ILLINOIS POLLUTION CONTROL BOARD

October

3,

1972

SOUTH SIDE FOUNDRY COMPANY

)

#72—105

v.

ENVIRONMENTAL PROTECTION AGENCY

ENVIRONMENTAL PROTECTION AGENCY

#72-187

v.

SOUTH SIDE FOUNDRY COMPANY

)

MR. PRESCOTT E.

 BLOOM, SPECIAL ASSISTANT ATTORNEY

GENERAL,

ON

BEHALF OF ENVIRONMENTAL PROTECTION AGENCY

MR. RICHARD J.

 TROY,

 ON BEHALF OF SOUTH SIDE FOUNDRY

OPINION AND ORDER OF THE BOARD

 (BY MR.

LAWTON):

On March

21,

 1972,

 in Case #72—105, petition was filed by

South Side Foundry Company

 (referred

 to throughout this Opinion

as

 “petitioner”)

 to permit operation of its Peoria foundry in ex-

cess of permissible particulate limits as provided by Regulation.

The Agency recommended that the variance be denied,

 or if granted,

that it be subject to the installation of spark arresters,

the

submission of

 a firm compliance program within thirty days of the

Board’s decision and the posting of a performance bond.

 Waiver

of the 90—day statutory provision for the rendition of a variance

order has been received.

On May 1,

 1972,

 in Case #72-187, complaint was filed by the

Environmental Protection Agency against South Side Foundry Company

alleging that on or about July

 21 and July 22, 1971 and between

January 13, 1972 and the date of filing of the complaint, Peti-

tioner caused,

 threatened or allowed the discharge of particulate

matter, gaseous emissions and other contaminants,

 in violation

of Section 9(a)

 of the Act and Rule 2-2.54 of the Rules and Regu-

lations Governing the Control of Air Pollution

 (Air Rules), and

violated Rules

 2-2.3 and 2-2.4,

 in failing to file a Letter of

Intent and Air Contaminant Emission Reduction Program.

 Penalties

in the maximum statutory amount are sought.

5

—

563

On motion of the Agency,

 the two proceedings were consolidated

by order of the Hearing Officer.

 Hearing was held on August 28,

1972.

Petitioner operates a gray iron metal casting plant in Peoria

employing 25 people.

 Melting is done in a four-ton per hour,

36” diameter cupola, averaging approximately seven tons per day.

According to the variance petition, South Side Foundry melts

1,680 tons of metal per year,

 uses 8,400 tons of sand annually

in its molding operation and emits 146 pounds per day of parti-

culates, (82 pounds per day of aerosols

 defined by petitioner as

containing particulates under

 50 microns,

 and 64 pounds per day

of suspendable material~.In addition,

 1,930 pounds of carbon

monoxide are emitted daily.

 All of the foregoing emissions result

from a seven ton per day liquid iron production purportedly accom-

plished during a two-hour per day maximum melting period.

Petitioner has no proposed specific emission control program

to bring itself into compliance with the relevant statutory and

regulatory provisions.

 It indicates that it is giving consideration

to four alternative abatement processes:

 a wet cap attachment

with baghouse for collecting particulates with afterburners to

reduce CO emissions,

 a Venturi—type collector and afterburner,

electric induction-type melters or high efficiency—type gas or

oil reverbatory melters.

Petitioner alleges that 15 months will be needed for studies,

development of casting criteria, choice of method to be pursued,

ordering of equipment and installation.

 Neither in its petition

nor in the course of the hearing has petitioner indicated which

method,

 if any,

 it anticipates adopting,

 or what progress has been

made in developing

 a program

 of compliance, notwithstanding a period

of five months having elapsed between the filing of the variance

petition and the hearing.

 The hearing brought out that the foundry

was a family—owned business which enjoyed

 a successful operation

for many years prior to 1960,

 at which time the foundry became

the victim of severe mismanagement, which it appears to have re-

 mained subject to until September of 1971, when management and owner-

ship changes took place,

 and petitioner again resumed operation on

a profitable basis.

Mary L. McCarthy testified as a witness for petitioner

 (R.8),

She has been president of South Side Foundry Company since July of

1971.

 The business had previously been operated by her father and

upon his death in 1954,

 by her three brothers.

 Ownership of the

business has been entirely within the McCarthy family and included

Mary L. McCarthy as a part owner prior

 to her designation as cor-

poration president.

 Since taking office,

 Miss Mccarthy has sought

the aid of various professionals in endeavoring to remedy the un-

satisfactory operation of the plant, but no definitive program of

pollution control has been embarked upon or as yet proposed.

 This

—2—

5—

664

witness testified to the mismanagement of the company by her

brothers,

 including the payment of exorbitant salaries and un-

authorized diversion of funds.

 Since Miss McCarthy’s assumption

of the corporate presidency,

 this situation has ceased, the

company

 is presently solvent and in good standing with the Illi-

nois Secretary of State.

Walter E. Walz testified on behalf of South Side Foundry

Company

 (R.27), describing the condition of the foundry as of

May,

 1972 as having reached

 “the point of no return”

 (R.30).

He described the virtual absence of maintenance and housekeeping

procedures and the general sioppy way in which the foundry had

been operated.

 In recent months,

 some improvement has re-

sulted from gas torch firing of the cupola in lieu of the

previous use of wood firing

 (R..35).

 This witness discussed several

of the emission control alternatives proposed in the variance peti-

tion.

 The wet cap attachment to the baghouse

 (R.46,

 Pet.

Ex.

 2), a

Brown Bovari Coreless-type Melting Furnace

 (R.52,

 Pet. Ex.

3)

and

a smaller coreless type electric furnace

 (R.55, Pet. Ex.

 4) were

described in terms of operation and installation.

 According to

Waiz,

 all proposals would require at least one year for order,

delivery and installation

 (R.59).

James

F.

 Powell, metallurgist consultant employed by petition-

er, testified on its behalf.

 He stated that no spark arrester had

been installed in the stack and that sparks were emitted on occa-

sion from the cupola operation.

The foregoing was the extent of petitioner’s case in support

of its variance petition.

 No representation was made that any

specific abatement program would be pursued or what time schedule

of installation petitioner anticipated it would follow in order to

 bring its operation into compliance.

Witnesses for the Environmental Protection Agency,

 in support

of the enforcement action and in opposition to the variance allow-

ance, included John W.

 Tomic

 (R.61) who testified that he was the

operator of a gas station approximately 125 feet from petitioner’s

foundry

 (R.65),

 that he had observed sparks and smoke emanating

from the foundry stack between July of

 1970 and July of 1971

 (R.64)

and that he refrained from filling automobile gas tanks with gaso-

line during periods when sparks were observed for fear that an explo-

sion might result

 (R.66),

 During

 .a period of several months prior

to the hearing, this witness observed similar emissions approximate—

ly four times per month when particulates dropped on the customer’s

cars

 (R.67)

 Some improvement was noted shortly prior to the hear-

ing.

—3—

—

565

Douglas Winters testified on behalf of the Agency

(R.

 93).

He operated a tavern in the vicinity of the foundry, which burned

down on October 27,

 1971, possibly as a result of sparks emitted

from petitioner’s operation.

Exhibits introduced by the Agency included pictures of peti-

tioner’s stack and alleged emissions from it, ~thich~e~renot

particularly helpful.

 Agency Exhibit

 7 contains a report of

inspection of petitioner’s foundry made on April

3,

 1972 by

R.

 C. Wennmacher, an agency employee.

 On the basis of standard

emission factors, computed on a seven—ton per day melt,

 emissions

were computed at 14.8 pounds per hour against an allowable emis-

sion maximum of 3.54 pounds per hour.

 This exhibit was received

without objection and no effort was made to refute it

 (R.104).

Petitioner’s

 principal defense to the enforcement action was

the incompetent operation existing prior to Mary McCarthy’s selec-

tion as corporate president, which she now appears endeavoring to

improve.

 However,

 it will be noted that notwithstanding Miss Mc-

Carthy’s assumption of control in 1971,

 and her laudable desire

to improve

 a bad situation,

 nothing has been done to date by way

of a definitive program to bring petitioner’s operation into

compliance, nor has anything by way of defense or extenuating

circumstances been submitted.

 While the evidence of nuisance and

particulate violations is somewhat meager, petitioner concedes

that it has failed to file an approved Air Contaminant Emission

Reduction Program and has operated for many years without emission

control equipment of any kind

 (R.22,

 106).

 Likewise, a nuisance

on the community has been demonstrated resulting from spark and

particulate emissions affecting the comfort and safety of persons

 and property in the vicinity of the foundry.

The Agency’s contention that sparks from petitioner’s operation

may have caused the fire destroying

 a nearby tavern is not complete-

ly convincing on the state of the record.

 However, there is no

question that sparks from the foundry have been emitted over a

long period of time and the company does agree to obtain a spark

arrester which we will order installed within two weeks of the

date0f this order.

 Violation of particulate regulations is not

denied although evidence of specific numerical measurements mani-

festing violation

 is found only with respect to the April

3,

1972

inspection.

While we are not unmindful of the efforts being made by Miss

McCarthy in recent months to correct a bad situation, and are hope-

ful that her present efforts will be rewarding,

the

record does not

furnish us with any defense or adequate extenuating circumstances

with respect to the enforcement action.

—4—

—

566

The

Respondent

the

enforcement

action

corporation

which

has

been

 in existence throughout the entire period of the

alleged offenses.

 There has been a continuity of family ownership

and control.

 An assessment of penalty against the corporation

would enable it to take such steps against its former officers

and others as would be appropriate to receive reimbursement from

those who have been guilty of the flagrant disregard of pollution

control regulations.

 While Miss McCarthy has been a corporate

officer for a relatively short time,

 she has been a stockholder

for many years and the family has been in ownership throughout the

entire period of violation.

The factual situation in the present case is~not like that in

Environmental Protection Agency v. Lindgren Foundry Co.,

 #70-1,

1 PCB 11, September 25,

 1970, where we declined to impose penal-

ties because the corporation, at the time of trial, was owned by

an entirely different entity than those who were responsible for

the violations proven.

 Here,

 there has been continuity of owner-

ship over the entire period of violation.

With respect to petitioner’s petition for variance,

 the record

is completely devoid of any substantive testimony or evi4ence

enabling us to justify a grant of such relief.

 Petitioner has

present~dno specific program nor plan of installation upon which

even /alimited departure from the Regulations could be~premised.

In Øücago-Dubuque Foundry Corporation v. Enviranme~ntalProtection

Agency,

 #71—130,

 2 PCB 65,June

28,

 1971; we denied a variance petition

because of the absence of a definitive compliance program.

We

must do the same in the present case.

On the state of the record, we assess a penalty in the amount

of $3,000.00 for failure to submit a Letter of Intent and an Air

Contaminant Emission Reduction Program

 (Rules 2—2.3 and 2-2.4)

and

for violation of particulate regulations

 (Rule 2-2.54)

 as well

as the causing of air pollution in violation of Section 9(a)

of

the Environmental Protection Act.

 In arriving at this penalty figure,

we have given consideration primarily to the company’s long and un-

justified delay in taking action of any nature to abate its pollution-

al discharge and its failure to have

 a program of compliance, at this

late date.

The

original petition for variance was filed in March

of 1972, over six months ago, yet nothing appears in the record to

indicate that petitioner

 is any further along with an emission abate-

ment program than it was when the original petition for variance

was filed.

We direct the company to submit a program of compliance within

30 days of the date of this

 Order, expressly setting forth a method

of abatement control which the company will pursue and the dates

5

—

567

on which installation will be completed.

 We will require that a

bond in the amount of $10,000.00 be filed’with the Environmental

Protection Agency assuring that this program will be submitted.

 We order the installation of a spark arrester within two weeks of the

date of

 this Order.

 We shall retain jurisdiction of this case for

such other and further orders as may be appropriate in the pre-

mises.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

IT

IS

THE

ORDER of the Pollution Control Board:

1.

 The petition for variance of South Side Foundry Company

is denied.

2.

 Penalty in the amount of $3,000.00

 is assessed against

South Side Foundry Company for violations of Rules 2-2.3,

2-2.4 and 2-2.54 of the Rules and Regulations Governing

the Control of Air Pollution, because of South Side

Foundry Company’s failure to file a Letter of Intention

and Air Contaminant Emission Reduction Program, and ex-

ceeding particulate regulations, all as provided in said

Regulations and for the causing of air pollution in viola-

tion of Section 9(a)

 of the Environmental Protection Act.

Penalty payment by certified check or money order shall

be made payable to the State of Illinois, Fiscal Services

Division,

 Illinois Environmental Protection Agency,

2200 Churchill Drive, Springfield,

 Illinois 62706.

3.

 South Side Foundry Company shall submit to the Board and

the Agency within

 30 days from the date of this Order,

a

specific program for Air Contaminant Emission Control and

abatement of particulate and carbon monoxide emissions

 from its foundry operation, including a specific program

of purchase, acquisition and installation of equipment,

to

bring its foundry operation into compliance with all rele-

vant regulations and statutory provisions relative to the

control of air pollution.

4.

 South Side Foundry Company shall provide a bond in the

amount of $10,000 payable to the Environmental Protection

Agency and mailed to Fiscal Services Division, Illinois

Environmental Protection Agency,

 2200 Churchill Drive,

Springfield,

 Illinois 62706.

 The bond shall be in

form

satisfactory to the Agency and shall guarantee that the

program of compliance required by paragr~ph3

 of this

Order shall be submitted in the time provided and in the

form required.

—6—

5

—

568

The

company

shall

install

spark

arrester

its

stack

preventing

any

emission

sparks

into

the

atmosphere, within two weeks from the date hereof.

6.

 The Board retains jurisdiction for such other and

further orders as are appropriate, based upon the

foregoing provisions of the Order.

I~christan Moffett, Clerk of the Illinois Pollution Control Board,

certify that the above Opinion and Order was a~optedon the

____

day of

~-~~-~L_

 1972, by a vote of

~

to

 C’

~

—7—

—

569