ILLINOIS POLLUTION CONTROL BOARD
October 24,
1974
CON AGRA,
INC.
Petitioner,
v.
)
PCB 74—311
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
Mr. Thomas J.
Immel, attorney for Petitioner.
Mr. Roger Zehntner, attorney for Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Dr.
Odell)
On August 22,
1974, Con Agra,
Inc. filed with the Pollution
Control Board
(Board)
a Petition For Variance from Rule 203(b)
of
the Air Pollution Regulations
(Chapter Two).
Petitioner sought
a
six-month variance for emissions resulting from the operation of
a hammermill
at its flour mill in Chester, Illinois.
Petitioner
has headquarters
in Omaha, Nebraska;
it purchased the Chester,
Illinois facility in January, 1972.
The plant processes wheat into
flour and pulverizes with
a harnmerrnill the remaining by-product
chaff and unusable shrivelled wheat into pellets for cattle feed.
The grinding action of the hammerraill creates
large volumes of air
and entrains significant quantities
of particulate matter.
This
air is vented through two 1946 cyclones into
a common stack and
out into the atmosphere.
Petitioner estimated that total emissions
from the hammermill
——
which processes
600 lbs/hour of by-product
——
were 2.6 lbs/hour
(Exhibit “C”).
Rule 203(b)
limits emissions to
1.83 lbs/hour.
Petitioner stated, that the haxnmermill
is the only
equipment that can successfully accomplish the pulverizing process.
To achieve compliance, Con Agra,
Inc. intends
to install a
Buhier model ASF-24 air shock stocking filter costing $10,500.00.
Petitioner estimates that emissions from the filter will be zero;
the equipment has already been ordered.
However, application has
not yet been made for a construction permit from the Environmental
Protection Agency (Agency).
In fact, Petitioner did not apply for
an operating permit for its wheat cleaning house until sometime in
early 1974,
although Rule 103(b) (2) (A)
requires Petitioner to have
had a permit for its milling operations by January
1,
1973.
The
fact that the permit for the hainrnermill operation was denied in
1974 is the reason that a variance is now necessary.
Petitioner
has an annual payroll of $800,000.00 and more than 50 full-time
employees.
Con Agra,
Inc. stated that neighbors had not complained
about emissions caused by the operation of the facility.
14—295
—2—
The Agency filed its Recommendation on October
1,
1974.
It disapproved of the method in which Petitioner calculated its
emissions and found the total particulate emission rate to be
5.22 lbs/hour.
The Agency argued that since Con Agra,
Inc. had
failed to comply with Rule
203(b)
on April 14, 1972,
that under
Rule 203(c)
,
it must meet the requirements of Rule 203(a)
of Chapter
Two.
Rule
203(a)
limits emissions to 1.35 lbs/hour.
We agree with
the Agency.
Rule 203(a)
is applicable to this Petitioner because it
neither met the Rule 203(b) standard on the effective date of the
Rule (April 14, 1972), nor satisfied both of the conditions set out
in Rule 203(c) (1)
and
(2)
of Chapter Two.
The Agency estimated that the Buhler model ASF—24 air shock
stocking filter would reduce emissions
to
.01 lb/hour.
While
acknowledging the effectiveness of this program of compliance, the
Agency recommended that the variance be denied because:
11)
In light of Petitioner’s failure to obtain an
operating permit
(for its facility) by February 1,
1973,
(sic)
as required by the Pollution Control Board Regulations,
and the failure to seek either an operating permit or
Variance during the course of the next year,
the Agency does
not view the Petitioner’s Variance request with favor.
By
its dilatory actions, Petitioner chose to run the risk of
enforcement and has openly admitted continuing violation.
The Agency will not now approve of such lack of diligence
by recommending that Petitioner’s Variance request be
granted.
12)
Moreover, the Agency emphasizes the fact that
Petitioner did not apply for a construction permit prior
to the decision to order its proposed control device.
The Agency agrees that the device,
in all probability,
will work successfully
so as to meet the Regulations.
Probability of success, however, does not relieve the
Petitioner from its duty to obtain the requisite permits.
The construction permit procedure is designed to insure
compliance, particularly before an applicant becomes
detrimentally bound to a specific control program.
The
procedure is dependent upon good faith companies respecting
the function and validity of such procedure.
Entering into
binding contracts for proposed control equipment prior to
receipt of Agency approval
(as evidenced by a valid con-
struction permit) does not indicate such respect.
If the
permit system is to succeed
(or pollution control generally),
a company such as Petitioner’s must not be allowed to com-
ply in its unbridled discretion or its own due time.”
14— 296
—3—
On October 4,
1974,
the Petitioner responded to the
recommendation of the Agency.
In pertinent part, Petitioner
declared it had not been dilatory in complying with the law,
because, being an out-of-state company,
it had taken time for
it to become familiar with the environmental laws of Illinois.
Second, Petitioner admitted that control equipment had been
ordered September 4,
1974, without a construction permit;
it
argued that these efforts were made in good faith to facilitate
early compliance
in the face of expected delivery delays. Further-
more, Petitioner remarked that the regulations only require that
control equipment be installed after receiving
a construction
permit.
“Whether such equipment
is purchased, wisely or unwisely,
is exclusively the concern
(and the risk)
of the purchaser”
(page 4).
After filing its Petition, Petitioner learned that “five months
would be required for delivery of all component parts of the control
equipment”
(page
3) instead of
60 days as had been estimated in the
August 22, 1974, Petition for Variance.
On October 18, 1974, the Agency answered the Petitioner’s
response and reiterated its position that the Variance be denied.
We grant the Variance.
While ignorance of the law does not
excuse delayed compliance, the granting of this Variance will not
preclude an Agency enforcement action for those earlier periods
when the Petitioner was allegedly in violation of the Environmental
Protection Act and the regulations.
Second,
Con Agra,
Inc. has
demonstrated good faith in its recent efforts to abate the pollution
problem.
While we understand the Agency’s policy of requiring permits
before purchase, Petitioner deserves some credit for its efforts
-—
and the self-imposed financial risk
--
to expedite equipment in-
stallation.
Finally,
it does not appear that significant environ-
mental harm will result from the grant of this Variance.
While we
are reluctant to grant a variance without data on the environmental
impact created by the pollution source, the low emission rates and
the short
term
nature of the excessive emissions convince us that
it would be an arbitrary and unreasonable hardship to deny the
Petitioner this reprieve from Rule 203(a) of Chapter Two.
This Opinion constitutes the findings of fact and conclusions
of law of the Board.
ORDER
1.
Con Agra,
Inc.
is hereby granted
a Variance from Rule 203
(a)
of Chapter Two from August 22, 1974,
until March 22, 1975, or
such earlier date that it can install a Buhier model ASF—24 air
shock stocking filter to control particulate emissions caused by
the operation of
a hammermill at its facility.
2.
Petitioner shall apply for all necessary permits from the
Agency.
14
—297
—4—
3.
Petitioner shall submit to the Agency written progress
compliance reports on January 22 and March 22, 1975, or such
earlier date that it can install the air pollution control equip-
ment specified in Order 1,
above.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, her~bycertify
h t the above Opinion and Order w~sadopted
on the.~~day of
_____________,
1974, by a vote of ~
to
Christan L. Mc2~tt
14—298