ILLINOIS POLLUTION CONTROL BOARD

March 22, 1973

ENVI RONN~ENTAL PROTECTION AGENCY

v.

)

PCB 72—181

CERRO COPPER & BRASS DIVISION

OF CERRO CORPORATION

Thomas A. Cengel, Assistant Attorney General, for the Environmental

Protection Agency;

Marvin W. Goldenhersh, on behalf of Cerro Copper & Brass Division

of Cerro Corporation.

OPINION AND ORDER OF

THE BOARD (by Mr. Seaman)

The complaint in this case was filed by the Environmental

Protectlon Agency (“Agency”) against Cerro Copper & Brass Division

of Cerro Corporation (“Cerro Corporation”) on April 28, 1972,

aileginq violations of the following provisions: Section 9(a)

air pollution prohibitions of the Environmental Protection Act

(1’Act”) 

;

Rule 3-2.110 of the Rules and Regulations Governing the

Control of Air Pollution (“Rules1’), remaining in effect pursuant

to Sect:ion 49(c) of the Act, requiring permits prior to the

installation or construction of new equipment capable of emitting

air contaminants to the atmosphere or intended to eliminate or

contro’ 

the

emission of air contaminants; Rule 3—3.111 of the

Rules, prohibiting excessive particulate emissions; and Rule

3-3.332, requiring certain procedures to be followed in case of

malfunctions or breakdown of equipment.

The Cerro facilities which are the subject of this case are

located in Sauqet, Illinois, and consist of a copper blast furnace

and a copper anode furnace, both of which are now controlled by

the same quencher and venturi scrubber systems. The breakdown

of the scrubber system in April of 1970 was the apparent cause of

the alleged particulate and annual report violations. The scrubber

was returned to full service in December of 1970.

Cerro, in its answer, raises several defenses to the complaint,

including: a right to trial by jury; allegations that the Act or

Rules are indefinite and uncertain; the Act and Rules lack provi-

sions for reasonable notice regarding the technical requirements;

that Respondent was in fact not given reasonable notice regarding

such requirements; and the lack of authority of the Pollution

Control Board to levy money penalties. The Board has rejected

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these defenses since its inception, and such rejection has been

upheld by the Third District Appellate Court of Illinois in the

case of Environmental Pollution Agency 

C. N. Ford 

_____

Ill.

App. 2nd, 

_____;

PCB 71-307. Accordingly, Respondent’s defenses

raised in its answer and its amendment to its answer are denied.

Respondent raises as a defense to the permit violation

allegations its submittal of the information necessary to various

state agencies, both the Air Pollution Control Board and its

successor, the Environmental Protection Agency. Because the

agencies had this information, Cerro claims it had “de facto

permits”. Cerro introduced into the record considerable

correspondence between itself and the state agencies previously

mentioned, but admits that “no formal permits had been issued

timely (R.18).” The fact that Cerro had submitted substantial

data does not excuse its failure to comply with the regulatory

procedures found in Rule 3—2.110. Cerro claims the formal

permit application and issuance is a mere formality. We

disagree. The permit procedure~is a system whereby the

permitting authority can have a full and complete centralized

program for determining whether or not facilities will be in

compliance with the Act or Regulations. The Regulations

requiring permits under Rule 3—2.110 went into effect in

August of 1969. It was only until after the commencement of

legal action that Cerro made the application for permits, and

in fact, Cerro did receive permits for its facilities.

The Section 9(a) allegations charging air pollution is

easily resolved. The Agency has the burden of showing that

the emissions from the Respondent had the harmful effects on

the environment required by the definition of air pollution as

found in Section 3(b) of the Act. The Agency has not made that

showing, and accordingly we find no violation of Section 9(a).

The excessive particulate emissions in violation of

Rule 3-3.111 are alleged to have occurred from July 1, 1970

on a continuing basis to the close of i~h~record. Consistent

with our decision in Environmental Protection Agency v. Mystik

Tape, PCB 72-180, 

we will consider 

allegations only to the date

of filing.

The Agency and the Petitioner in the Stipulation agree

that the relevant testing data is found in Exhibit 18, which

summarizes stack tests performed on the copper anode furnace

No. 3 in October, 1972. These tests were performed without the

use of the scrubber system in an attempt to make the test

conditions as close as possible to the actual conditions of

operation during the time the scrubber system was not operational.

These tests indicate a particulate emission rate ranging from

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2.17 pounds per hour to 41.61 pounds per hour, depending on

which cycle of the furnace operation was involved. The allowable

emission rate based on the process weight of the facility is 19.2

pounds per hour. Cerro states that the emission rate should be

based on a 24—hour average. If such averaging were allowed, the

emission from the facility would be 17.8 pounds per hour, which

is slightly below the allowable emission rate. The Agency

strenuously and correctly asserts that 24 hour averaging is

improper. The table which gives the allowable rates of emissions

based on process weight rates speaks in terms of process weight

pounds per hour translated to tons per hour, and discusses the

rate of emission in pounds per hour. Nowhere does it discuss

the possibility of averaging whether on a daily, monthly, or

yearly basis. The Board has consistently interpreted the emission

tables to mean what the tables say: one hour means one hour,

the most recent such interpretation being Environmental Protection

Agency v. Central Illinois Light Company, PCB 72-83, decided

November 8, 1972. Further supporting this conclusion is the

Opinion of the Board adopting emission standards, R7l-23. When

discussing emission tables virtually identical to that found in

the Rules, the Board states at page 14, “The one hour time period

is simply intended to designate the emission averaging time...”.

Accordingly, we find that the process weight tables mean pounds

per hour when they say pounds per hour, unless there are specific

exceptions to a particular rule.

Cerro asserts that an exception, Rules 3—3.330 et seq.,

exists in this case. It states that it complied with Rule

3-3.331 and that its emissions in excess of the Rules are

therefore excused. The Agency, however, alleges that the

provisions of 3-3.331 were not complied with. In fact, the

Agency alleges that the non-compliance with Rule 3-3.332,

requiring that annual report of upset or breakdown conditions

be made to the technical secretary, has been violated by the

Respondent. Cerro makes the same argument with respect to

the annual report as they made regarding the permit require-

ment. Cerro says they filed a “de facto” report (R.22) 

but

admits that there was no formal annual report as required by

the Rule. Our response to Cerro’s defense for the failure to

file the annual report is the same as our reply to their

failure to obtain permits: procedures created pursuant to

statutory and regulatory authority are to bE complied with

de jure. Accordingly, for the failure to file its annual

report as required, we find Cerro in violation of Rule 3—3.332

and of Rule 3—3.111, the prohibition against excessive parti-

culate emissions.

There is no question of Cerro’s good faith. They have

shown a consistent pattern of cooperation, and for that reason

the penalty will be small in comparison with Cerro’s potential

liability.

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This opinion constitutes the findings of fact and conclusions

of law of the Board.

IT IS

THE ORDER of the Pollution Control Board:

1. Respondent shall pay $3,000 to the State of Illinois as a

penalty for the violations of Rules 3-2.110, 3-3.111, and

3-3.332. Payment by certified check or money order shall

be made within thirty-five (35) days of receipt of this

Order to: Fiscal Services Division, Environmental

Protection Agency, 2200 Churchill Road, Springfield,

Illinois, 62706.

2. Respondent shall cease and desist from all violations found

in this Opinion.

I, Christan Moffett, Clerk of the Illinois Pollution Control Board,

certify that the abov Order was adopted on the ~  

day ~

1973, by a vote of  

—~

Christan Moffett, Cler1~’

Illinois Pollution Con’k*ol Board

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