ILLINOIS POLLUTION CONTROL BOARD

May

8,

1975

MARBLEHEAD LIME COMPANY,

)

Pet.itioner,

vs.

)

PCB 74-~146

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent

OPINION

AND

ORDER

OF

THE

BOARD

(by

Mr

Henso)

Marblehead

Lime

Company

filed

its

Motion

requesting

the

Board

to

reconsider

its

February

27,

1975

Opinion

and

Order

which

denaeci

MarbLehead

s

recues

t

for

variance

from

Ru:Le

20

(a)

of

ttm

Air

PcI lution

•Cc:~tro1 Pepulations

Marblehead

points

out

that

variance

was

sought

for

cer~

ation

of

a

kiln

after

installation

of

cyclones

instead,

of

aen~i~~

ins tallationof

the

cyclones

as

the

Opinion

stated

fl~x~

jenos

i~

tn

the

~iC~i

:

q~t

:c :~

i

for

oeration

at

the

kiln

after

installati.on

of

the

cyc.;Lones

and

not

during

the

period

pending

instaliata.on

as

hat

been

re~

goes ted

in

the

original

Petition

for

Variance

Petitioner

c1~~i

is

~i

i

~

r~ o”t

rt~

I

‘1

It~U

to

~

~‘

Lw r

T~

~

dorcon,

orcoinin~i

~sta~1athcn

ti~

sc Icn~

mm

n

bearing

on

the

issue

since

they

related

only

to

the

original

pet:Ltion

and

not

the

amended

petition.

Norton

s

tes

1YL0:riy

dealt:

with

a

crash

installation

~oroqra~n

apparently

designed

to

influence

the

Board

relative

to

kiln

operations

pending

installation

of

the

cyclones

While

the

testimony

was

not

crucial

to

the

case

we

believe

it.

was

relevant.

Marblehead

also

states

that

it

seeks

inc

operate

the

kiln

with

emissions

failing

in

the

range

from

14

to

28

lbs.

per

hour

rather than with emissions of

7.55 lbs. per hour

Rule

203(a)

or 15,8 lbs. per hour

Rule

203(b)u.

There is no difficulty

in determining which Rule is applicable in this case

as the

Board clearly stated in page 3 of its Opinion.

Rule

203(a)

is

the applicable Rule and not Rule 203(b).

Under Rule 203(a)

emissions are limited to 7.55 lbs./hr,

16—533

---

—2—

In Part

2,

Marblehead asserts that the “only testimony

in this record concerning the health effects in the community

in which this kiln is located appears .in the testimony of

Mrs. Charles Dyer...”

This assertion is not correct.

Agency

Engineer Campbell testified to health effects he experienced

at the plant

(transcript, pages 155 and 156).

In addition,

Petitioner submitted an exhibit which did address the issue

of health effects relative to lime and limestone plants.

At

page 122 of the transcript in PCB 74-146 Petitioner asked the

Board to take official notice of

Dr. Steinberg’s testimony in

PCB 73-223.

On October

2,

1974 Petitioner submitted a written

request to take official notice accompaniedby a copy of Dr.

Steinberg’s testimony in PCB 73—223.

Had Petitioner not wanted the Board to consider Dr.

Steinberg’s testimony in this case,

it should not have entered

the testimony into the record.

The fact is that Dr. Steinberg’s

testimony is a part of the record in PCB 74-146.

Pages 1088,

1092,

1094, and 1095 of Dr. Steinberg’s testimony deal with the

nuisance and short term health effects of lime and limestone on

a community.

Petitioner attempts to debate what level of particulates

constitutes “excessive particulate emission”.

The parties in

this matter stipulated that the cyclones could control particulate

emissions to a rate of 14 to

28 lbs. per hour.

The allowable

emission rate is 7.55

lbs. per hour.

Emissions from the kiln

of two to four times

the allowable rate does constitute an

excessive particulate emission rate in our opinion.

In Part

3, Marblehead challenges a statement on Page

4 of

the Board Opinion:

“The Agency rejects Petitioner’s contention

that control efforts were not implemented at an earlier date

because the Company believed that emissions from the kiln were

within the allowable rate...”

Marblehead asserts that the

record does not support such

a “so-called rejection”.

The statement about the Agency’s “rejection” is in the

record as

Item

20 in the Agency’s Amended Recommendation.

Campbell told Marblehead Lime in May 1972 and again in June

1973 that the Company was in violation of the Regulations.

Based

upon the visual observations of its Chief Engineer, Marblehead

continued to insist it was not in violation.

Finally, Marblehead

decided that it ought to perform stack tests.

These tests

showed emission rates of 359 and 464 lbs./hr. of particulates

which

“surprised” Marblehead’s Chief Engineer.

In our opinion,

Campbell’s testimony is consistent with our finding that

Marblehead was not acting in good faith.

The record

shows

that

the Agency did not buy Marblehead’s good faith argument, and

neither did the Board.

—3—

In Part

4, Marblehead contends that the Board failed to

satisfy the mandate of Section

33 of the Environmental Protection

Act in its Opinion and Order.

Petitioner pleads that the

reasons

for denial of the variance are “not obvious from the

Opinion and furnish little or no guidance to this or other

Petitioners”.

Marblehead goes on to show how the Board would

be compelled to grant the variance if it had only complied

with Section

33 of the Environmental Protection Act.

We believe that we clarly established the reasons for

denial of the variance on Page

5 of our Opinion.

If Petitioner

cannot understand the language we used, we indulge Petitioner

here so that there be no further doubt to this Petitioner

or

any other.

Marblehead seeks to operate a kiln in continuous violation

of the Regulations despite the fact that it has the expertise

and capability to control the kiln emissions.

Petitioner’s

expert

testified

that

such

control

would

cost

between

$150,000

and $200,000.

(An Agency expert

testified

that

a

cost

of

$75,000

to $120,000 was more realistic.)

Petitioner seeks Board approval

of its plan to install used cyclones at a cost of $25,000 despite

the fact that the cyclones admittedly will not bring the kiln

emissions into compliance.

With

the exception of certain economic information which

Petitioner

chose

not

to

enter

into

the

record,

the

record

shows

that

Petitioner

has

all

the

necessary

requisites

to

control

its

emissions but does not choose to do so because it is

less ex-

pensive to install inadequate control devices.

This flies in

the face of Section

3(b)

of the Environmental Protection Act which

decrees

that

adverse

effects

upon

the

environment

are

to

be

fully

considered

and

borne

by

those

who

cause

them.

Marblehead

is

upset

that

the

Board

ruled the applicability

of

Rule

203(a)

instead

of

Rule

203(b),

stating

that

“although

the

Board

denies Marblehead the right to emit at

15.8

lbs./hr.

under Rule 203(b),

it permits others, with highly toxic emissions,

to emit at that rate”.

Here Petitioner disregards the fact that

it

should

have

been

in

compliance

years

ago and that the Agency

told

Marblehead

of

its

violations

almost

three years ago.

Rule

203(c)

of

the

Air

Pollution

Control

Regulations was adopted to

cover

the

exact

situation

that

we

have

here.

Petitioner

requests

that

the

Board

weigh the emission of

20.45

lbs.

of

dust

per

hour

(28

lbs.

minus

7.55

lbs.)

against

eleven

jobs.

We

have

done

this.

The

possible

loss

of

employ-

ment

for

workers

is

one

of

the

major

factors

that

the

Board

considers

when

it

decides

upon

a

variance.

We

do

not

want

the

workers

to

lose

their

jobs.

Marblehead

obviously

has

the

capability

to

bring

this

facility

into

compliance

without

firing

16—535

---

—4—

the

employees.

There

is

no

right

to

a

permanent

variance

from

health

related Regulations.

The

final

issue

raised

by

Marblehead

concerns

the

Hearing

Officer’s

failure

to

reconvene

the

hearing

after

being

ordered

to

do

so

by

the

Board.

As

the

prior

Opinion

stated,

the

Board

was not informed

as

to

why

the

additional

hearing

never

took

place.

However,

shortly

after

additional

discovery

was

ordered

pursuant to the Agency’s request, Marblehead filed its

“Motion

for Leave to

Amend

and for Consideration of the Merits of Said

Petition”.

As the Board noted in

its

prior Opinion, this filing con-

stituted a request that the Board decide the case on the record

as it then stood.

By abandoning the opportunity to introduce

additional evidence on economic feasibility of alternative con—

trol.systems, Marblehead would avoid compliance with the order

to supply extensive additional discovery sought by the Agency.

The Board considered this motion to be an

abandonment

of

the

Company’s request for the additional hearing.

We are not

now

convinced that the finger of fault should

be pointed at any party in this matter over ‘the failure to con-

duct the additional hearing.

The Board granted Marblehead

its

request and decided the case on the record presented.

In light of matters discussed in this Opinion,

two

changes

will be made to the February 27, 1975 Opinion and Order.

A

change will be made to reflect that the

Ampnded

Petition for

Variance sought

relief

for

the

period

after

installation

of

the

cyclone instead of pending installation.

The second change

will reflect that November 21, 1974 was the date by which the

Board required the second hearing to be conducted.

All other

aspects

ORDER

It is the Order of the Pollution Control Board that the

Motion

to

Reconsider

is

hereby

denied

except

for

the

following

amendments

to. the February 27, 1975 Opinion

and

Order of the

Board

in PCB 74-146:

1.

At paragraph 2, line 6, the date “December 1,

2.

At paragraph 6, line 2, the word “pendinq” is

amended to read “after”.

16

—~

---

—5—

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

Board, hereby certify the above

Opinion

and

Order was adopted

on the

day of May,

1975 by a vote of

_______

Christan L. Moffett, Cl~rk

Illinois Pollution CQPtrol Board

16