ILLINOIS POLLUTION CONTROL BOARD

February

3,

1972

U.

S.

 INDUSTRIAL CHEMICALS COMPANY

#71—44

V.

ENVIRONMENTAL PROTECTION AGENCY

SUPPLEMENTAL OPINION AND ORDER OF THE BOARD

 (BY MR.

 LAWTON):

On October 14, 1971,

 the following order was entered pursuant

to petition for variance filed by

U.

S.

 Industrial Chemicals Company:

“IT IS

 THE ORDER of the Pollution Control Board that petitioner

be granted a variance

 to exceed the particulate emission limitations

set forth in the Rules and Regulations Governing the Control of Air

Pollution,

 subject to the terms,

 conditions and time schedules

hereinafter

 set forth:

1.

 Variance

 is granted to petitioner to operate its

 four

uncontrolled coal—fired boilers

in

 a manner causing

emission of particulates

 in excess of the regulation

limits pending the installation of five electrostatic

~recipitators, the first of which has already been

installed.

Two

 additional precipitators shall be in-

stalled and in operation by

May

30,

 1972.

 Emissions

from all boilers on which precipitators have or will

be installed shall meet particulate emission limits

as

set forth

 in the regulations.

 This variance shall extend

to October 13, 1972,

 prior to which

 date petitioner shall

have initiated installation of the two remaining electro-

static precipitators on Boilers

 4~’4 and

 #5 for operation by

May

30,

 1973,

 and shall petition this Board 90 days

in

advance of expiration for an extension of this variance

demonstrating

that

 has diligently pursued the

 time

schedule

for

total

installation

set

forth

its

variance

petition.

2.

 Variance

 is granted

 to March

30,

 1972 to operate the

sulphuric acid plant in

 a manner causing particulate

emissions

 in excess

 of those allowed in the Rules and

Regulations Governing the Control of Air Pollution

pending operation of the direct hydration alcohol plant.

On March

30,

 1972,

the

sulphuric acid plant shall be

shut down.

 No virgin acid shall be manufactured for sale

at. any time when

emissions

 from the sulphuric~acidplant

—

557

exceed maximum emission limits presently in force and

effect in the Rules and Regulations

 Governing the Control

of Air Pollution.

3.

if.

S.

 Industrial Chemicals Company,

 through an independent

recognized consultant,

 shall establish, operate and

maintain continuous monitoring stations for SO2 for the

period from April

1,

1972

 to September 1,

 1972,

 in the

area where crop damage has occurred in the past.

 Within

30 days after September 1,

 1972, the company shall file

with the Board and Agency

 a program for the alleviation

of excess SO2 levels sufficient to cause plant damage.

The Board shall issue a further order as required.

4.

 The Company shall, within thirty—five days after receipt

of this Order, post with the Agency

 a bond or other security

in the amount of $500,000.00,

 in a form satisfactory to

the Agency, which sum shall be forfeited to the State of

Illinois in the event that the conditions of this order

are not complied with

 or the facilities in question are

operated after, expiration of these variances in violation

of regulation limits.”

On December

27,

 1971,

 pursuant to motion of petitioner for Stay

of Order pending review of the October 14,

 1971 order,

 asserting

that petitioner and the Environmental Protection Agency had been

unable to agree on the form of bond,

 we entered the following

Order:

“We stay our Order of October 14,

1971

as

 to the’bond,

to

January

17,

1972,

and

direct

the

petitioner

and

the

Agency,

respec-

tively,

 prior to said date,

 to submit to the Board the form of bond

proposed

each

party.

After

receipt

the

proposed

bond

forms,

we shall issue

 a further Order directing the form of bond to be

posted, and such

 further order as

 to stay as shall be appropriate

in the circumstances.

 In all other respects, the motion for stay

of our October 14,

 1971 order is

 denied so that petitioner may

proceed with its program of compliance

 as contemplated by our

order.”

On January

10,

 1972,

 petitioner moved for amendment of the original

variance order.

 On January 25,

 1972,

 the Board,

 in response to that

motion, entered the following Order:

“1,

 That petitioner’s motion for amendment of paragraph

1

of the Order entered on October

14,

 1971 be granted by

the

addition

the

words

“or

the

two

boilers

which

these precipitators are to be installed shall not be

 operated after May

 30, 1972 so that emissions from these

two boilers exceed maximum emission limits presently in

—

568

force

and

effect

the

Rules

and

Regulations

Governing

The

Control

Air

Pollution”,

following

the

words

“two

additional

precipitators

shall

installed

and

operation

May

30,

1972”

presently

said

order.

all other respects,

 the motion is

 denied.

2.

 Variation heretofore granted

 as amended shall not be

effective until bond in the amount of $500,000.00 has

been approved by. the Board.

 Petitioner is directed to

comply with the Board’s Order of December 27,

 1971 in

this

 respect.”

Petitioner has neither complied with the order of December 27,

1971

nor with the order

 o.f January 25, 1972.

 The Agency has responded

with its proposed form of bond.

 In view of the company’s failure to

comply with our order, this Board must assume that,

 as the Agency

states,

 the major point of contention between the Agency and the

 company is over whether a surety should be required as part of the

bond.

 (See letter dated November 30,

 1971 to James

F.

 Lemna, Attorney

for U.

S.

 Industrial Chemicals

 Company from Fred Prillaman of the

Agency, said letter attached to the Agency’s proposed bond form).

We find no reason why a surety should not be provided.

 Such has been

the procedure followed in many cases.

IT IS HEREBY ORDERED that variance

 as heretofore

granted

the

Board’s order of October 14,

 1971,

 as amended on January

 25, 1972,

shall not be effective until bond in the amount of $500,000.00 has

been posted with the Agency

 according to the form attached hereto.

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

 certify

that the Supplemental Opinion and Order of the Board was adopted

on the

 day of February,

 1972, by a vote of

C~L~

—

569

ILLINOIS POLLUTION CONTROL BOARD

INDUSTRIAL

CHEMICALS

COMPANY,)

Division

National

Distillers

and

 Cheirtical

Corporation,

PCB

71—44

ENVIRONMENTAL

PROTECTION

AGENCY

PERFORMANCE

BOND

KNOW

ALL

 MEN BY THESE

PRESENTS

THAT

WE,

Industrial

Chemicals

Company

 (the

“Company”),

and

________________________________________

(the

 “Surety”),

 are hereby held~andfirmly bound to the Environmental

Protection Agency of the State of Illinois

 (the

 “Agency”)

 in the sum

of $500,000.00,

 for the payment of which we bind ourselves

 and. our

successors

 and assigns.

The condition of this obligation is such that:

WHEREAS,

 an Order and ,accompanying Opinion has heretofore been entered

in the above-entitled case

 (the

 “Order”)

 by the Illinois Pollution Con-

trol Board (the “Board”)

 granting the Company a variance to emit parti-

culate matter,

 gases and other contaminants from sources described in

the Order beyond the

 limitations prescribed in applicable rules and regu-

lations and beyond the proscriptions of Section

 9(a)

 of the Environmental

Protection Act pending installation of certain control devices and faci-

lities, which Order is by reference incorporated therein;

and

WHEREAS, said Order was

 conditioned, among other things,

 upon the

posting with the Agency by the Company of

 a bond in the amount of

$500,000.00, which amount shall be forfeited to the State of Illinois in

the event that the Company shall

 fail to comply with any of the conditions

of the Order or any of the conditions of this bond.

NOW, if the Company,

 its successors and assigns,

 shall:

1.

 Cease operation of the sulphuric acid plant by March

30,

 1972;

AND

Install

and

have

operation

May

30,

1972,

two

additional

electrostatic

precipitators

its

coal—fired

boilers;

operate

said

two

boilers

after

May

30,

1972

that

emissions

from said two boilers

 shall not exceed the allowable limits

of the Rules

 and Regulations Governing the Control

 of Air

Pollution.

3—

570

2.

 Comply with all further conditions of the Order within the

dates specified in the Order;

and

3.

 Show this obligation

as

 a liability in all of its corporate

financial statements prepared for shareholders and in all of its cor-

porate reports to regulatory agencies published hereafter;

 then this

obligation shall be. void;

 otherwise it shall remain in full force and

effect.

PROVIDED THAT failure of the Company to comply with any term of

this bond shall not result in any forfeiture if occasioned by Act of God

or the public enemy, accidental fire or explosion,

 flood, war, riot,

sabotage,

 accident,

 government priority or other action by any state

or federal governmental authority or local governmental agency other than

relating to pollution control, strike,

 slowdown,

 lockout,

 or work stoppage

or labor trouble of any kind whatsoever,

 failure of supply of materials,

parts,

 or equipment,

 or failure, delay,

 or refusal of any designer,

fabricator, or supplier to design,

 fabricate, deliver or install

as

agreed any equipment specified herein, provided such failure,

 delay,

or refusal

 is not due in whole or in part to fault of the company, or

if occasioned by any other circumstance,

 whether of like character

or different character from those enumerated above, which circumstance

is beyond the reasonable control of the Company.

The Board shall be the determiner of any disputed

 facts arising here-

under,

 including but not limited to any issue of forfeiture which may

arise.

 Should the Agency decide that grounds exist for a forfeiture

of this obligation,

 the Agency shall notify the Company and

 the Surety by

 Certified Mail

 to the

 addresses listed below, whereupon the Company

shall, within seven days after receipt of said notice, pay to the

State of Illinois through the Agency, the amount of $500,000.00; provided,

however,

 that if the Company disputes any alleged forfeiture hereunder

by

 filing, within seven days after receipt of said notice,

 a Petition

for relief with the Board,

 any amounts

 to be paid hereunder shall not be

due and payable until resolution of all issues of forfeiture by the

Board;

 and provided further that no such

 legal proceeding may be brought

by the Agency unless initiated within six months from the time of dis-

covery of the

 grounds giving rise to such claimed forfeiture.

 Provisions

of the Environmental Protection Act and Procedural Regulations of the

Board regarding the conduct of proceedings before it shall govern the

conduct of the disputed

 forfeiture hearing.

 Any determination by the

Board pursuant to this instrument

 is subject to the right of review

thereof

 as provided by law.

Notice to the Agency shall be

to:

3—

571