ILLIN~OIS

PJLt~uTF)~CO~TROL 

BOARD

~1arCh

21,

1988

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

PCB 86—161

ELIZABETH STREET FOUNDRY, INC.~

an Illinois Corporation,

Respondent.

MESSRS GERT~LD KARR AND JOSI 

p:))r;s~~APPEARED ON BEHALF OF

COMPLAINANT,

I t~LINOIS ENV~RO\~MENT!~PROTECTION AGENCY;

MR. RICHARD

TROY APPEARED OR

UE1~RLF 

OF RESPONDENT, ELIZABETH

STREET FOUNDRY, INC.

INTERI~1 OPINION AND ORDER OF THE BO7~RD (by J.D. Durnelle):

This matter comes before

th~ Board upon Complainant’s

October 1, 1986, three count complz~intwhich allegcd the

following: Respondent ope~a~edi~.s facility w~Lhcut required

operating permits in vio1atio~cf Section 9(b) of ~:he

Environmental Protection Act (~cL) 

and 35

Ill. Adrn. Code 201.144;

Respondent’ s facility caused emisr ions in excess of maxi~ium

allowable rates

in violation of i~.o~tion9(a) of the Act and 35

Ill. Adm. Code 201.144 

and 2l2.:322 ;

and that Respondent. 

has

violated this Board’s Order of April ~.7,1973 in PCB 72—468.

Respor.dent failed to answer the complotnt; therefore, pursuant to

35 Ill. Adm. Code 103.122(d) all rna;:rrial allegations of the

complaint are denied. Respondenb filed interrogatories on 

~1ay

1987, requesting Complainant to ‘~xo1a~r±the emission c~1cula~ions

referred to in Count II and also regneoting an explanation as to

why Complainant’s calculations 

invoked the use of

Thew process

sources,” as opposed to “ex~st.~ug orocess

sources~” COEILJ.elnant

responded on

May 22, 1987. Ecerings were held on May 26, 19a7

and July 27, .1987.

Respondent, an Illinois Coroor~itjm, is a grey iron 

foundry

located at 5838 S. Racine Avenue, Chicago, Cook County,

Illinois. The foundry has bcen in operation for at ioa~i: 

forty—

one (41) years, has an ad~~nu~tra~.ivn~tatf of three 

(3)

~nd

thirty—one (31) employees.

The Lo~n~Lyis currently experiencing

difficult

times; most emp2cv~?es wor:

cni~r 

2~~—3Ci

hours per 

~onk.

7— :~

—2—

However, Respondent has experienced both good and bad times

during the last 15 years. R. 157.

The foundry operation produces repair parts for machine tool

(R. 104, 156) by use of a cupola stack furnace. R. 92.

Basically the furnace operates as follows: The furnace is filled

with coke and metallic materials. Air is blown into the lower

part which ignites the coke to a temperature of 3300 F and melts

the material. Molten iron is tapped out at the bottom and slag

is tapped out via a different exit. The iron is then poured into

molds for later use. R. 93. The overall operation is

antiquated, cupola furnaces operating essentially the same since

600 B.C. R. 99. The equipment and operation at Respondent’s

foundry has been the same for at least twenty (20) years 

——

except for an afterburner which was installed several years ago

pursuant to this Board’s Order in PCB 72—468. R. 101.

On June 14, 1973, the Board accepted Respondent’s proposal

to install an afterburner as part of a compliance plan. The time

limit for installing this afterburner was initially set at

October 1, 1973, but was later extended until January 15, 1974,

in PCB 74—200.

COUNT I

In Count I, Complainant alleges that Respondent has operated

its facility since December 1, 1972, without required operating

permits. This, it is alleged, constitutes a violation of Section

9(b) of the Act and 35 Ill. Adm. Code 201.144.

Pursuant to 35 Ill. Adm. Code 102.122(d), Respondent’s

failure to answer the complaint serves as a denial of all

material allegations. However, by its attorney (R. 6, 167) and

by the principal owner and operator, Mr. James B. Troy (R. 153),

Respondent has admitted and indicated that it has operated

without the required operating permit(s). Additionally,

Complainant elicited competent, credible and independent

testimony concerning Respondent’s lack of required operating

permits. R. 13, Complainant’s Ex. #1.

Ill. Rev. Stat, 1987, ch 111 1/2 par 1009(b) Section 9(b))

of the Act states as follows:

No person shall:

“...

operate any equipment (or) facility

capable of causing or contributing

to air pollution 

...

without a permit

granted by the Agency 

...“

By its operation of a cuploa furnace, with stacks that

exhaust to the atmosphere, respondent is required to possesses a

87—146

—3—

valid operating permit issued by the IEPA.

Respondents lack of

such permit constitutes a violation of Section 9(b) of the Act.

Likewise 35 Ill. Adm. Code 201.144 states as follows:

“No person shall cause or allow the operation

of any existing emission source without first

obtaining an 

operating permit from the Agency

By its operation of a cupola furnace with stacks that

exhaust to the atmosphere, Respondent operates an emission

source. Respondent’s failure to procure the required operating

permit constitutes a violation of 35 T1l. Adm. Code 201.144.

COUNT II

Count II alleged that Respondent operated its facility

violation of air emission regulations thereby constituting

violation

of Section 9(a) of the ~ct ~Ill.

Rev. Stat. 1987, ch

111 1/2 par 1009(a) and 35 Ill. ~m. Code 212.321. Section

212.321 is used to calculate maxir~un emissions from new process

emission sources according to the following formula:

B

AP1B

where:  P 

process weiqht rate

E

a~iowabaeemission rate

A 1214 (metric) or 2.54 

(english)

B

0.334 (metric) or 0.534 (english)

Utilizing this formula Complainant’s witness, Agency permit

analyst Anthony Telford, testified that the allowable rate of

emissions was 5.21 lbs/hr.. The process weight rate ~P) used was

7668 lb/hr. or 3.83 tons/hr. 

This

data was obtained from

Respondent via earlier data submissions. R. 55.

By use of AP—42 standard emission factors, Mr. Telford

calculated actual emissions within the range of 19.17 

—

65.18

lbs/hr.. Both of these emission rates are in excess of the

maximum allowable rate calculated puLsuant to Section 212,321

(5.21 lbs/hr). supra.

Respondent, however, disagrees arguing that it is not a

‘new’ process emission source; that an incorrect process weight

rate was used; and that improper AP—42 emission factors were

used.

Respondent claims that it falis under 35 111. Adm. Code

212.456 which allows a higher 

maxi:nor~

emission rate for certain

small foundries. It should be noted that Section 212.456 only

applies under certain circumstances.

S7—147

—4—

Notwithstanding the disagreement, the maximum allowed

emission rate for Respondent is determined by one of the

following sections from 35 Ill. Adm. Code: 212.321, New Emission

Sources; 212.322, Existing Emission Sources; or 212.456 Certain

Small Foundries (exception). These sections provide different

maximum emission rates depending upon the size and age of the

equipment.

Thus, without prejudging which of the particulate emission

sections is applicable to this Respondent, and without adopting

Respondent’s assertions that the process weight rate should be

1.1 tons/hr (versus 3.834), the possibilities of maximum emission

rates are as follows:

Process weight   

Process weight

rate 

rate 

3.834 ton/hr    

1.1 ton/hr

Section

212.321  

Max.

Emissions 

5.21 lbs/hr    

2.67 lbs/hr

212.322  

Max.

Emissions 

10.09 lbs/hr    

4.37 lbs/hr

212.456  Max. Emissions 

13.86 lbs/hr    

5.03 lbs/hr

The maximum allowable emission rate for Respondent’s

facility must be one of the above calculated values.

In determining which of the above calculations is

applicable, the nature of Respondent’s operation will be

determinative. The Board finds Respondent to be a ‘batch’ or

intermittent operation 

——

not a continuous operation as argued by

Complainant. The testimony is clear that the operation must be

started and stopped and restarted. Different orders require a

complete cycle, and the cupola is turned off each night and

restarted the next day as necessary.

Additionally, Respondent has testified that a mistaken

process weight rate of 3.834 tons/hr was initially used: The

actual arid correct process weight rate is 1.1 ton/hr. Mr. James

B. Troy, owner and operator of Elizabeth Street Foundry,

explained why Respondent, which was the original source of the

data, initially provided incorrect data:

“In Foundry parlance, when you say how much

are you melting 

...

it only pertains to the

rate at which iron is actually melting. It

does not take in the fact the number of hours

it takes us to get to that point 

...

but in

reporting to them, (IEPA) we were using our

language not their own. And examination of

the statutes or rules finds that when we

87—148

—5—

begin to look at it, and begin to put it in

language,

to understand

the language

you

speak, that our process weight rate is

something quite different.”

R. p. 150.

Agency witnesses, Mr. Telford, stated that he possessed no

independent knowledge 

of the operations and the process weight

rate value he used was the value previously provided by

Respondent.

Respondent’s explanation of the discrepancy

reasonable in the absence of contradictory evidence.

The Board accepts Respondent’s explanation of process weight

rate. Respondent has satisfactorily explained that the rate

originally given to the Agency was an error, caused by

inconsistencies between Foundry parlance and engineering

language. ~4r.Troy is the person best qualified to know, explain

and relate the process weight rate; also Mr. Spengler’s testimony

corroborated Mr. Troy’s explanation.

Because the Board finds that 

Resoondent’s process weight

rate is 1.1 tons/br, the range of maximum allowable emission

rates are:

2.67 lbs/hr per 21.2.321 or

4.37 lbs/hr per 212.322 or

5.03 lbs/hr per 212.456~

35 Ill. 1\drn. Code 212.465 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).

Respondent has argued that rhe filing of PCB 72—468 triggers

Section 212.465 status. It does not. PCB 72—468 was an

enforcement action not a variance 

seeking to restrain

Respondent from (alleged) emission violations. PCE 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.

Section 212.465 does not govern this Respondent.

It is true that in PCB 74—200 this Board granted Respondent

an additional 3 1/2 months until January 15, 1974) to install an

afterburner as mandated by Board Order in PCB 72-468 

——

but this

action was initiated after the April 14, 1972, deadline.

For the foregoing reasons the Board finds that 35 Ill. Adm.

Code 212.465 does not apply to Respondent. Likewise, 35 Ill.

Adm. Code 212.322 does not apply.

Appendix C of Section 212, Past Compliance Dates States:

Rule 203(c):

87—149

—6—

Except as otherwise provided in Rule 203,

every existing process emission source which

was not in compliance with Rule 203(b) (now

Rule 212.322), as of April 14, 1972, was

required to comply with Rule 203(a) (now Rule

212.321), unless both of the following

conditions were met:

a)  The source was in compliance, as of

April 14, 1972, with the terms and

conditions of a variance granted by

the Board, or, by June 13, 1972,

the source was the subject of a

variance petition which was filed

with the Board, which variance was

subsequently granted; and,

b)  As of April 14, 1972, construction

was commenced on equipment or

modifications sufficient to achieve

compliance with Rule 203(b).

Neither of these conditions was ever met by Elizabeth Street

Foundry nor was it in compliance on the compliance date; thus,

because Section 212.322 is inapplicable, Section 212.321 or

former Rule 203(a) is the regulation which governs this

Respondent.

35 Ill. Adm. Code 212.321, New Process Sources, is the

regulation applicable to Respondent. Pursuant to the earlier

calculations, Section 212.321 sets maximum emission limitations

at 2.67 lbs/hr. Emissions in excess of this amount constitute a

substantive violation(s) of Board regulations. Respondent’s own

testimony and evidence indicates emissions in the amount of at

least 4.95 lbs/hr. R. Ex. 6. Thus Respondent is in violation of

the maximum emission limitations for this facility.

There is one matter of procedure which should properly be

addressed at this time. Counsel for Respondent has raised the

issue of the evideritiary effect of the Agency’s establishing its

prima facie case in an enforcement proceeding. It has been

argued that the burdens of proof and persuasion must necessarily

fall upon the Agency. This is exactly true. It has also been

argued that the Agency must conduct its own stack test in order

to prove an emission limitation violation. This is incorrect.

35 Ill. Adm. Code(s) 212.321, 212.322 are properly

promulgated substantive regulations containing formulas for

calculating maximum emissions for certain facilities. Upon the

Agency’s production of an expert, who identifies the regulation

(alleged to have been violated) and explains his or her analysis

and calculations, then the Agency has established its prima facie

87—150

—7—

case of violation(s). This assumes, however, that there is no

apparent arithmetic error in the calculation. This Board has

previously held that proof of a violation may be based on the use

of emission factors and calculations IEPA v. Lindgren Foundry,

Co., PCB 70—1, 1 PCB 11 (September 25, 1970).

Here, as in the instant case, when the Agency has

established a prima facie case this creates a rebuttable

presumption of violation. A Respondent may introduce conflicting

evidence, opposing experts, explain mistakes or employ any other

proper defense; but Respondent must introduce sufficient evidence

to rebut the presumption of violation. The Agency is not

required to conduct an independent stack test.

The maximum emission rate for Elizabeth Street Foundry, is

calculated by use of the same equations used by the permit

analyst. Utilizing the corrected process weight rate according

to the formula results in a maximum emission rate of 2.67

lbs/hr. Respondent’s actual emissions are at least 4.95 lbs/hr.

The Board finds Respondent in violation of the emission

limitations set forth at 35 Ill. Adm. Code 212.321.

Count III

Count III of the complaint alleges that Respondent violated

this Board’s Order of April l~,1973, by failing to conduct a

stack test as ordered.

In PCB 72—468 this Board held that Respondent violated

emission limitations. At that time, in reviewing Respondent’s

defense that its facility was unique and therefore calculated

emission factors were inappropriate,

the Board stated as follows:

“The trouble is that we

do not know how

much (reduction of emissions) is being

achieved and in view of the absence of

any

abatement

equipment

...

are

justified

in assuming that the unabated

emissions (will) continue

...

Respondent

shall submit a program of compliance on

the basis of tests (including) the

equipment it proposes to install to

achieve compliance. PCB 72—468, April

17, 1973.”

In the accompanying Order this Board held as follows:

“...

Respondent shall submit a program of

compliance on  the  basis  of  

tests

demonstrating the extent of its poilutional

discharge and the equioment it proposes to

install to achieve compliance.”

7— 1 

—S

—

This Board’s Orders of June 14, 

1973, July 19,

1973 and June

20, 1974 in PCB 74—200 all required Respondent to submit to a

stack test, by which actual emissions would be determined. But

this was never done.

During testimony, Mr. James B. Troy, admitted that a stack

test was never performed. R. 140.

Thus, the Board finds that Respondent has violated this

Board’s Orders of April 7, June 14 and July 19, 1973, in PCB 72—

468 and June 20, 1974 in PCB 74—200.

Penalties

Pursuant to Ill. Rev. Stat. 1986, ch. 111 1/2 par. 1033(c)

this Board must assess all facts and circumstances bearing upon

the reasonableness of the emissions, including but not limited

to:

1.  the character and degree of injury

to, or interference with the

protection of the health, general

welfare and physical property of

the people;

2.  the social and economic value of

the pollution source;

3.  the suitability or unsuitability of

the pollution source to the area in

which it is located, including the

question of priority of location in

the area involved; and

4.  the technical practicability and

economic reasonableness of reducing

or eliminating the emissions,

discharges or deposits resulting

from such pollution source.

The Agency presented no evidence regarding the degree of

injury or health problems caused by emissions from Respondent’s

facility. Additionally, there was no evidence concerning

interference with the general welfare of the area or damage to

nearby properties.

Conversely, the evidence indicates that Respondent’s

facility serves an important function in the neighborhood.

Respondent’s facility employs approximately 35 people.

Currently, times are poor and the staff works only 20—30 hours

per week. Some of the employees are skilled, but most are

87—15 2

—9—

laboring jobs providing a decent income to unskilled workers.

The Board finds that Respondent’s facility also serves an

important social function beyond the immediate neighborhood, but

that value is diminished when respondent does not comply with the

1 aw.

Foundries of this sort, while old, are an important source

of parts in industry. Although it is true that Illinois has lost

many manufacturing jobs in the last decade, it is also true that

the area has begun to emerge from its decade—long ‘shake—out’.

Manufacturers need parts for construction and plant maintenance

and improvements. Obviously there is great social and economic

utility in having properly operated nearby suppliers such as

Elizabeth Street Foundry could be.

The Board also finds 

that

both 

sides have failed to

introduce evidence regarding the suitability of Respondent’s

facility to the surrounding area. In PCB 72—468 there was some

mention of Respondent’s being designated a non conforming use,

but no such evidence has been introduced in this record.

The Agency introduced no evidence concerning the technical

practicality and economic reasonableness of reducing or

eliminating the emissions. Respondent, however, introduced

evidence and exhibits regarding its 

fiscal

status, which is not

good. 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

Respondent’s facility is marginal, at best. It has operated

at a loss and simply cannot afford to totally finance a stack

test, much less state—of—the—art pollution abatement equipment.

The Board has limited options available to it in imposing

compliance conditions in an enforcement setting. The Board also

points out that, without a stack test, it is difficult, at best,

to ascertain the true level of Respondents emissions.

On balance, at this time the Board will issue an interim

order requiring Respondent to investigate the potential for

financial assistance for the stack test as well as the pollution

abatement equipment.

ORDER

The Board finds Respondent, Elizabeth Street Foundry in

violation of Ill. Rev. Stat. ch lii 1/2 par. 1009(b) and 35 Ill.

Adrn. Code 201.141 and 201.144 in that it operated its facility

since December 1, 1972 without required operating permits. The

Board also finds Respondent in violation of Ill. Rev. Stat. oh

lii 1/2 par. 1009(a) and 35 Ill. Adm. Code 212.321 in that

87—153

—10—

Respondent’s air emissions are and were in excess of the maximum

allowed for that facility. Finally, the Board finds Respondent

in violation of Ill. Rev. Stat. ch 111 1/2 par 1042(a) for its

failure to obey this Board’s Orders of April 17, June 14, July

19, 1973 in PCB 72—468 and this Board’s Order of July 20, 1974

in PCB 74—200.

Rather than set forth in a final order the amount of any

penalties or other conditions to be imposed for Respondent’s

above noted violations of the Act, the Board, at this time,

hereby orders the following:

1.  Respondent shall contact:

Mr. Harry Pestine

Senior Economic Development and Retention Specialist

do Illinois Department of Commerce and

Community Affairs

100

Randolph 

—

3—400

Chicago, IL 60601

(312) 917—3131

2.  In consulation with the Agency, Respondent 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 is

located in an enterprise zone; etc.

3.  Respondent shall report back to this Board and the

Agency no later than August 1, 1988 concerning the

substance of discussions with Mr. Pestine and/or others

regarding the above.

4.  The Board shall retain jurisdiction over this matter.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the 

______________

day of ~?2~7414_c-~t

1988 by a vote

of

Dorothy M Gunn, Clerk

Illinois Pollution Control Board

87—154