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16,

1371

NO~tT~OLK

AN!)

‘;ESTERN

RF1ILtIA’(

Co:i~A~4Y

)

v.

)

PCB 70—41

)

ENVI ROW4ENTAL

~ROTECTION

A~tNCY

Dissenting

Ooinion

(By

Ur.

Kissel):

1

have

read

the

o’~inienof

the

Sc.$trd

drafted

by

ir.

Currie,

and

while

I

ngr’:o

with

the

factual

statetents

regarding

the

oneration

of

the

netition:..r,

I must disaq:on t:ith the result reached.

I would

qtant

the viriance to the netitioner, conditioned on the uerfornance

of certain

acts.

The

petitioner

ot’erates

a

plant

in

flecatur,

Illinois,

which

has

!ou’

bni

~

The

boilers

are

used to heat

various

facilities

of

the

not

5

tinn:,c,

t~t~are

~

all

int’~nts

‘t::~

purposes

inoperative

durin7

the

su..:’.~2:x~at:zs.

The bC2~n ~:‘n~’.::n

an

avst-?r~1

of

2,210,000

nounds

cr2

ena)

with

Tjfl

avnrr’~y~t

sulnhur

cnnt9rt

of

3.6!’

and

an

averaqe

ash

conL’tnt ~,Jf

i(J.

w4th

a

antinr

vtuo

cr2

10,700

!.T.U.

ner

nound.

~

U;

t:

r: 3ohmic~l

cohlr’?te:

thove

the

conbustion

chamber

with

an

n ~

icictncy

o

)t~ro::J7.itoly

60 t1.

Th~

noI.Stic~ner ncb’:its

to

a

nroben

in

the

firm’?

of

the

coal

units.

‘the

cl:,in

~r; t~::t thr

potiticnr•r

t.”~

notified b?

the

Environaental

prntecL~tnn;~‘~:ncy

LW’;.)

of

L!io

nroblct

in

October

of

1970.

Apparottly

at

that

U:

t,

c’;e

C”.’.

flt~’iEcd ‘~e

‘etit&nnar

th*t

the

petitioner’s

bn~ic’r~‘e~c’ hci~’-ro”~raL’~Ain

~‘ioiatictn

of

Rule

3—3.112

of the R’Ues

:~i

:~or’j1.zt1.n.;

icyn3rrii1~ t3~e

C’mtrol

oC Mr

rollution.

After

this

noLi~ic’J icr

t.h’~

~

trt~~sredth~:s~n’ices

of

a

consultant

who

advised

thnt

the

rotitioncr

hci

three

alternatives

from

which

to

choose:

1)

Convor~

the

nro~cnt b:’~1er

units

fron

coal

firinq

to

oil

at

a

c:ost

Cf

S1o3,127;

2)

luc I’ll

a

¶17

anh

nvci.c.n

to

t’ormit

o,aration

of

the

boilers

on c~nlat a cost o

~l50,Otc’;and

3)

7~gt:~1.a

r~tttt

C”

k~3rez~

autoflatic

ofi

fired

boilers

ten

o’

th~

t’r

zr,’,...

:~.‘

~1ant

~t

a

cost

between

$350,000

and

S400.0G3.

1—

---

In a letter sent to

the

Pollution

Contol

Board

after

tite

hearinv

the

petitioner

elected

to

,r:ceoci

tvit:

alternat:’~e

nurter

three

and

install the package oil

fircd

boilers.

The

tir:3

to inst&l1 these

boilers

would

be

a’~uroximarca”

one

‘car.

The

oninion

by

1r.

Currie

Unit

~ealt

with

the

issue

of

the

sufficiency of tha petition ~c:

¶~.vi~tto’3. whi:~ I

aare~ that

the

oetitior~did not

contain

eri’~h tad

ever?

fact

r.~csssar.’ t~ be

a

p:~on2r

one under the Rules of tho

hutton Cc:ttrol ~‘::~rd,

I t~z~t

actroo ~ith

4r. Currie that

this

shoul~~:

)t

be

a f~taldcr~:tt:hnrc ~

ntoc

in

the hearinc is ade’iuate to sut’port the c’rant, cr denial,

as the trtse

may

be, of the variance.

In

my opinicn,

there

:as surficient proof

presented at

the

hearing for the Bcnct~to make n decisi’n on the

merits of the case.

What

did

the

petition~r

r,rove?

rirst,

:~-

roved thn onoratlzr.

of his boilers

is

in

violation

of

the

existin-

rules

an!

requlrttit:;s

governin.r

air

nollution.

The

amount

uC

coa~ t!.~cd,

nlus

the

hiq~

tsh

content

would

have

to

sho’:

z.

ñol~Licn

of

Itule

~—3.1.l2

-:

the

~u1:a

and

Regulations

Zovernin’~

Aix

“ollut

ion

which

t

rovide

_~•~

not.

r~o~e

than

0.6

pounds

of

particulztes

shiüi

he

emittc.~ ~•t’r

;~i:i3ion of

l.’f.U.

input.

In

addition,

th3

p’~itiorio’:

t::ttt’~:i

:

tts

Lo? .~r o!

InLCnt

filed

with

the

EPA

that

it

~c:its

£30

Lc~nsu!

‘~.:t.icul:

wtter

~:::h

year.

Socond,

the

record

c.oronstratc:t!

the

LQtr..

e2~c:ct cf

the

n;’ni’tio

of

the

plant

on

the

coP!lunit.

Thc

hcr

~r2

~

c?~tur tt~ti~ied

i:~

favor

of

the

granting

of

thc~varianczi.

Thez?

~rc

iott.rs

intz’~1tcod

into

the

record

indicating

that

“Grsr:.:

in

th~

~ur~:o’tn

t-~ :‘rea

~::re

affected

by

the

sr~at and

ashes

beiri~ ~.:ittcd

f-:~tt

this

lent.

Tie

co3w~unitywas

allowed

to

sneak

and i~ :Ud.

Th:

1a.’~ t’ts

in

favor

of

grantin

the

variance

and

other

cit

J:~.enswere

:~ztt.

In

deternirjinc

whether

a

variance

should

?a

‘4:ant~.

or

donie.~l,

this

Board

must

consider

~

e~!fact o~ the

v

cC

t.tion

;.r

.rce

on

e~.c

communit”.

This

t;ould

include

a

baTh:tcirz,

5..

e’~n

t’ici

:annits

aich

the

industry

‘iives

to

the

ctn:trnunitv

virsus

t.Ia’

3ctr1!r.::.:s

which

r~c

imposed

on

the

coraunity

as

a

result

of

the

t~flution.

‘cc

have

stated

many

times

that

thi3

is

nr,t

~

equal

b.1 ~tnce

:mf:

that

tht~ .~o:4rc~

will

renuire

that

the

ben~’its

to

the

connuni

‘nill

st.~stanti itlly

outweigh

the

harm

inflictad

u~’onthe

ccrt’ini

t”.

In.

thf.z

cases

althourh

the

nollution

does

c,.’ase

st’t~ prohlr

to

th’o

h~ca1 recicents,

the

benefits

which

the

not.$.tioner

n4vvs

to

t’t-:

local

c:rtunity

;c~

tht.’

state

as

a whole

subs tar~ti~.11youtwu.!~th the

~rrt

causea,

na~tic~.L..~1y

in

light

of

the

short

time

in

the

future

dun;-r

•ehic!r

the

nollut

..:t

would

continue.

The

petitioner

is

a

iignifir2rt

ony~lcy.r in

C

~:rc’a

and

the

operation

of

the

1)octtur

r:la:tt.

is

ice’

to

t?~o

u:::ire

operation

of

the

railroad.

Tha

~eti.i~ner

n:\..:

it:

ad

:3

clear

that

if

it

could

not

opcrat&

the

b~:i1.‘~s it

t:

-t:ld

ha

c.. -uircci

~..t

close

its

operations

si’tnLy

beoaust~ C~opetitir-ner’s

c:nloyees

t:u(~

not

be

able

to

he~lthr~ir

rtc

tho~r

:

b

~j•~

~

adc-:r.:2

heat

1-2*

---

the Decatur operation were to close, this would mean that much of

the petitioner’s operations state-wide, and oven nationally, would

have to be closed.

This is certainly “an arbitrary or unreasonable

hardship” contemnlated by the Environmental Protection Act.

stile

I would grant the variance to the Petitioner,

I would

impose the following conditions:

1)

Performance bond

--

Since the petitioner is asking for time

within which to correct the vioLation ot the rectulations,

I would

require the petitioner to post a performance bond, in a form agreeable

to the EPA, in the amount of $250000.

The amount of the bond is

related in magnitude to the contemplated capital cost of the improve-

ments to be installed by the petitioner.

2)

Time for performance

--

The petitioner stated that it would

be unable to complete the installat~onof the new boilers in less than

one year; yet the EPA in its recommendation says that the time

required by the petitioner is

“excessive” and further that the ‘eti-

tioner should be in comuliance by the 1971-72 heating season.

We

think that a year is

too

long, since the petitioner has delayed long

enough in implementing its program to comply with

the

air

pollution

regulations and laws of this state.

I would recommend that the

petitioner be in compliance by October 31, 1971.

3)

Reporting

--

I would agree with

the

EPA

th~t the

uetitioner

should report to that agency as to the ~irogressof its compliance pro-

grain.

This reporting should be on a monthly basis.

4)

Penalty

--

Althouah the petitioner did file a Letter of Intent

with the former Air Pollution Control Board,

it did not file a proga.am

with the State which program would have brought the netitioner into

compliance with the particulate regulations.

The ~atitioneris

delinquent by three years in filing this program.

if the nutitioner

had followed the law three years

acre,

this case would have never

arisen.

Because of the dilatory tactics used by

the

notitioner in

this case,

I would require as a condition to the granting of the vari-

ance that the petitioner nay a penalty in the amount of $10,000

for

the violation of the regulations durina the past three years.

The

imposition of this penalty would have been made regardless whether

the EPA had recommended it or not, therefore,

I would not construe

the EPA,’s request for a penalty to be imposed as the filing of an

enforcement case against the netitioner.

The decision to require the

payment of a penalty, under circumstances althost identical ~tothose

of this case was made by the Board in the Narguette

a

case,

PCB 70-23, decided January 6, 1971.

That case is a A;rect precedent

for this one.

/

./

,.J

/

:.~

/

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

certiCv

that Mr. Kissel and

?.ir. Dumofle

Stt’:rfl

tb:

~ ~

:1)ove

diszcnbt~nc’ opi nthn

this

J,MF,j

day of

j’~j_

~ 1971

:

_J~~/

~

1-287