ILLINOIS POLLUTION CONTROL

BOARD

June 14,

1984

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 83—2

CFIEMETCO,

INC.,

a Delaware

corporation,

Respondent.

MS. GWENDOLYN W. KLINGLER, ASSISTANT ATTORNEY GENERAL, APPEARED

ON BEHALF OF THE COMPLAINANT.

BELL,

BOYD AND LLOYD

(MS. JOHNNINE BROWN HAZARD, OF COUNSEL) AND

SCHAFLY, GODFREY AND FITZGERALD

(MR.

R. EMMETT FITZGERALD, OF

COUNSEL) APPEARED ON BEHALF OF THE RESPONDENT.

OPINION

AND

ORDER

OF THE

BOARD

(by

W.

J.

Nega):

This matter comes before the Board on the January 6,

1983

Complaint brought by the Illinois Environmental Protection Agency

(Agency),

Count

I of the Complaint alleged that, from June 14, 1978 to

January 6,

1983, the Respondent intermittently allowed contaminants

from its facility into the atmosphere causing air pollution

in

violation of Rule 102 of~Chapter

2:

Air Regulations

(now 35

Ill.

Adm.

Code 201,141) and Section

9(a) of the Illinois Environ-

mental Protection Act (Act).

Count II alleged that, from January

1, 1980 until January 6,

1983, the Respondent operated its plant so as to cause emissions

of fugitive particulate matter in violation of

Rule

102 of Chapter

2 (now 35 Ill. Adm,

Code 201,141), Rule 203(f)(1) of Chapter

2

(now 35 Ill.

Adm, Code 212,301), an~.Section 9(a) of the Act.

Count III alleged that,

from June 14,

1978 until January 6,

1983,

the Respondent operated each of its three 70—ton furnaces

in such a manner as to allow particulate emissions into the atmos-

phere which exceeded the allowable emission rates

in

violation of

Rule

102

of Chapter

2

(now

35

Ill.

Adm.

Code 201.141), Rule

203(a)

of Chapter

2

(now

35

Ill, Adm. Code

212,321),

and Section

9(a)

of the Act.

Count

IV

alleged that,

from June 5,

1978 until December

12,

1978 and from December

8,

1981

to January

6,

1983, the

Respondent

58-311

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—2—

operated its three 70-ton furnaces without

an

Operating

Permit

from the Agency in violation of Rule 102 of Chapter

2

(now 35

Ill,

Adm, Code

20L141),

Rule 103(b)(2) of

Chapter

2

(now 35

I.~L.

Adm. Code 20L 144, and Section

9

(b)

of the

Act,

The initial hearing on this matter was

held on March

4,

1983.

The parties filed a Settlement Agreement

on March

7,

1983.

On

April

12,

1983,

the parties filed a

second Settlement Agreement

which was identical

in substance to the first

Settlement

Agreement,

but contained some minor language changes which had been read

into the record at the hearing and had

been requested by the

Agency.

On October

6,

1983,

the Board entered an Interim Order which

rejected the proposed settlement agreement.

Deficiencies

in the

initially proposed stipulation included the fact that:

(1) Chemetco

did not admit to any violations, but did agree to pay a $20,000

penalty and to undertake a compliance program;

(2)

the

parties

stated that the

settlement

agreement could be amended if

they

agreed in

writing, but

did not state that the Board’s approval

would be

necessary (thereby

creating a mechanism by which

they

could amend

the compliance

plan without first consulting

the

Board);

and

(3)

the possibility

of carcinogens being released

into

the atmosphere from

arsenic—bearing materials during scrap

metal

processing operations

(thereby

possibly

jeopardizing the

health and

safety of individuals who live

near the metal

reclama-

tion and smelting facility) was not

specifically addressed

by the

parties~

On March 28,

1984,

a Joint Motion for

Approval of

an Amended

Settlement Agreement and

Exhibits,

along with the aforementioned

amended stipulation and exhibits, was filed.

On April

6,

1984,

a

hearing was held and the third Amended

Settlement Agreement

(Stip.)

and various exhibits were admitted

into

evidence

as

Parties~Exhibit No,

1,

(R.

7_20),*

In the third Amended Settlement Agreement,

the

parties have

amended the previous stipulation to meet

the Board’s

concerns,

On page seven, paragraph two of the most recent stipulation,

Chemetco has stated that it “neither admits nor

denies the

alleged

violations”, rather than simply denying the violations,

The

objectionable language on page seven in paragraph four pertaining

to amendment of the agreement without prior

Board

approval

has

been deleted in the latest stipulation, and

the parties

have

I~tationsto the record

(R.)

refer to the transcript of the

April

6,

1984 hearing.

The parties inadvertently filed the

proposed settlement agreement before a hearing was held on

the

amended agreement,

The Board will therefore

consider the

official

filing date of the

third

Amended Settlement

Agreement to

be April

30, 1984

(the date that the hearing transcript was filed with the

Board),

58-312

---

—3—

noted

that

the

compliance

program

was

ccmpleted

on

October

6,

1983.

(R.3).

Additionally,

the

Agency

has

indicated

that

‘having

investigated the potential

for

arsenic emissions during operation

of Chemetco’s process, it

has

determined

that

arsenic is driven

off

only

during

the

heating

stage

and is

therefore

captured

by

the scrubbers

and

not released during charging and

tapping’.

(Joint Motion, p. 2—4).

Accordingly, the parties’ Joint Motion for Approval of the

Amended

Settlement Agreement is hereby granted.

The

Board

will

therefore accept in its entirety the third

Amended

Settlement

Agreement filed April 30, 1984.

However, because the Board has

deemed it appropriate to include a finding of violation as item

$1 in its Order, a Certificate of Acceptance and Agreement has

been included as item #5 in the Order.

The Respondent,

Chemetco,

Inc.

(Chemetco), is a Delaware

corporation duly authorized by the Illinois Secretary of State to

transact business in Illinois.

Chemetco

owns

and operates a

metal reclamation and secondary copper smelting facility (facility)

in Hartford, Madison County, Illinois which has a plant site of

108 acres (located about 10 minutes by car north of Granite City,

Illinois) which

employs

176 people.

Chemetco’s site is zoned for

heavy industrial use and is surrounded by farmland.

The nearest

houses

not

occupied by Chemetco personnel are about

¼

mile from

the plant site.

An oil refinery,

power

plant, petrochemical

plant, brass mill, and other large industrial facilities are all

located within a 10—mile radius of the Respondent’s plant.

(See:

Exhibit 1; R.8).

Chemetco acquires a

broad

range of copper—bearing raw materials

from

scrap

metal

dealers

and

industry

and

produces

copper

cathodes

from

these

raw

materials,

as

well

as

recovering

other

non—ferrous

metals as by—products. During smelting, refining

and

processing

operations at its plant, Chemetco used three

(now four)* 70—ton

rotating

furnaces

equipped

with

overhead

hoods

which

contain a

scrubber

system

to capture particulate emissions.

During part of

the operations at Chemetco’s facility, each of the furnaces are

tilted, allowing the emission of odors, dust, and gases (including

zinc oxides)

to

escape

beyond

the

furnace hoods and roof of the

plant

into

the

atmosphere.

During

Chemetco’

s

processing

operations,

copper—bearing

scrap is smelted and refined.

The slag is

treated

in

three

(now

four) top-blown, 70-ton rotating Raldo furnaces which are called

‘converters’.

(See:

Exhibits

2

and

3).

Some

particulate emissions

from

these

three

(now

four)

converters

are

captured

by

separate

hoods

and

then

are

ducted

to,

and cleaned

in,

separate

venturi

*Between

April

12,

1983

and

the

present

date,

a

fourth

rotating

rotary

furnace (i

•

e.,

another

‘converter’)

has

come

into

operation

at

the

Respondent’s

facility.

(See:

page

4

of

this

Opinion).

58-313

---

scrubbers~(Stip,

2—3;

R.8-9)~Exhaust from this process reaches

the atmosphere through three

(now four)

separate stacks,

However,

some particulate emissions are not captured by the hoods, ducts,

and scrubbers.

(Stip.

2;

R.9).

The three rotating furnaces and associated air pollution

control equipment (including the three venturi scrubbers)

are

existing emission sources which were constructed and in operation

before April

14,

1972.

The Agency issued the requisite operating

permit for the three furnaces on November 16, 1972 and renewed

the permit on June 18,

1974 and April

2,

1976.

However, because

an Agency inspection on June 14, 1978 indicated possible viola-

tions of Rule

103(b)

(2)

of Chapter

2:

Air Regulations

(now 35

Ill,

Adm, Code 201.144) and Section

9(a) of the Act,

the Agency

denied permit renewal on July 20,

1978.

After corrective measures

were taken by the Respondent, subsequent permit renewals occurred

on December 12,

1978; July 20, 1979;

and

September

8~ 1980. See:

Exhibit 6).

On

February

26,

1981, the Agency

received

a

petition,

signed

by

52

individuals, which alleged that Chemetco had violated Rule

203(f)(l) of Chapter

2:

Air

Regulations

(now

35

Iii.

Adm.

Code

212,301) by improper emissions into the

atmosphere,

(See:

Exhibit

7).

On March 10,

1981, the Agency notified the Respondent that

its inspection indicated apparent violations of Rule 203(f)(l) of

Chapter

2:

Air Regulations

(now 35

Ill,

Adm, Code 212,301).

On May 13,

1981,

the Respondent put forth a proposal to

modify the air pollution control equipment on its three rotating

furnaces and to construct a fourth furnace,

This proposal was

based on various reports from consulting engineers (dating as

early as April,

1980) which indicated that it would be possible

to design air pollution control equipment which could capture

additional particulate emissions from the

charging

and tapping

operations of Chemetco’s three

furnaces and also introduce ~a

change in the basic process (utilizing

four, rather than three,

furnaces) to reduce overall particulate emissions from the Respon-

dent’s plant.

While negotiations were pending

with

the

agency,

the Respondent

submitted permit renewal applications for the three existing

furnaces on June

5,

1981.

After notice from the Agency on July

9,

1981 that it intended to deny Chemetco’s

pending

permit

renewal

applications, the Respondent withdrew the applications. On June

16, 1981 and September 10, 1981, Chemetco submitted applications

to

the Agency for a construction permit for the fourth furnace,

However, the Agency deemed these applications incomplete, and

sent notices of incompleteness to the Respondent on July 8,

1981

and October

6,

1981,

On December

3,

1981, Chemetco resubmitted

its permit renewal application for the existing three furnaces

and its construction permit application

for the fourth furnace,

but withdrew these applications following the Agency’s December

30, 1981 notice of intention to deny these permits.

58~314

---

On February 10,

1982, the Respondent again applied for a

construction permit

for the fourth furnace,

On March 22,

1982,

the Agency issued Construction Permit

No,

1198OIAAC

to

Chenietco

which authorized the construction of a fourth converter and the

concomitant air pollution control equipment.

On July 2,

1982,

the Respondent applied for a construction permit to retrofit the

three existing furnaces,

On August 16,

1982,

the Agency issued

the requisite construction permit which authorized the Respondent

to modify and install the necessary air pollution control equipment

on

Chemetc&s three rotating furnaces,

(See:

Exhibit 6).

During ongoing settlement negotiations, the parties were

initially in dispute as to whether or not:

(1) Chemetco was

lawfully entitled to renewal

of its operating permit after the

expiration date of December

8,

1981;

and

(2) the charging and

tapping emissions from the Respondent’s

three

furnaces

were

insufficiently controlled on the dates alleged

in

the

Complaint,

(R.

13;

Stip.

5).

The Respondent has neither denied nor admitted

the allegations

in the Complaint,

but has agreed to improve

control

of charging and tapping emissions by following an agreed~-

upon compliance program and schedule involving retrofitting of

the three existing furnaces to improve the snorkel hoods and the

charging and tapping controls,

(See:

Exhibits

3 and 5). Addition~

ally, after the completion of the retrofitting program,

the

Respondent has agreed to conduct the necessary stack tests

(and

to notify the Agency in advance of the stack sampling so that

Agency personnel may witness these tests) along with simultaneous

visual observations of the fugitive emissions from the melt shop

building to determine compliance.

(See:

Exhibits

4 and 5).

Although Chemetco has neither admitted nor denied the allega~

tions of the Complaint,

the proposed settlement agreeement provides

that the Respondent agrees to promptly pay a stipulated penalty

of $20,000 into the Environmental Protection Trust Fund.

Since

the compliance program has already been completed,

it appears

that all of the issues between the parties that arose in this

action are now moot,

(R,

3).

In evaluating this enforcement action and proposed amended

settlement agreement,

the Board has taken into consideration all

the facts and circumstances in light of the specific criteria

delineated in Section

33(c) of the Act and finds the amended

settlement agreement acceptable under 35 Ill. Mm.

Code 103,180,

Thus, the parties’

Joint Motion for Approval of the Amended

Settlement Agreement is hereby granted and the proposed settlement

agreement will be accepted in its entirety,

The Board finds that the Respondent, Chemetco,

Inc., has

violated Rules

102

(now 35

Ill, Mm.

Code 201~141),103(b)(2)

(now

35 III. Adm,

Code 201,144),

203(a)

(now 35 Ill,

Adni, Code

212.321) and 203(f)(1)

(now 35 III. Mm,

Code 212,301) of Chapter

2:

Air Regulations and Sections

9(a) and 9(b)

of the Act,

The

Respondent will be ordered to pay the stipulated penalty of

$20,000 into the Environmental Protection Trust

Fund,

58~315

---

This penalty is to be made payable to the Environmental

Protection Trust Fund

(Trust Fund), pursuant to the authority to

so order granted to the Board in Section 42(a) of the Act as

amended

by

P,A, 83~0618,effective September 19,

1983,

The

legislation creating the Trust Fund and a Commission to

administer

it was P,A. 81~951effective January 1,

1980 and

codified

as

Ill,

Rev,

Stat,

1983,

Ch,

111½¶1061,

That

legislation provides in pertinent part that

“The Commission may accept,

receive and administer

,,,any grants,

gifts,

loans,

or other funds***

provided that such monies shall be used only for

the purposes for which they are contributed and

any balance remaining shall be returned to the

contributor,,.

,“

The Board wishes to emphasize that it does not construe the

quoted portions of the Trust Fund Act as giving a potential right

of

recovery

for penalties ordered to be paid into the Trust Fund

pursuant

to

Section

42(a)

of

the Environmental Protection Act,

When the Trust Fund was created, the legislature obviously envi-

sioned

that the fund was to receive voluntary gifts or contribu~

tions,

to

either be used for environmental purposes or to be

returned so as to avoid frustration of the intention of the donor

of the gift.

Payment of a penalty for violation of the Environmental

Protection Act is a compulsory, and not a voluntary,

act,

There

is no

right

of recovery for

a

penalty

paid into the general

revenue

fund,

In allowing penalty monies to be paid into the

Trust Fund,

the legislature has clearly implied

that

such

penalties may,

in essence, be earmarked for any appropriate

environmental purpose.

The Board concludes that to construe the

Trust Fund Act as implying a right of

recovery

for

penalties

deposited into it runs counter to the intention of the

Environmental Protection Act.

This Opinion constitutes the Boardts findings of fact and

conclusions of law in this matter,

ORDER

It is the Order of the Illinois

Pollution

Control Board

that:

1.

The Respondent, Chemetco, mc,, has violated Rules

102

(now

35 Ill,

Adm, Code 201,141), 103(b)(2)

(now 35 Ill, Adm,

Code

201,144),

203(a)

(now 35

Ill. Adm,

Code

212,321),

and

203(f)(1)

(now 35

Ill, Adm.

Code 212,301) of Chapter 2:

Air Regulations

and Sections

9(a) and

9(b) of the Act,

58-316

---

—7—

2,

The parties~Joint Motion for Approval of the Amended

Settlement Agreement is hereby granted.

The Board

hereby accepts in its entirety the third Amended Settle-

ment Agreement filed on April

30, 1984,

3,

Within

35

day

of

the

date of the Order, the Respondent

shall,

by certified check or money order payable to the

State of Illinois and designated for deposit into the

Environmental Protection Trust Fund,

pay the stipulated

penalty of $20,000 which is to

be sent to:

Illinois Environmental Protection

Agency

Fiscal

Services

Division

2200

Churchill

Road

Springfield,

Illinois

62706

4.

The

Respondent

shall comply with

all the terms

and

conditions

of

the

third

Amended

Settlement

Agreement

filed

on

April

30,

1984, which is

incorporated

by

reference

as

if

fully

set

forth

herein.

5,

Within

45

days

of

the

date

of

this Order, the

parties

shall execute and forward to the Illinois Environmental Pro-

tection

Agency,

Division

of

Air

Pollution Control,

2200

Churchill

Road,

Springfield,

Illinois 62706,

a

Certificate

of Acceptance and Agreement to

be bound to all the

terms and

conditions of

this

Order,

This

45—day period shall

be

held

in

abeyance

for

any

period

this matter is being

appealed.

The form of the

certificate

will be as

follows:

CERTIFICATE

I,

(We),

___________________,

having read the Order

of the Illinois Pollution Control Board in

PCJ3 83—2 dated June

14, 1984,

understand and accept the said Order, realizing that

such acceptance renders all terms and conditions thereto binding

and enforceable.

Chemetco,

Inc.

Illinois Environmental

Protection

Agency

By:

Authorized

Agent

By:

Authorized Agent

Title

Title

Date

58-317

---

—8—

IT

IS

SO

ORDERED.

Chairman

Dumelle

concurred,

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

,

1984 by a vote of

~

Illinois Pollution Control Board

58-318