ILLINOIS POLLUTION CONTROL BOARD

December 

12, 1972

ENVIRONMENTAL PROTECTION AGENCY

1—300

v.

GEORGE E. HOFFMAN 

SONS, INC.,

a Cor’oration

PRESCOTT E. BLOOM, ASST. ATTORNEY GENERAL, APPEARED ON BEHALF

OF

ENVIRONNENTAL PROTECTION AGENCY

MICHAEL 

0. GARD, OF SWAIN, JOHNSON &

GARD, APPEARED ON BEHALF

OF RESPONDENT

OPINION AND ORDER OF

THE

BOARD (BY SAMUEL T. LAWTON, JR.)

Complaint was filed by the Environmental

Protection

Agency

against George E. Hoffman, Inc., a corporation,

Respondent,

alleging

that 

Respondent owns

and operates a Heatherington and Berner mobile-

tyoe asphalt plant, Model No. 

1770, and that on or about July 1,

1970, Respondent constructed, installed and operated the mobile

asphalt plant near Little America, Fulton County, Illinois, and

that on or about May 13, 1971, Respondent constructed, installed

and operated the same mobile asphalt plant near Princeville, Illi-

nois, both installations having been made without obtaining permits

from the Agency, in violation of Section 9(b) of the Act. The com-

plaint further alleges that since July 1, 1970, Respondent has

operated the asphalt plant in violation of process weight limitations

as provided by Rule 3-3.111 of the Rules and Regulations Governing

the Control of Air Pollution and that on August 6, 1971, Respondent

constructed, installed and operated a Washer-Tubulaire scrubber, which

equipment is designed to prevent air pollution, without obtaining a

permit in violation of Section 9(b) of the Act and Rule 3—2.110 of

the Rules. Lastly, the complaint alleges that since operations began

at the Princeville location on or about May 31, 1971, Respondent

has operated the asphalt plant so as to cause, threaten or allow the

discharge of contaminants so as to cause air pollution, in violatio±~

of Section 9(a) of the Act.

Hearing was held on the complaint in Peoria on September 26,

1972. There is no dispute that Respondenti.nstalled its mobile

asphalt plant at the Little America and Princeville

locations

with-

out a permit as

required by Section 9(b) of the Act, nor is there

any dispute that the scrubber was installed

without a permit in

violation of Section 9(b) of the Act and Rule 3-2.110. The operation

and installation without a permit is admitted by counsel for Respondent

(R.5, 6 and 7) and conceded by Respondent’s Executive Vice-President

(R.l14, 116) and its comptroller (R.l57). Respondent endeavors to

6 —417

.~e relieved of liability for violation of these sections on the

basis of conversations had with representatives of the old Air

Pollution Control Board before passage of the Act and with

Agency personnel after its passage. It is not clear from the

record precisely what these conversations consisted of, or why

they would constitute a defense to any of the violations charged.

In several conversations with Air Pollution Control Board personnel,

information was sought with respect to scrubbers and permit proce-

dure (R. 108—114). In another conversation with Agency personnel,

the matter of forms for permits was discussed (R.l40-41). In another

conversation with Agency personnel, the possibility of seeking a

variance to enable operation at the Princeville site without con-

trol equipment was considered (R. 86, 143) 

With respect to the

latter conversation, it appears to be Respondent’s suggestion

that Agency personnel implied that the variance would be favorably

considered (R.l43-l44). The variance discussed related only to the

possibility of operating without control equipment and in no way

would serve as a defense for operations at either of the locations

without a permit. Furthermore, the records of the Board disclose

that a variance was sought by Respondent in case George E. Hoffman,

Inc. v. Environmental Protection Agency, #71-204, with respect to

operation at Princeville without installation of control equipment.

This variance petition was withdrawn on motion of Respondent, by

our Order of September 2, 1971. In the present proceeding, Respon-

dent admits that the installation of the abatement equipment when

made was done without a permit and no variance was granted for any

period of operation without one.

We find that Respondent, by its operations at Little America

and Princeville without a permit, violated Section 9(b) of the Act.

We find that Respondent’s installation of the Washer-Tubulaire

scrubber without a permit, being equipment designed to prevent air

pollution, violated Section 9(b) and Rule 3-2.110 of the Rules.

Respondent’s contentions by way of defense to these violations

are singularly unpersuasive. The record does not disclose any decep-

tion or misleading by personnel of the old Air Pollution Control

Board or the Environmental Protection Agency that could in any way,

estop the Agency from pursuing its complaint, or which would consti-

tute a defense to the violations asserted. Respondent was advised

of the relevant regulations and statutory provisions concerning the

granting of variances and the processing of permits. Respondent

chose to pursue the variance route as to the Princeville operation

and then withdrew the petition, once filed. Discussion with Agency

representatives can in no way be equated to the granting of a variance

nor serve as a defense for failing to fulfill the legal requirements

of the statute and the regulations.

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6

—

41~

The record contains no evidence upon which we could find

Respondents to have violated Section 9(a) of the Act with respect

to causing, or tending to cause air pollution, nor does it appear

that the Agency made any effort to prove this allegation. What

little evidence is in the record discloses that the Princeville

area is sparsely settled and there is no evidence of nuisance or

impact on the community from the emissions caused by Respondent’s

operation.

The only issue in dispute is whether Respondent has violated

the particulate emission regulations of Rule 3-3.111. Proof of

violation was made by Agency witnesses based upon standard emission

factors contained in Public Health Service Publication No. 999-AP42

(R.3l-34). In determining particulate emissions from Respondent’s

operation, two different process weight rate figures are used in com-

putation. A figure of 480 tons per hour was used in the first in-

stance, based upon a statement made by Respondent’s plant superin—

tendant to an Agency witness that this figure represented the process

weight rate of the asphalt plant (R.15) 

Later permit applications

filed by Respondent with the Agency for the Princeville operation,

specified the process weight rate of the plant to be 

360

tons per

hour. (EPA Ex. 2(e)). With a process weight rate of 480 tons per

hour, 384 pounds per hour of particulates would be emitted against

an allowable maximum hourly emission contained in the Regulations

of 68.4 pounds per hour. With a process weight of 360 tons per

hour, emissions would be 288 pounds per hour against an allowable

emission of 64.5 pounds per hour. Both compilations presuppose

the absence of a scrubber (R.48-49, EPA Ex. 2(e)). It is manifest

that with either process weight rate, that which the superintendent

indicated to be appropriate or that which was used by Respondent in

the permit application

form, substantial

violations

of the particulate

regulations are demonstrated.

Respondent endeavors to counter this finding by contending

that the plant only operated at 60 of its maximum capacity 

(R. 163—

168). It is not clear what Respondent is endeavoring to show by this

testimony, whether the plant only operated 60 of a normal working day

or whether the plant operated at only 60 of its rating. In either

event, the evidence is inadequate to refute the conclusions reached

on the basis of the use of standard emission factors. To the extent

that the evidence would have any probative value, it was refuted by

the testimony of Environmental Protection Agency witness Otto Klein

(R.2l4) who stated that when the plant was in operation,

was

operating at a rate of 360 tons per hour.

Respondent appears to misunderstand the interrelation of the

process weight rate and the use of standard emission factors when a

stack test is not utilized. Allowable emissions are not computed

on the basis of totality of emissions over a given period of time

—3—

6—419

on a subjective basis, but what the rate of emissions are at the

time the facility is actually in use. If, when operating the

asphalt plant is in fact, operating at a rate of 360 tons per hour,

the

duration of this operation is irrelevant. Process emissions are

premised on the rate during the period of operation and compliance

or violation is based on this computation and not on the total length

of time the operation has taken place or the total weight of particu-

lates that have, in fact, been emitted, absent a stack test. Any

other rule would enable an emitter to cease operation every 59 minutes

and contend that he never violated an hourly rate.

In the first case to come before the Board, we held that the

use of standard emission factors was a proper method for determining

violation or compliance with process weight limitations. Environ-

mental Protection Agency v. Lind.gren Foundry Co., #70-1, 1 PCB 11,

(September 25, 1970). In so holding, we stated:

“...it is standard practice to prove a violation

by the use of emission factors recognized by experts

on the basis of experience with similar equipment.

require an expensive stack test in the absence of any

testimony suggesting that the standard emission factors

are inaccurate

or that the equipment in question is 

unique

would be to impose an unreasonable 

burden on the

enforce-

ment process. The respondent is free to introduce stack

test results to rebut the evidence of estimated emissions.

But in the absence of any rebuttal, the Agency has proved

its case...”

In Environmental Protection Agency v. Norfolk & Western Railway,

#70-41, 1 PCB

(May 26, 1971), we held that when a violation was

based upon the use

of standard emission factors, the Respondent could

rebut this finding by introduction

of evidence showing that the cir-

cumstances relating to Respondent’s operation, were different from

those which were assumed to maintain under the conditions when the

standard emission factors were used. In the Norfolk and Western

case, Respondent successfully demonstrated that the standard emission

factors did not give an adequate picture of the particular operation

because of demonstrated differences in fuel and actual test results

performed on equipment similar to that involved in the case. No

comparable showing has been made by Respondent in the present case

nor has any showing been made at all to rebut the conclusion of vio—

lation based on the use of emission factors. Respondent’s unsupported

speculation that it was operating at 60 of maximum capacity is in-

sufficient to rebut the finding of violation by the use of standard

emission factors. We do not by this holding say that there could neve

be any circumstances when definitive proof of a derated operation

might not serve to counter a violation based on the use of standard

emission factors, although allowable emissions generally decrease

—4—

—

420

with a decrease in actual process weight rate What we do say is

that Respondent in the present case has failed to meet its burden

in this respect. Cf. Environmental Protection Agency v. Central

Illinois Light Co., #72—83, 5 PCB   

(November 8, 1972).

We find that Respondent has violated Section 9(b) of the

Act by failing to obtain permits for its operations at the Little

America and Princeville

locations as alleged in the complaint and has

violated Section 9(b) of 

the Act and Rule 3-2.110 of the Rules and

Regulations Governing the Control of Air Pollution by installing and

operating a Washer-Tubulaire scrubber without a permit as alleged in

the complaint. We find that Respondent’s operations at the two loca-

tions involved prior to the installation of the scrubber constitute

a violation of the process weight limitations of Rule 3-2.111 of the

Rules aforesaid.

We find the Agency has failed to sustain proof of violation

by Resnondent of Section 9 (a) of the Act by causing, or tending to

cause, air pollution, and hold Respondent not liable for violation

of this section.

We impose a penalty against Respondent in the amount of $4,000

for violation of the provisions of the statute and rules above set

forth. While express proof of air pollution as defined in the statute

is lacking in the present case, there is no question that an asphalt

plant is one with a high degree of potential in this respect, and it is

inexcusable that Respondent should have operated during the years

involved without obtaining permits from the Agency. It is only by

the permit process that the proper location and operation of a plant of

this character can be determined and adequate equipment be installed

to achieve compliance with the law. Cf. Environmental Protection

Agency v. Southern Illinois Asphalt Company, #7l~3l, 1 PCB 665

(June 9, 1971).

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 cease and desist the operation of its

mobile—type asphalt plant and all equipment installed

in conjunction therewith, without obtaining proper

permits for such operations from the Environmental

Protection Agency.

2. Penalty in the amount of $4,000 is. assessed against

Respondent for violation of Section 9(b) of the

Environmental Protection Act and Rule 3-2,110 of

the Rules and Regulations Governing the Control of

Air Pollution, both with respect to failure to obtain

permits as charged in the complaint and for violation

—

421

o~R-.le 3-3.111 of 

the

Rules anC Regulations Governing

the Control of Air Pollution for causing particulate

~ssions  

in violation of

the process weight limitations

ccnoa:nei in said Rule, as charged in the complaint.

Penalty shall be naid by certified check or money order

no t~e State of Illinois by January 16, 1973, and

sent to: Fiscal Services Division, Environmental Pro-

neccion Agency, 2200 Churchill Drive, Springfield,

:~±nois62706.

Chr:snan ~cffenn, Cleth of the Illinois Pollution Control Board,

the acove Oninion and Order was adopted on the

1

ecen~ber, ~72,

b~a vote of

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6—

422