ILLINOIS POLLUTION CONTROL BOARD

October

24,

1972

INTERNATIONAL HARVESTER CO.

(Wisconsin Steel Division)

v.

)

#

72—321

ENVIRONMENTAL PROTECTION AGENCY

Mr. Jeffrey Brown,

for International Harvester Co.

Mr. Joseph Karaganis and Miss Percy Angelo, for the Environ-

mental Protection Agency

Opinion and Order of the Board

(by Mr. Currie)

International Harvester operates an old battery of

67 coke ovens at its Wisconsin Steel plant in Chicago.

(R.

21,

30)

.

Between each pair of ovens,

in which coal

is

heated without air to drive off volatile matter, are com-

bustion chambers in which gas is burned to provide heat

for the coking process

(R.

30)

.

Our new air

pollution

regulations, adopted in April of this year

(4~R71—23, April

13,

1972,

4 PCB 191)

,

impose strict requirements for the

control of emissions from the coke ovens themselves, the

most dramatic of which

(dealing with emissions while the

ovens are open for charging and pushing)

require the in-

stallation of control equipment by December 1973 and Decem-

ber 1974,

PCB Regs.,

Ch,

2, Rule 203(d)(6),

These regulations

are not the subject of the present petition.

Wisconsin

Steel1s

immediate problem derives from the fact that smoke

and gases from the coke ovens

seep through cracks in the

oven walls into the combustion chambers during the charging

operation,

resulting in visible emissions from the combustion

chamber stack

(R.

34-35,

72)

that exceed the general standard

for emissions from combustion sources

(R.

39, 157—58,

162).

The company promises to submit by May

1,

1973 a program for

eliminating these violations,

after receipt of a comprehensive

study that

is

to explore alternative means of achieving

compliance.

On presentation of the program Wisconsin Steel

intends to seek

a further variance to allow continued

operation until the program is completed.

6—49

---

A pre-hearing conference was held September

6

to delineate

the issues.

When the hearing itself began September 11,

the

Agency, which in flat violation ofwr procedural rules,

had still not filed its recommendation or any other response

to the petition,

for the first time suggested that the scope

of the proceeding be expanded to include issues as to emissions

from the coke ovens themselves.

The Hearing Officer correct-

ly ruled that to raise what in effect would be an unrelated

countercomplaint on the date of the hearing would result in

prejudicial and unfair surprise to the petitioner requiring

further time

to prepare a response and unjustifiably delaying

decision on the original petition

(R.

14-19)

.

The request was

denied without prejudice to the filing of whatever com-

plaints the Agency may wish to file, upon proper notice and

opportunity to defend, respecting the coke ovens or any other

aspect of Wisconsin Steel’s plant.

If Wisconsin Steel or

anyone else is violating or threatening to violate the coke—

oven regulations,

it

is the explicit obligation of the Agency

or Attorney General to file a complaint; but that is no rea-

son to hold up decision on this unrelated petition on which the

company

is entitled to an answer.

Notwithstanding the Hearing Officerrs ruling,

the bulk

of the State’s case on the first day of hearing consisted of

inquiries upon cross-examination

as to the company’s intention

to comply with

the

regulations on control of emissions from

the coke ovens themselves.

Such questions were irrelevant and

time—consuming and should have been excluded.

Following the first day of hearing, the Hearing Officer

ordered the State to file its response to the petition by

September

25

(R.

110)

,

which allowed a further two weeks

to

do what should have been done many weeks before.

The second

hearing was held October

2, and still there was no response

from the State

(R.

114)

An attorney on the Agency’s own

staff then tendered a recommendation which, she said,

had

been prepared by the Agency and sent on September 18 to the

Attorney General for filing

(H.

113)

.

The Assistant Attorney

General replied that he had not filed it because it discussed

emissions from the coke ovens

themselves, which the Hearing

Officer had ruled were not in the case

(H.

121-22)

.

When

the Agency’s own attorney attempted to respond, whe

was

told

by

the Assistant Attorney General that she had no right to

speak because “The role of attorney is handled by the

Illinois Attorney General’s office

CR.

123)

The Hearing

Officer thereupon refused to allow the Agency’s attorney to

be heard

CR.

142)

As we have repeatedly said,

something must be done

about recommendations.

The Agency’s

draft

recommendation

6

—

50

---

was

contrary

to the

order

excluding

the

coke

ovens

from

the

case;

the Attorney General’s office violated the order by

failing to file anything at all.

In an ordinary adversary

proceeding such

an

elementary

failure

to

inform

one’s

adver-

sary

of

one’s

position

shouLd

result

in

a

judgment

by

default,

but

that

would

in

a

case

like

this

punish

the

innocent

public;

the

enforcement

agencies

may

no

more

grant

variances

by

de-

fault

than

they

may

by agreement~ Our only recourse is to

decide

cases

without

the

recommendations

the

General

Assembly

thought

essential,

and

the

public

is the worse

for

it.

As

for

the

cuestion

who

speaks

for the Agency, we

adhere

to

EPA

v,

Linigren

Foundry

Co~,

#

70~l,

I

?CB

11

(Sept.

25,

1970)

,

in

which

we made

clear

that

it is

no

concern

of

ours

whom

the

Agency

desiqnates

to

speak

fur

it; that

is

the

job

of the

Agency’s

own

Director,

We

cannot

help doubting

that

the

Director

exDlicitiy

or

:Lmplicitly

authorized

an

Assistant

Attorney

General

to

speak

for

him ~n

a

dispute

between

the

Agency

and

the

Attorney

General’s Office, and therefore we

chink

the

Agency

should

have

been

allowed

to

speak

in

its

own

behalf.

On

the

merits,

the

variance

request

was

for

~hat

is

now

about

six

months

in

which

to

complete

a

study

of

alternatives

for bringing

the

combustion

chamber

stacks

into

compliance,

with

the

expectation

of

a

further

variance

to

carry

out

the

program.

The

Agency’s

principal

response

was

to

attempt

to

show

that

control

equipment

for

reducing

particulate

emissions

from

these

stacks

was

probably

available

~R.

168-80)

.

But

Wisconsin Steel

has

agreed

to

find

a

way

to

meet

the

standard.

Proof that control technology

is available does not mean

we will not allow a reasonable time in which to install it,

or

to

determine

the

best

method

for

achieving

the

standard.

Our

numerous

decisions

refusing

indefinite

variances

for

want

of

satisfactory

control

programs

(e.a.,

Chicago-Dubuque

Foundry

Co.

v~ EPA,

#71-130,

2

PCB

65

(June

28,

1971);

York

Center

Community

Cooperative,

#72-5,

3

PCB

485

(Jan.

17,

1972)),

do not establish an inflexible rule against allowing

an ex-

tension of time to develop a program.~- If the evidence

shows that to require an

immediate

commitment

to a particular

means of achieving compliance, without adequate study, might

result in unreasonable hardship through the waste of re-

sources, the statute requires us

to grant a variance.

The need for further study must be demonstrated;

the time-

table for submitting such

a program must be reasonable and

1.

We have recognized that good faith study of alternatives

can be

a mitigating factor in determining sanctions for

delay in compliance.

See EPA v, City of Silvis,

#71-157,

5PCB

(Aug.

22,

1972)

6—

51

---

—4—

reasonably certain;

there must be adequate justification for

not having made the study earlier; all other criteria for

granting a variance must be met.

But in an appropriate case

we can and must grant a variance to develop

a program.

In the present case there

is

a firm commitment to meeting

the standard by one or another means;

a broad spectrum of

possible remedies

is under consideration, ranging from re-

pair of the leaky ovens to the use

of

stack control techno-

logy to replacement of the entire battery with

a more fully

enclosed pipeline system

(see petition)

;

a choice is pro-

mised within a rather short time on the basis of

a compre-

hensive study now in progress;

there is an admitted paucity of

experience with either orecipitators or afterburners,

the two

control techniques

suggested by the Agency,

on installations

such as this one

(H,

168-80)

;

considerable expenditures are

involved

(a million dollars for controls according to EPA,

R.

180)

.

Given

the

adoption

of

our new regulations as

a

starting point in time,

there is much persuasiveness in the

argument

that

the

company

should

be

permitted

to

complete

its study before making a choice of this magnitude among

the

many

alternatives

that

are

under

consideration.

We

do

not

accept

the

Agency

witness

s

suggestion

that

two

months

can

be

cut

from

the

schedule

by

not

waiting

for

the

final

report

(H.

184);

the

company’s

testimony

was

persuasive

that

a

full

inspection

of

the

brickwork

is

needed

to

permit

a

determination

of

the

extent

of

needed

repairs

and

thus

the

practicability

of

that

approach

(H,

247-48)

Yet

Wisconsin

Steel

has

not

proved

all

it

needs

to

prove

in

order

to

demonstrate

that

it

is

entitled

to

the

requested

extension.

First,

we

do

not.

know

from

which

regulations

the

company

wishes

relief;

we

suspect

the

only

one

is

that

pertaining

to

visible

emissions

(Rule

202(b)),

but

nothing

in

the

oetitiori

or

the

record

tells

us

so.

We

cannot

grant

a

variance

except

from

specific

provisions

specifically

invoked.

Anything

else

might

cause

us

to

grant

more

than

is required by

the

hardship

and

re-

sult in unnecessary pollution.

Second,

there

is no adequate

evidence

to

establish

that

the

company

was

justified

in

not

making this study,

and commencing action to correct this

problem,

some years ago.

There is only

the testimony that

the problem was viewed as a minor part of the

overall

coke

manufacturing problem and ignored because the coke ovens

themselves

were

not until our new regulations required to

he controlled

(H.

93,

101)

,

If

the argument is

that

the

emissions from the combustion stack were likewise exempted

from prior regulations,

so that the adoption of

the new rules

required immediate compliance

w~thout

allowing a reasonable

time for construction,

the justification for not acting

sooner is oersuasIve,

as

we

have

held

in the asbestos cases.

6

—

52

---

—5—

E.g., Johns-Manville Corp.

v.

EPA,

#72-272,

5 PCB

(Sept.

26,

1972).

But that position has not been ~Eab1ished,

and as we have often held one cannot qualify for a variance

simply by delaying compliance with the law;

if the old rules

forbade the present stack emissions,

we cannot let Wisconsin

Steel’s failure to meet them be its own justification.

De-

catur Sanitary District v.

EPA,

#71—37,

1 PCB 359

(March

22,

1972)

To the extent that the above deficiencies can be cured

by

a new brief without further evidence, we could upon

waiver of the right to a decision within 90 days hold the

case for receipt of such briefs.

But the petitioner’s case

falls

short in additional ways that cannot so easily be

corrected.

Our procedural rules state quite clearly that

a

petitioner must allege, and therefore prove,

the nature and

quantity of his emissions and their effect on the envir-

onment,

PCB Regs., Ch.

1,

Rule 401(a) (1)

(2).

There

was

no such pleading here,

and no such proof.

It is the

petitioner’s statutory obligation to prove that the hard-

ship

of compliance would be arbitrary or unreasonable

(Environmental Protection Act, ~S 35,

37)

.

This standard

requires us

to balance the costs against the benefits of

compliance; an expense that might be excessive to prevent

a little pollution might be entirely in order to prevent

a lot,

Even the shutdown of a battery of coke ovens2pending

compliance by other means might not be inappropriate if

the plant were causing human deaths; consider the case of

a nuclear power plant with its radiation controls out of

order.

We

have no reason to suspect any such consequences

here, but we cannot make factual findings without support in

the record, and the statute places the burden squarely

upon the petitioner.

In Norfolk and Western Ry.

v.

EPA,

#70—41,

1 PCB 281

(March

3,

1971)

,

a persuasive case was

made of the need to continue operating coal-fired boilers

in

a locomotive maintenance shop during the construction

of control equipment,

yet a variance was denied for failure

to demonstrate that the effect on the community would be

tolerable:

We recognize the importance of railway operations

to the general welfare and economy of the region.

We also appreciate the importance of the heating plant

which

serves the shops of petitioner at the hub of

its

regional operations.

But section

37 of the Environ-

mental Protection Act makes plain that the petitioner

must prove that the pollution caused by its continued

2.

CR.

39—40)

.

We note that the company has not refuted

the

Agency’s evidence that because a blast furnace has been shut

down, Wisconsin Steel does not need coke from this battery and

can operate at a much slower coking rate with much lower

emissions

(R. 186—92)

6

—

53

---

—6—

violation

is

not

so

great

as

to

justify

the

hardship

that

immediate

compliance

would

produce.

We

cannot

determine

whether

or

not

the

costs

of

compliance

sign~ficantlv

outweigh

the

benetits,

as

the

statute

requires,

see

Environmental

Protection

Agency

v.

Lind-

gram

Foundry

Co.,

~PCB

70-I

(decided

Sept.

25,

1970),

unless

we

ha’~e

some

idea

of

what the benefits

are.

For

all we know

on

the

present

record,

the

railroad’s

shops

may

be

an

unbearable

nuisance

and

a

health

hazard.

The

petitioner

has

clearly

failed

to

meet

its

burden

~f

oroof.

The

present

case

is

governed

by Norfolk

&

Western.

If this

his position

seems

unduly

technical

in

light

of

what

we

as

individuals

know

or

suspect

about

the

effects

of

coke-

manufacturing

emissions

and

the

reighborhood

in

which

the

olant

is

located,

one

should

consider

the

dangers

of

permitting

this

Board

or

any

other

quasi-judicial

tribunal

to

make

im-

:;ortant

decisions

on

the

basis

of

what

we know

or

suspect

and what has not

been

placed

in

the

record

by

those

who

really

know

and

subject

to

rebuttal

by

those

to

whom

the

outcome

of

the

case may make

a

significant

difference.

The

statute

is

as clear

as

it

can

be

that

our

decisions

must

be

based

strictly

on

the

record,

and

that

:Fact

has

been

brought

home

to

os quite firmly by

the

reviewing

courts.

North

Shore

Sanitary

District

v.

Pollution

Control

Board,

277

N.E.

2d

754

(Ill.

Aep.

2d

mist.

1972),

The

present

record

fails

to

establish

that the

costs

of

immediate

compliance

greatly

outweigh

the

benefits,

the

petitioner

has

not

shown

the

hardshio

would

be

unreasonable

or

arbitrary,

and

it

has

not

made

ats

case

for

a

variance.

Because

the

90

days

in

which

we

must

decide

the

case

eX-~

aires

this

week,

in

the

absence

of

a

timely

waiver

allowino

adequate

time

for

further

hearing

and

decision

the

variance

must

stand

as

denied

without

prejudice.

Should

such

a

waiver

be

filed,

we

shall

schedule

a

further

hearing

in

which

the

deficiencies

of

the

present

record

may

be

corrected.

It

is

so

ordered.

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

certify that the Board adopted

the

above

Opinion

&

‘Order

of the Board this

day of

‘

‘

,

1972, by

a vote of

6—54