ill open

burning salvage operations.

~~Yllin~I~Rev.

 S~~h,lll—l/2

 ~ 1009 (c)

1042

I, Regina E. Ryan, Clerk of the Pollution Control Board,

 certify

~h~tt~7~oard

 adopted the abov1~on~rdertha~8dayo