ILLINOIS POLLUTION CONTROL BOARD
October 11, 1973
J.
R. SHORT MILLING COMPANY
)
PETITIONER
v.
)
PCB 73—251
ENVIRONMENTAL
PROTECTION
AGENCY
)
RESPONDEN~T
MR.
PHILLIP
B.
BOWMAN,
on
behalf
of
the
J.
R.
SHORT
MILLING
COMPANY.
MR.
LARRY
R.
EATON,
ASSISTANT
ATTORNEY
GENERAL,
on behalf of the
ENVIRONMENTAL
PROTECTION
AGENCY.
OPINION
AND
ORDER OF THE BOARD
(by Mr. Marder)
This action concerns a petition for variance filed by the J.
R.
Short Milling Company on June 18,
1973.
On June 21,
1973, the pet-
ition was reviewed by the Board and was found to be inadequate.
An
order of the Board was written directing Petitioner to file an am-
ended petition within 21 days.
An amended petition was filed on
July 6,
1973;
said amended petition contained all the pertinent re-
quirements and was accepted by the Board.
The Agency filed a recom-
mendation on August 20,
1973.
The recommendation called for
con-
ditional
approval after sufficient proof of fact was established at
hearings.
Petitioner filed a response to the Agency recommendations
on August 30,
1973.
Hearings were held on September
5,
1973,
in
Kankakee, Illinois.
J.
R. Short Milling Company is
an agriculturally-oriented pro-
cessing firm operating two plants at its Kankakee, Illinois, loca-
tion.
The first plant is a corn milling division which produces
more than 5,000,000 bushels of corn per year.
The second plant
is
its bakery division, which produces special flours for the wholesale
baking industry.
The company accounts for about
8 percent of the
total market.
The
J.
R.
Short Milling Company also operates a
1,000,000 bushel grain elevator for storage and drying of said grain.
J.
R.
Short
requests
a
variance
from
“All
applicable
rules
and
regulations” which would then allow them to burn Illinois coal for
one year.
The Agency has interpreted this to mean
a variance to
Rules
3-3.122 and 2-2.53 of Rules and Regulations Governing the Con-
trol of Air Pollution continued pursuant to Section 49
(c)
of the
Environmental Protection Act.
The Board agrees with the Agency
that the variance consideration should be limited to these two rules.
—
453
—2—
The situation complicates itself in that an enforcement action
(PCB 72—218)
is still pending, and the facts uncovered in PCB 72—218
are stron~’lyinterwoven with this case and cannot be ignored in this
variance consideration.
Indeed,
the Stipulation entered into by the
J.
R.
Short Company and the Environmental Protection Agency pursuant
to
PCB
72—218 was offered in evidence in these hearings as an amend-
ment to the Agency’s recommendation
(Exhibit C).
There will be no
attempt to resolve PCB 72-218 in this opinion; however,
a brief de-
scription of the events
is mandatory in an understanding of this
action.
BACKGROUND ON PCB 72-218
1.
The J.
R.
Short
Co. was cited on December 15,
1971,
and
on January 10, 1972, by the Environmental Protection Agency
for violations of rules 3—3.122 and 2—2.53, and Section
9
(A)
of the Act.
At
this
time
3.
R. Short was burning
Illinois coal in an old steam generating boiler.
2.
A stipulation was entered into by the Short Company and
the Environmental Protection Agency.
Among other points
the J.
R.
Short Company agreed to purchase, install, and
operate an oil/gas fired boiler and retire the old coal-
fired boilers.
3.
The above-mentioned condition was met, with the new boil-
er becoming operational on or about June 1,
1973.
With these facts in the opinion, we can proceed with the variance
plea.
The Petitioner requests variance because he claims
it
is al-
most impossible to obtain gas or oil to operate its new boiler.
Petitioner further claims that he would much rather burn fuel oil
than coal:
(R 121)
“We ultimately want to settle down on fuel oil
or gas——It’s a much better operation.
It’s easier.
It’s automatic.”
The question as to petitioner’s attempts to purchase either
gas or fuel oil
(#2,4,5, or
6)
are heavily documented by both ex-
hibit and testimony.
(Pet.
ex.
#5,6)
(R. 61-67,
R.
71—73)
Petitioner has also shown
(Pet.
ex.
#7)
(R. 76-81)
that all
attempts to work through the Federal Office of Oil and Gas to obtain
oil or gas under the voluntary allocation system have yielded no suc-
cess.
J.
R.
Short has since the inception of its operations
at Kanka-
kee u~edan existing oil-fired drier,
so that it did have a history
of oil purchases during the latter part of 1972.
This period could
then be used as a basis
for an allocation program.
However, the
crop dried in 1972 was a dry one initially,
and therefore
J.
R. Short
Company purchased only about 40,000 gallons of oil.
It is projected,
and unrebutted, that the crop now in the field will require substant-
ially more oil to
dry
(R.
117), up to 100,000 gallons.
J.
R. Short
Company is therefore maintaining ,that a minimum inventory of 90,000
gallons should be kept on handin anticipation of oil usage for the
upcoming drying season.
9
—
454
—3—
J.
R. Short Company has also entered into evidence
(R.
4)
that it would be willing to burn low—sulphur Kentucky coal before
resorting to Illinois coal.
Petitioner has entered into evidence
(Pet.
ex.
8)
a report by Albert
F. Duzy of Paul Weir Co.,
Inc., min-
ing engineers and geologists, stating that low—sulphur Kentucky coal
will meet present sulphur, opacity, and particulate regulations. The
Agency disputes
(R.
86)
that the reference to particulate matter
is
correct.
In summary, the Petitioner proposes to burn fuels in the fol-
lowing order to supply process steam,
as supplies become available:
1.
Natural gas
2.
#2
fuel oil
3.
Low-sulphur Kentucky coal
4.
Illinois coal
We now turn to an investigation
as to whether J.
R. Short Co.
Inc. has met the conditions under which
a variance is to
be. granted.
I.
Unreasonable hardship
It is the opinion of the Board that the Petitioner
has
shown
that
denial
of
said
Petition
would
consti-
tute
an
unreasonable
and
arbitrary
hardship
for
the
following
reasons:
a)
Petitioner has shown good faith by install-
ing a $125,000 gas/oil fired boiler.
It is
clearly evident that Petitioner has acted in
good
faith
by
trying
to
obtain
gas
or
oil
to
run
its boiler.
b)
J.
R.
Short Co.
cannot operate without steam
(R.
50).
c)
J.
R.
Short
Co.,
its
customers,
and
its
employ-
ees would be seriously affected by a forced
shutdown
(R.
96-102).
II. Environmental impact
Very
little
evidence
was
presented
as
to
environment-
al
impact.
Testimony
mainly
centered
around
wind
dir-
ection in relationship to population centers.
Testi-
mony
(unrebutted)
(R.
104-107)
shows that the location
of the plant and the prevai1ing-~inds (west and southwest)
would cause minimal particulate fallout on residential
areas.
The bulk of the residential areas
are to the
south of the plant.
It is unfortunate that no environ-
mental data are available.
Agency calculations show
a-projected 2.22 pounds per million BTU particulate
emission rate.
Because of the sparsity of information
and the feeling that J.
~.
Short will do everything it
can to minimize usage of Illi.nois coal,
the Board feels
that this condition has been met.
9—
455
—4—
The Agency has recommended
a conditional variance upon find-
ings of
a hearing.
All of the findings have been discussed above.
The Agency requests a six-months variance.
The Board feels that
any variance granted should allow Petitioner to function normally
throughout the upcoming grain drying season.
The order ~iaswritten
as
a ten-month variance to allow
J.
R. Short to complete its grain
drying period without interruption.
The main reason for this
is
that we can be relatively confident that Petitioner would much
rather use gas or oil than it would coal.
The order does contain
conditions which would require Petitioner to report to the Agency
and to insure that Petitioner uses all available #2
fuel oil.
The Agency further requests a compliance plan for bringin
the
coal-fired boiler into compliance,
At this point this would
grossly unfair,
Petitioner
on the basis of sound engineering judg-
ment
has
chosen,
and
in
good
faith
installed,
at
the
expense
of
$125,000,
a
brand
new
gas/oil
fired
boIler.
Furthermore,
testimorq
(R.
95)
shows
that
an additional expenditure of $45,000 would be
required to
bring its existing coal-fired boiler into compliance.
This would be spent in the face of a possible breakthrough of the
gas/oil
shortage,
and
said
expenditure
would
be
non-recoverable.
The
other
side
of
the
coin
must
be
considered.
Although
the
Petitioner’s
problem
is
not.
self-imposed,
the
Board
cannot
and
will
not
allow
an
emission
source
to
continue
polluting
forever,
no
mat-
ter
how
severe the hardship.
If
at.
the
end
of
the
10-month
variance,
Petitioner
finds
an
extension
necessary,
the
Board
will
very
ser-
iously
consider
the
potential
of
environmental
impact,
and
the
pos-
sibility
of
imposing
control
systems
at
that
time
are
very
high
This
Opinion
constitutes
the
findings
of
fact
and
the
conclus-
ions
of
law
of
the
Board.
ORDER
IT
IS
THE
ORDER
of
the
Pollution
Control
Board
that
the
3,
R.
Short
Milling
Company
hereby
be
granted
a
variance
from
rules
3-
3.122
and
2—2.53
until
April
30,
1974,
subject
~
the
following
conditions.
1..
Petitioner
shall
continue
to
diligently
pursue
a
supply
of:
a)
Natural
gas
b)
#2
fuel
oil
2.
Within
thirty
(30)
days
of
the
date
of
this
order,
Petitioner
shall
submit
a
report
to
the:
Environmental
Protection
Agency
Division
of
Air
Pollution
Control
Variance
Section
9
-
456
—5—
2200
Churchill
Road
Springfield,
Illinois
62706
Said
report
shall
contain,
as
a
minimum:
a)
Results
of
efforts
in
regards
to
Condition
#1.
b)
The supply of #2 oil presently stored in its
oil storage tanks.
c)
The percent of its 1973 crop grain drying op-
erations that it has accomplished, and its pro-
jected
oil
requirements
for
said
operation.
3.
Petitioner
will
burn
fuels
when
available
in
the
follow-
ing
order:
a)
Natural
gas
or:
b)
#2
fuel oil
C)
Eastern
Kentucky low sulphur coal
d)
Illinois ‘coal
4.
When,
according
to
Condition
2
(c),
3.
R. Short Milling
Company
has
enough
reserve
of
#2
fuel
oil
to
complete
its drying requirements, and in addition a twelve
(12)
day supply of oil
(no less than 18,000 gal.)
over grain
drying
requirements, the Agency may at its discretion
order
J.
R.
Short to start up its gas/oil boiler until
such time as its excess
reserve
of
oil
is
depleted.
IT IS SO
ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Con-
tx,ol
Board,
certify
that
the
above
Opinion
and
Order
was
adopted
by
the
Board on the
f/’~”
day of
~
,
1973,
byavoteof
‘I
to
~
~
9
—457