ILLINOIS POLLUTION CONTROL BOARD

September

30,

1971

A.

E.

STALEY MFG.

CO.

v.

)

#

71—174

ENVIRONMENTAL PROTECTION AGENCY

T.

W.

Samuels and

J.

E. Jackson7

for

A.

E.

Staley Mfg.

Co.

John

S.

McCreery,

for the Environmental Protection Agency

Opinion

of

the Board

(by Mr.

Currie):

Staley

operates

a very large vegetable processing plant

in Decatur

(R.

17-18).

Its

Air Contaminant Emission Reduction

Program

(Acerp)

for bringing

into compliance with

the particulate

regulations

its numerou~boilers and those

of its over 100 process

sources not already

so controlled was approved in late 1968

or

early 1969

(Petition,

p.

3,

as verified

R.

17).

The original

program contemplated

the installation

of mechanical collectors on

several of

the boilers, hut

a revised program was

soon after

approved calling

for complete conversion to natural gas, which

would eliminate sulfur dioxide as well

(ibid;

R.

26-27).

Un-

fortunately the much publicized gas shortage has interfered;

Staley

has

lost much

of the gas

it had been promised~(R.

28-29),

through no fault of its

own, and has embarked on

a crash program

to install mechanical collectors

to achieve compliance by August

31,

1972

(R.

30-34)—- only eight months after the date approved

for the gas conversion

(R.

27)

We see no conceivable reason

for disapproval of this program.

The Agency, which agrees with

the grant

(R.

58)

,

rather surprisingly

accuses the company of having pursued

a “phantom programt’

(R.

635)

but we find this characterization completely unwarranted.

It

is

not Staley’s fault that

its gas supplier cannot meet

its needs

because

of

a widespread shortage.

We think

the company has done

the best

it could

to salvage an unfortunate situation and

is

to

be commended for commencing the revised program without awaiting

conclusion of this

case.

A money penalty would be entirely

inappropriate on this

issue,

and

a shutdown with consequent

loss

of hundreds of

jobs would impose an arbitrary hardship in relation

to the continuance of these emissions

for an additional eight

months,

The Agencyts recommendation,

filed

on the first day of the

hearing

(R.

4)

,

raised numerous other issues with respect to

2

—

521

---

operations not covered by the variance petition.

The company

strenuously objected,

contending that it was entitled

to limit

the issues by its drafting of the variance.

We have held before

that

the Agency

is within its rights in asking that we condition

a variance upon the correction of other pollution sources within

the same plant.

See Greenlee Foundries

Co.

v.

EPA,

# 70-33

(March 17,

1971);

Standard Brands,

Inc.

v.

EPA,

# 71-3

(April

28,

1971).

This practice

is

supported,

as the Agency says, by

the interrelated effects

of emissions

from several nearby

sources;

it is supported by

the statutory policy of promoting

correction of pollution problems;

it

is supported by

the sound

procedural policy of encouraging counterclaims to settle an entire

controversy

in

a single proceeding

to avoid multiple litigation

and delay.

We have had occasion before to caution the Agency,

however,

that

a petitioner

is entitled to reasonable notice of new

issues presented in

its recommendations,

and

it is plain that such

notice was not afforded in this

case.

We therefore hold that the

company must be given an opportunity to respond to the

Agency~scharges with respect to other sources within the plant.

The Agency was allowed, over objection,

to introduce considerable

testimony as to other sources.

First EPA attempted with no success

to

show that certain process sources might not be

in compliance

with

the particulate regulations.

Neither stack

tests nor emission

estimates were presented to support these contentions.

The most

that can be

said is that there are

some sources

for which no emission

data were submitted by Staley

and that some apparent maintenance

problems observed by an EPA inspector on

a cursory trip through

the plant

(R,

254—74,

279-80)

have been corrected

(R.

463—73).

The company has already given the Agency

a full revised set of

emission data

CR.

61,

657), which goes beyond regulation require-

ments.

Staley

testified without contradiction that all

its

process sources had been

in compliance with the particulate

regulations for some time,

(Petition,

p.

3,

as verified R.

17;

R.

25,

59,

61).

There

is no point in pursuing this question further

unless the Agency can come up with specific allegations

of violation.

A special issue arises with respect to six corn dryers

that

admittedly do not meet the general particulate

requirement’ CR.

59,

357).

Staley

relies on the special provision allowing up to

0.75 grains/scf

from such equipment upon

a showing of necessity.

Staley’s evidence

shows that

its dryers

all emit less than 0.3

(R.

365)

,

and as we read the section that is therefore all they

are entitled to emit,

But the place for the Agency to show,

as

it said

it wished

to show

CR.

13)

,

that the regulation

is itself

is too lenient

is

in the pending proceedings

to tighten the

emission standards.

In light

of

the several progress reports

submitted by the company

(R,

358-9) we do not think it has waived

the protection of the present rule.

---

There is finally the question of odors,

Several witnesses

testified to considerable and objectionable odors from Staley’s

(R.

210,

511,

563—64,

571,

576,

578,

580,

593)

,

while others said

there had been great improvement or that there was

no problem

(R.

315, 456,

516,

521—22,

524,

539,

561,

590,

602,

616,

620,

623).

That we have no numerical odor standard

CR.

648)

does

not

end the inquiry; that

is what the statutory ban

on air pollution--

unreasonable interference with

the enjoyment

of life

or property——

is in large part about.

We have held

(Moody v.

Flintkote Co.,

#

70—36,

Sept.

2,

1971)

that air pollution

is proved if the evidence

shows

a significant interference, with enjoyment of

life or property

that can be corrected by employment of technology that

is available

at reasonable cost.

We think

the evidence here suggests

an interference with

the

enjoyment of

life and property, subject to further rebuttal by the

company.

There also was evidence that equipment could be purchased

to incinerate the odoriferous matter emitted from corn dryers

CR.

368,

372—73,

375,

391,

395—96,

399,

401,

412—15,

433,

437,

443),

The company elicited that there have been no commercial

applications

of this technology in the corn industry

CR,

399,

419),

and there

is no evidence

of cost in the record.

But we

think the company has

the obligation

to show that the technology

cannot be had

at reasonable cost or that

it will not do

the job.

It cannot be

a complete defense that no one has

yet put the

technology to commercial use;

if it were we should encounter

a

vicious cycle in which technology was

not employed because not

required and not required because not employed.

Because of

the late notice we think Staley

should be given

a further opportunity to present evidence

as to why

it should not

be required to employ incineration or some other method to re-

duce odors,

and

if necessary to put additional questions to the

Agency’s witnesses,

Another hearing will therefore be held

in the pro-

ceeding.

We do not believe any purpose would be served by requiring EPA to

present the same evidence again.

We therefore construe the

Agency’s odor case as

a countercomplaint and schedule an additional

hearing at which

the earlier relevant testimony will be incorporated.

Staley’s participation in that heariiig will

be

a condition of

today’s variance.

This opinion constitutes the Board’s findings of fact and

conclusions of

law,

ORDER

A.

E.

Staley Mfg.

Co.

is hereby granted

a variance from the

particulate regulations

of the Rules and Regulations Governincj

t)~ie Control of Air Pollution until August

31,

1972,

to permit

the installation

of equipment as described in the record to bring

its boilers into compliance with those regulations,

on the following

conditions:

---

1)

Within 35 dyas

after receipt of this order,

Staley shall post

with

the Agency

a bond or other security in the amount of

$100,000

to secure compliance with

this order;

2)

A further hearing shall be held on the Agency’s countercomplaint

regarding odors,

at which Staley may present additional evidence

as to odors and as to the technical feasibility and economic

reasonableness of odor control,

including but not limited to

incineration;

3)

Staley shall file detailed quarterly progress reports

with

the Agency and with

the Board, commencing January

1,

1972;

4)

Failure to adhere

to the conditions

of this order or

to the

program herein approved shall be grounds for revocation of

this variance.

I,

Regina

B.

Ryan,

Clerk

of

the Pollution Control Board,

certify

that

the

Board

adopted

the

above

Opinion

this

_____________day

of_September

,

1971,

/

2

—

524