ILLINOIS POLLUTION CONTROL

BOARD

March

8,

1984

SOURS GRAIN COMPANY,

)

)

Petitioner,

)

v.

)

PCB 79—210

)

tLL,INOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

MR.

ROY M. HARSCH (MARTIN, CRAIG, CHESTER

& SONNENSCHEIN)

APPEARED ON BEHALF OF SOURS GRAIN COMPANY;

MR.

JOHN

VAN VRANKEN (ASSISTANT ATTORNEY GENERAL) APPEARED ON

BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE

BOARD

(by J.

D. Dumelie):

This

matter comes before the Board upon an October 4,

1979

petition for variance filed on behalf of the Sours Grain Company

(Sours)

requesting relief from Rules 203(d)(9)(B)(ii)(a) and

203(d)(9)(B)(iv) of old Chapter

2:

Air Pollution, as they apply

to its truck dump pit and watercraft loading spout.

Those rules

have now been renumbered under the codified

rules

as 35 Iii.

Adm.

Code 212,462(b)(1)(A) and

(B)

and 212.462(d)(3)(B).

Relief from

those rules was requested until December 31,

1982.

The Illinois

Environmental Protection Agency (Agency~ filed its recommendation

that variance be denied on November 14, 1979.

On January 21,

1982,

the Board dismissed this proceeding with prejudice,

finding that

Sours had abused the Board~sprocedural

rules.

That dismissal,

however1 was reversed on reconsideration.

On May

4,

1982 Sours

filed an amended petition for variance

from the same rules,

this time requesting relief for a period of

five years.

The Agency did not file an amended recommendation.

Hearing was held in Pekin on June 15,

1983 at which both parties

appeared and eight witnesses testified.

Sours owns and operates

a grain elevator in Pekin which

handles

an average annual grain throughput of approximately

10,000,000 bushels per year of corn and has a maxinum

potential

57-01

---

2

grain throughput of approximately 88,000,000 bushels per year.

Ten people are directly employed at the elevator,

and between 100

and 150 independent truck drivers transport grain to the elevator

yearly.

The elevator, which annually services approximately 450

customers,

is located in Pekin Township in Tazewell County, which

is within the Peoria major metropolitan area and which constitutes

a major population area as defined in 35 I1.

Adm. Code 211.122.

Grain is received at the elevator in trucks which dump the

grain into a major truck dump pit or two smaller pits.

It is

then conveyed either directly into storage or through totally

enclosed non—vented gravity clay cleaners.

As grain is sold,

it

is conveyed to a watercraft loading spout which is used to load

barges for transportation via the Illinois River and Illinois

waterway systems.

The truck dump pits and watercraft loading

spout are the subject of this amended variance petition.

Section 212.462(b)(1)(A) requires that:

Induced draft shall be applied to major dump pits and their

associated equipment (including but not limited to,

boots,

hoppers,

and legs) to such an extent that a minimum face

velocity is maintained, at the effective grate

surface,

sufficient to contain particulate emissions generated in

unloading operations.

The minimum face velocity at the

effective grate surface shall be at least 200 fpm, which

shall be determined by using the equation:

VQ

f

K

where V

=

face velocity

f

and Q

=

induced draft volume

th sc~m

and V

=

effective grate area

in ft

Section 212.462(b)(1)(R) requires that:

The

induced draft air stream for grain-handling facilities

having a grain throughput exceeding 2 million bushels per

year and located in a major population area shall be

confined and conveyed through air pollution control equip-

ment which has an overall rated and actual particulate

collection efficiency of not less than 98

by weight.

Section 212.462(d)(3)(B) requires that:

Particulate emissions generated during loading for

grain—handling facilities having

a grain throughput

57-02

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3

exceeding two million bushels per year and located

in a

major population area shall be captured

in an induced draft

air stream, which shall be ducted through air pollution

control equipment that has a rated and actual particulate

removal efficiency of not less than 98

by weight prior to

release into the atmosphere; except for the portion of grain

loaded by trimming machines for which particulate matter

emission reductions,

at a minimum,

shall equal the reduction

achieved by compliance with subsection

(d)(3)(a).

Sours alleges that it encountered substantial difficulty in

attempting to achieve compliance with these rules.

After

preliminary discussions beginning

in

January,

1978, Sours

retained R.S Fling and Partners, Inc.,

of Columbus, Ohio, on

August

9,

1978, to prepare alternatives for developing a

compliance program.

On October 22,

1978,

Mr. John Sours,

president of Sours, was seriously injured

in a fall,

incapaci-

tating him until March,

1979.

While several informal proposals

were submitted by the consulting engineers, work toward

developing a compliance program was curtailed.

In addition Sours

alleges that until late 1978 or early 1979, there were no proven,

permitted watercraft loading devices installed in Illinois on

watercraft

loading spouts similar to that found at Sours’

elevator.

Sours,

in its amended petition, requests a five-year

variance from the truck dump pit and watercraft loading rules

while it develops the financial ability to carry out a compliance

program.

In the interim, Sours proposes to limit emissions by

keeping the loading spout as close as reasonably possible to the

top of the barge while loading grain.

Sours will also request

that it be supplied with only lift top barges,

and will to the

extent possible only open one door when loading lift top barges

to minimize entrainment.

In its recommendation the Agency alleges ~that Sours has

failed to prove that denial

of variance would result in an

arbitrary or unreasonable hardship and that Sours has shown

merely that compliance would be more expensive than

non-compliance.

It further alleges that Sours’ primary concern

is expansion without pollution control thereby avoiding

legitimate business costs which are being borne by its

competitors.

The Agency also alleges that Sours has put forth

little credible evidence that the granting of variance would not

cause any adverse environmental

impact.

57-03

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4

APPLICABILITY OF GRAIN HANDLING RULES

The threshold question before the Board is whether “the

existing Truck Dump Pit and Watercraft Loading Rules are tech-

nically infeasible or economically unreasonable as applied to

Sours” so as to render them inapplicable

(Sours Br., Oct.

20, 1983,

p.3).

In support of the propriety of its request that the Board

hold the rules to be inapplicable, Sours cites Village of Cary v.

PCB,

82

Ill. App.

3d

793,

801, 403 N.E.

2d

83, 91 (2nd Dist.,

T~0)which held that the validity of a Board rule as applied to

a particular facility may be challenged in a variance proceeding.

The Agency, however, contends that reliance on Cary is mistaken

in that the Cary court also “affirmed the basic principle of

le~aland administrative procedure that new issues cannot be

raised after trial that were not raised in the pleadings nor

(sic)

at trial itself”

(Ag. Reply Br., Nov.

8,

1983, p.2).

In Cary the Court stated that “it

is clear in this case that

Cary based its petition for variance upon the contention that the

barium regulation was arbitrary, capricious and unreasonable as

being without a scientific or medical basis” and

it concluded

“that the issue of the validity of the barium regulation was

raised, albeit unresolved,

in the hearing”

(403 N.E. 2d

86).

In this case the validity of the regulations from which

variance was requested was not expressly raised in the variance

petition or at hearing,

but was clearly raised in the briefs.

However,

it appears that the Village of Cary also did not

expressly raise that issue prior to the briefs.

Therefore, since

the Board agrees with the Agency that the issue is waived if

it

is not raised in the pleadings or at hearing, the question

becomes whether the issue was raised implicitly at hearing and

whether the petition for variance was based on the contention

that the regulations from which variance

is requested are

“arbitrary, capricious and unreasonable.”

The thrust of Sours’ petition, as discussed below,

is that

Sours has not had the economic resources to bring its facility

into compliance with the grain handling rules.

Unlike Cary,

Sours has not presented evidence that those rules are without a

medical or scientific basis,

or even that the technology required

by those rules is ineffective.

While there was some evidence

presented indicating that particulate emissions from a grain

stream are greater at some points during handling than at those

points at which an induced draft is required, and that induced

draft systems may not be more efficient than possible alternative

controls,

the presentation of such evidence is not sufficient to

57-04

---

5

give rise to the implication that the validity of the regulation

is being attacked.

As such, there was insufficient notice to the

Agency that

it should be prepared to defend the regulations, and

in fact the Agency made no such attempt.

The Board, therefore, holds that the question of the

validity of the application of those rules

is not properly before

it.

Further, even if

it were, the evidence presented is

insufficient to support a determination that those rules cannot

properly be applied to Sours.

HARDSHIP

The Agency argues that Sours has failed to prove an

arbitrary or unreasonable hardship, contending that it has been

operating its emission sources without controls because of

its

attitude toward protecting the environment.

It points out that

John Sours stated that

“we at Sours Grain have always subscribed

to the philosophy that it is better to build something to in-

crease the productivity of the elevator than it

is to make

non-revenue generating capital expenditures”

(R.

25).

The Agency

points out that Sours obtained one quotation

in February,

1976

for a project with included controls on the truck dump pit (Sours

Ex.

11), but that “for a variety of reasons, economic and lack of

complete control we

(Sours)

did not go forward with this project”

(R.

23-4).

Not until

almost two years

later did Sours retain

another consulting engineer,

R.

S. Fling, to examine air

pollution controls

(R.

27).

R.

S. Fling’s preliminary report,

which was finally completed in October of 1979, focused on major

expansion and modernization of the facility, not compliance with

the Board’s regulations

(Sours Ex.

12 and R.

85).

The Agency also contends that Sours’ cost figures do not

support a claim of arbitrary or unreasonable hardship, in that

Sours has not provided sufficient evidence of the minimum costs

necessary to comply with the Air Regulations

in that Sours’ cost

figures are only in part attributable to the cost of complying

with the Board’s regulations, and most of the costs are properly

attributable to Sours’ philosophy of not spending money on

“non—revenue generating capital expenditures”

(R.

25),

Finally,

the Agency argues that Sours has not demonstrated that it could

not have afforded the required controls prior to 1979, whereas

compliance was required in 1977

(see Agency Br,, October i7~

1983,

pp.

5—6).

Sours, on the other hand rests its showing of

or

unreasonable hardship on the fact that it simply

has

n~

haa

the

57-05

---

6

financial resources to come into compliance.

Information

regarding the financial condition of Sours was presented at the

afternoon session of the June 15,

1983 hearing at which members

of the public were excluded.

This was done since Sours claimed

that information to be “confidential business trade secrets.”

Sours receives grain through one major truck dump pit and

two smaller pits

(R.

20).

Even the larger pit is small and

shallow compared to other elevators in the area and has no truck

dump platform, thus limiting Sours’

operation to the unloading of

self—dumping or hopper bottom trucks or trailers

(R.

24,

15,

83,

140).

Grain

is either transferred from the pit directly to the

watercraft loading spout for loading into barges or conveyed to

storage

(R.

20).

Sours has presented testimony indicating that

due to the size of Sours’

small truck dump pits,

it is tech-

nically infeasible to add aspiration control equipment

(R.

140),

and that while it

is theoretically possible to install aspiration

on the major dump pit,

it is not practical since the shallowness

of the pit would cause a below grating draft system to become

plugged with every load, greatly limiting throughput and

resulting in unacceptable breakage and loss of grain

(R.

141).

Sours concedes that it is technically feasible to either

reconstruct the existing major truck dump pit or replace it and

install aspiration in conformance with the regulations, but

contends that

it is economically unreasonable to comply at this

time

(R.

140 to 143).

The costs of modifying the truck dump pit

to allow for aspiration or replacing it with a new aspirated

truck dump pit range from $350,000 to $1,650,000

(R.

143).

With respect to the watercraft loading spout, Sours presented

evidence indicating that it is technically infeasible to add

aspiration to the existing spout given its age,

structural support

and cantilevered construction

(R.

151,

152 and 152—165). Sours

concedes that it is technically feasible to install aspiration on

a completely rebuilt watercraft loading spout

(R.

150), and that

it is theoretically feasible to install effective aspiration

systems on new vertical drop spouts

(R.

50). Sours also concedes

that it

is technically feasible to install aspiration at the tip

of the spout and duct the dust back to a bag house filter located

on the shore

(R.

153).

However, Sours contends that

it is

economically unreasonable to either install aspiration at a cost

of $100,000— 150,000 on the existing spout

(R.

160) should it be

technically feasible, or to install

a new watercraft loading

system at upwards of $2,000,000

—

$3,000,000 in cost

(R.

151).

Sours has presented sufficient, unrebutted evidence to

demonstrate that the capital cost for installation of dust control

has been beyond the capibilities of Sours since 1979 and that it

57-06

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7

will be

for the immediate future (Ru. 29_36),*

The minimum cost

for attaining compliance is

in excess of $100,000 and may be as

high as $4 million

(R.

23,

143, 160,

173 and Sours Exe.

11 and

12).

The wide range in cost is based upon whether improvements

which would enlarge and modernize the existing operations, which

would clearly make the expenditures more economically reasonable,

and which may be necessary to make the controls technically

feasible, are included.

Clearly, even ignoring operating costs,

which are not quantified in the record,

it would have been quite

difficult,

if not impossible,

for Sours to afford the controls at

anytime

in the past.

Further,

the question of whether controls

would have been affordable prior to 1979 would be relevant in an

enforcement action, but is not relevant here.

However, the Environmental Protection Act imposes a duty

upon the Board to protect and enhance the environment,

and where

the adverse environmental impact justifies

it,

the Board will

uphold its regulations.

Therefore, to determine whether the

demonstrated hardship is arbitrary or unreasonable, the

environmental impact must be examined.

ENVIRONMENTAL IMPACT

Sours’ grain elevator is located on South River Street

immediately across the street from the Pekin Sewage Treatment

Plant on the east bank of the Illinois River,

and apart from the

treatment plant,

it

is remotely located

(R.

62,

63 and 158 and

Sours Ex.

2,

3 and 4).

To the south and east is vacant land

owned by the Pekin Energy Company.

To the west across the

Illinois River lies farmland.

To the north of Sours’ office is

one small cabin.

Pekin Township, which encompasses the City of

Pekin,

is presently classified as a primary attainment area with

respect to total suspended particulate matter based upon

monitoring results from the Court Street monitoring loeation

located at 531 East Court Street, as well as computer dispersion

modeling

(R.

64 and 158 and Sours Ex,

15),

There have been no

complaints with respect to the operation of Sours Grain Elevator

of which Sours is aware, and none were brought forth by the

Agency at the hearing

(R.

62).

The operation of Sours’

Elevator

has remained essentially unchanged for the past 20 years.

Sours argues that its existing watercraft loading spout and

loading practices result in substantially better or equal emission

reduction as would be achieved by aspiration at the tip of the

spout.

The Board does not agree that the record supports such a

*References to the afternoon hearing tran~cxiptwhich begins with

a new page

1 will

be

in the following fo~i(Ru

pp.

).

57-07

---

8

general

finding.

However,

the testimony of Sours and Kobetz,

as

well as

the photographs which were entered into evidence

show

that permitted

aspiration systems

result

in

continued emissions

of grain

dust

CR.

37-~44and

220

and Sours Ex,

10),

and the

testimony of

Dr. Ball establishes the limited control by

aspiration

at the tip of the spout

CR.

128).

The

record also establishes that emissions which escape

Sours’ truck dump pit or barge tend to

settle

out in the

immediate

vicinity and do not result

in

significant impact

on the

ambient

air quality

(R.

146,

158-159

and Sours Exs.

9B and 9C).

Further,

Sours presented testimony indicating that emissions from its

truck

dump

pit are presently

limited by

the fact

that the truck

dump pit is located within a truck dump shed which is enclosed on

two sides and has a roof for which the Agency applies the 50-70

emission reduction credit in

terms of

total emission reduction

(R.

144),

The emissions generated during truck unloading are

also limited due to

the fact

that Sours may only handle

self-dumping and hopper bottom trucks

and trailers which, given

the

sire of Sours’ major truck dump pit,

tend to unload in

a

choke-load condition

CR.

146 and 147),

Visual emissions

observations

taken by Mr. Dihu,

an employee of the United States

Environmental Protection Agency, confirm that for

5 out of

6

trucks which

were observed, emissions were below 30

with a

substantial number of readings from

0 to 10

opacity.

In the one

instance where

an opacity above 30

was observed, the load

consisted of

the bottom sweepings of a large corn storage bin

and

were thus

abnormally high

CR.

13 and Sours Ex,

22),

Visual

observations of emissions from the existing watercraft

loading spout

taken by United States Environmental Protection

Agency confirmed

that the Sours

existing watercraft loading spout

when loading lift

top barges

results

in emissions

with highest

reading of 15

opacity

CR.

13 and

Sours

Ex,

21),

Sours has directed that

his employees keep the

spout

as

close as possible

to the opening of the

barges and keep only one

lid

open to the maximum extent possible

(R.

13,

94

and 95)

in

order to control

the dust emissions from the grain stream spreads

out

after

leaving

the spout and the point of

impact where the

grain

stream hits the bottom of the barge or grain piles in the

barge

CR.

45,

46,

128,

153,

178 and 222~.

The elevator is surrounded by vegetation which acts as a

screen to reduce

particulate concentrations

CR.

159), and

notwithstanding Sours’ existing mode of operation,

the ambient

air

quality in the Pekin area has improved to the point where

Pekin has

been declared to be primary attainment with respect to

particulate emissions

CR,

158 and Sours Ex,

15 and 16).

Finally,

Sours

is installing an enclosure around

its

dryer which will

further reduce

emissions

(R,

21).

57.08

---

9

Based upon this unrebutted evidence,

the Board finds that

Sours’

emissions are not causing or contributing to a violation

of the ambient air quality standards and have not been proven to

cause a nuisance.

Therefore,

any adverse environmental impact

which

may

be caused by a granting of variance should be minimal.

COMPLIANCE ALTERNATIVES

The granting of variance is predicated upon eventual

compliance with the Environmental Protection Act and Board rules.

Where no such compliance is indicated, regulatory,

rather than

variance, relief

is appropriate.

The Agency argues that Sours

has presented no compliance plan.

Sours,

on the other hand,

argues that it has presented two alternative compliance plans.

One compliance alternative is to await possible regulatory

amendments

to the grain handling regulations under docket R82-20

which has

been

proposed by the Illinois Grain and Feed

Association on behalf of its members,

including Sours.

Sours

alleges that it would be in compliance

if the Board adopted the

rules as proposed in that control of grain handling emissions is

equivalent to the required control and the proposal allows

compliance to be demonstrated through such equivalency regardless

of the nature of the control program.

That compliance alternative,

standing alone,

is insufficient to support the granting of variance.

The Agency correctly points out that if such a plan were held to

be sufficient,

anyone requesting variance could file for

regulatory relief concurrently with filing for variance, thereby

establishing

a compliance program.

Second, Sours has indicated that it will install the

necessary control equipment when

it has the financial ability to

proceed with a comprehensive plan to modernize and expand its

facility.

The record, however,

is silent as to when such

financial ability will arise, except that it cannot be expected

Mm

the immediate future without extraordinary returns being

predicted” (Rh.

35).

Sours does, however,

indicate that it is willing to install

an alternative watercraft loading control

system “tomorrow” which

controls grain dust emissions by spraying the grain with water,

thereby adding 0.2

moisture

(R.

24),

The watercraft loading

control

system that Sours has proposed to install is new and

currently unavailable,

(R.

126).

The Andersons, who developed

the system,

have entered into a marketing agreement with the

Rhino Hyde Division of Cargill to market the spray system once

the necessary approval for use has

been obtained from the Federal

Grain Inspection Service which

is necessary to

avoid the

possibility of “treating” grain with moisture, only to find that

57-09

---

10

Sours or other

users

are unable to market it

(R.

126 and 132).

Such approval

is anticipated in

the near future.

The record

establishes that

the

Andersons’ spray system has an effectiveness

in controlling emissions generated during watercraft loading of

about

90

CR.

127 and 157).

The capital costs of the system

would be approximately $10,000

(R.

157),

and it would require

4

to

5 weeks to install

CR.

178).

It is readily apparent that Sours’ compliance plan is

fraught with uncertainty.

The grain handling proceeding

(R82-20)

has

languished for sixteen months due to the proponent’s

reluctance to proceed,

and the Board is currently awaiting an

amended proposal.

The final adoption of any amendment is at

least a year away.

Installation of the water—spray system does

not meet the requirements of the existing grain handling rules,

may not be ultimately marketable or permittable*, and does not

remedy the problems of the truck dump pits.

Finally, Sours may

or may not be able to modernize and expand its facility and

install pollution control equipment in the foreseeable

future.

Thus, while the Board does not require a guarantee that

compliance will

in fact be achieved during the term of variance,

Sours’ compliance plan has serious shortcomings.

CONCLUSION

Based upon its findings that present compliance with the

grain handling regulations would impose serious financial hard-

ship upon Sours and that the adverse environmental impact which

would result from the granting of variance is minimal, the Board

concludes that Sours has presented adequate proof that present

compliance

with the

grain handling regulations would impose an

arbitrary or unreasonable hardship.

Given the uncertainties upon

which its compliance

plan is

based, however,

the Board

cannot conclude

tI~ata five

year variance has been justified.

The Board will, therefore, grant variance for twenty months,

subject to certain conditions,

by which time Sours’ ability to

attain compliance should he much clearer.

The conditions which the Board will impose are designed to

insure that

Sours will minimize

its emissions during the period

of variance and will achieve compliance as expeditiously as

possible.

For the

most

part they are based upon actions which

Sours has stated it will take,

~

the Anderson’s system does not

comport

with the

grain handling rules~ it is possible that a

permit could be issued

for

it under Section 39,1(a) of the

Environmental Protection Act upon a showing of equivalency.

57-10

---

Ii.

This

Opinion constitutes the Board’s findings

of fact and

conclusions

of

law in this

ORDER

Sours

Grain Company is hereby granted variance from 35 Ill.

Mm. Code 212.462(b)(1)(A) and

(B)

and 212.462(d)(3)(B), subject

1..

This variance shall terminate November

8,

1985;

2.

Sours shall keep its grain loading spout as close as

shall keep only one lid open to the maximum extent

possible;

3.

Sours shall continue to investigate compliance alterna-

tives as they develop and shall submit a written report

to the Illinois Environmental Protection Agency on or

before July 8,

1984 and every four months thereafter as

to the availability of grain handling pollution control

equipment,

the ability of Sours to afford such

equipment,

and Sours’ plan for achieving compliance.

These reports shall be directed to the Air Pollution

Division of the Illinois Environmental Protection

Agency at 2200 Churchill Road, Springfield,

IL

62706;

4.

Sours shall,

as soon as it identifies an affordable

compliance, expeditiously pursue installation of the

system;

5.

Sours shall, within 90 days of the date of this Order,

install an enclosure around its dryer; and

6.

Within forty-five days of the date of this Order, Sours

Grain Company shall execute a Certificate of Acceptance

and Agreement to be

bound

to all

terms

and conditions

of the variance.

Said Certification shall be submitted

to the Agency at 2200 Churchill Road, Springfield,

Illinois

62706.

The forty-five day period shall be

held in abeyance during any period that this matter is

being appealed.

The

form

of the certificate shall be

57-11

---

CERTIFICATE

I,

(We),

_________________________________,

having

reed

the Order of the Illinois

Pollution Control Board

in PCB 79—210.

dated March

8,

1984,

understand and accept said Order,

realizing

that

such acceptance renders all terms and conditions thereto

binding

Title

nate

IT

IS SO

ORDERED.

I, Christan L.

Moffett, Clerk

of the Illinois Pollution

Control Board,

hereby ce~tifythat the above Opinion and Order

was adopted

on the

_________________

day

of’)~4~L

Clerk

Illinois Pollut on Control Board

57-12