ILLINOIS POLLUTION CONTROL BOARD

August 29, 1972

NEW JERSEY ZINC CO.

v.

)

 71—362

ENVIRONMENTAL PROTECTION AGENCY

)

Mr. Richard W. Austin and Mr. Eugene W.

 Beeler, (Winston & Strawn),

for New Jersey Zinc Co.;

Mr. Prescott B. Bloom

 Special Assistant Attorney General, and Mr.

Timothy Elder,

 Staff assistant to Assistant Attorney General, and

Mr. Delbert Haschemeyer,

 for Environmental Protection Agency.

Opinion and Order of the Board

 (by Mr. Currie):

New Jersey Zinc is

 the owner of

 a plant in DePue, Illinois,

in which sulfuric acid was manufactured and used for the

production of phosphate fertilizers.

 The plant was closed

in

1971

 (see attachment of Elan W. Hale to petition,

p.

7);

the

company petitioned us

 in November 1971 for permission to reopen

it, indicating that the Environmental Protection Agency would

not allow reopening unless further provisions were made

to

control the emission of sulfur dioxide and alleging that

compliance with Agency requirements would impose an arbitrary

and unreasonable hardship.

No numerical standard for sulfur dioxide emissions was in

effect when the petition was filed, although the statutory

prohibition against air pollution applied to sulfur dioxide,

EPA

v.

 City of Springfield,

 #70—9

 (May

26,

 1971)

The

Agency had just proposed, however,

 a new regulation

 that

would limit emissions from new sulfuric acid plants to 6.5

pounds of sulfur dioxide per ton of 100

 acid produced and

from other process

 sources

 (including existing acid plants)

to 1500 ppm

 (see Board Newsletter

 #35,

 Nov.

 10, 1971,

 Proposed

Standards #R 71—23, Rule 204(d) (1)).

 The attached explanation

recited that the standard for new plants could be met by pro-

viding “multistage systems of 99.5

 conversion efficiencies,”

Newsletter #35 at

p.

30.

 The company’s petition indicated

that

it

was

 this proposed new-plant standard that the Agency

attempted

to

 impose

as

 a condition of reopening the DePue

plant•a~df

 ~which

 relief was sought.

 The Agency’s re-

co~m~endati~n

 that the ~ariance be denied confirmed

 this,

stating tha~99.5

 conversion would be required.

The complexion of the New Jersey Zinc case changed con-

siderably as hearings on the varIance petition and the proposed

regulations simultaneously proceeded.

 Among other things,

the

—

263

—2—

Agency revised its proposed sulfur dioxide standard, and the

company decided to seek a variance with regard to sulfuric acid

mist as well.

 Briefs were filed.

 The company amended its

petition to request sulfur dioxide emissions of 1800 ppm or

27 pounds per ton of acid produced; acid mist emissions of

0.5 pounds per ton of acid produced; and permission to exceed

the latter standard for 26 weeks until a new demister could be

installed.

 The Agency argued that a better demister should be

obtained to meet the then proposed acid standard of 0.2 lb/ton

and that,

 on the basis of mathematical prediction utilizing

relevant emission and meteorological data, excessive atmospheric

concentrations of sulfur dioxide would result under adverse

weather conditions if the requested emissions were allowed.

Representatives of both parties attended an open Board

meeting in which all issues were discussed.

 Board members

informally indicated that the DePue plant would probably be

subject to the rules governing existing rather than new plants

and that the 1500 ppm standard should probably be revised to

1800, which would moot the request for variance from the

sulfur dioxide emission standard.

 Concern was expressed that

the entire petition, except as it related to statutory air

pollution,

 might be premature in that no regulations had yet

been adopted,

 cf. Granite City Steel Co.

v.

 EPA,

 #72-34

 (Feb.

7,

1972)

 but that the statutory requirement that the Board decide

within 90 days after filing of the petition might make it im-

possible

 to postpone decision until adoption of the regulations.

Pursuant to discussion among Board members and staff engineer

Richard Wadden, Board members suggested that the petition should

be denied due to prematurity and due to the failure of the

company to convince the Board on the following three contentions:

First, that contemplated emissions in excess of the proposed

limits during startup of the plant were justifiable;

 second,

that installation of a demister that would meet the acid standard

was economically unreasonable; and third, that dangerous at-

mospheric concentrations of sulfur dioxide would be avoided dur-

ing adverse meteorological conditions.

The company thereupon moved that the Board defer final

action pending adoption of the regulations and authorize

another hearing in which evidence could be presented on the

points raised by the Board.

 In light of the prematurity of

the case as it stood, the incomplete state of the record, and

the company’s agreement to waive its right to

 a decision within

90

 days,

 the Board granted the motion for further hearing.

New Jersey Zinc Co.

v.

 EPA,

 #71—362

 (Feb.

17,

 1972).

Since that time the company has reexamined the issues we

raised and has presented

 a thoroughly revised and improved

petition that the Agency recommends we grant.

 The company moves

that we dispense with the requirement of a further hearing,

and the Agency does not object to that course.

 We find that

the revised petition and the Agency’s position

5

—

264

—3—

render the variance request moot and make

 a further hearing

unnecessary.

 We shall recite the relevant facts and con-

siderations at some length both to demonstrate why we be-

lieve the case

 is moot and because what has been achieved

in this case should serve

 as a precedent for what can be

done at similar installations in other cases.

1.

 Normal sulfur dioxide emissions.

 When

 the plant is

in

operation,

 sulfur is burned to form sulfur dioxide in a con-

centration of

 8 or 9,

 which

 is then oxidized to sulfur trioxide

with the aid of

 a catalyst and absorbed

 in sulfuric acid to

create more and stronger acid.

 The plant’s capacity is 50 tons

of new acid per hour,

 or 1200

 tons per day.

 The efficiency of

the

 catalytic converter

 is 98;

 the remaining

2

 of the sulfur

dioxide escapes

 to the air.

 The company expects sulfur

dioxide emissions during normal operation to approximate 1,820

ppm or about 1200 lb/hour or

 26 lb/ton of acid

(R.

 259-60,

271,

 361—78,

 428—34).

The originally proposed standard of 1500 ppm (roughly 23

pounds per ton)

 it will be seen,

 thus would have required a

rather marginal reduction in sulfur dioxide emissions

 from

standard existing plants of 98

 conversion efficiency.

The

technology required to achieve such a reduction,

 the evidence

indicates, would in fact achieve far greater reduction.

New

Jersey Zinc testified that by adding

 a second absorber in

series it would reduce emissions from the contemplated 26

pounds per ton of acid not to the

 23 required by

 the 1500 standard

but to the range of

 10, and that certain scrubbers could achieve

emissions of

7

to

 14 pounds per ton

(B.

 280-84)

 The only

other means of reaching the 1500

 level, according to

 the testimony

here, would be to curtail production by 15,

 which would be

as costly as the installation of the above controls

(B.

 303-04)

Thus the 1500 standard made little sense;

 if existing plants

were to be required to install expensive controls,

 the standard

could without extra cost be made considerably tighter.

The

basic policy question was whether or not such controls ought

to be required.

By proposing the 1500 ppm standard for existing plants

and a much stricter standard

 fox- new,

 the Agency appeared to

be attempting to resolve that policy question in favor of

not requiring expensive backfitting;

 but,

 as the testimony

showed,

 1500 ppm was not the right place to draw the line

to

express that decision.

 Evidence in the rule—making proceeding

established that new plants are being built and operated on

a dual—absorption basis, apparently able to survive economically,

to emit no more than

 4 pounds of sulfur dioxide per ton of

acid produced.

 That is the federal standard for new acid plants,

and that is the standard we adopted for new plants on the

ground that what is being efficiently dOne elsewhere represents

a standard of good practice for all to follow in designing

new facilities to avoid unnecessary degradation of the air.

PCB Regs., Ch.

 2, Rule 204(f) (1) (B).

 To build a second

—

265

—4—

absorption unit into a new design is one thing;

 to backfit a

second unit onto an existing plant is somewhat different.

It

is conceded itcould be done here, with dramatic effect in re-

ducing emissions,

 for something on the order of $1,150,000

(B.

 280—85)

 and that a scrubber could be installed instead,

with similar results, for one to two million dollars

 (id.)

It is, however,

 argued that to do so would

 so increase the

cost of producing acid that the plant would be unable to com-

pete and would not be operated

(H.

 288,

 397).

Thus the suggestion

 was clearly made that,

 while new

plants could meet the strict standard and survive economically,

existing plants could not.

 While we firmly believe that no

pollution program worth

 its hire can afford to overlook existing

pollution sources, and while many of our regulations impose

strict limits requiring backfitting of existing facilities, we

found no proof that

 the particularly burdensome requirement of

backfitting existing 98

 efficiency sulfuric acid plants

for sulfur dioxide control was needed across the board to se-

cure satisfactory air quality.

 The 2000 ppm limit was adopted

because

 “a stricter concentration limit would require plant

derating or addition of auxiliary scrubbing systems and has not

been shown to be uniformly necessary to meet air quality

standards”.

 Rule 204(f) (1) (A);

 see opinion in In the Matter

of Emission Standards,

 #R 71—23,

p.

37

 (April 14, 1972).

The

use of the word “uniformly” was intentional and important; the

door was left open,

 as more fully explained below,

 for requiring

additional controls in individual cases where necessary

in

light of

 facts such as adverse atmospheric conditions,

low

stacks,

 or high concentration of sources

 (id.,

p.

5).

Under Rule 101 a new source is one

 “the construction or

modification of which is commenced on or after the effective

date

 of this Chapter,” which was in April,

 1972.

 The DePue

plant was constructed long before 1972;

 the argument that it

should be treated as

 a new facility derives

 from

 the fact

that

 it had been closed when the regulations were adopted and

is sought to be restored to operation thereafter.

 For certain

purposes we have said there is a close analogy between a new

plant and one that is to reopen after having been shut down.

In EPA

 Lindgren Foundry Co., #70—1

 (Sept.

25,

 1970)

 we held

that on

 the facts there presented it was reasonable to require

a closed foundry to be brought into compliance ~cqithparticulate

emission regulations of long standard before reopening,

 just

as

 a new plant would have to be, although we might decline to

order an operating plant shut down under the same circumstances.

Lindgren thus holds that the interruption of

 a going business

is an important factor in determining

 whether or not to grant

a variance allowing operation while building controls

 to meet

a currently enforceable standard.

 But this

 is not to equate

the reopened plant with the new for all purposes.

 Not only

—

266

—5—

do we deal in the present case with

 a squarely applicable

definition

 in the regulations that draws the line in terms of

old and new construction rather than present operation,

 but the

policy underlying the distinction between old and new plants

for purposes of sulfur dioxide emissions indicates that the

DePue plant is properly considered

 an existing one.

 For this

particular distinction is not a matter of timing for the

installation of given controls; our decision was that there was

no showing of a justification for requiring the expenditure of

the large sums required to backfit old facilities at all,

in

the

 absence of special conditions bringing the statutory

nuisance rule or

 the air-quality standard into play.

 This policy

that old acid plants should not be generally required to backfit

is as applicable to

 a plant that has been closed for a year as

 it is to one that is currently in operation.

 We conclude,

therefore,

 that the DePue plant is an “existing” rather than

a

 “new”

 acid plant and therefore is subject to the 2000 ppm

sulfur-dioxide standard.

 This means, according to the revised

petition,

 that normal emissions will be in compliance

with the standard, and no variance on this account is there-

fore necessary.

2.

 Normal acid mist emissions.

 Some sulfuric acid mist

is also

 emitted from the manufacturing process;

 it has

 been

partially controlled by a demister designed to reduce acid

mist emissions

 to 0.5 pounds per ton produced

(R.

 292-93)

The existing demister has been less than satisfactory:

 A serious

incident in April,

 1969 resulted in damage to neighboring

property because

 of acid emissions

 (See B.

 334; Hale attach-

ment to petition,

5)

 and at best the acid collected fails

to drain away properly, interfering with efficiency

(R.

 293).

Repairs have somewhat improved the situation, but the company

initially pledged

 to buy a new York demister guaranteed

to

restore emission to less than 0.5 pounds per ton

 (B. 293-94)

The standard we adopted after considerable testimony,

 however,

is

 0.15 pounds per ton

 (PCB Begs., Ch.

 2, Rule 204(f) (2)),

on

the

basis

evidence

that

this

reduction

particularly

dangerous

pollutant

could

readily

 achieved in both existing

and

new

plants

the

use

Brinks

demister

(see

Opinion

in

 4tH 71-23,

 supra,

at

p.

 38).

At the variance hearing New Jersey Zinc argued that,

although such

 a demister would do the trick and was available

at a cost

 ($200,000 to $300,000)

 not in our view greatly in

excess of that the company was prepared to spend

 ($70,000

$80,000)

 for the less efficient device

(H.

 295,

 390)

 to in-

stall the Brinks

 would diminish the effective production

capacity of the plant by 10,

 resulting in considerable economic

losses that would make it impossible

 to open the plant

(B.

295

98,

 355-56,

 397).

 The company made ‘quite clear that it was this

feared loss of capacity, not the capital cost,

 low in comparison

—

267

—6—

to that of a second absorber as discussed above,

 that it found

an unreasonable burden

CR.

 409)

The revised petition, submitted after

 Dr. Wadden’s suggestion

that the feared capacity loss might be due to the inadequacy

of other plant equipment

 to provide sufficient pressure,

commits the company to installing

 “a Brinks HE demister,

or

its equivalent, capable of meeting the 0.15 lbs.

 of acid mist

per ton standard,” by no later than the December 31,

1973

deadline of the regulation

 (Rule 204(h) (3)).

 Emissions in

the meantime will be controlled by the existing repaired

demister, and there is no need for a variance from the acid

mist standard because the company will meet it on or before

its date of application.

3.

 Startups.

 Testimony at the hearings brought out that,

although no request for a more lenient variance during start-

up had been made, the plant could not be expected to conform to

its normal sulfur dioxide emissions of less than 2000 ppm or

26 lb/ton while

 starting operation

 after

 a shutdown of

24 hours or more.

(B.

 263).

 It was explained that the efficiency

of the converter

 is dependent upon the temperature of the

catalyst, and that although efforts were made

 to preheat the

catalyst before commencing operation,

 “when you reheat,

If

you have been down too long,

 the catalyst doesn’t reactivate

and start its proper function quite as good or as quickly

CR.

 321).

 During Board discussion, Dr. Wadden suggested that

the record failed to show the company had taken all practicable

steps, beyond preheating of the catalyst, to minimize excessive

emissions during startups.

 He specifically called attention to

the question of heating the acid in the absorber and maintain-

ing its strength so as to achieve maximum reaction in the

shortest time.

The company’s amended petition addresses itself in con-

siderable detail to the startup problem and commits New Jersey

Zinc to a far—reaching program to reduce startup emissions.

As

in the past,

 the company will preheat the sulfur burner and the

cnnverter catalyst before commencing operation,

 will begin burn-

ing sulfur at 25

 of the design rate,

 and will take precautions to

maintain the strength of the acid entering the drying tower.

In addition,

 the company with the aid of its consultant

has developed what it terms a unique program to improve the

operation of the absorber during startup.

 This plan includes

by-passing acid around the acid coolers

 in order to heat the

acid as quickly

 as possible; maintaining a high acid strength in

the absorber; and gradually increasing the operating rate, with

normal operation to be achieved within four hours after sulfur

burning begins,

 as contrasted with an estimate of twelve hours

given by another company in the rule-making proceeding

 (#R 71-23

R.

 1596).

 Sulfur dioxide emissions

 (at a reduced production

rate and therefore a reduced volume of emissions)

 will not

exceed 8,000 ppm during the first hour of operation or 4,000

i~pmduring the next three hours.

 Startup emissions of acid

—

268

—7—

mist,

 it is

 said, will be substantially reduced in comparison

with past startups because of the absorber procedures proposed.

The Agency recommends approval of the startup plans along

with other elements of the company’s program.

Our regulations recognize,

 as we said in the opinion

accompanying their adoption, that “startup conditions may result

in less than optimum emission control.”

 In the Matter of Emission

Standards,

 supra,

 at p.

8.

 Rule 105

 (PCB Regs., Ch.

 2) requires

that normal emission standards be met durthg startup in the

absence of

 a showing that this

 is impracticable;

 the policy of

the Rule,

 the opinion said,

is

 that “insofar as is practicable,

efforts shall be made to reduce the incidence and duration of

startups and excessive emissions during startup periods.”

The

emission standard was set on the basis of what could reasonably

be achieved during normal operation,

 and the Agency in its permit

program may authorize excessive startup emissions shown to be

unavoidable.

 We think,

 in the spirit of Rule 105, that New

Jersey Zinc has demonstrated that it will do

 all that is practicable

to reduce startup emissions.

 Because the Agency has power to

approve the emissions in question and has indicated it will do

so,

 there is no need for a variance for this purpose.

4.

 Neighborhood

 Effects.

 Perhaps the most serious re-

servation voiced by Board members and staff about the original

variance petition had to do with the danger that operation

under the conditions initially proposed might create substantial

harm to persons in the neighborhood.

 Our concern was based in

part upon considerable citizen testimony as to offensive

conditions in the past

CR.

 82 et seq.)

 and in part upon Agency

predictions that renewed operation would cause high ambient

sulfur dioxide concentrations in downwind portions of DePue.

The company conceded that it had had an especially bad

incident in April of

1969

(B.

 176,

 186A,

 334;

 Hale attachment

pp.

 5-6), in which significant property damage was done by ex-

cessive emissions of acid mist.

 Improved surveillance has pre-

vented recurrence

 (id.)

 and even before the new demister

is

installed the situation will not be as it was during that inci-

dent.

 Of greater concern are citizen statements that irritating,

bad-smelling fumes from the acid plant were common during plant

operation

 (e.g.,

H.

 93-94),

 tending to suggest that the plant

during normal operations created nuisance conditions by its

emissions of sulfur dioxide and/or acid mist.

 We did not wish

to grant any variance that would permit such conditions

to

continue,

 even if the numerical standards were met.

New Jersey Zinc testified that,

 although no new control

equipment for sulfur dioxide

 is to be installed,

 suLfur dioxide

emissions in the past had probably been higher than they

—

269

—8—.

should have been because of operating problems

 caused by

utilizing zinc smelter gas as feedstock.

 Not only,

the

company said,

 did smelter gas provide an irregular concentration

of sulfur dioxide at best, but the plant experienced frequent shut-

downs and startups as

 a result

of

operating problems.

 These difficul~

ties,

are

assured,

will

longer

exist

the

plant

reopened,

for smelter gas is not to be used

(H.

 260-66)

Moreover,

some

of the problem in the past may have been due to particulate or

other emissions from the zinc smelter itself, which will not

be reopened

CR.

 30).

We find

 this somewhat reassuring, but only experience

will reveal whether the switch from smelter gas will eliminate

nuisance conditions.

 We do not interpret the petition as

seeking permission to create an active nuisance, and if i~

did we would not he readily disposed to grant it,

especially since equipment to reduce sulfur dioxide emissions

considerably is concededly available.

 The Agency is required

to consider whether or not operation will cause statutory air

pollution before granting any permit.

 See EPA v. Southern

Illinois Asphalt Co.,

 # 71—31

 (June

9,

 1971).

 In the present

case the Agency has voiced its approval of renewed operation.

Since there

 is no request for a variance to allow a nuisance,

and since the Agency has indicated it has no present objec-

tion to allowing the plant to operate, there is no controversy

now before us as to whether operation will violate the air

pollution prohibition and no need to consider granting a

variance from that provision.

 If serious harm results, as

 neither party expects, further proceedings may be instituted.

The Agency, utilizing standard dispersion equations, pre-

dicted emissions, measured wind information from Illinois stations,

and

 an effective stack height determined

 on a standard basis,

calculated that ambient concentrations of sulfur dioxide

attributable to the DePue acid plant would exceed 365 micrograms

per cubic meter

 (ug/m3)

 (0.14 ppm) atthe worst point 58.3

of the time

 (see generally

B.

 452—509, especially 497)

365 ug/rn3 is the federal air-quality standard for a 24-hour

period, which for health reasons

 is not to be exceeded more

than one day per year

(H.

 466)

 The Agency’s calculations

cannot be directly compared with this standard,

 since it is

not clear that the high concentrations predicted,

 despite

their frequency, will persist in any one place long enough

to cause a 24-hour average of

 365 ug/m3.

 But it was this

sort of evidence, including estimates that under certain con-

ditions concentrations could reach as high as

 5893 ug/m

CR.

 499-500) and that the regulation level (1048

 ug/m3 or

0.4 ppm) whose persistence for four hours can give rise

—

270

—9—

to an emergency alert could be expected 4.8

 of the time at one

point

(R.

 507-08), that led Board members to suggest the need

for proof by New Jersey Zinc, which as petitioner carries the

burden of proving that a variance would not unreasonably harm

the public,

 that its operations would not in fact cause

serious violations of health-related air—quality standards.1

New Jersey Zinc respondedby disputing the Agency’s calcu-

lations,2 maintaining that normal operations would seldom cause

violations of air quality standards,

 and agreeing

 to an episode

control plan,

 as suggested by the Agency, designed to assure that

plant operations will be curtailed whenever that is necessary to

prevent dangerous concentrations of sulfur dioxide

 (see State-

ment of Further Evidence and Offer of Proof; First Amendment to

Petition)

 The company agrees to monitor weather conditions

continuously;

 to maintain two

 instrunients

 to monitor ambient

sulfur dioxide concentrations continuously; and to submit sampling

data to the Agency weekly.

 The appropriate location of the

sensors is of course crucial,

 and the company agrees that the Agency

must approve their siting.

 Moreover,

 this program in no way

disables the Agency from doing its own monitoring or from in-

specting

 to be sure the company’s monitors are operating properly.

The Agency has an obligation to do so, because the important

business of ascertaining whether excessive levels are reached

cannot be left entirely to

 the company.

 If either instrument

yields

 a reading of 0.14 ppm

 (the level which if persisting

for

 24 hours would violate the federal health standard),

the

company will prepare for a possible production cutback.

If

the 0.14 level persists as an arithmetic average for four

hours, production must be reduced in accord with

 a stated for-

mula unless the Agency directs otherwise.

The basis for the formula is not spelled out, but by

plugging in illustrative ambient concentrations we can observe

the effects of its implementation.

 There is a term permitting

1.

 The Agency’s ‘~iitnesstestified that his calculations ignored

the possible effects

 of fumigation or downwash and the

fact that winds

 in the river valley at DePue were less

favorable than the Peoria values used in his calculations.

All these factors, he said, meant that actual conditions were

likely to be even worse than he had calculated

(R.

 502—05)

2.

 Although the company acknowledged that the long-term average

SO2 concentration at a nearby Agency monitor had been 0.05

ppm, which exceeds the federal annual primary standard of

0.03,

 it contended that without the sinter plant of the zinc

smelter, which will not be operated,

 levels would “approach”

the federal standard

 (Hale attachment,

 pp. 10—11).

No

mention is made of the secondary standard, which must also

be met.

—

271

—10—

smaller cutbacks to be made to the extent that other sources

are responsible for ambient levels,3 which is quite rea-

sonable so long as those sources are in a position to effect

reductions of their own.

 Assuming that the acid plant is the

only significant source, however, the formula is as follows:

(Ambient air

14)

 Production Cutback from

.30

 full capacity.

If

 the ambient concentrations Is

 .24 ppm,

 the percentage of

cutback will be

 .10/.30,

 or one third;

 if we assume a straight-

line relationship between continuing emissions and ambient

concentrations,

the

.24

concentration

would

reduced

.16

 if weather conditions remained the same.

 Similarly,

if

the

ambient

concentration

.34,

 the cutback is

 .20/.30 or

two thirds, reducing atmospheric s02 on the above assumption

.11.

ambient

.44,

the

cutback

.30/.30,

complete

shutdown.

The

assumed

relationship

between

emissions

and

ambient

levels

doubt

oversimplification,

but

 it tends tosuggest

that

the

formula

seeks

 prevent ambient evels

 from

ever

significantly

exceeding

the

level

0.14

ppm,

which

the

federal

24—hour

standard.

The

formula

does

not

require

any

reduction

emissions

long

the

ambient

level

0.14

ppm.

This

means

the

formula

does

not

force

the

company

ever

take

action

even

 the federal standard is actually violated

the

 persistence of this level for two full days or longer.

But

acceptance

the

 present formula to deal with what may be

the

bulk

 the problem situations does not deprive the Agency

of

tools

with

which

compel

 abatement of health dangers in

other

cases.

Should

the

.14

level

barely

exceeded

for

periods

exceeding

hours,

that

action

required

under

the

formula,

should

the

maintenance

the

annual

air-

quality standards be threatened,

the

Agency

could

proceed

under

the regulation forbidding emissions that cause violations of

the air quality standards or under the statutory prohibition

of air pollution,

 invoking summary remedies if necessary to pro-

tect the public health.

 PCB Regs., Ch.

 2 Rule 102; Environ-

mental Protection Act, sections 9(a),

34.

 The art of

episode control is not yet a science; we find the formula to

which New Jersey Zinc has agreed a significant

 positive step

toward assuring that the company can and will operate without

causing

 a danger to the public health.

We need not in evaluating this episode plan find that the

Agency’s predictions as to the frequency or severity of high

sulfur dioxide levels are right or wrong.

 What governs is that

3.

 The complete formula

is

(Ambient Air

 .14)

 Ambient Air

 Production

.30

 X Attributable to

 Cutback from

Petitioner)

 Full Capacity

—

272

—11—

the company has committed itself to cut back production when-

ever necessary

 to keep dangerous concentrations from persisting

long enough to cause trouble.

 If the ~irnpanyis right that

high concentrations and consequent cutbacks will be infrequent,

so much the better for everyone;

 if high concentrations are more

frequent,

the

company

will

take

action

prevent

serious

harm.

Either

way

the

public

should

given

reasonable

protection.

We believe the pre~éntprogram goes

 a long way toward assuring such

protection

the

same

time

permits

the

resumption

operations, with all the attendant benefits for the entire

community in terms of jobs and business, which were emphasized

witnesses

representing

the

Village,

the

School

District,

and the

 Steelworkers’ Union

 CR. 46—59,

 143-50)

The Agency is required to approve episode control plans

passing

upon

permit

applications.

The

Agency

states

that

prepared

permit

operation

the

basis

the

present

episode program; we do not read the petition as asking permission

deviate

from

other

requirements

the

episode

regulations

or to bring about violations

 of the air-quality standards;

there is

 thus no controversy before us requiring us

 to grant or

deny any variance with respect to the program.

We add a word of caution.

 That the plant will comply with

our numerical emission limits by the date they become effective

we think has been

 amply shown.

 The most serious aspect of

the matter,

 however,

 is whether under the peculiar circumstances

of this case a bare compliance with emission standards of general

applicability will suffice to prevent significant harm to other

persons.

 The overriding requirements,

 as we made clear in our

opinion adopting the emission standards, are that no unreason-

able interference with others be caused and that the air quality

standards

not

violated.

Emission

standards

represent

what

we think everyone in the State should do as a matter of good

practice

reduce

emissions.

many,

perhaps

most

cases

that

will

enough

achieve

satisfactory

air

quality;

but

“under

special

circumstances

geography,

meteorology,

or configuration, emissions meeting the standards may cause

nuisance,

and

that

the

statute

flatly

forbids.

Compliance

with

the

emission

standards

minimum;

essential

that

whatever

measures

are

necessary,

subject

to proof regarding economic reasonableness in the particular

case, be taken to assure that the air quality standards

are met.

 Enforcement action may be undertaken against

an emission source even if it is in compliance with numerical

emission standards,

 if such compliance is insufficient to

assure that the air is of satisfactory quality.”

5—

That

 is the meaning of the statutory provision

that

compliance

with

Board

reculations is

only

 a “prima facie” defense.

ifl

the

 Matter of Emission Standards,

 4tH 71-23,

 pp. 4-5

(April 13,

 1972), and cases cited.

The significance of these principles

 in the present case

is as follows.

 There has been significant pollution in the

past,

 and the basic

source of

sulfur dioxide emissions will not

be further controlled,

 The acid plant

 is located in

 a river

valley, where dispersion of contaminants

 is often less effective

than

 elsewhere

(H.

 502)

 Residential areas not

far

 away are

at

higher

 elevations, reducing

the

 effective stack height

(B.

 461)

 The Agencyt s expert witness summarized

 the matter

by

observing

 that

Actually,

each

thing

that

have

looked

far

as

the location related

meteorology,

 it almost

appears

that the DePue plant was picked to be in the worst possible

spot.

(r~.

506~

 This is not meant to suggest any bad faith;

nobody

is oresumed to pollute out of sheer malice.

 What it does suggest

is

 that measures that are adequate for similar plants elsewhere

may be insufficient to prevent pollution under

the

specific

facts oi

 this case.

 It is for that reason thatthe episode plan

was developed,

 and it

 is our hope that this plan will permit

operation of the plant with the improvements proposed with-

out serious air pollution.

 We urge both the Agency and the

company

 to watch the situation closely to make sure this is what

actually occurs.

 If frequent pollution results, there will have

to be frequent cutbacks of production;

 at some point it may be

necessary once again to face the question of adding a second

absorption unit to reduce sulfur dioxide emissions or of abandon-

ing the operation.

 We view our action today as permitting

a

final opportunity for the company to demonstrate that it can

operate enough hours without pollution to justify not making the

additional expenditures.

 For the technology to reduce emissions

further

is

 concededly available;

 we will not hesitate to re-

quire it if it becomes clear that is is necessary to prevent

serious pollution.

In summary, we view this case as a success story in pre-

venting pollution before it begins, and a confirmation of the

value of a permit system.

 As a result of Agency scrutiny

prior

opening

the

plant,

 of careful Agency evidence as to

the predictable adverse effects of proceeding according to

the

company’s original plan, and of imaginative and thorough

evaluation of the record as to abatement practicability by

our

staff

engineer,

the

company

has

found

reasonable

install an improved demister making it unnecessary to exceed

—

274

—13—

the sulfuric acid standard;

 it has developed an improved

plan

control

emissions

during

startup;

and

has

committed

itself to an episode plan that it believes will enable it

to operate without causing

air

pollution.

These

improve-

ments have made it unnecessary for us to grant a variance,

as there is no request before us for permission to violate

 any law or standard.

 The petition for variance is there-

fore moot,

 and it is hereby dismissed.

I, Christan Moffett, Clerk of the Pollution Control Board4,

certify that the Board adopted the

 bove Opinion this~9

“

day of August,

 1972, by a vote of

—

275