ILLINOIS TOLLUTION
CONTROL
BOARD
November
2~,
1972
ENVIRONMENTAL
PROTECTION
AGENCY,
Complainant,
vs.
)
POP
72~209
MONSANTO
CHEMICAL
COMPANY,
Resnondent.
Frederick
C.
Hooper,
Assistant
Attorney
General
for
the
EPA
Randall Robertson
and
Phocion
Park,
Attorneys
for
the
Respondent.
OPINION
AND
ORDER
OF
THE
BOARD
(by
Mr.
Flenss)
Respondent,
the operator
of
a
chemical
plant
at
Sauqet,
Illinois
is charged with emittinq dense
smoke,
particulate
matter
and
odors
into
the atmos here
so as
to cause
air pollution
in
violation
of
Section
9(a)
of
the Environmental
Protection Act and Rule
th3.l22
of
the Rules and Regulations Governing Control
of Air Pollution.
The complaint alleges that Monsanto has allowed
these emissions
“since July
1,
1970”
and
in particular
on twelve dates which are
specified
in the Complaint,
Respondent denies these charges and alleges
that
its emissions
are reasonable.
Respondent
further alleges
that
“air pollution~1 is
defined
in such
a vague and
uncertain
manner
as
to render Section
9 (a)
of
the Statute unconstitutional
and claims that Section
9 (a) con~-
stitutes
an
invalid delegation
of lecislative authority without
sufficient standards
to guide this
l3eard in
the exercise of
the
delegated power.
We rejected
these Constitutional objections
in
EPA v.
Grainite City Steel
(70 PCB—34)
and
adhere
to our earlier
decision.
When
the case was called
for trial
an
EPA
investigator
testified
that he had observed
smoke emissions
from ~
s stack
on
July
20,
1970,
January
5,
1971 and September
15.
1971,
three dates
alleged
in
the Complaint,
Two
of the observations were
of
ten minute
duration
and one was for seven minutes.
The investigator,
a trained
smoke observer,
said
that
the emissions
?averaged
#3
Ringelnann
on
one date and
#2 3/4 fkingelmann
on
the
other
two
dates.
Some
of
the
emissions did not exceed
#2 Ringelmann.
There was
no testimony
of
the number of minutes within
the observation period
in which smoke was
greater than
#2
Ringelinann in density, and
the
ohserver1s written
reports were
for
some unknown reason omitted
from the record forwarded
to this Board.
Monsanto employees
testified
that it
is necessary
to periodically
blow
accumulated
soot from
its coal
fired boiler
in order
to recain
efficiency.
Rule 3—3.310
states that during
this
process
it.
is
6
—
305
—2—
rermissiblo
to
emit
smohe
of
a
density
darker
than
#2
of
the
Ringelmann
chart
for
not
more
than
six
minutes
in
any
observed
sixty
minute
period.
The
company
had
been
bfowincj
soot
from
its
bOiler
once
during
each
shift
for
a
ten
minute
neriod.
Recently
the
Company
has
found
that,
by
chancing
the
number
of
blowers
and
repositioning
them
within
the
boiler,
the
time
oerioc)
for
blowing
soot
can
be
reduced
to
5
minutes.
This,
of
course,
does
not
reduce
the
emissions
but
will
aeparently
enable
Monsanto
in
the
future
to
show
that
it
is
abiding
by
the
Rule.
The
Agency
has
eroved
that
the
‘average
density
for
the
ob—
servation
period
was
above
f2
Ringelmann.
No
testimony
was
offered
to
show
how
many
minutes
the
smoke
density
was
above
#2
Rinqeimann
arid
how
many
minutes
it
wan
of
a
lesser
density.
We
are
unable
to
cone
ude
from
the
eviOence
submitted
to
us
that
Resmondent
emitted
smoke
more
dense
than
#2
Ringelmann
for
a
time
greater
than
the
per-
rsjtt:d
six
minutes
on
the
dates
in
question.
The
observer’s
written
rc
~or
ts
wi
i
cii
haae
~ ~cn
a~
mx Ltec
into
evidenc
hut
were
not
melt
C
in
the
material
sent
90
us
night
suoply
the
missing
information.
For
that
reason
we
will
leave
this
muestion
open
until
the
case
is
again
submitted
to
us
so
that
the
parties
have
an
opportunity
to
locate
the
aissing
exhibits.
There
was
testimony
regarding
the
odor
of
fumes——usually
chlorine
s~-’on
a
number
of
dotes
since
July
1,
1979,
The
EPA
had
alleged
nine
~necific
dates
when
such
omissions
of
odors
had
occurred
and
proved
that
odors
mere
emitted.
on
four
of
the
dates
mentioned
in
the
original
2ouolaint
December
9~
1970,
February
25,
1971,
Seetenber
13,
1971
~nd
fopte.
her
30,
1971.
For
three
other
alleged
violations——August
10,,
~970,
August
2’!,
1970
and
September
11,
1970
the.
oroof
varied
somewhat
mm~ the
allegation.
but
the
defense
attorney
stated
that
he
had
no
chion
to
an
amendment
alloning
that
the
emissions
occurred
on
u~unt
4.
1970,
August
21,
1970
and
September
10,
1970.
The
EPA
evidence
se
~
;o~
da~cs
)nsi
~tee
of
tecti
n onv
trmm
on
EPA
me oesticratoi
:.bat
he
smelled
chlorine
mas
at
various
locations
downwind
from
the
lonsanto
plant.
On
sox
of-
the
dates
there
van
no
‘ohysical
effect
or
enrage
noted,
however,
on
August
4,
1970
the
investigator
said
that
the
chlorine
odor
was
very
strong
and
caused
e~e
irritation
and
a
raw
throat
during
the
ten
minute
observation.
On
that
occasion,
August
4,
1970,
the
witness
was
located
on
Route
3
,
a
oubl:
c
highway
passing
through
the
Monsanto
ar000rty..
rp~ere
as no
staiv~arn
established
zor
ca~orine
emissions
in
lalanoms
nor
is
there
proof
here
of
the
euantitv
of
hcnsanto
s
emissions.
Any
erosecution
must
be
based
upon
the
theory
that
emissions
of
chlorine
ens
were
sufficient
to
cause
a
nuisance.
We
cannot
find
a
nuisance
in
mrocf
that
the
odor
of
cilorine
was
simmiy
observed
on
six
dates.
On
~uut
one
date
alleged
in
the
Amended
Commlaio.t,
Aumust
4,
1970,
was
there
evidence
of
physical
effects
from
the
chioni
no
gas
and
on
that
do t’~ me
are
not
suns
there
~~ias
aroof
of
the
snunce.
in
view
of
our
decision
to
remand
the
case
for
more
evi~enca
vs
Y~Lll
hold
our
decision
regarding
the
possible
violation
of
that
date.
6
—
306
~)eremand
this
case
to
the
:fe~srinc
Cfficer
tc permit defendant
to
rebut
testimony
re~ani:nc
odor
emissions
en
~iovemher
14,
1970,
~~ri1
29,
locI,
anuxrv
9,
l°72,
May
15,
1972,
Se’cte:ther
5,
1972
and
~-emte.mber
2~,
e9’2,
dates
~m—~c~~eie
-~ct
soecficaal\
allecec. in
the
Amended
Com~1aint.
Paferidant
claimed
that
it
was surorised
by
the
-testimony rec-ardir~these dates which came
frcm memoers of
the public
~‘OD
ar)peer3~ ~t
the
~-~ac--~-n
T~...s e
icence ccnsstoc
ot
the
reccroen
onservatiomis
of
the
President
and
the
Personnel
Manamer
of
Sterlinc
Castine Cc.,
a ~aant located near
Monsanto.
These
Sterling
Steel
Cc-.. officials
stated
that
en
some
oi
these dates the
Monsanto
eictssicn tad been so
stronc
that
Sterlina Steel Co. emolovees
had
been
dc-tram
out
of
the
rlant
and
eroduction
had
been
affected.
Sterling
it~~2. ham
ccnimnlainef
to
Monsanto
on
several
occasions
that
the
fumes
were
c-ui-tea tinc
~rocuc~acr.
This
t~sneof testimony,
at
least initially,
indicates
that the
f~rnes
caused
injury
and
•damaoe,
a necessary element of
the erose—
cution case.
We
acree
with Resoondent, however,
that
there should
be
a
mi-eater
oooortanitv to
rebut
this testimony than could he afforded
.~t t-o~
first
nearmnc-
erefore
uris ‘~atter _s reranoeca to the
:~c-mnc~fficcr for an aafitxcnal
~‘ear~n-o
lin~itedto rethttal
evidence
cc the incidents mentioned by the Sterling Steel
Co.
employees.
OP~DR
It
is
ordered
that
this case be rer:anded
to
the
Ilearinc
Officer
for
rebuttal
evidence
regarding
the
claimed violations
of
November 14,
979,
~tcr:12~,
1971,
January
9,
1972,
May
15,
1972,
September
5,
1972,
end
Seotember
21,
1972.
I,Christan
L. Mcffett, Clerk of the LJinois Pollution Control
~o rd
hereby
c?rtifv
the
~
Oc-inion and
Orde~
was adopted this
__________da-.’
cf
Ec-serber,
1972 by a
vote
of ________to
0
c2LL&~~
~e
(fl~h4D
Christen
L. Mcffett, Cle
Illinois
Pollution
Cont
Board
6— 307