ILLINOIS POLLUTION CONTROL BOARD

Nay 22~1975

GREAT LAIES

CARBON CORPORATION,

)

Petitioner,

v.

)

PCB 75-85

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Zeitlin):

This Petition to Extend Variance was filed by Great Lakes

Carbon Corporation (Great Lakes) on February 21,

1975.

Great Lakes seeks to have extended a prior Variance from

Section

9(a)

of the Illinois Environmental Protection Act

(Act),and Rules 203(b) and 203(f)

of Chapter

2: Air Pollution

of the Pollution Control Board

(Board)

Rules and Regulations.

I11.Rev. Stat. ,Ch.lll 1/2, Sec.1009(a)

(1974);

PCB Regs.,

Ch.

2, Rules 203(b),

203(f).

Petitoner’s prior Variance,

(for

which one extension has already been granted), will expire

on May 24,

1975;

this further extension is sought until

December 30,

1975.

Great Lakes operates a plant on the south side of Chicago

at which it is engaged in the ca1cining~ofanthracite coal

and petroleum coke.

Its plant consists of four rotary

calcining kilns, four rotary cooling drums, conveyors for

the handling of raw calcined coal and coke, enclosed storage

silos, and open storage piles of raw coal and coke.

In its

original Opinion concerning this facility,

the Board found

that particulate matter is emitted from the kiln stacks,

cooler stacks,

transfer points in the material handling

process, and the open storage stacks of coal and coke.

(The operating details of Petitioner~splant are more fully

set out in our prior Opinions.

EPA v. Great Lakes Carbon Corporation,

Great Lakes Carbon Corporation v.

EPA, PCB 72—48, 72—431,

(consolidated),

(May 24, 1973); Great Lakes Carbon Corporation

v. EPA, PCB 74-75,

(July

18,

1974)

.

Insofar as Petitioner

has incorporated by reference the records compiled in those

prior cases,

it would serve no purpose to reiterate those

facts.)

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The Environmental Protection Agency

(Agency) originally

filed an enforcement action against Great Lakes on February

9,

1972.

That Complaint alleged violations of Sections 9(a)

and 9(b)

of the Act and Rule 33.111 of the old Rules and

Regulations Governing the Control of Air Pollution promulgated

by the Air Pollution Control Board-predecessor of this

Board. Thereafter on November 1,

1972,

Great Lakes filed a

Petition for Variance from the Act and those Regulations

relating to particulate emissions which governed the operation

of its kilns, material handling systems and storage piles,

and

from the permit requirements under the Act and the Old

Rules.

Those cases were consolidated, and a decision was

reached in the matter by the Board on May 24,

1973.

PCB 72-

48, 72—431,

(consolidated),

supra.

In reaching its decision in those matters,

the Board

approved a Stipulation and Proposal for Settlement which was

submitted by Great Lakes and the Agency.

That settlement

envisioned a long-term compliance program which involved

shutting down approximately one-half of Petitioner Great

Lakes’

capacity at the c~1ciningplant, after which extensive

backfitting was to have been undertaken to achieve compliance

with the applicable particulate standards.

It was estimated

at the time that the backfitting of kiln #1, (of four), which

provides 50

of Petitioner’s capacity at the Chicago plant,

would be completed within 16 months of the Board’s action in

that matter.

At that time,

kilns #2,#3, and #4 were to have

been shut down,

and possibly also backfitted,

to achieve

compliance.

The Board in that Order noted the length of

time which Petitioner’s compliance program would require,

and made specific provision for the possible extension of

the Variance granted there.

In PCB 74-75, the Board found

that Great Lakes had made adequate progress on the compliance

plan, and the Board therefore extended Petitioner’s Variance

until May 24,

1975.

Great Lakes now alleges that it has been unable to complete

the construction of emission control equipment, as required

for compliance under our prior Orders, due to circumstances

beyond its control.

Petitioner alleges that it has been

unable to obtain delivery of vital components,

steel, and

baghouse and refractory items. Great Lakes alleges that

delivery delays with certain items have compounded the

problem,

in that items on

a short delivery schedule have had

to be delayed to meet the schedules of the larger items.

Petitioner now states that it will be able to obtain delivery

of all necessary items and,

should this further Variance

extension be granted, achieve complete compliance with the

applicable standards by December 30, 1975.

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The Agency,

in a Recommendation filed April

4,

1975,

states that it is of the opinion that Petitioner’s revised

compliance schedule is reasonable.

The Agency also feels

that the delivery delays alleged in the instant petition

were,

“for the most part,

beyond petitioner’s control”

(Rec.

2).

The Agency notes that Great Lakes’

facility is located

in a heavy industrial area,

near three steel mills and two

grain elevators.

Further, the Agency states,

there are few

residences

in the area which might be affected by emissions

from Petitioner’s plant, and that it had received no objections

to the extension of this variance.

The Board did,

however receive one objection to the

grant of such an extension from a private citizen.

That

objection, received by the Board from a Stephen R.

Sturk on

April

7,

1975,

asks that the Variance not be granted due to

the high levels of particulate loading present on the south~ast

side of Chicago, citing the Agency’s “Air Quality Data”

reports.

Mr.

Sturk’s conclusion was that the Environmental

Protection Agency itself has provided proof that the granting

of

a variance would adversely affect the entire population

on the southeast side of Chicago.

The facts alleged by Mr.

Sturk are not properly in the record here, therefore the

arguments presented in the objection stand somewhat weakened.

The Environmental Protection Act conditions the extension

of previously granted Variances on a showing of progress

toward compliance; both Petitioner and the Agency have

demonstrated that such progress has in fact been achieved in

the instant matter. That being the case,

the Board would

normally grant this extension.

Since the ~filing of the

Petition herein,

however,

the United States Supreme Court

handed down its decision in the case of Train v. National

Resources Defense Council,

43

tJ.S.L.W.

4467

(U.S., April

16,

1975)

As we interpret that case,

we may not grant either a

new Variance or an extension of an existing one, absent a

showing that such

a grant will not cause or contribute

to a

violation of the national ambient air quality standards.

There has been no such showing in this case.

In the Petition in this case,

Great Lakes states:

Petitioner submits that the effect on the public

will continue to be minimal should the Board

approve the proposed backfit schedule.

The complete

shut down of Petitioner’s facilities would not

alter existing contaminant levels in any measurable

way because of the continued operation of many

other neighborhood stationery sources.

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Further, the Petitioner

in this matter has expressly incorporated

matters which were part of the record in the prior cases.

Although the record in the present case, with the record

compiled in our previous determinations with regard to this

facility, would indicate that the emissions from Great Lakes

calcining plant do not individually present a great hardship

to the public,

or to the public health, we are bound by the

law as we see it in the Train case.

We therefore will grant

the instant variance for only two of the seven months requested.

Without the showing mandated by the Train case,

this Board

is constrained to deny any air variance beyond July 31,

1975.

While the Board feels that in reaching this decision it

is pursuing its proper course under the law,

we feel that

this situation is unfortunate.

Petitioner here has apparently

made a considerable good faith effort to achieve compliance.

Great Lakes alleges that it has spent in excess of $300,000

to date,

and has firm contractual

obligations presently

outstanding in excess of $1,600,000, all in its effort to

achieve compliance by May 30,

1975. While it

is not our

desire to deprive Petitioner of

a shield from enforcement

during the last five months cf a compliance effort extended

due to circumstances beyond its control, we must do

so.

cf.,

King Seeley Co., Thermos Div.,

v.

EPA, PCB 75-159

(April 24,

1975)

(Interim Order of the Board).

Insofar as we are finding here that Petitioner has

demonstrated the necessary progress, and shown the requisite

hardship, we will extend its Variance for the period for

which we may do

so.

In reaching our finding here, we do not

withdraw our prior approval of Petitioner’s compliance plan.

The bond and conditions

to which the prior variance and its

extension were subject will remain in effect for the period

of this further extension.

Should petitioner return to the Board,

in a further

Petition for Extension of Variance, with a showing as is

required under Train, we would be disposed,

for the reasons

given above, to grant a shield from enforcement for the full

period requested here,

until December 30,

1975.

We may not

do so now, however.

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144

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This Opinion constitutes the findings of fact and

conclusions of law of the Board in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD THAT:

1.

Petitioner Great Lakes Carbon Corporation is

granted a Variance from Section

9(a)

of the Environmental

Protection Act and Rules 203(b)

and 203(f)

of

Chapter Two:

Air Pollution of.,the Board’s Rules

and Regulations for the period May 24, 1975 until

July 31,

1975.

2.

Petitioner Great Lakes Carbon Corporation shall

arrange with the Environmental Protection Agency

to maintain in effect the performance bond required

under the Board’s previous Orders with regards to

this matter, PCB 72-48,431

(Consolidated), and

74-75. Said performance bond to be continued in

force and extended for the period of time of this

Variance extension.

~.

The Variance granted here shall be subject to all

terms and conditions required by this Board’s

prior Orders with regard to this matter.

4.

Within

30 days

of’ the adoption of this Order

Petitioner shall execute and submit to the Illinois

Environmental Protection Agency, Variance Section,

2200 Churchhill

Road,

Springfield, Illinois 62706,

a Certificate of Acceptance,

the form of which

shall be as follows:

CERTIFICATION

I(We),

,

have

read and fully understand the Order of the Illinois

Pollution Control Board in PCB 75-85,

Gr~a’t’~Lakes

‘Ca’rJ~onCo~rp’ora’t±onv.

EPA, and hereby

accept the Variance granted by said Order, understanding

that such acceptance renders all terms and conditions

of said Order binding and enforceable.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board hereby certify that the above Ojinion and

Orde)r of the Board was adopted on thç

~

day

of

,

1975 by a vote of ~

to

~

aiL.Ls~

IY) ~

Christan L. Moffet~/A~Lerk

Illinois Pollution (e~trolBoard

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