ILLINOIS POLLUTION CONTROL BOARD
January
24, 1991
IN THE MATTER OF:
)
PETITION OF ELIZABETH STREET
)
FOUNDRY,
INC. for an
)
AS 89-2
Adjusted Standard from
)
(Adjusted Standard)
35
Iii. Adm. Code 212.456
)
RICHARD
J. TROY APPEARED ON BEHALF OF THE PETITIONER.
DEBORAH STONICH APPEARED ON BEHALF OF THE AGENCY.1
OPINION AND ORDER OF THE BOARD
(by J.
D. Dumelle):
This matter
is before the Board on a petition for an
adjusted standard from the Board’s air
regulations at 35
Iii.
Adm. Code 212.456 filed on June 30,
1989.
Petitioner filed an
amendment to its petition on August
25, 1989.
A hearing was held
on this matter on October
29,
1989
in Chicago,
Illinois.
Due to
the following reasons,
the petition for an adjusted standard
is
denied.
BACKGROUND
Elizabeth Street Foundry (the Foundry)
is a smal~operation
and has recently faced difficult times.
(Pet.
p.
2).
According
to Petitioner, the foundry has been in Chicago at the same
location for 100 years and currently employs 34 persons who work
an average of 25—30 hours a week.
(Pet.
p.
2).
The Foundry
produces a specific product at the request of a particular
customer who then furnishes the pattern and specifies the type of
iron to be used.
(Pet.
p.
2).
The actual metal pouring process
takes place typically every third day but occasionally every
other day.
(Pet.
p.
2).
The Foundry has remained substantially
the same since World War
I with the exception of the office area,
which was destroyed by fire
in 1978 and has since been
reconstructed.
~
Deborah Stonich, now a Board attorney, previously represented
the Agency in this proceeding.
Ms. Stonich has not participated
in any of the Board’s deliberations
in this matter.
2.
The Petition
is cited as “Pet.
p.
“;
the Petitioner’s Brief
is cited as “Pet.
Br.
p.
“;
the Agency’s response
is cited as
“Ag.
p.
“;
and the Agency’s brief
is cited as “Ag.
Br.
p.
“.
118—195
—2—
On October
1,
1986,
the Illinois Attorney General’s Office,
at the request of the Illinois Environmental Protection Agency
(the Agency), filed an enforcement action with the Board
(Illinois Environmental Protection Agency v.
Elizabeth Street
Foundry, PCB 86—161).
The Board issued an Interim Opinion and
Order
in PCB 86—161 on March
24, 1988.
That Opinion and Order
found that the Foundry was
in violation of the Illinois
Environmental Protection Act
(the Act)
(Ill. Rev.
Stat.
1987,
ch.
111 1/2, par.
1001 et seq.) and the Board’s rules.
The Board
ordered Petitioner
to contact Mr. Harry Pestine of the Illinois
Department of Commerce and Community Affairs and stated that:
In consultation with the Agency, Respondent
Petitioner
shall discuss with Mr. Pestine or
other appropriate person in the Department the
availability of Governmental Assistance for
conducting a stack
test; and assistance
in
obtaining
or financing the purchase of
pollution control equipment,
including plant
modifications which might obviate the need for
pollution control equipment,
etc.; and
information detailing whether Respondent
Petitioner
is located in an enterprise zone,
etc.
Petitioner contacted Mr. Pestine and as a re9lt
Dr. Mark
Rood,
a professor with the University of Illinois,
performed a
site study including calculation of Petitioner’s emissions.
After receiving the results of Dr. Rood’s study,
the Petitioner
filed this adjusted standard petition.
PROCEDURAL HISTORY
On June 30,
1989 Petitioner filed its petition for an
adjusted standard from 35
Ill.
Adm. Code 212.456.
Section
212.456 exempts
a foundry from the requirements of Section
212.321 if
1) the cupola was in existence prior to April
15,
1967,
2)
the cupola process weight rate is less than or equal to
20,000 pounds per hour and 3) the cupola was in compliance with
the emission rate listed in Section 212.456(c)(3) as of April
14,
1972.
On July
13,
1989,
the Board issued an Order requiring
Petitioner to file an amended petition within 45 days.
The Board
stated that the petition was inadequate in that the petition did
not state the level of justification which the Petitioner must
show to receive an adjusted standard pursuant to Section 28.1(c)
of
the Act.
Petitioner filed an amended petition on August
25,
1989.
Dr. Rood’s Curriculum Vitae was introduced as Exhibit B.
The
Curriculum Vitae details Dr. Rood’s significant experience
relating to air emissions and monitoring.
118—196
—3—
On August 15,
1989,
the Agency filed
a motion to dismiss the
petition and Petitioner filed its response on August
28,
1989.
The Agency objected
to the petition because the proposed adjusted
standard appeared to be a regulation of general applicability.
On August 31, 1989,
the Board denied the motion to dismiss but
directed that:
At hearing,
the petitioner shall present
proposed language for
a Board Order which
would impose the requested adjusted standard
and which would be consistent with the
limitations and requirements ~ofSection 28.1
of the Act.
The Petitioner submitted the following language
in its Brief:
Section 2l2.456.l Adjusted Standard for Section
212.456
A foundry satisfying the requirements of
subparagraphs
(a) and
(b) of Section 212.456, and
showing that
it
is
in compliance with the allowable
emissions set forth in subparagraph
(C)
(3) of
Section 212.456 shall be deemed to have been in
compliance as of April 14,
1972 and continuously
thereafter,
if:
1.
The foundry
is unable to produce
production records for the month of April
1972 by reason of a loss of such records
due to fire or other casualty; and
2.
Sworn testimony of the operator certifies
that the operations of the foundry have
not changed since April
14, 1972.
DISCUSSION
Petitioner’s filing for the adjusted standard is directly
related to the enforcement action filed by the Illinois Attorney
General against Petitioner
(PCB 86—161).
Pursuant
to the Board’s
Order in PCB 86—161, Petitioner specifically sought assistance
from the Department of Commerce and Community Affairs
(“Department”) at the Board’s direction.
The Department put
Petitioner in contact with Dr. Rood, who visited the site and
collected data.
Dr. Rood then used that data and submitted a
written report to Petitioner and the Department.
At hearing and
in its brief the Agency argues that there
were flaws
in the Petitioner’s petition for adjusted standard.
Those asserted flaws were that the Petitioner was seeking an
adjusted standard to the wrong rule and that the Petitioner had
118—197
—4—
not met the level of justification necessary to be allowed an
adjusted standard.
In addition,
the Agency disagrees that
Petitioner’s emissions were within those necessary to meet the
requirements of
35
Ill. Adm. Code
212.456.
The Board will first discuss
from which rule the Petitioner
should be seeking an adjusted standard, as well as its emission
rate.
The Petitioner
is seeking an adjusted standard from
Section 212.456 of the Board’s rules.
The Agency maintains that
the Petitioner should seek an adjusted standard from Section
212.321.
Section 212.321(a) provides that:
Except as further provided
in this Part,
no
person shall cause or allow the emission of
particulate matter into the atmosphere
in any
one hour period from any new process emission
source which,
either alone or
in combination
with the emission of particulate matter from
all other similar new process emission sources
at a plant or premises, exceeds the allowable
emission
rates specified in subsection (c) and
Illustration B.
Section 217.321(c)
sets forth specific emission rates for
sources.
In order
to determine from which rule to seek an adjusted
standard a petitioner
for an adjusted standard must determine
what
its emission rates are.
The report by Dr. Rood,
filed as
Exhibit C, and the testimony offered by the Agency expert,
Berkley Moore, do not coincide as to the rate of
emissions from
Petitioner’s foundry.
In order
to determine the emission rate,
without using a stack
test,
the process weight rate
(PWR)
is
used.
The process weight
rate along with the appropriate
emission factors are used to determine the emission rate.
The
Agency maintains that Petitioner and Dr. Rood used emission
factors
to calculate its actual emission that are different from
those normally used.
(Ag.
Br.
p.
3).
Because Dr. Rood was not
available for cross—examination,
the Agency was unable to
question his use of the emission factors.
Dr. Rood states that:
“Particulate mass emission rates are
based on data presented in AP—42
(1977), Kearney and Company
(1971)
and information provided by representatives of Elizabeth
Street Foundry Company”.
(Exhibit C p.
2).
Dr.
Rood presented
his emission rate calculations
in Table
1 at page
4 of Exhibit
C.
He then stated that:
“Results presented in Table
1 indicate
that particulate matter emission rates from Elizabeth Street
Company’s cupola are greater than the standards established by
IEPA except
for two cases”.
(Exhibit C
p.
4).
Further, an
examination of the table indicates that only when a PWR of 0.70
tons/hour and the Kearney and Co. data are used
is the emission
118—198
—5—
rate at
a level that would be within the limits set forth
in
Section 212.456.
With respect
to Section 212.456,
Dr. Rood’s
conclusion from his analysis is similiar, that using “emission
factor data from Kearney
& Co.
(1971) and a process weight
rate
of 0.70 tons/hr,
it
is not unreasonable
to assume that Elizabeth
Street Company’s cupola
is operating at acceptable Particulate
mass emission rates when compared to regulations 212.456 and
212.457.”
(Exhibit C p.
5).
The Board also notes that Dr. Rood’s calculations, although
used by the Petitioner
in its briefs and petition, were not
offered as sworn testimony.
The presence of the expert whose
calculations the Petitioner is relying upon is of the utmost
importance
in this type of proceeding.
In this instance,
the
absence of sworn testimony from Dr. Rood prevents the Board from
determining whether the calculation of emissions using a
PWR
of
0.7 tons/hr
is appropriate and
is therefore, unable to agree with
the Petitioner’s asserted emission rate.
In addition,
the Agency maintains that it
is standard
practice to use the most recent edition of AP—42
to estimate
emissions and the latest edition
is dated October, 1986.
(Ag. Br.
p.
4)
Section 212.110 of the Board’s rules allow for
determination of particulate matter emissions from a stationary
source by the “procedures prescribed in the American Society of
Mechanical Engineer’s Power Test Code
27 1957.
.
.
or by any
other equivalent procedures” approved by the Agency.
The Agency
stated it
is standard practice to use the most updated edition of
AP—42.
(Ag.
Br. p.
3).
Therefore, pursuant to Section 212.110,
the most recent edition of AP—42 is an appropriate equivalent
procedure.
The Petitioner,
in fact,
asserts correctly that the Board,
in PCB 86—161 determined that Petitioner’s
PWR
is 1.1 tons per
hour and that, the Foundry’s emission rate
is “in compliance with
the maximum allowable emission standards of Section
2l2.456(c)(3)”
(Pet.
Br.
p.
7).
However, using a
PWR
of 1.10
tons/hr and applying the emission factors from both the 1977 and
1986 AP—42 and data from Kearney and Co., the emission rates do
not fall within the limits set forth in Section 212.456.
The
Board’s calculation using a 1.10 tons/hr
PWR
data based on the
1977 AP—42,
shows an emission rate of 18.58
lbs/hr;
based on the
1986 AP—42, an emission rate of 15.18 lbs/hr; and based on the
Kearney
& Co.
data an emission rate of 5.63 lbs/hr.
Therefore,
it
is clear that the Section 212.456 limits of 5.03 lbs/hr at a
PWR
of 1.1 tons/hr cannot be met by the Petitioner.
With regard to the Petitioner’s assertion that the Board
found
in PCB 86—161 that the Petitioner’s
“current emissions are
in compliance with Section 212.456(c)(3)”,
(Amended Pet.
p.
3)
the Board finds the assertion to be incorrect since the
Petitioner fails
to note the Board’s explicit determination in
PCB 86—161 that:
118—199
—6—
35 Ill. Adm. Code 212.465
sic
does not apply to
Respondent; because, according to the testimony,
Elizabeth Street Foundry did not comply with the
limitations set forth in 212.465(c)(3)
sic.
Respondent has argued that the filing of PCB 72—468
triggers Section 212.465
sic
status.
It does
not.
PCB 72—468 was an enforcement action
not
a
variance
seeking to restrain Respondent from
(alleged) emission violations.
PCB 72—468 was
filed on December
1,
1972
——
many months after the
April
14, 1972, deadline.
Additionally, and most
significantly, PCB 72—468 was not a variance action
as required by Section 212.465
sic.
Section
212.465
sic
does not govern this Respondent.
(PCB
86—161,
p.
5)
The Board further stated that “35
Ill. Adm. Code 212.321,
New Process Sources,
is the regulation applicable to the
Respondent
Petitioner.”
(PCB 86—161 p.
6).
The Agency maintains that Petitioner should seek. an adjusted
standard from 35 Ill. Adm. Code 212.321 and cites to the Board’s
Interim Opinion and Order
in PCB 86—161 quoted above.
The Agency
argues that “Petitioner cannot comply with the emission rates
contained in 35
Ill.
Adm. Code 212.456”
(Ag. Br.
p.
5)
using the
formula found
in AP—42,
the 1986 edition,
and therefore should
not be seeking an adjusted standard from that rule.
Based on the Board’s finding in PCB 86—161, and the
determination that the use of 1986 AP—42 emission factor
is
appropriate, the Board finds that Elizabeth Street Foundry’s
petition for an adjusted standard from 35
Ill. Mm.
Code 212.456
is not the proper rule from which to seek an adjusted standard.
The Board will next address whether or not the Petitioner
has met the necessary level of justification to be awarded an
adjusted standard.
Section 28.1(c)
of the Act states
that:
If
a regulation of general applicability does
not specify a level of justification required
of a petitioner to qualify for an adjusted
standard,
the Board may grant individual
adjusted standards whenever the Board
determines, upon adequate proof by petitioner,
that:
1.
factors relating
to that petitioner are
substantially and significantly different
from the factors relied upon by the Board
in adopting the general
regulation
applicable
to that petitioner;
2.
the existence of those factors
justifies
an adjusted standard;
118—200
—7—
3.
the requested standard will not result in
environmental or health effects
substantially and significantly more
adverse than the effects considered by the
Board
in adopting the rule of general
applicability; and
4.
the adjusted standard is consistent with
any applicable federal law.
The Agency specifically argues that Petitioner did not meet the
level of justification with regards to Section 28.l(e)(3).
The Petitioner’s amended petition specifically replies to
each of the provisions in Section 28.1(c).
In reply
to Section
28.1(c)(3) the Petitioner states:
Petitioner
is not seeking any modification of
the allowable emission standards under Section
2l2.456(c)(3).
As previously noted,
this
Board has found Petit4,oner to be in compliance
with those standards.’~ Nor
is Petitioner
seeking to extend the date on which foundries
had to be
in existence to qualify under
Section 212.456.
The date of April
15,
1967
would remain as the date on which an iron
foundry would have to have been in existence
to qualify.
Thus,
the adoption of an adjusted
standard will not result
in environmental or
healthy effects
sic
substantially and
significantly more adverse considered by the
Board in adopting Section 212.456.
In fact,
there would be no charge
sic
at all.
(Amended Pet. p.
6)
The Agency argues that the Petitioner’s statement
is not
sufficient.
The Agency points to the explicit provision of
Section 28.1(c)(3) and to 35
Ill.
Adm. Code 106.705(g) which
requires an analysis of the “quantitative and qualitative impact
of the Petitioner’s activity on the environment
if the Petitioner
were to comply with the regulation of applicability as compared
to the quantitative and qualitative impact on the environment
if
the petitioner were to comply only with the proposed adjusted
standard”.
The Agency maintains that the petitioner must show
that the increase in emissions from the emissions levels set
forth in the Board’s rules will not cause or contribute to a
violation of the primary and secondary national ambient air
The Petitioner
is referring
to the assertion discussed above,
concerning compliance with Section 212.456.
118—20 1
—8—
quality standards.
(Ag. Br.
p.
10).
c’~’hen the Board considers a rule of general applicability
pursuant to Section 27(a) of the Act, the Board examines the
“economic reasonableness and technical feasibility”
of a
rule.
Section 28.1 of
the Act provides that the Board may grant an
adjusted standard “for persons who can justify such an adjustment
consistent with
(a)
of Section 27 of this Act.”
Thus, one
consideration the Board may examine is the “economic
reasonableness and technical feasibility”
of a Petitioner
complying with a rule of general applicability.
Petitioner has set forth facts and figures
in its petition
which indicate that:
To achieve compliance with 212.321 Petitioner
would be obligated to install a baghouse.
Such installation would be both costly and
cumbersome.
(Pet.
p.
5)
In addition, Petitioner,
at hearing, submitted income tax
forms,
indicating a loss
for the year
1987 and stated that the
income tax form reflects the financial condition of the foundry
at the time of hearing.
(Tr.
p.
36, Exhibit H).
In PCB 86—161,
the Board stated that:
Mr. Troy,
owner and operator of Elizabeth
Street Foundry, testified that the facility
was not in good financial shape;
and that
Respondent could not afford to conduct a stack
test costing
$50—70,000
or install a bag—
house
cost
$250—300,000.
From the evidence
introduced,
the Board is persuaded that this
is true.
(PCB 86—161,
p.
9).
Thus,
if the Petitioner’s economic status
is unchanged,
the
“economic reasonableness and technical feasibility” of compliance
would be a factor to be considered.
However,
it should be noted
that the economic factors were not updated or argued.
Further,
due to the Board’s findings
in this Opinion the economic factors
were not considered.
The Board finds that the Petitioner has not established that
there will be no significant environmental or health effects.
Simply stating that there will be no adverse effect
is not
sufficient; the Petitioner must demonstrate using appropriate
scientific data analysis or techniques including modeling to sho~i
that the adjusted standard has no significant adverse
environmental or health effects.
The Petitioner has not made
such a demonstration.
Therefore,
the petition for
an adjusted
standard
is denied as inadequate pursuant
to Section 28.1(c)(3).
118—202
—9—
CONCLUSION
The Board finds that the Petitioner has failed to meet the
requirements of Section 28.1 therefore this petition is dismissed
and the docket
is closed.
This Opinion should not be construed as finding that the
Petitioner
is not eligible for an adjusted standard under other
portions of the Board’s rules.
To the contrary, the Petitioner
~
be eligible for an adjusted standard from 35
Ill. Adm. Code
321.
The Board suggests that the Petitioner examine the record
in this case closely, especially the testimony by the Agency’s
expert, Berkley Moore,
before proceeding.
This Opinion constitutes the Board’s findings of fact and
conclusions of law
in this matter.
ORDER
The petition for an adjusted standard for
35
Ill. Adm. Code
212.456
is dismissed.
Section
41 of the Environmental Protection Act, Ill. Rev.
Stat.
1989,
ch. lll~,par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi~Lthat the abo e Opinion and Order was
adopted on the
~
day of
__________________,
1991, by a
vote of
7—1~~
Dorothy M. ~‘unn, Clerk
Illinois Pollution Control Board
118—203
