ILLINOIS POLLUTION CONTROL BOARD
June
7,
1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
PCB 72—164
ALLIED METAL CO.,
Respondent.
Kenneth J.
Gumbiner, Assistant Attorney General for
the EPA
Benjamin R.
Cohen, Attorney for Allied Metal
OPINION AND ORDER OF THE BOARD
(by Mr.
Henss)
Allied Metal
Co. owns
and operates
a metal processing plant
in
a Chicago industrial area for
smelting
scrap aluminum,
zinc and
lead.
The Environmental Protection Agency alleges that,
following
December 27,
1971, Allied operated its plant in such manner as to cause
or allow the emission of particulate matter,
gases and odors in vio-
lation of Section 9(a) of the Environmental Protection Act.
The
Complaint also alleged that Allied had installed new equiDment for
controlling air contamination or equipment capable of emitting air
contaminants, without permit,
in violation of Section 3-2.110 of the
Rules and Regulations Governing the Control of Air Pollution,
and that
the Company had emitted excessive particulate matter in violation of
Section 3—3.111 of said Rules.
Allied has operated from its present location since 1969.
The
plant is adjoined on the north by the south branch of the Chicago
River,
on the east by
a number of railroad tracks, on the south by a
pipe construction company, and on the west by Canal Street.
In its smelting operations, Respondent uses two reverberatory
furnaces, two sweat furnaces, two melting pots for zinc and one for
lead,
a boring drier, and a device referred to as a “smoke consumer”
or after burner
(R.
30,60).
The after burner serves only the boring
drier and one of the sweat furnaces.
The two reverberatory furnaces
located in the west section of the plant
(Complainant’s Exhibit
#3)
are nearly equal in capacity and are used to melt
‘clean” aluminum
(R.
320)
at a process weight rate of
2,000 lbs./hour
(R.
41)
to 2775
lbs./hr.
(Complainant’s Exhibit #1).
In addition to small percentages
of silicon and copper metals, varying quantities
of aluminum chloride,
potassium,
aluminum fluoride and magnesium chloride are added as fluxing
agents to the aluminum charges.
The two sweat furnaces are used to
separate aluminum from scrap also containing iron
(R.
52,318).
One
8—
191
—2—
sweat furnace
is located along the north wall
of the west section
of the plant and the other is located along the north wall of the
central section.
Both sweat furnaces have identical process weight
rates of
1500 lbs./hr.
(Complainant’s Exhibit #1).
The two zinc
pots are located in the southwest corner of the central section of the plant
and are used to melt high grade zinc and aluminum to produce an alloy
metal called Zamac
(R.
53,322).
The process weight rate for each
zinc pot was shown as 2,000 lbs./hr.
(Complainant’s Exhibit #1).
The
lead melting pot is located along the northeast corner in the central
section of the plant and is utilized to melt scrap lead for ingot
formation.
The process weight rate for the lead pot was shown as
2,000
lbs./hr.
(Complainant’s Exhibit #1), but testimony indicated
that only about 40,000 lbs./month is actually processed
(R.
321).
The boring drier is located along the north wall in the eastern section
of the plant and
is utilized to remove excessive moisture,
oils,
and
combustible material in order to produce “clean” aluminum
(R.
321).
A
process weight rate of 1,000 lbs./hr. was cited for the drier (Com-
plainant’s Exhibit #1).
Six fans are located in the roof over the western and central
sections at a height of about 75 ft.
A plant layout drawing (Com-
plainant’s Exhibit #3)
shows
four fans located over the two reverberatory
furnaces and two fans located about equidistant from the sweat furnaces
and the zinc pots in the central section.
Only four of the fans are
operated at any one time
(R.
51).
Scrap material is received at the plant in partially compressed
600 lb. bales which readily come apart after the steel banding straps are
broken
(R.
35).
The scrap
is sorted on a “dirty or clean” basis
(R.
50)
by about 10 sorters
(R.
34)
to determine how much preprocessing is
necessary.
Among the items listed in the incoming scrap by one witness
were pots,
pans,
bowls, trays, cooking and baking cans,
clippings,
shavings, pieces of tubing,
transmission housings,
lawn mower housings,
pistons,
storm doors, screens, frames, washing machine parts,
tubs,
radiators,
litho plates, license plates and awnings.
About 40 persons are presently employed at Allied Metal.
The
plant operates three shifts per day,
7 days per week,
48 to 50 weeks
per year
(R.
50).
Respondent’s
$5.5 million sales per year is about
1
of the total annual sales in the country of
the secondary aluminum
industry
(R.
307—308).
Before getting to the substantive issues, we need to resolve one
procedural matter.
Respondent’s Attorney,
Mr. Cohen,
stated on the
first hearing date
(R.
13)
that he had requested subpoenas for three
witnesses and that he had not had any response to the subpoenas at
that time.
Two of the witnesses later testified for Respondent at
the second hearing. However, the third person subpoenad, Mr. Samuel
Elovitz of the Chicago Department of Environmental Control, never did
testify.
Complainant’s Exhibit
#3 reveals the following sequence of
events:
8
—
192
—3—
January
9,
1973
-
Hearing Officer Stentz issued a subpoena
for Mr. Elovitz.
January
11, 1973— Hearing date.
January
12, 1973— Delivery date of subpoena as shown by
certified mail receipt.
January 15,
1973— Letter from Sidney M. Marco, Director
-
Enforcement Division, Chicago Department
of Environmental Control, stating that
Mr. Elovitz had been on sick leave on
January 12, 1973 and had not opened
certified letter containing the subpoena
until January 15,
1973.
The letter also
stated “appearances
for sworn testimony
by employees of this Department are made
on advice of
the City Corporation Council...
at the time of such appearances,
our
people are represented by Council from
the Corporation Council’s office.
Sufficient notice isi~suallygiven so
that time may be had to make these
arrangements”.
It was unfortunate that Mr.
Elovitz received the subpoena too
late to testify on January
11,
1973, but Respondent had over a month
to subpoena the witness again before the final hearing and chose not
to do so.
The fault was Respondent’s.
The Agency’s case on
the Section
9(a) charges rests with the
testimony of two workmen employed near the Allied plant.
Both work
within 150 to
250 feet of the plant
(R.
64,
166) with one being at
his work site about three
times each day between
7 a.m.
and 3:30 p.m.
(R.
64) and the other being near the plant from
7 a.m.
to
3 p.m.
five
days per week
(R.
166).
Both workmen readily identified Respondent’s
plant as the source of the smoke they observed
(R.
65,
170).
Mr.
Hoffmann testified that the smoke caused him to experience
“smarting
of the eyes and the burning in the chest”
(R.
79).
Mr. Kuntz testified
that “if it
rsmoke
comes in my direction,
it makes my eyes smart,
it
makes me cough, choke on it”
(R.
168).
They said they experienced
this discomfort quite
a few days each week
(R.
79).
Hoffmann stated
that he knew the difference between the odor of diesel fumes
and the
odor from the Allied plant and was not confused by other odors in the
area
CR.
90,
100).
Respondent attempted to show that Mr.
Kuntz had
confused automobile emissions from Canal Street
CR.
179) industrial
emissions from nearby plants
CR.
184)
and diesel emissions from barge
and train traffic.
Kuntz denied this.
(R.
184)
8—193
—4—
Throughout the cross—exa:rnination
and later
in Closing Argument,
Respondent attacked the credibility of the two Agency witnesses
as
“vague and untenable”, because they did not know the exact number of
railroad tracks to the east of Respondent’s plant.
Why should they?
Hoffmann testified that
“there are considerable
tracks”
(R.
84).
Kuntz
said
“I have never counted them”
(H.
177).
This does not diminish
the impact of testimony that smoke had unreasonably interfered with
the enjoyment of
life.
Respondent also called two people who work in the general vicinity
of the Allied plant.
A
Shop Superintendent at an adjacent building
testified he had observed light smoke coming from the plant, but that
the smoke did not bother him in any way.
Although he could not see
the plant stacks from his office,
he had observed the smoke when he
walked around his own plant
CR.
197)
and from his automobile while
driving to and from work
(H.
198).
The other defense witness,
a
bridge-tender,
testified he had a clear view of the plant.
He had
never seen any smoke coming from
the
plant, but had observed “steam’
(B.
272).
He also testified that he had not been bothered by the
“steam”.
We believe that the Agency has provided sufficient proof that
Respondent’s plant has caused air pollution in violation of Section
9(a),
The majority of Respondent’s equipment had been installed in 1969.
Testimony concerning
the alleged permit violation centered around the
1971 installation of two zinc pots.
Allied had not applied for permits
since it believed the emissions from the two pots were of such minimal
quantity
so as not to be considered
an air pollution source.
However,
the law does not give Respondent the right to make that judgment.
Permits are required for all equipment capable of emitting an air
contaminant.
Respondent did not produce any valid State permits for
any of its equipment.
Since permits were required by Section 3—2.110
of
the
rules at the time he originally installed his equipment and
have been required at all times since, we find that Respondent did
install equipment capable of emitting and/or controlling air contaminants
without valid State permit.
The remaining portion of
tii:is case concerns particulate emissions
and undoubtedly provides the largest area of disagreement between the
two sides.
After the filing of the Complaint, Allied hired George
Sterba
,
Basic Engineering,
Inc.
te study the emission problem.
Sterba
did not conduct complete stack testing, but used what he called a
“modified procedure of a formal test”
(B.
382).
Sterba concluded
that his test indicated compliance with emission criteria and so
informed Allied officials.
Allied used this test during the hearings
as evidence of their compliance with regulations.
8—
194
—5—
Emissions from the plant were calculated by an Agency engineer
to be as follows:
ALLOWABLE
ACTUAL
EXCESS
lbs./hr.
lbs./hr.
lbs./hr.
15.1
(R.
120)
26.729
(B.
121)
11.63
(R.
121)
The Agency did not at any time conduct
a stack test at Respondent’s
plant.
The emissions listed above were calculated using AP-42,
Compilation of Air Pollutant Emission Factors, and information sup-
plied by Respondent.
These calculations revealed that the two re-
verberatory furnaces and at least one sweat furnace were Allied’s
major sources of particulate emissions.
Allied contends that allowable emissions were 14.37 lbs./hr.
(Comp.
Ex.
1)
and that their maximum emission rate would be between
5.36 and 8.2 lbs./hr.
(B.
466).
The methods and results of
the Sterba modified test were
criticized by the Agency.
Sterba conducted the test alone without
notifying the EPA on June
9,
1972
CR.
381).
No Agency witness
observed the test.
His testimony revealed that six fans are located
in the roof,
and exhaust air upward through short six foot stacks.
Each stack had a cross sectional area of
19.63 sq.
ft.
(Comp. Ex.
1).
This would then mean that the stack diameter was approximately
5 ft.
and indicate that withdrawalsampling was conducted within
6 ft. of
a fan operating at 22,000 cfm
CR.
398).
The Agency stack sampling
expert, Fred Smith,
in referring to this procedure stated:
“The
proximity of the fan to the point of sampling might possibly very
seriously interfere with the flow of the air, gas and the particulate
concentration therein, affecting the representativeness of the sample”
(R.
586).
Further,
in Section 42 of the ASME Power Test Codes we
note the following:
“The inlet duct of a fan may be preferable
to the outlet
duct for the reason that a fan in operation acts
as
a
separator to a considerable extent.
That is, the
passage of dust—laden gas into and through
a fanwheel
tends to concentrate dust at the periphery of the casing
scroll and at
a point adjacent to the back plate or
center plate of the wheel, thus causing a condition of
stratification,
as well as turbulance,
to carry into the
outlet duct.”
The Sterba test was conducted during a 25-30 mph wind
(Comp. Ex.
1) which the Agency expert testified would “further tend to bias or
make it difficult to obtain a representative sample from that particular
location”
(R.
586)
.
Sterba testified that the wind conditions
experienced during the testing “would have no effect”
(R.
399) on
the accuracy of his measurements.
8—195
—6—
Sterba tested two of the six stacks, and made only one measure-
ment per traverse
CR.
406).
The Agency expert cited this procedure
as “not normal procedure”
(H.
586).
The appropriate procedure is
outlined in the Appendix-Test Methods Section of the Federal Register,
Volume 36~Number 247, December 23,
1971,
Part II,
titled “Standards
of Performance for New Stationary Sources’
page 24882:
21,1
Select
a sampling site that is
at least eight stack
diameters downstream and twc diametersupstream from
any flow disturbance such
as
a bend,expansion, con-
traction,
or visible flame.
2.1.2 When the above sampling site criteria can be met, the
minimum number of traverse ooints
is twelve
(12).
2.1.3 Some samplinc situations render the above samplinc site
criteria impractical
(as here)
When this
is the case.
choose a convenient sampling location and use figure
1—1 to determine
the minimum number of traverse points~
Figure 1-1 shows that a stack test this close to the exhaust fan
should have used at least 45 traverse points for testing.
Sterba used
only one.
Perhaps
this
is why Sterba chose to call his test “modified”~
It most certainly does not meet the test criteria.
Section
44
of the Power Test Codes states~.
“It is not likely
that the accuracy of
a test will be impaired as the result of sampling
the gases at an excessive number of points
in the duct.
On the othar
hand,
error will probably be introduced
if the points are too few”,
Allied’s operation
is cyclical and emissions will vary from time
to time, depending on ~he nature of the work being done.
Sterba appar-
ently did not test for emissions durinc
a complete work cycle.
He
stated that his test report would not have changed whether the actual
collection time was 20 minutes or 40 minutes
(B. 410—411).
However,
the Power Test Codes, Section 48
states:
“At least two runs should be made at each basic rate,
although this
is not mandatory.
The duration of the
runs shall be governed by operating conditions,
number of sampling points,
and the number of samplers
operated.
If possible, the samplers should he
operated a minimum of 10 mm.
at each point and there
shall he at least two complete circuits of the points.
If operation is cyclic,
each run shall cover at least
one cycle of operation”.
We do not believe that
20 minutes sampling on one stack and 10
minutes on another stack follows any recognized standard for stack
sampling and most certainly not for a cyclical operation such as Allied’s.
8
—
196
—7—
Sterba admits that his results could be in error by
200
(H, 429L
This Board recognizes the importance of
a valid stack
test in comparison
to emission factors, however we are forced to hold that the Sterba test
was not a valid source of emission data in this case.
Allied’s next defense involves the introduction into evidence of
a Certificate of Operation from the City of Chicago’s Departmet~tof
Environmental Control
(Respondent’s Exhibit 13).
Presumably,
this
document was introduced to show that Respondent’s plant was being
operated at least in accord with Chicago regulations~
The Agency
opposed the introduction of the document as irrelevant.
Two employees of the Chicago Department of Environmental Control
were called as witnesses during the Agency’s rebuttal case.
One ci
the witnesses~Guiseppe Rocca,
indicated that the Allied Certificate
of
Operation had been issued trtrough computer error and had later
been withdrawn
(B.
538)
.
Rocca said he informed the Company that n~
‘couldn’t grant a Certificate of
Operation
for the two aluminum re-
verberatory furnaces and the aluminum sweat furnace because
I
felt
that
they were not in compliance”.
(B.
537—538)
In any event the issuance of
a permit 1w Chicago would absolutely
not relieve Allied from Compliance with State Regulations.
Allied’s final defense fell to Charles Licht,
a consulting
engineer, who had prepared Allied’s Operating Permit application forms
in late 1972.
Licht had been required to prove that the Allied plant
was
not in violation
(B.
455).
In order to utilize Sterba’s test results, Licht had developed
a
theory to explain where the emissions from the equipment went,
if not
out the roof of the plant.
Licht calculated the plant’s expected total
emission using standard emission factors, and then explained the
reasoning which led to his “settling chamber
theory”
(R.
456):
“Because
of the unique nature of this particular plant and the fact
that
this
entire operation is conducted within an old boilerhouse with a 75
ft.
high ceiling, we then took the position that the building itself was
functioning as an air pollution control device, and that the
amount
of air being vented from the building by means of the roof
fans would
pretty well establish the maximum particle size which could be drawn
up to the roof fan and thus leave the building and thus become a
pollutant.”
Licht’s calculations reveal that with two fans operating,
a
vertical velocity of 0.08 ft./sec. would be generated which, when used
in conjunction with a plot of Terminal Setting Velocity vs. Particle
Diameter
(Comp. Ex.
9), yielded a maximum particle size of
18 micron
that would be lofted.
Licht calculated that this would represent 14.37
of the total particle mass generated which would mean that the following
maximum rate of emission loft would be expected
(Amended Exhibit
“B”)
of Comp.
Ex.
#1)
8— J97
—8—
Reverberatory Furnaces
0.618 lbs./hr. each
Sweat Furnaces
1.56 lbs./hr. each
All Pot Furnaces
1.0 lbs./hr.
Total Plant Emissions
5.36 lbs./hr.
Licht compared his total plant emission rate with the Sterba test
and concluded that the two sets of figures were compatible.
He
then
calculated the worst possible emission rate that would occur if all
four
fans were operating and found this
to be 8.30 lbs./hr.,
still
substantially below the allowable emission rate.
The settling chamber theory seems the only one capable of
explaining away any excessive particulate emissions.
Many settling
chambers are in general use as control devices throughout the
country
although this
is our first experience with a “settling chamber”
which
includes the working and living space of plant employees.
However, these calculations also are faulty.
First, we note that the roof fans were the
factors initially
used by Licht in his calculation of the lofting velocity
(B.
505).
When asked if
there were any other factors which are significant,
Licht answered “There may be”
(B.
505).
Licht failed to include
the effects caused by thermal uplift over the furnaces
(R.
506),
even
though he knew the velocity at the 75 ft. level due to thermal effects
would be
204 ft./min.
(B.
509).
According to Licht’s testimony,
this
velocity would cause particles of larger than 18 microns to be lofted
(B.
511).
Licht also admitted that he had not calculated the uplift
velocity due to
a pressure differential existing between the inside
and outside of the furnaces
(B.
510).
In rebuttal,
the Agency presented calculations showing that:
1.
97
of Allied’s emissions are between 0—44 microns.
2.
The settling velocity for 44 micron particles is 0/45
ft./sec.
and 100 micron particles
is 2.5 ft./sec., and
3.
The calculated velocity between heights of
70
ft. and 74
ft.
due to
a combination of thermal conduction and
fan draft
would range from 4.64 ft./sec.
to 15.53
ft./sec.
Thus
the Agency concluded that since the calculated uplift velocities
exceeded the settling velocity of all particles emitted from the furnaces,
all of Allied’s emissions were emitted to the atmosphere
(Comp.
Ex.
10).
8
—
198
—9—
The Agency also theorized that the natural draft through the
Allied plant causes it to act, not as
a settling chamber, but in
the opposite manner as a venting hood
(B.
616).
Thus we are presented with two theoretical sets of calculations,
each contradictory of the other, and upon which we are to make
a
sound judgment.
Respondent takes the position that its building
acts
as a settling chamber, thus capturing the majority of emissions
within the building environment, and avoiding a particulate violation.
The Agency takes the position that the building acts
as
a hood
to
vent all of Respondent’s emissions through the roof,
thereby
causing Respondent
to be in violation of particulate emission regu-
lations.
The weight of the evidence convinces us that the large majority
of the emissions go out the roof.
Respondent’s
“settling chamber’
theory is based upon an erroneous calculation.
It also fails to
explain how the Allied employees could continue
to work in
a
settling chamber atmosphere containing particulates exceeding
600
lbs. per day.
It is difficult to believe that Respondent would attempt
compliance with our regulations by risking the health of employees
or by deliberately placing the Company in jeopardy with the OSHA
regulations.
We do not find in the record
a satisfactory answer to
the question of where the particulate matter goes
if not out the
roof.
The entire record convinces us that Respondent is in violation
of the particulate emission regulations as charged.
For the violations
found in this Opinion, we impose a monetary
penalty in the amount of
$2,500.
It is our desire that Respondent
cease and desist from those violations, but we do not wish to order
the plant closed.
We will at this point order Respondent to submit
a plan to this Board and to the EPA to bring Respondent into com-
pliance with the regulations.
The plan should be submitted in sixty
days and it should be designed for compliance
in six months.
ORDER
It is ordered that:
1.
Respondent
is adjudged guilty of causing air pollution,
violating the permit requirements and allowing excessive
particulate emissions
as charged in the Complaint.
Re-
spondent shall pay to the State of Illinois by July 23,
1973
the sum of $2,500.00 as
a. penalty for the violations
found in this proceeding.
Penalty payment by certified
check or money order payable to the State of Illinois
shall be made to:
Fiscal Services Division, Illinois
EPA,
2200 Churchill Drive,
Springfield, Illinois 62706.
8
—
199
—10—
2.
Respondent shall, within 60 days,
submit a plan to this
Board and to the EPA for bringing its operations into
compliance with the statute and the regulatidns governing
particulate emissions.
The plan should be designed for
compliance within six months of this Order.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order was adopted this
7th day of June,
1973 by a vote of
4toO.
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200
