Appendix — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.
Supreme Court brief1974
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LIBRARY.
SUPREME COURT, U.APPENDIX
IN THE
Supreme Court of the United States
OcTOBER TERM, 1973
No. 73-690
AIR POLLUTION VARIANCE BOARD
OF THE STATE OF COLORADO,
Petitioner,
Vv.
WESTERN ALFALFA CORPORATION,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Colorado
PETITION FOR CERTIORARI FILED OCTOBER 24, 1973
CERTIORARI GRANTED JANUARY 21, 1974
OO
IN THE
Supreme Court of the United States
OCTOBER TERM, 1973
No. 73-690
AIR POLLUTION VARIANCE BOARD
OF THE STATE OF COLORADO,
Petitioner,
Vv.
WESTERN ALFALFA CORPORATION,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Colorado
INDEX
Page
Reporter’s Transcript in regard to Hearing Before the
Air Pollution Variance Board on September 11, 1969
and the Following Exhibits which are attached to
said Transcript
Cease and Desist Order dated June 16, 1969
Request for Hearing on Cease and Desist Order
(Letter dated June 23, 1969)... ana
Notice of Hearing dated August 15, 1969 _.............
Area Designation Order dated August 4, 1967
Photograph of Respondent’s plant located in Wind-
sor, Colorado, taken on June 27, 1969 (omitted
from printed record)
ii INDEX—Continued
Page
Photograph of Respondent’s plant located in Ber-
thoud, Colorado, taken on June 27, 1969 (omitted
from printed record)
Photograph of Respondent’s plant located in Ber-
thoud, Colorado, taken on June 28, 1969 (omitted
from printed record)
Photograph of Respondent’s plant located in Eaton,
Colorado, taken on June 4, 1969 (omitted from
printed record)
Photograph of Respondent’s plant located in Eaton,
Colorado, taken on June 4, 1969 (omitted from
printed record)
Photograph of Respondent’s plant located in Wind-
sor, Colorado, taken on June 4, 1969 (omitted
from printed record)
Letter to Respondent dated October 16, 1968 __..... 10
Diagram of Respondent’s Dryer Production Flow 13
Letter from Mayor of Windsor, Colorado, dated
September 11, 1969.2... 15
Department’s witness James R. Taylor—
Direct Examination _....22.0202022202222..occceee cece ceeeeeeeeeeeeee ee 20
Cross Examination .......................2.22..222202---c0eeeeeeeeeeeeees 28
Department’s witness A. C. Bishard—
Direct Examination —....22200...20.2.....0222222..c2eeeeeeeeeeeeneeeee 40
Cross Examination .....-...020020....-o....0222cceceeeeeeeeeeeeeeeee eee 43
Respondent’s witness Carrol Syverson—
Direct Examination _...........0.00..2222----.2----seeee--eeeee-- 51
Respondent’s witness Carmel Lavinci—
Direct Examination ....................---2-----.2------------------- 63
MR iat 308 Nach ee Li 40! wa
INDEX—Continued iii
sf Page
Reporter’s Transcript in regard to Hearing Before the
Air Pollution Variance Board on October 16, 1969 .... 70
Findings of Fact, Conclusions of Law, and Decision of
the Air Pollution Variance Board dated January 31,
1970 (Pet. App. E) (om tted from printed record)
Chronological List of Relevant Docket Entries _............. 84
Complaint for Review Pursuant to 1963 C.R.S.,
69-29-13, and Rule 106, R.C.P. Lauieeia from
printed record)
Cost Bond (omitted from printed record)
Order and Citation to Show Cause (omitted from
printed record)
Order dated March 20, 1970 (omitted from printed
record)
Answer filed on April 17, 1970 (omitted from
printed record)
Order of Court dated July 27, 1970 (omitted from
printed record)
Amended Complaint for Review Pursuant to 1963
C.R.S., 66-29-13, and Rule 106 R.C.P. and for
Declaratory Relief filed on November 20, 1970... 87
Order of Court dated December 7, 1970 (omitted
from printed record)
Answer to Amended Complaint filed on March 22,
|) See ae 92
Reporter’s Transcript of Trial:
Testimony of Dr. J. Louis York, Witness on
Behalf of Petitioner—
Direct Examination __.......-....000---.o-2- ooo 96
Cross Examination ............ maflcdcseececceccecccceece 112
lv INDEX—Continued
Testimony of James R. Taylor, Witness on
Behalf of Petitioner—
Direct Examination .........0000.00000.0-.00--
Cross Examination _...............0000000----..-.---..-.
Re-Direct Examination ............0.0.0---00--......
Testimony of Joseph Palomba, Jr., Witness on
Behalf of Respondent—
Direct Examination ..........-22000000.22000 ne
Cross Examination .....................2-222200.0-02....
Order of Court dated April 23, 1971 (omitted from
printed record)
Order of Court dated May 3, 1971 (omitted from
printed record)
Findings and Judgment dated July 28, 1971...
Motion for Amendment of Findings and Judgment
filed on August 5, 1971 (attached court decision
omitted from printed record) ....................--------
Order of Court dated August 31, 1971 (omitted
from printed record)
Order of Court dated November 11, 1971 (omitted
from printed record)
Amended Findings and Judgment dated November
18, 1971 (omitted from printed record)
_ Notice of Appeal filed on December 22, 1971
(omitted from printed record)
Designation of Record on Appeal (omitted from
printed record)
Designation of Parties filed December 22, 1971
(omitted from printed record)
Page
138
INDEX—Continued
Designation of Additional Part of Record filed on
December 30, 1971 (omitted from printed rec-
ord)
Order dated January 20, 1972 (omitted from
printed record)
Certification of Record dated February 22, 1972
(omitted from printed record)
Notice of Filing of Record mailed February 23,
1972 (omitted from printed record)
Motion for Extension of Time filed April 12, 1972
(omitted from printed record)
Motion for Extension of Time filed May 31, 1972
(omitted from printed record)
Motion for Extension of Time filed August 8, 1972
(omitted from printed record)
Motion for Extension of Time filed September 29,
1972 (omitted from printed record)
Motion for Advancement on Docket filed Novem-
ber 2, 1972 (omitted from printed record)
Notice of Oral Argument filed November 14, 1972
(omitted from printed record)
Continuance for Oral Argument filed November 17,
1972 (omitted from printed record)
Oral Argument Vacated filed November 17, 1972
(omitted from printed record)
Notice of Oral Argument filed January 5, 1973
(omitted from printed record)
Vv
Page
Opinion of the Colorado Court of Appeals an-
nounced April 3, 1973 (Pet. App. A) (omitted
from printed record)
Petition for Rehearing filed April 19, 1973 (omitted
from printed record) ©
*
INDEX—Continued
Petition for Rehearing denied April 24, 1973
(omitted from printed record)
Motion for Stay of Mandate filed April 30, 1973
(omitted from printed record)
Order for Stay of Mandate issued April 30, 1973
(omitted from printed record)
Petition for Writ of Certiorari denied June 25,
1973 (Pet. App. B) (omitted from printed
record)
Mandate Issued June 26, 1973 (Pet. App. C)
(omitted from printed record)
Docket Sheet in the Above-Entitled Case (omitted
from printed record)
Page
Ph ihe Sion
1
DEPARTMENT’S EXHIBIT E
[SEAL]
STATE OF COLORADO DEPARTMENT OF HEALTH
4210 East 11th Avenue, Denver, Colorado 80220
Phone 388-6111
R. L. Cleere, M.D., M.P.H., Director
CEASE AND DESIST ORDER
CERTIFIED MAIL
Western Alfalfa Corporation
Mr. Carrol Syverson, Vice-President ‘
Suite 300—Kansas City Board of Trade Building
4800 Main Street
Kansas City,. Missouri 64112
Mr. Francis Osburn, District Mand4ger
District Office
Windsor, Colorado 80550
j
Gentlemen:
Reports of investigation and site visits to the alfalfa
dehydrating plants located at or near the towns of Eaton,
Windsor, and Berthoud, Colorado, establish that these
operations have been in violation of the Air Pollution
Control Act since October 19, 1967 and that this was
made known to the Western Alfalfa Corporation man-
agement following its acquisition of these plants in Feb-
ruary 1968; that since that time some air pollution con-
trol equipment has been installed and changes in operat-
ing procedures initiated with a view of bringing these
plants into compliance; that personnel from this depart-
ment and the Larimer County Health Department have
since made nurherous visits to these plants, met with rep-
resentatives of your company and have endeavored
through conference, conciliation and persuasion to reduce
2
air contaminants emanating therefrom to within legal
limits; that the emissions from each of these three plants
were again evaluated on June 4, 1969 and the following
Ringlemann standard readings were made:
Windsor plant—The dryer stack emissions were 90%
opacity; the grinder stack emissions, 70% opacity
and the pelletizer emissions, 50% opacity for a
period of 10 minutes.
Eaton plant—The dryer stack emissions were 85%
opacity; the grinder emissions 70% opacity and the
pelletizer emissions 50% opacity for a period of 10
minutes.
Berthoud plant—The dryer emissions were 90%
opacity; the grinder emissions 50% opacity and the
pelletizer emissions 40% opacity for a period of 10
minutés.
Emissions in excess of Ringlemann No. 2 or an opacity
of 40% for a period aggregating more than three (3)
minutes during any hour is in violation of Sections 66-
29-5 (1) and (2), Colorado Revised Statutes 1963 (Vol.
10, 1967 Perm. Cum. Supp.) and fnay not lawfully be
permitted to continue except under such terms and con-
ditions as may be found to be appropriate by the Air
Pollution Variance Board; that under the facts and cir-
cumstances appearing, it has been determined that the
Western Alfalfa Corporation has been given ample time
and opportunity to bring its three plants into compliance
with the law and that 10 days from and the date of re-
ceipt of this order is hereby determined to be a reason-
able time within which said company shall be required
to cease and desist from such violations; i
NOW THEREFORE, pursuant to the provisions of
Section 66-29-10 (3), Colorado Revised Statutes 1963
(Vol. 10, 1967 Perm. Cum. Supp.), you are hereby é
ORDERED and DIRECTED to CEASE and DESIST
{ BA
es
‘from any further violations of the Air Pollution Control
Act specifically referred to herein at your alfalfa dehy-
drating plants at or near the towns of Windsor, Eaton
and Berthoud, Colorado, on or before 10 days from and
after receipt of this order.
Dated June 16, 1969.
DIVISION OF ADMINISTRATION
COLORADO DEPARTMENT OF
HEALTH
/s/ By Roy L. Cleere
Roy L. Cleere, M.D., M.P.H.
Executive Director
ec: Mr. George D. Blackwood Jr., Attorney
Weld County Health Department
Larimer County Health Department
4
DEPARTMENT’S EXHIBIT D
June 23, 1969
Air Pollution Variance Board
State of Colorado
Department of Health
4210 East 11th Avenue
Denver, Colorado 80220
REQUEST. FOR HEARING ON CEASE AND DESIST
ORDER; WESTERN ALFALFA CORPORATION
Gentlemen:
Reference is made to the Cease and Desist Order ad-
dressed to the undersigned corporatian dated June 16,
1969 from the Division of Administration, Colorado De-
partment of Health, respecting the three alfalfa dehydrat-
ing plants located near the towns of Eaton, Windsor and
Berthoud, Colorado.
The undersigned corporation specifically denies that its
operations referred to in the Cease and Desist Order are
in violation of the Air Pollution Control Act of the State
of Colorado and the hearing requested hereby shall per-
tain to the question of whether or not such violation
exists. :
~‘
At the subject hearing Western Alfalfa Corporation will
be represented by the following attorneys:
Linde, Thomson, Van Dyke, Fairchild & Langworthy
Attention: George D. Blackwood, Jr.
Union Natioral Bank Building
Kansas City, Missouri 64106
Lee, Bryans, Kelly and Stansfield
Attention: Donald D. Cawelti
990 Public Service Company Building
Denver, Colorado 80202
We request that copies of any correspondence pertaining
to this matter be sent to the above-named attorneys.
ec: Weld County Health Department
fs
5
/
Respectfully submitted—
WESTERN ALFALFA CORPORATION
/s/ Jack Patterson
Jack Patterson
Secretary-Treasurer
Weld County Court House
Greeley, Colorado
Larimer County Health Department
Larimer County Court House
Ft. Collins, Colorado
[THIS COPY FOR]
Roy L. Cleere, Executive Director
Colorado Department of Health
4210 East 11th Avenue -.
Denver, Colorado 80220
Or
6
DEPARTMENT’S EXHIBIT A
[SEAL ]
STATE OF COLORADO DEPARTMENT OF HEALTH
4210 East 11th Avenue, Denver, Colorado 80220
Phone 388-6111
R. L. Cleere, M.D., M.P.H., Director
NOTICE OF HEARINGS RESCHEDULED
BEFORE
THE AIR POLLUTION VARIANCE BOARD
CERTIFIED MAIL
Mr. C. M. Harmon, President
Colorado Alfalfa Products Company
Milliken, Colorado 80543
Mr. Jack Patterson, Secretary-Treasurer
Western Alfalfa Corporation
Suite 300—Kansas City Board of Trade Building
4800 Main Street
Kansas City, Missouri 64112
NOTICE is hereby given that the Air Pollution Vari-
ance Board will hold separate public hearings on Septem-
ber 11, 1969, in Room 412, Colorado Department of
Health Building, 4210 East 11th Avenue, City and County
of Denver, Colorado, to hear and determine the, respec-
tive requests of the above named addressees for hearings
pursuant to the original notice of hearing heretofore
given, dated July 28, 1969, and which said scheduled
hearings were continued at respondents’ requests and are
7
now hereby rescheduled in accordance with the following
time schedule:
Colorado Alfalfa Products 10:00 a.m.
Company September 11, 1969
Western Alfalfa Corporation 2:00 p.m.
September 11, 1969
Dated August 15, 1969.
/s/ George J. Dwire,
George J. Dwire, D.D.S.
Chairman
Colorado Air Pollution Variance
Board
8
DEPARTMENT’S EXHIBIT C
[SEAL ]
STATE OF COLORADO DEPARTMENT OF HEALTH
4210 East 11th Avenue, Denver, Colorado 80220
Phone 388-6111
R. L. Cleere, M.D., M.P.H., Director
NOTICE
In compliance with the provisions of the “Air Pollu-
tion Control Act’? Section 8 (1) (C), Session Laws of
Colorado, Second Regular Session 1966, NOTICE is here-
by given Department of Public Health has designated the
following legally described area in Larimer and Weld
Counties, State of Colorado, in which the ambient air
standards set forth in Section 4 of the above cited Act
are not being met, and in which the emission standards
set forth in Section 5 and the penalties prescribed in Sec-
tion 15 of said Act, as amended by Senate Bill No. 380,
46th General Assembly (1967), shall be in effect as
provided therein, to wit:
Commencing at the Northwest corner of Section 6,
Township 9 North, Range 70 West; thence East along
the section lines approximately 18 miles to the
Northeast corner of Section 1, Township 9 North,
Range 68 West; thence South along the section lines
approximately 6 miles to the Southeast corner of Sec-
tion 36, Township 9 North, Range 68 West; thence
East along the section lines approximately 24 miles
to the Northeast corner of Section 1, Township 8
North, Range 64 West; thence South along the sec-
tion lines approximately 48 miles to the Southeast
corner of Section 36, Township 1 North, Range 64
West; thence West along the section lines approxi-
mately 30 miles to the Southwest corner of Section
9
31, Township 1 North, Range 68 West; thence North
along the section lines approximately 18 miles to the
Northwest corner of Section 6, Township 3 North,
Range 68 West; thence West along the section lines
approximately 12 miles to the Southwest corner of
Section 31, Township 4 North, Range 70 West;
thence North along the section lines approximately
36 miles to the point of beginning;
/s/ Dr. George J. Dwire,
George J. Dwire, D.D.S.
Chairman
Air Pollution Variance Board
/s/ Roy L. Cleere
Roy L. Cleere, M.D., M.P.H.
Director
Colorado State Department of
Public Health
Dated August 4, 1967
10
DEFENDANT’S EXHIBIT #4
RONNING ENGINEERING COMPANY, INC.
7009 West 81st Street
Overland Park, Kansas 66204
913 649-3543
October 16, 1968
Mr. Carrol Syverson
Western Alfalfa Corporation
4800 Main—Suite 300
Kansas City, Missouri 64112
Dear Carrol:
The following is a report of the procedures and results
of air pollution tests performed at the Windsor, Eaton,
and Berthoud, Colorado Dehy plants owned and operated
by Western Alfalfa Corporation. _
The tests were performed according to Section 5. (2),
(a), (b) and (c) of the Colorado State Air Pollution
Control Act with the following results.
Windsor Plant: Test periods 4:00 P.M. to 5:30 P.M.,
October 9, 1968, and 8:00 P.M. to 11:00
P.M., October 10, 1968.
Twelve sightings were made with the Ringlemann
Smoke Chart throuhout this period. The dehydration sys-
tem and pellet mill system were started and stopped two
times during this test period for the purpose of evaluat-
ing air pollution during its worst condition.
Throughout the periods of normal operation, all tests
showed smoke density and dust density to be less than a
No. 1 on the Ringlemann Chart. Two sightings were
made during shutdown proceedings which showed an ap-
parent smoke density between 1 and 2 on the Ringlemann
Chart.
eee
ll
Eaton Plant: Test period 5:40 P.M. to 6:40 P.M., Octo-
ber 9, 1968.
Four sightings were made with the Ringlemann Smoke
Chart and none was in excess of No. 1. ,
Berthoud Plant: Test period 11:30 A.M. to 1:00 P.M.,
October 10, 1968.
Six sightings were made with the Ringlemann Smoke
Chart and all were less than No. 2 and 3 sightings were
less than No. 1.
The Ringlemann type test is difficult to use effectively
on discharges of high specific humidity because of the
complete opacity of water vapor condensate. Due to
this problem, the Ringlemann Sightings must be made
after the water vapor has dissipated except during start
and stop proceedings.
In general I find the Windsor and Eaton Plants to be
in the top 10% of dehy plants across the nation from a
standpoint of Air Pollution Control. The Berthoud Plant
is at about the 40% point of Air Pollution Control com-
pared with other dehy plants. That is, it is cleaner than
60% of the dehy plants.
I also performed combustion analysis of the stack
gases at the Windsor Plant. During normal operation,
there were no measurable combustibles with an oxygen
level of 14%.
Please call for any further details concerning these
tests.
Sincerely yours,
Richard L. Ronning
RLR:FW
Enc.
12
I hereby certify that this plan, specification, or
report was prepared by me or under my direct
supervision and that I am a duly Registered
Professional Engineer under the laws of the
State of Minnesota.
. /s/ Richard L. Ronning
Date 10/16/68 Reg. No. 7223
ihc des
sen:
TYPICAL WESTERN ALFA
OF COLORADO . WINDS
RECIRCULATION SYSTE
v
PRIMARY
CYCLONE
I. =
|
CONVEYING COLORS :
DRYER SYSTEN
SECONDARY CHO?S ==
PELLETS S@@2@e=
TYPICAL WESTERN ALFALFA CO. DRYER PRODUCTION FLOW D/AGRAM_: WELD ¢ LARIMER COUNTIES
OF COLORADO . WINDSOR SHOWN , BERTHOUD ¢ EATON HAVE TWO HAMMERMILES WITH TWo
RECIRCULATION SYSTEMS SAME AS THE ONE SHOWN (N RED FOR WINDSOR.
_—?
ecatietesieaianiaetaion aera
» G)
[
\ f
r
| PRIMARY
CYCLONE
SECONDARY
4
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®
CYCLONE
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wer
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!
MEAL AVEER
sn? Fy enee omens mee eet came eed cmey’ mee Bnet eae ws Re Sh SE OD Bee Se ie
HAMMERMICE Peccer
TION FLOW D/AGRAM : WELD € LARIMER COUNTIES 18
D¢ EATON HAVE TWO HAMMERMILES WITH TWO
E€ SHOWN (N RED FOR WINDSOR. DEFENDANT'S EXHIBIT =5
tu RONNING ENGINEERING CO. , INC.
Dd... 9/4/69
15
DEFENDANT’S EXHIBIT #6
TU and End
Writers DNVR
Mr. George Blackwell
Letter from Dr. Wayne Miller, Mayor of Windsor
September 11, 1969
To whom it may concern:
I am sorry that I am unable to be at the hearing to-
day, so I take this means of commenting on the hay mill
located at Windsor.
First, let me identify myself. I have lived in Windsor
most of my life, having gone to Junior and Senior High
School and graduating in 1945. After completing service
in the Navy and obtaining my degree in Veterinary Med-
icine from CSU, I returned to Windsor in 1954 and have
been in practice here since that time.
I have served in many civic and church activities and
am now in my sixth year (third term as Mayor) in
City Government. During by business and civic activi-
ties, I have never received a complaint about the opera-
tions at the hay mill. Most people are glad that they are
here to provide jobs and provide a market for the alfalfa
products.
It has been our observation that they have always been
very interested in improving the plant as new develop-
ments occur. This includes matters concerning air pollu-
tion.
Frankly, as a casual observer who passes the opera-
tion at least two or three times daily during the course
of my work, all I can see is white steam, and this
dissipates very quickly.
16
It is the sincere desire of this community that the hay
mill be allowed to continue to operate in our community.
We realize that they must operate under certain regula-
tions, and we are confident that they can do so.
Respectfully,
Wayne Miller, D.V.M.
Mayor
WWM:PM
Western Alfalfa Corporation, Windsor
11:30 A.M.
17
STATE OF COLORADO
DEPARTMENT OF PUBLIC HEALTH
AIR POLLUTION VARIANCE BOARD
In the matter of:
WESTERN ALFALFA CORPORATION
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
DAVID FOSTER
Legal Counsel
Department of Public Health.
LEE, BRYANS, KELLY and STANSFIELD
by
DONALD D. CAWELTI,
and
LINDE, THOMAS, VAN DYKE, FAIRCHILD and
LANGWORTHY
by
GEORGE D. BLACKWOOD, JR.,
Counsel for Western Alfalfa Corporation.
AIR POLLUTION VARIANCE BOARD:
Clair H. Iverson, Chairman; E. McDonald Chenault,
Dr. Louis C. Gibbons, Dr. Harvey W. Phelps, Arthur
M. Krill, Thomas R. Heaton and A. George Setter.
Proceedings had before the Air Pollution Variance
Board of the State of Colorado, at the Department of
Health, 4210 E. 11th Ave., City and County of Denver,
State of Colorado on September 11, 1969, commencing at
approximately 2:30 p.m.
(AND THEREUPON, the following proceedings
were had:)
[3] THE CHAIRMAN: The meeting will come to
order, please.
7 '
18 ,
wee
This is a meeting of the Colorado Air Pollution Vari-
ance Board to hear the matter of Western Alfalfa Cor-
poration of Kansas City, Missouri.
Members of the Board present: Mr. Krill, Mr. Setter,
Mr. Heaton, Mr. Chenault, Dr. Phelps and I am Mr. Iver-
son.
The Board is represented, and the Department of |
Health is represented by Mr. Dave Foster who is counsel )
for the Department of Health.
Western Alfalfa is represented by Mr. Donald D.
Cawelti and Mr. George Blackwood from Kansas City.
MR. CAWELTI: Do I understand, Mr. Foster, you
are acting as counsel for both the Board and for the
Staff.
MR. FOSTER: I am attempting to, sir.
(WHEREUPON, documents were marked Depart-
ment’s Exhibits A, B, C, and D attached hereto.)
MR. FOSTER: The Board is requested to take ju-
dicial notice of the Air Pollution Control Act, Chapter
66 Article 29 of the Colorado Revised Statutes 1963,
1967 permanent cumulative supplement Volume 10, and
Senate Bill 179, 47th Colorado General Assembly as
amended.
The Board is also requested to take judicial [4] no-
tice of the official orders of the Colorado Department of
Health designating the specific areas where the standards
are in effect in both Larimer and Weld Counties of Colo-
rado.
I offer in evidence that’s been marked.
MR. CAWELTI: I have no objection to any of your
exhibits so far.
MR. FOSTER: Those are Department’s Exhibits A,
C and D. I won’t offer Exhibit B. Those are the desig-
nation of the area, copy of the request for variance by
Western Alfalfa and notice of hearing.
MR. CAWELTI: That’s not a request.
Pine SGOd Das Aiea SE! OV EFA PEO Ot OF EE TE TD ne ee
a
19
MR. FOSTER: I will read the first and second para-
graphs of this letter:
“Re: Request for hearing on cease and desist order,
Western Alfalfa Corporation. Gentlemen: Reference is
made to the cease and desist order addressed to the
undersigned corporation dated June 16, 1969 from the
Division of Administration, Colorado Department of
Health, respecting the three alfalfa dehydrating plants
located near the towns of Eaton, Windsor and Berthoud,
Colorado.
“The undersigned corporation specifically denies that
its operations referred to in the cease and desist order
are in violation of the Air Pollution Control Act of the
State of Colorado and the hearing requested hereby shall
pertain to the question of whether or not such violation
exists.”
[5] (WHEREUPON, a document was marked Depart-
ment’s Exhibit E attached hereto.)
MR. FOSTER: We offer in evidence what has been
marked Department’s Exhibit E, being a copy of the
cease and desist order.
If the Board has no objection, I have additional
copies of the order and will pass it around.
MR. CAWELTI: I have no objection.
MR. FOSTER: Call Mr. Taylor as our first witness.
First, I don’t believe any opening statement is neces-
sary.
MR. CAWELTI: No, that’s all right.
MR. FOSTER: Mr. Taylor.
MR. CAWELTI: Well, perhaps while you are sort-
ing your papers, I’ll just make a brief comment. We
were all here during this morning’s proceedings, and in
one respect at least, this is similar to this morning’s
case. We deny that we are violating the air pollution con-
trol standards. This is a hearing then on the denial of
the existence of the violation, unlike, I think, most of
20
the hearings that you have. This is not a request for a
variance. We stand here as accused and we deny we
are guilty.
THE CHAIRMAN: Might I ask if the Stearns-Roger
report is to be introduced as evidence here in the [6]
hearing?
MR. CAWELTI: We found out yesterday afternoon
Stearns-Roger also made an examination for this other
company. It is not our intention to introduce the report.
It is our intention, however, to have Mr. Weimer testify
as a witness, as this morning, to state to the Board the
study which he made and the conclusions which he came
to. I think that if we proceed in this way, we will be
able to clarify perhaps little bit what, if any, objections
there may be to his testimony. Questions to him will
be pointed and when he is asked to state the result of
any test that he made or describe what he saw, I think
we will pinpoint in this way whether he is qualified to
make that observation or make that test or state the
results of it.
I think we can avoid some of the problems we ran
into this morning by proceeding in this manner.
MR. HEATON: Mr. Weimer then will confine him-
self to the engineering findings only.
MR. CAWELTI: Yes, he is an engineer, and he
will leave the law to me and I will leave the engineering
to him.
THE CHAIRMAN: Mr. Foster, will you object to
this procedure?
MR. FOSTER: I will have to see what questions are
asked, what is presented. I can’t prejudge at this point.
[7] JAMES R. TAYLOR,
first being duly sworn to state the truth, the whole truth
and nothing but the truth, testified on his oath as fol-
lows:
Le BAD th a EAN SF ROPE I Birr APOE oe
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21
DIRECT-EXAMINATION
BY MR. FOSTER:
Q. State your name and occupation.
A. James R. Taylor, air pollution specialist, Depart-
ment of Public Health.
Q. How long have you been so employed?
A. Something over two years.
Q. What is your formal education and qualifications?
A. I have a B.S. Degree in chemistry and biology.
Q. Have you attended the smoke school that was con-
ducted by the Department with.reference to evaluation of
particulates under the Ringelmann standards?
A. I have.
Q. How many of the schools have you attended?
A. Probably ten or twelve.
Q. Are you a certified observer by the Department
and so certified by them?
A. Yes.
Q. Are you familiar with the several plants of the
respondent corporation at Eaton, Colorado, Windsor,
Colorado and Berthoud, Colorado?
A. Yes.
[8] Q. Have you from time to time visited these
plants in connection with your official duties with the
Department?
A. I have.
Q. Did you visit the Eaton plant in October of 1967?
A. I did.
Q. What, if anything, did you observe with reference
to the operation of the plant?
A. The Eaton plant, on the 19th of October, I no-
ticed that the time density relationship for the pelletizer
was 314 Ringlemann and they were sent a notice of
violation at that time.
Q. You speak of the plant at Eaton. Would you
describe what kind and the type of operation it is and
22
what the particular emissions were that you observed
from it.
A. The Eaton plant is an alfalfa dehydrating plant.
Q. Were there emissions coming from a stack or
from dehydrating units, or where were the emissions
coming from?
A. From the dryer and from the grinder.
Q. Did you talk to anyone while you were at the
plant at that time? Did you have any conversations with
anyone concerning it?
[9] A. Yes. I talked with the plant manager. I don’t
have his name.
Q. Did you visit the Windsor plant that belongs to
this respondent company?
I did.
When was that?
September 11, 1967.
What kind of a plant is that?
It’s an alfalfa dehydrating plant.
They have dryers.
Yes.
What did you notice, if anything, as to viola-
tions of the law at that place?
A. Their’s was 80 percent opacity. And from the
ball mill or the grinder, 214 Ringlemann from the dryer.
Q. Did you talk to the operator there?
A. Yes, sir.
Q. What was the nature of that conversation?
A. It was Mr. Hudson. At that time I think we
asked them for a schedule for proposed controls for this
plant.
Q. Did you visit the Berthoud plant that belongs to
this respondent company?
A. Yes, sir.
[10] Q. When was that and what did you notice at
that time?
A. October 30, 1967 and noticed them for violation.
‘OPOPepeop
23
MR. CAWELTI: Objection, your honor. That’s the
point of this hearing, to determine whether there is a
violation. I will object to the witness’ statement in that
regard and move that it be stricken, him saying that
there is a violation. His duty is to describe what he
saw and it is this Board’s job to determine whether
there was a violation or not.
MR. FOSTER: I will accede to that.
Q. What did you notice with reference to the den-
sity of the emissions in reference to the Ringlemann
standards at the Berthoud plant.
A. I’m looking—
Q. Well let that go for the moment then. Let me
ask you this, Mr. Taylor, did you in 1967, and 1968,
and up to and including June 1969 make periodic visits
to these various plants that belong to the respondent
company?
A. Yes, I did.
Q. And you made Ringlemann observations, did you,
of the particulates?
A. Yes, sir, I did.
Q. Did you or did you not confer with and counsel
[11] with the operating management of these plants
from time to time in an effort to improve the emissions
that were coming from their plant?
A. Yes, sir.
Q. Were any improvements made in the plants?
A. Yes, sir.
Q. Can you tell us briefly what was done to improve
these plants along the way? -
A. Shall we take it plant by plant?
Q. Anyway you like.
A. This past year the plant at Berthoud installed a
new dryer and triple pass dryer and they revented, re-
circulated the grinder emissions back through the grinder
collector, I mean the dryer collector.
24
They have done this, basically, on all three of the
plants. :
They were planning on the installation of spray kind
thing, water scrubber part to the grinder from the
er. We discussed the feasibility of it and whether
it would work. They have done some work, considerable
work in controlling the emissions from all three of the
plants.
The other plants, two plants at Easton and Windsor
had already had the triple pass drums in them installed.
But the one at Berthoud wag, a single pass which emitted
considerable amount more of ‘the emissions.
[12] I might add here that they probably have done
as much or progressed far along in this field as anyone
and I know, or our staff knows of but they are still
in violation from the dryer—
MR. CAWELTI: This is a bad word.
A. From the emissions from the dryer and from the
grinder.
But they have controlled them. They have made
some efforts and they have made considerable amount
of progress in controlling of the particulates.
Q. Go on to the next plant.
A. I think I covered, or I thought, covered all three
of them at the same time.
Q. Did you make any stack emission evaluations of
the Windsor plant on or about June 4, 1969?
A. Yes, sir, I did.
Q. What was the result of your observations?
A. On the 4th of June ’69 Windsor plant dryer stack
emissions were 90 percent opacity; grinder stack 70 per-
cent opacity; and the pelletizing stack 50 percent opacity
for a period of 10 minutes.
Q. Did you make similar observations at the Eaton
plant on June 4, 19697
A. Yes, sir.
Q. Can you state what they were?
—
25
{13] A. Dryer stack emissions, 85 percent; grinder
emissions, 70 percent; and the pelletizing stack 50 percent
for a period of 10 minutes.
Q. Did you make any similar observations at the
Berthoud plant on June 4, 1969?
A.. I did.
Q. Will you state what they were.
A. Dryer emissions, 90 percent opacity; the grinder
emissions, 50 percent opacity; the pelletizing stack emis-
sions 40 percent opacity, for a period of 10 minutes.
Q. Where were you when you made these observa-
tions?
A. On the premises.
Q. Did you make them from one point, or a single
point or more than one point on the permises?
A. Well, they were from more than one point. You
couldn’t see all of it from one spot, no.
Q. That was the last evaluation that you made of
this plant? Is that right?
A. Yes, sir. .
Q. Has the Department worked with the management
of Western Alfalfa in an effort to bring them into
compliance? Have you furnished them with literature
and information and engineering services?
A. Yes, sir. We have had several conferences with
their management and with their legal counsel and with
(14] their consulting engineering firm.
Q. Was there anyone with you when you made the
observations on June 4, 19697
A. No, sir, just myself.
Q. Do you know of your own knowledge whether or
not other personnel of the Department have visited the
plant and made similar observations from time to time?
A. Yes, sir.
Q. Who was that party or parties?
A. Mr. Bishard, the engineer from the air pollution
. section.
26
Q. Was there anyone from the local enforcement area
with you when you visited these plants?
A. Yes. It has been the habit and the practice to
work with the local agencies.
Q. Whenever there was any stack analysis or any
particulate analysis made of the emissions on these
plants by the Department of Health, have you made any
attempt to make correlations of the Ringlemann with the
particular emissions?
A. No, sir.
Q. Were you asked to participate in any particulate
emissions test of theirs?
A. No, sir.
MR. FOSTER: I believe that’s all.
[15] MR. HEATON: Could you ask Mr. Taylor, little
more detail on the 10 minutes observation? Was that
observed periodically or total time in violation?
A. That was the total time of the observation.
MR. HEATON: Is that the total time -that you
observed on all of the stacks? I mean, did you watch
this stack for 10 minutes, and this stack for 10 minutes
or did you just stand there and watch all three of them
for a total of 10 minutes?
A. That depends on where you are standing. You
ean’t see all three of them. You have to vary your spot
of your location, where you are standing. Because in
several instances they put out a terrific amount of steam
plume and the steam plume obscures the rest of them
until you get on the other side of it. And sometimes you
have to wait until the wind changes. So it would be
from each stack. Sometimes it would be at the same
time and other times, each individually. I never broken
it down to each one.
DR. PHELPS: You record your readings in your
notes from the individual stacks then that are emitting
their emissions. You record them separately?
27
A. I take them as a rule from the dryer, and from
the grinder, and from the pelletizer.
DR. PHELPS: You record each one of those [16]
observations separately then.
A. Yes, sir. As a matter of fact, I think the one
I gave you on June 4 were made from the dryer stacks
and from the grinder stack and the pelletizer stack.
MR. HEATON: Is it stack or stacks for each one?
Are there a total of three stacks involved for this
Berthoud plant?
A. Three separate stacks, yes, sir. A stack for the
dryer, stack for the grinder, and a stack for the pelletizer.
MR. HEATON: And is this the same for the other ~
two plants involved here?
A. Yes, sir.
BY MR. CHENAULT:
Q. In your testimony, I believe you stated there was
a representative from the local authorities with you at
the time these observations were made. Is this correct,
‘sir?
A. Yes. On most of the visits. Yes, it is the prac-
tice of the Department to work in conjunction with the
local agency. Sometimes it has not been possible to work
this out because they were not available.
Q. Was the representative who was with you at
the timé, is he here, do they have a representative here
today?
{17} A. They have changed their personnel so that,
particularly the one in Weld County. We are talking
about two different counties here that’s involved. The
Berthoud plant is in Larimer County and they didn’t
have any organized health department or any personnel
working there on this. So the state did the total serv-
ice there. In Weld County, we worked with the Weld
County Health Department at the beginning, the onset
and we worked with one individual who is now not
28
working there any more since. But sometimes they
had other activities to do and they went their way and
we went on with our work. But we tried to work to-
gether on the things much as possible.
DR. PHELPS: In Weld County, did you do this at
the request of Weld County or did you hear any com-
plaints, or what was it?
A. On this, originally?
DR. PHELPS: Yes.
A. Weld County was made or designated as a basin,
I think in July of ’67. And then immediately after that,
that’s when we started doing a wm sate inventory of
the county.
DR. PHELPS: But had you heard any complaints?
A. No, sir.
MR. FOSTER: I have nothing further of this wit-
ness.
[18] CROSS-EXAMINATION
BY MR. CAWELTI:
Q. I would like to talk with you, Mr. Taylor, if I
could for just a minute, about one of the plants in par-
ticular.
All three of the plants are pretty much the same in
the type of operation, are they not?
A. Yes, they are now. The one in Berthoud, I think,
was a single pass drum until lately.
Q. But when you made your first inspection in 1967,
and when you made your inspection in June of this year,
at both times, all three were operating substantially the
same.
A. Not at the beginning, they weren’t. Not in ’67.
The Berthoud plant was considerably worse than the
other two plants, by the fact it was just a single pass
drum.
Q. Weil, in 1967, were not all three plants single
pass drum in September of 19677
‘ate Apalisi Sp habe db ant Py
29
A. I can’s recall. But I do remember that the a
Berthoud plant was.
Q. You can’t recall the others?
A. Eaton or Windsor plant was— No, I can’t recall,
sir.
Q. Your first notice on the Windsor plant [19] in-
dicated a Ringelmann reading, I take it by you, of 2 to
21% at the Windsor plant, did it not?
A. In September of ’67?
Q. Yes.
A. Let me look—yes, sir. Mr. Connors and I both,
were there at that time.
Q. I take it then that that was your joint reading
and you both came out about that reading.
A. Yeah.
Q. And translating that, that would be 48, 50 percent
opacity?
A. Forty to 50 percent.
Q. Little bit over the minimal of 40.
A. Yes.
Q. Did you examine this plant and the others again
in their operating season of 1968, did you not?
A. Yes.
Q. And Mr. Bishard was with you?
A. On several occasions, yes.
Q. And Mr. Bishard sent to the company a letter
dated July 12.
A. What year?
Q. July 12, 1968. He stated in that letter “We
note with interest you have made marked progress in the
control of dust and smoke emission in the two plants ih
Weld [20] County.”
That would be the Windsor plant and the Eaton plant?
A. Yes.
Q. Do you agree with that at the time?
AS I can’t recall this one particular— They had
made marked improvement on their operations and I
think this was after the recirculating.
30
Q. That was put in on the Windsor plant.
A. Yes.
Q. Do I understand correctly that in the fall of 1967
when this all started, they were kind of lined up at 40
or 50 percent opacity at the Windsor plant?
A. At that particular time of the reading, yes.
Q. And by July of next year, they had made marked
progress?
A. What date?
Q. July 1968, sir. You don’t indicate in here the
date of your inspection in July.
I take it it was within a week or two prior to July
12, the letter.
Do you have the July 12 letter in front of you?
Now I don’t remember what the last question [21] was,
but I should go on here.
I take it by “marked progress,” you are referring to
the progress since the examination you made of the
previous fall in September?
A. Yes, sir, I would assume this is what Mr. Bishard
was referring to.
Q. And I think that it also makes the comment that
you noted with dismay that the Berthoud plant had not
made equal progress?
A. Yes, sir.
Q. You indicated that since the date of that letter,
the Berthoud plant has made the same changes earlier
made at the Eaton and Windsor plants, the triple pass
drums circulation?
A. Yes, sir.
Q. Can you explain to me how, in view of the exami-
nations you made there time after time, your careful
observations that you have made, that these plants that
were at 40 or 50 percent opacity, the Windsor plant in
1967, they made marked progress in 1968, what in the
world happened to give your reading in June of this year
worse yet?
ve a ee Pe en
31
A. I believe you are aware of the fact that there are
several things that can change the operation and the
emission of the plant. I think that any of of the alfalfa
boys in the business will tell you their first [22] cutting
is usually rougher, a rougher cutting with grass and
weeds and this type of thing.
I would venture to say that this June 4 reading was
probably one of their first cuttings. I think they start
somewhere in the latter part of May to the first part of
June sometime. I think this varies with the seasons.
Q. Are you saying then that the reading you made
in June may not have been typical of the plant’s opera-
tions?
A. I think it would certainly be different readings
as you get rid of the chaff out of the field and you begin
to get better hay. I'll agree with you, yes, the first
cuttings are usually little rougher.
Q. Did you make pictures of any of these plants
when you examined them in June of this year?
A. Oh, I made a couple of them here. I don’t know
that they will really show anything. I don’t know
whether the attorney wants to submit them as any evi-
dence.
Q. I take it you decided not to submit them on your
direct evidence of your case.
A. No, I wouldn’t say that, no.
MR. CAWELTI: Do you mind if I take a look at
them?
MR. FOSTER: Go ahead.
MR. CAWELTI: May we have these marked, please.
[23] (WHEREUPON, photographs were marked De-
partment’s Exhibits F, G and H attached hereto.)
Q. Could you state where those pictures were taken
and on what date? .
A. This was taken June 4, Exhibit H was taken
June 4, 1969 at 3:35 p.m., Western Alfalfa, Windsor,
taken by me, dryer 90 percent opacity, approximately
85 degrees Fahrenheit.
Q. What is the next one?
A. Western Alfalfa, Eaton, 6-4-69, 3:10 by J. R.
Taylor, temperature 85 degrees Fahrenheit, Exhibit G.
Western Alfalfa, Eaton, 6-4-69 3:15, taken by J. R.
Taylor, Exhibit F, temperature 85 degrees.
MR. CAWELTI: I offer these in evidence.
Q. Mr. Taylor, are these photographs true and ac-
curate representations of what you saw at the time?
A. One of them I can’t agree, it doesn’t really tell
you too much.
Q. This Exhibit G, taken so far away?
A. Taken from the highway at considerable distance.
Q. The only thing you can see is the steam. Is that
it?
A. I don’t even know that it’s steam.
MR. CAWELTI: With that reservation, I offer [24]
these three exhibits.
MR. FOSTER: We'll leave it go in the way they are.
Q. Holding here what is marked as Department’s
Exhibit F, this was taken of the Eaton plant.
A. Yes.
Q Just so we have some idea of what this Ringle-
mann test means, can you refer back to your notes and
say what the Ringelmann reading was that you found
from this plume? This is at Eaton, June 4, reading from
the main dryer stack.
A. June 4, Eaton, dryer stack, 85 percent.
MR. CAWELTI: If the Board will examine this,
this is what he testifies to as 85 percent. I think you
can see quite clearly, you can see quite clearly through
the plume and what is behind.
Q. Now I would like to talk little bit about these
emission source, Mr. Taylor, if we could.
I believe you testified this morning concerning the
case that was held then, the Colorado Alfalfa Products
33
plant, that they had trouble with their emissions at the
grinder source.
Am I correct that that is the one they admitted vio-
lation? Do you recall?
A. I can’t remember which one now.
[25] Q. Do you remember any special arrangements
that this respondent, or this defendant had made with
regard to any dust problems concerning its grinders on
all three plants?
A. Are you talking about recycling it back through—
Yes, they have installed.
Q. Could you describe what that improvement is that
avoids the problem we talked about this morning? What
is this recycling?
A. I think what it’s doing is venting the stack from
the grinder instead of going into the atmosphere, it re-
circulates it back through the dryer and then back into
the grinder.
Q. And that source of emission is entirely eliminated
through the recirculation?
A. I wouldn’t say totally eliminated, I don’t think
totally.
Q. In order to do this, the recycling, this vent is
closed entirely, is it not?
A. I can’t recall that it’s been closed 100 percent. I
can’t state that.
I think Mr. Bishard of our engineering staff would
know more about this. He’s the one that worked on this.
Q. Do I understand that these dryers of Western
[26] Alfalfa are also the dryers you discussed this morn-
ing, which is different from the ones of this morning?
A. I think the ones this morning are triple pass.
Q. Mr. Taylor, when you are making these observa-
tions, and I am thinking particularly of opacity, there is
quite a bit of difference between the three types of emis-
sions, three sources of emissions from each of the plant,
is there not? What I am thinking of is one of them is
intermingled with steam, the other two are not.
A. Right.
Q. Which of that has steam?
A. Ones from the dryer.
(WHEREUPON, a photograph was marked Defend-
ant’s Exhibit No. 1 attached hereto.)
Q. Mr. Taylor, the reporter has marked here, Defend-
ant’s Exhibit No. 1 and I will hand this to you. Do you
recognize that as the Windsor plant?
A. I think it’s the Windsor plant.
Q. Would you take my word for it?
A. Certainly, if you say so, sir.
Q. By turning the picture so the Board could see it,
could you kind of identify the emission source that we
are talking about here. There are three different places
that you are talking about at this plant. What are those
as [27] you look at that picture?
A. This is the dryer, this is the drum, this is the re-
circulating pipe going back from that to the grinder,
those are the cyclones on the grinder.
Q. Sometimes called the chop collector cyclone.
A. Yes. |
And I believe that these two here, one of them is off the
pelletizer.
Q. Now, you and I visited that plant in July of this
year.
A. I think the first of July or thereabouts.
Q. Is that picture fairly typical of what you are seeing
there, as you look at the plant?
A. I would say, on some occasions probably looks
similar.
Q. And you do have a problem here of the dryer
stack, don’t you, of intermingling of steam or whatever
might come out?
A. Particulate matter, you mean blue haze at the end.
Se ae eee re is
TE TOS Te < aes Oe
35
Q. I’m color blind and so I couldn’t talk to you about
colors.
When you make a Ringelmann reading, where you have
that mixture of steam and particulate matter, how do you
tell what you are reading, the steam or particulate?
[28] A. You have to read at the point of steam dissi-
pating.
Q. Does the test require that you read the emission
from the stack? Isn’t that in the instruction manual, on
that card you use?
A. What card? I never used one.
Q. But you have seen them?
A. I have seen the cards, yeah.
Q. You don’t remember that that was written right
on the card?
A. No, I never read it.
Q. Well, the steam itself that comes out, that is an air
contaminate, is it not?
A. No, sir.
Q. To the extent you would read steam as contamin-
ate, you would get a misreading?
A. If I read that plume at the point of the stack, had
to be 100 percent opaque.
Q. Principally steam.
A. What percent steam and what percent particulate
is pretty hard to—
Q. Is pretty hard to say?
A. The percentages of them, each one, uh-huh.
Q. In that respect it’s quite difficult using the Ringel-
mann then, takes quite a bit using that on this stack
[29] here, for example, where there’s no steam from the
pelletizer stack.
A. I think there’s some steam coming off the pelletizer.
Q. Have you ever seen steam coming out of the pel-
letizer stack?
A. I think this is the boiler plant that injects steam
in the pelletizer.
36
Q. You can see something coming out of there right
now, can’t you?
A. I can’t see it, sir. But if you say so I'll take your
word ‘for it.
Q. Here is one emission source that you talked about.
Here is the other. Where is the third?
A. Top, beginning of the other cyclone.
Q. You can’t see anything from that one because of
the steam problem mainly.
A. I wouldn’t say steam. Maybe the picture didn’t
show it.
Q You say you made these observations for a period
of 10 minutes in June of this year. Even in a period of
10 minutes there will be quite a bit of change, from one
minute to the next on what the stacks look like?
A. Oh, some cases they might be, yes.
Q. There may be more steam or less steam, or more
[30] heat or less heat in the dryer?
A. All the time. It changes from time to time, yes.
Q. I think you indicated you made no analysis of
whatever it was you were seeing coming out from the
stacks?
A. No, we haven’t.
Q. That’s been sent to any chemical ucrauey to de-
termine what is in it?
A. No.
Q. It would be your expectation that it will be alfalfa
chaff or some kind of dust?
A. Out of where?
Q. From the various emissions, the source of all three
of them.
A. Well, I think from the dryer, probably several
things, other than alfalfa, might be some type of weeds,
dust, that is collected. But primarily I assume it would
be alfalfa since that’s the primary product.
Q. There is nothing toxic about alfalfa, is there?
37
A. I’m not qualified to say that. I’m not a toxicolo-
gist.
Q. It’s used for food, isn’t it?
A. Cattle feed, yes.
[31] MR. CAWELTI: Did I offer this in evidence?
MR. FOSTER: Might as well, they have been looking
at it.
Q. Mr. Taylor, we were talking little bit ago during
your direct-examination, about your visit to the Berthoud
- plant in 1967. Do you recall that testimony?
A. Yes, sir.
Q. I think at that time I made the objection about
what you..saw there, other than the Ringelmann test.
Have you examined your files and can you state whether
you have any Ringelmann test from that inspection of
Berthoud in 1967?
A. No, sir, I haven’t examined. Would you permit
me?
Q. Take your time.
THE CHAIRMAN: I think we will take a short re-
cess at this time.
(WHEREUPON, there was a short recess after
which the following further proceedings were had:)
(WHEREUPON, photographs were marked Defend-
- ant’s Exhibits No. 2 and No. 8 attached hereto.)
THE CHAIRMAN: We will declare the meeting in
order.
MR. CAWELTI: I think we left off with Mr. Taylor
~ [82] examining his file to see if he could find any Ringel-
mann tests, if any, made at Berthoud in 1967.
Q. Mr. Taylor, were you able to find anything?
A. Not in my file, no, sir, not in this file.
Q. I placed in front of you, during the recess, two
exhibits marked Defendant’s Exhibits 2 and 3. Would
you please review those exhibits and state whether you
38
can identify the plant shown on those pictures as the
Berthoud plant of Western Alfalfa.
A. I can’t say that its Berthoud, no. But if you say
so—
Q. Do you recognize those plants?
A. It’s one of the plants of Western.
Q. You are not sure which one it is?
A. No.
Q. Are those accurate representations of the plants
from your recollection?
A. Best I can recall yes. You mean as far as drum
and this type of thing.
Q. Yes. al
A. Yes. |
Q. The plume that we see in the picture is from the
main dryer, is it not?
A. Yes, sir.
Q. Is that correct?
[83] MR. CAWELTI: I ask that those be admitted
in evidence, Exhibits No. 2 and 3.
MR. FOSTER: I have no objection.
THE CHAIRMAN: They will be admitted.
MR. FOSTER: I have nothing further of Mr. Taylor.
MR. HEATON: Mr. Taylor, in reference to the letter
you wrote which said there was some improvements in
one of the plants in the 1967 visit, there was no intent
on your reply that they were in compliance with the
state law at that time?
A. I think that’s the letter Mr. Bishard wrote.
MR. HEATON: Are you saying that Mr. Bishard
should answer that question?
A. Yes. He wrote the letter.
MR. HEATON: When you made your visit on June
4, 1969 and made these observations, and you as a certi-
fied air pollution observer, these emissions did or did not
exceed the state standards and the state air pollution
control act?
39
A. They did exceed.
MR. KRILL: Am I correct in inferring that in your
opinion the variation in the emissions from the various
stacks at any one plant would vary appreciably with the
season of the year, early in the year or June, July and
[34] August? Would that opacity indicated by the Ring-
elmann standard change from month to month with the
loading?
A. Yes, I think it could, yes. :
MR. KRILL: Then is it possible that it might be
within the statute at one time and be out another time?
A. Yes, sir, that could happen, yes.
MR. KRILL: Then there is a significant variation?
A. Oh, yeah.
MR. HEATON: You had been working with these
people since 1967 and observed the alleged violation since
that time. Am I correct?
A. Yes, sir.
MR. HEATON: Why was the decision reached on
June 16 to serve the cease and desist order? Had you
felt that conciliation phraseology on the part of the law
had failed?
A. Not entirely. I think we have to operate within
the framework that the Board of Health has. established.
They gave us at the most year and half, but since this is
a seasonal operation, we had to wait until they were
operating in order to determine, in order to comply with
the rules and regulations established by the Board of
Health. This is why we had to issue the order. We had
to do this within the framework that we work in.
{85] MR. HEATON: Did they have work in process
in those plants at the time?
A. I don’t know. I haven’t been back since the cease
and desist order was issued.
THE CHAIRMAN: Thank you Mr. Taylor, that will
be all.
MR. FOSTER: Call Mr. Bishard.
40
A. C. BISHARD,
first being duly sworn to state the truth, the whole truth
and nothing but the truth, testified on his oath as follows:
DIRECT-EXAMINATION
BY MR. FOSTER:
Q. State your name and occupation.
A. A.C. Bishard, air pollution control engineer, State
Health Department.
Q. How long have you been so employed?
A. Approximately two years.
Q. What is your formal education and training as air
pollution engineer?
A. Colorado State University, degree in engineering,
and training while with the Health Department, with the
federal branch ef the department.
Q. You have done outside studies pertaining to the
profession, have you? ‘
A. Yes.
{86} Q. Are you acquainted with the three plants be-
‘longing to the respondent company at Eaton, Windsor and
the Berthoud plants?
A. Yes.
Q. How long have you been familiar with that opera-
tion?
A. Approximately a year and a half.
Q. You have made visits to the plants in 1968 and
1969 then, did you? .
A. Yes.
Q. Were you with Mr. Taylor when he made any
of his Ringelmann observations? Do you recall?
A. ’68 I was. But I would have to search back
through the file to find the specific dates, however.
Q. On any occasion in 1968, did you make readings
at any of the respondent plants that exceeded the statu-
41
tory standards for opacity under the Ringelmann stand-
ards?
A. Yes. Concurrent with Mr. Taylor’s.
Q. You did not make any in June of 1969, did you?
A. No, sir.
Q. What has been your contact with the plant repre-
sentatives, and what has been the conference and con-
ciliation procedure, so far as you are concerned? I just
want an overall description, in a general way what your
[$7] contacts have been, and what the improvements have
been following these contacts and so forth.
A. In 1968 I started working in the field with Mr.
Taylor on the alfalfa dehy plants. I visited all three of
the Western Alfalfa plants at Berthoud, Eaton and Wind-
sor. At that time Berthoud was the worst of all three
having two single pass drum and the opacity exceeded
No. 2 Ringelmann fairly consistently. We did not make
repeated visits every week or on every specific month, but
made visits when we were in that area. And at times
the whole plant appeared to be No. 4 Ringelmann. But
we didn’t make a specific note of the readings at this
specific time because it would not be necessarily repre-
sentative.
At the Windsor and Eaton plants, although they were
somewhat better than Berthoud, still ‘in excess of the state
standards.
MR. CAWELTI: I would like to have the witness
identify the time and whether or not these observations
were made by him.
Q. Do your notes give the exact times and the —
A. No.
Q. You are a qualified smoke reader, are you?
A. Yes.
Q. You are qualified with the Department or the [38]
smoke school.
A. Yes, sir.
42
Q. Has the density of the emission from the plants
improved appreciably from the time you first visited them?
A. In the case of Berthoud, very definitely, very no-
ticeably.
The Windsor plant and the Eaton plant, in reference
to the improvement, is more a thing of volume than
opacity. When they bypass some 70 to 80 percent of the
flow, recirculating this flow, there’s only some 20 to 25
percent discharged into the atmosphere and therefore,
there’s a marked difference in volume, less going into the
atmosphere of the contaminates.
Q: Mr. Bishard, do you have an opinion whether or
not the amount of loading and kind of and the type of
alfalfa that’s being fed into the plant would cause a vari-
ation in the density of the emissions that’s being noted?
Do you have an opinion as to that?
A. Yes.
Q. Would you state your opinion in that connection.
A. The in-coming material of chopped alfalfa is main-
ly, the moisture content varies from 70 to 85 percent, and
sometimes 90 percent water. |
Now, if the material has been hailed or [39] damaged
material, it’s much harder to dry and with higher temper-
ature, it results in more of a change affect on the chaff as
they pass through the dryer.
Q. The charge affect then increases the density of the
smoke emission. Right?
A. Yes, from the dryer.
‘Q. Would you have an opinion as to whether or not
by proper plant operation and recycling that you spoke
of, will be possible to bring the three plants into com-
pliance with the law?
_ A. No, sir. It lowers the total emission. However,
there is that 25 percent, approximately, that is discharged
from the grinder cyclone that needs to be considered,
or that specific aspect of the operation.
48
Now, this material could be passed into a control ap-
paratus and controlled so that it is below the visible
range or approximately 99 percent efficiency.
Q. There would be a way of eliminating all of the
objectionable contaminates if those controls were to be
applied?
A. Yes.
Q. What would those controls be if you were to recom-
mend a control to this plant?
A. Speaking in reference to the grinder emission
which is strictly a dust, there doesn’t seem to be a [40]
temperature or humidity problem at that point. A bag
collector could be used. There are design problems and
we have recommended to all companies that they seek
competent professional engineering help on designing any
type of control installation.
On the dryer collectors, a big portion is the opera-
tional matter and there are some changes that could be
done to reduce the emission there.
On the dust from the pelletizer or cooler, here again
we believe that a control apparatus could be applied which
would control it to 99 percent efficiency or more.
MR. FOSTER: I believe that’s all.
CROSS-EXAMINATION
BY MR. CAWELTI:
Q. When we were talking with Mr. Taylor, we referred
to. your letter in July of last year, July 12 last year,
where you noted marked improvement in the Windsor and
Eaton plants.
A. Correct.
Q. I think you said in your direct-examination right
now you had not noticed too much change in the Windsor
plant, or something like that. I’m little confused now.
A. You are thinking in terms of opacity. I’m think-
ing in terms of volume and that’s the difference.
44
[41] Q. Then referring to the letter, you were saying
there had been marked improvement in which?
A. When the air recycled from the grinder, the volume
that is discharged to the atmosphere decreased from
70 to 80 percent opacity, although somewhat larger or
higher in the discharge, that 20 percent-being discharged
to the atmosphere is little higher, but still the volume has
decreased significantly.
Q. You are saying then, in other words, a marked im-
provement in the volume or the amount?
A. I’m speaking in reference to the grinder cyclone,
right.
Q. But is this correct that there has been marked im-
provement in the amount of the emissions, but not much
change in the appearance of it?
A. When we are making Ringelmann readings, we
read according to a scale.
Q. Ringelmann doesn’t have a darn thing to do with
the amount of emissions.
A. We do not measure amount as to grain loading.
Q. Or the amount in any other type of quantative
way. Isn’t that true?
A. We have made a number of emission inventory
on all dehy plants as well as all industries in the state of
Colorado, and we do take into account the amount.
[42] Q. Let’s take an example which just occurred to
me now. While the amount of the emissions from Mr.
Foster’s cigar certainly is insignificant, they could be
in violation of the Ringelmann test. Am I correct?
A. Leaving out Mr. Foster’s cigar, there is a definite
correlation between the amount and the atmospheric load,
and that is what we are mainly concerned with.
Q. Which? How it looks or how much is polluting the
air?
A. Both.
Q. Which mainly?
A. We take it in steps. First, visual.
45
Q. That’s the main one.
A. Right.
Q. Your concern is less with the amount of the pollu-
tion, but if it looks good they get by no matter how much
is involved. ;
A. This is largely a grey area, I will admit. But
that is not the major concern, no.
Q. So that you are telling us here that the significant
marked improvement was made in the volume of the emis-
sions from these plants, but that the looks of them weren’t
too good? .
A. I would say generally they did look better. There
is little more consistency. Didn’t see as bad fluctuations
[48] in the emissions.
Up to that time, and I forgot the date of the letter,
but the Berthoud plant had not been remodeled and it did
not show the same improvement.
Q. And since then it has been remodeled in the same
way the other two plants were? .
A. Yes. But to what degree, I’m not certain. But it
appears that way, yes.
Q. Same marked improvement occurred there as the
other two?
A. Percentagewise, much higher.
Q. I believe you stated that you had studied literature
of air pollution, in qualifying yourself for testimony,
here.
A. That’s correct.
Q. You are aware that there is considerable amount
of literature concerning air pollution that citicizes the use
of the Ringelmann test or there is quite a bit of criticism
in air pollution literature concerned with the. use of
Ringelmann test, is there not?
A. Not the literature I read.
Q. You have read Mark’s engineering handbook, have
you not?
A. Not entirely.
46
Q. That’s a standard work or book amongst the [44]
engineers?
A. It may be.
Q. It is recognized by you and other engineers as a
standard handbook?
We use Stein’s also.
And use Mark’s.
I don’t have a copy of Mark’s, no.
But you are familiar with it?
Yes.
Are you familiar with his statement in the 7th
edition “while Ringelmann chart is frequently used to
evaluate stack emissions, it is crude and inaccurate
method.”
A. I’ve heard the statement, yes.
Q. You have been involved in air pollution activities
long enough to have heard that statement haven’t you?
A. That’s correct.
Q. And you have been to the smoke school a number
of times, haven’t you?
A. Yes.
Q. Does that mean you took a number of tests to pass
the course?
A. We are required to pass at least once every six
months.
Q. The technique is to hand out papers there and [45]
you put down your estimate of what the reading is, and
then the correct reading are read off. Is that not right?
A. Pass out forms, two sets of columns, one for Rin-
gelmann and one opacity. We are then asked to record
our judgment of the Ringelmann readings versus that
of the electronic eye that is placed in the stack of smoke
generator, recordings from the meter is recorded on a
master sheet. And everyone taking the test is record
their reading at a distance and not able to see the meter,
record it on their separate sheets. At the end of this run,
it’s recorded and corrected.
‘OPOPOD
PTs a 8A ba
47
Q. The readings are read back to you?
A. The operator of the smoke generator reads back
what the meter reads and they are entered along your
entries.
Q. You do that yourself?
A. Yes. Anything in excess of a ten, which is 5 per-
cent deviation, you are to record and add up and there is
a percentile of deviation that you are allowed. I think
you are allowed one reading over 10 percent, and maxi-
mum of six readings over 5 percent.
Q. Then you put down the total of how many hits and
misses you had.
A. That’s correct.
Q. You write this in a little blank at the bottom [46]
of the sheet.
A. Right.
Q. And looking at this blank you can tell whether you
passed or didn’t. a
A. If it’s correct.
Q. There is no judgment factor, either yéu passed
or didn’t.
A. Oh, yes, in the calculations there is.
Q. I mean in grading there is no judgment involved,
either you hit it or missed.
A. The forms are checked by the operator after the
readings are taken and before any certification takes
place.
Q. But he just adds it up and checks your arithmetic.
A. He checks everything, all the entries.
Q. But there is no judgment factor involved, either
you have a passing grade or you don’t have. °
A. That’s correct. But there is calculations and the
standard deviations.
Q. If you pass and if you are sent there by the gov-
ernment you can hand in your paper and they certify you.
Right?
A. That is correct.
48
Q. And if you pass and you were not sent by [47]
the government, there is no place to hand the papers in.
Is there?
A. If you passed and weren’t sent by the government,
you are a guest.
Q.. And you don’t get any official recognition.
A. That’s right. You are not intended to be certified.
Q. Is that so as to avoid conflict of expert testimony,
as you understand it?
A. That depends on your interpretation, yes.
Q. But you pass it one way or another, whether the
government certifies you or not.
A. Yes.
MR. CAWELTI: That’s all.
BY MR. SETTER:
Q. If you can rate tle Ringelmann test against a
meter and electric eye, why not use the electric eye and
the meter for taking these readings?
A. The electric eye is confined to the stack. And it’s
very expensive. There are very few used on stacks within
the metropolitan area.
Q. Who owns one? .
A. Public Service Co. has one that I know of, and
possibly two.
Q. This is the real standard for certifying Ringlemann
observers then.
[48] A. Yes.
BY MR. HEATON:
Q. Mr. Bishard, I want to talk little bit about the
bypass on the grinder. Is the by pass, the amount of the
bypass variable and controllable by the operator person-
ally?
A. I’m not sure whether they all are. Some of them
are. They do have regulations where they can vary the
air. Most of the units are, the bypass it tapped in below
49
the discharge from the collector and recirculated in this
manner from the discharge to the grinder. It is re-
cycled through the grinder. Recently there’s a new edi-
tion, and that portion has been discharged through the
atmosphere, 20, 25 percent is discharged into the primary
collector from the dryer. And if there is any dust it goes
up with the dryer emission. It’s no longer a separate
entity.
Q. You can’t differentiate any longer.
A. Correct.
Q. Before this change was made though, you said
there was a reduction in the amount of pollutants that
came out due to the fact you bypass a high percentage.
A. Yes.
Q. Was there any change in the opacity of the pol-
lutants that were discharged?
A. I don’t have that recorded but yes, there is an
increase in opacity.
[49] Q. It’s more opaque.
A. Yes, right.
MR. FOSTER: We have nothing further.
THE CHAIRMAN: Thank you, you may step down.
MR. FOSTER: We have no further witnesses.
MR. CAWELTI: At this time I would like to move
to dismiss the @ase of the Department.
Without getting into any discussion about whether the
burden of proof on them is beyond a reasonable doubt
or mere preponderence of evidence, I don’t think they have
shown to this Board that a violation has occurred.
We have seen the picture and heard the talk about
the marked improvement. From a bare violation we had
a marked improvement. We have presented to the Board
the pictures of what actually was occurring there.
The testimony has shown that the situation fluctuates,
even within a range of 10 minutes, and particularly with
a range of season.
50
I don’t think this Department has shown that these
people are in violation. Western Alfalfa has made re-
markable progress, they have been cooperative and they
have shown inovations in improving the situation that
existed in 1967. I think something further must be shown
that this, before we are required to proceed and [50] de-
fend against what we can’t even see as threshold showing
of a violation of these plants situated in and around
Greeley.
I request the Board seriously consider our motion to
dismiss, adjourn and rule upon it.
MR. HEATON: Is it proper to question the legal at-
torney on his motion or not?
MR. CAWELTI: I have no objection.
MR. FOSTER: The Board has a right to have any-
thing clarified.
MR. HEATON: Mr. Cawelti, in your motion to dis-
miss, are you denying there was a violation on June 4,
1969?
MR. CAWELTI: We were not actually there on
June 4 but we do have one picture of what was there
on June 4 and all of our information and things that we
have heard so far is that we made marked or remarkable
improvement there. However, on the basis of what has
been presented here, we don’t think that he has shown
a foundation and as I stated, I believe there must be
something further shown than this before we are required
to proceed with our case.
MR. FOSTER: You have the motion to dismiss. Now
the Board will have to consider it at this point. I feel that
we made a prima facie showing that there was a viola-
tion.
[50] (WHEREUPON, there was a short recess after
which the following further proceedings were had:)
. THE CHAIRMAN: We will declare the meeting in
order.
es
51
The decision of the Board is to deny the motion for
dismissal.
The hearing will proceed.
MR. CAWELTI: Mr. Syverson.
CARROL SYVERSON,
first being duly sworn to state the truth, the whole truth
and nothing but the truth, testified on his oath as
follows:
DIRECT EXAMINATION
BY MR. CAWELTI:
Would you state your name, please.
Carrol Syverson.
What is your address?
I reside at 8515 Linden Rd., Leewood, Kansas.
What is your occupation?
I’m executive vice president of Western Alfalfa
Corporation.
Q. How long have you held that position?
A. Since January 1, 1968.
Q. What was your job prior to January 1, 1968?
A. From the period August 1959 until that date, per-
forming the same functions but as general manager of
[52] the alfalfa division of the Archer-Daniel Midland
Co.
Q. Dol understand that the alfalfa division of Archer-
Daniel Midland Co. is substantially identical to what now
exists as Western Alfalfa?
A. Yes, correct. Western Alfalfa Corporation changed
hands, bought by another corporation on the date of
January 1, 1968.
Q. When did the alfalfa division of Archer-Daniel
Midland Co. come into existence?
A. Alfalfa division, by their acquisition of their en-
terprise in the year 1952.
POPS PO
52
Q. From whom?
A. It was acquired from W. J. Small Co., a corpora-
tion owned by Mr. W. J. Small.
Q. How large is Western Alfalfa in terms of number
of plants? eg
A. We operate twenty-five primary producing loca-
tions similar to the one at Berthoud and so on.
Q. Where are these twenty-five plants located?
A. In four states, Colorado, Nebraska, Kansas and in
Missouri.
Q. How does Western Alfalfa Corporation rank in
terms of overall size with other dehydrating companies?
A. [’m not sure how without having the precise
knowledge of our competitors, but we are considered to
be [53] one of the three majors in the industry and I
presume, quite certain that in terms of production, mar-
keting, that. we are leaders in both categories.
Q. What is your duty as executive vice president?
What does it consist of?
A. Those that of, normally, chief executive officer.
Q. How many plants do you have in Colorado?
A. We have four.
Q. In addition to the three discussed here today, where
is your fourth plant?
A. We have one located at Ordway, in the southeast
part ‘of the state.
Q. What is, your annual payroll in Colorado, approxi-
mately?
A. I suppose approximately $250,000.
Q. Western Alfalfa Corporation is concerned only
with the marketing, growing and processing of dehy-
drated alfalfa.
A. That is the nature of our enterprise and our sole
activity.
Q. With the matter of or with respect to your three
plants in northern Colorado, what would you consider
to be the market areas for your product up there?
53
A. It’s almost exclusively in the state here, in [54]
the state of Colorado, in this part of the state and then
' extending: to, much lesser into Wyoming.
Q For what is your product used?
A. In this area, generally almost exclusively for cat-
tle feeding, and again much lesser extent for turkey
feed.
Q. In connection with your operations in northern
Colorado, does Western Alfalfa own the land on which
the alfalfa is grown?
A. In no case, except some places where it’s land
about our plant sites, where alfalfa is planted.
Q. How do you acquire your product to dehydrate?
A. It’s bought from the farmers annually. It’s usu-
ally under agreements to take their whole output from
a given acreage for the whole season. Here in Colorado
there is some variations to that because of the nature
of the agriculture, may get only one other crop or maybe
two as the farmer may find to suit his interest to sell
to us, you see.
Q. Approximately how many acres are served by
your three plants?
A. Here in this part of Colorado, the land is normally
considered by us to be thought of in terms of quarter
section. We have no access to survey information. But
we believe that’s about 35 acres out of every quarter [55]
section is devoted to alfalfa. And in our instance or in
our case we would be using annual output from approxi-
mately 5,000 of these acres in these two counties.
Q. And approximately from how many farmers do
you purchase your product from?
A. Just extrapolating figures here, just spin that
through my head, be about 135 to 140, in that range.
Q. What, at the present time, is the economic situa-
tion with respect to the marketing and dehydrating of
alfalfa?
54
A. At this time we are still going through a change.
in our industry, the situation is somewhat comparable
to what you find generally in agriculture relating to
grain farming, and so on, much depressed, which has
been going on for more than two years. And during
this two-year period, we suffered the lowest prices for
our products in all the industry at this time. We are
not at our low ebb, but I suppose our products here are
now selling at approximately $4 under what we normally
be expected to have in the last five-year averages or so.
Q. You stated a moment ago that you purchased your
product from approximately 135 to 140 farmers in the
area.
Do you have an estimate of the dollar amount which
you pay these farmers, cumulative, in northern Colorado?
[56] A. I suppose it would be around half million dol-
lars.
Q. You as vice president of -Western Alfalfa, you re-
ceived correspondence from the Colorado Department of
Public Health going back to the fall of 1967. Is that
correct?
A. Yes.
First communication you received from this depart-
ment was, as I recall, in October 1967 and it was ad-
dressed to me then as the manager of the alfalfa division
of Archer-Daniels Midland Co.
Q. In 1968 during your production season, did you
have occasion to engage an engineer to look at your
plants up here?
A. Yes. At that time in 1968 I had personally sought
out counsel and service of a person named Mr. Richard
Ronning.
Q. Who is Richard Ronning?
A. Richard Ronning is an engineer residing in Over-
land Park, Kansas who is a qualified registered engineer
in the state of Minnesota, I believe, at least that’s what
he states. He is a person with approximately eight or
55
nine years of experience in great many different capaci-
ties with the alfalfa dehydrating industry in this county.
Q. And as executive vice president of one of [57] big-
three, I believe you testified a moment ago, do you have
personal knowledge of Richard Ronning’s knowledge in
the dehydration industries?
A. Yes. He performed services on our behalf ex-
tensively prior to this.
Q. As a result of his visit to your northern Colorado
plants, did he write you a report?
A. Yes. As is customary he gave me a written re-
port. It’s a letter.
Q. Will. you summarize briefly what his findings
were.
A. Well, prior to that he sought out information about
the Ringlemann test which admittedly was new to him.
And upon studying this system, making observations, he
made readings and at that time he reported, upon re-
turning, reported that in his observations he held that
under the code here in Colorado that there would be no
violation.
Q. He made that report.
A. Yes, he did. I don’t recall what they were spe-
cifically. Thé letter, I think could be made part of the
record here.
Q. In order to refresh your recollection, perhaps you
would like to refer to the letter.
MR. FOSTER: I would object to any testimony by
this witness, testifying on someone else’s report. It [58]
is hearsay, incompetent and irrelevant.
MR. CAWELTI: This is an administrative board
hearing and not in court of law and as such, it is not
bound by the strict rules of evidence. I believe that the
Board can receive it and weigh the evidence herein.
Though it is hearsay, I would submit it to the Board
for their consideration, give it whatever weight the Board
thinks is pertinent.
56
MR. SETTER: This is a report that Western Al-
falfa paid for services to evaluate your plant?
A. Yes. At that time and that date, to find out more
about the whole situation.
MR. FOSTER: I would agree to its admission going
only so far as to establish that a man made a report,
and engineer whom we do not know whether he is qual-
ified or unqualified to make Ringelmann examinations in
his opinion.
(WHEREUPON, a deeneek was marked Defend-
ant’s Exhibit No. 4 attached hereto.)
Q. I hand you what has been marked Defendant’s
Exhibit No. 4. Would you identify that, please.
A. Yes. This is the same one we have been discuss-
ing, date is October 16 and addressed to myself by Mr.
Richard Ronning who calls himself Ronning Engineering
Company, Inc., Overland Park, Kansas. —
MR. CAWELTI: We will offer it into evidence [59]
at this time if there is no objection.
MR. FOSTER: No objection.
Q. Does he report the specific Ringlemann readings
therein?
A. Yes. He reports to me readings made at the
Windsor plant October 9 and 10, twelve sightings under
the Ringlemann smoke chart and his statement in this
connection is that throughout the periods of normal oper-
ation, all tests showed smoke density and dust density to
be less than a No. 1 on the Ringelmann chart.
Q. What plant was that in?
A. That was in Windsor.
Q. What did he say with respect to Eaton?
A. The test period was 5:40 to 6:40 p.m. on October
9, ’68, that four sightings were made with the Ringel-
mann smoke chart and none was in excess of No. 1.
Q. What did he say with respect to Berthoud?
57
A. Berthoud test, observations were made by him on
October 10 over a perriod from 11:30 a.m. to 1 p.m. and
his statement is that six sightings were made with the
Ringlemann smoke chart and all were less than No. 2
and 8 sightings were: less than No. 1.
Q. Lists higher reeading with respect to the Berthoud
plant.
A. That is correctt.
[60] Q. Is there scome explanation for that?
A. As we heard lhere earlier and which is correct,
at this time the Bertthoud plant had not been brought
under the program off change as we had up to this time
accomplished at Eatorn, for example. ;
Q. Did he also maake some statements with respect to
where Western Alfalffa stood nation-wide in terms of its
cleanliness?
MR. FOSTER: Object to that as being immaterial,
how it stands nation-wide.
THE CHAIRMAN!: Sustained.
Q. Have you also thad occasion to engage another engi-
neering firm quite reecently with respect to analysis of
your operations in neorthern Colorado?
A. Yes. Most receently the engagement of the Stearns-
Roger people here in, Denver.
Q. When were thee changes made at your Berthoud
plant?
A. Prior to the seeason that commenced with May of
1969, in other wordss the work was accomplished over
this past winter.
Q. I believe it waas stated your first contact with the
Department occurred in the fall of 1967, and you also
heard, have you not, the letter indicating as far as your
Windsor and Eaton yplants were concerned that you had
made [61] marked porogress by the summer of 1968.
Now after you made the changes at Berthoud, did you
hear anything furtherr from the air pollution control prior
to your cease and dessist order?
58 sie
A. None came to my attention whatsoever.
Q. Did you have great deal of familiarity with the
three plants in northern Colorado?
A. Yes. I have as much familiarity with these three
plants as with any of the installations and facilities in
our whole system. My visits to these places, I suppose
would number at least six annually. My last visit to
them was, for example, July 12 or 13 which TI recall
vividly because it was my birthday.
Q. So that you visited these plants say six or seven
times a year for the last three or four years. Is that
correct? :
A. For the last ten years.
Q. Are you aware of the improvement that you have
made at your three plants in northern Colorado?
A. I am aware because all of these improvements of
course, must be cleared through me and then the expendi-
tures authorized, and even the engineering aspects would
have to come under my close surveillance.
Q. Have-you personally noticed marked difference in
the amount of emissions coming from your three plants
here?
[62] A. Yes, indeed, to the extent already discussed
here today.
Q. I realize that you have not been to the smoke
school and so I certainly have no intention to qualify
you as a smoke expert here.
But how would you personally characterize the quality
of the emissions that is coming from your three plants
in northern Colorado?
A. One can only do it, I suppose, by comparison,
since I travel extensively among our own plants and
among the entire industry, and it is my observation that
these would be classified in my mind to be clean. I mean,
‘there would be no problem about pollution as such. That’s
just in general terms. I’d hesitate to define it precisely.
59
MR. CAWELTI: I have no further questions of this
witness.
MR. FOSTER: I don’t have any questions.
BY MR. HEATON:
Q. Mr. Syverson, are you familiar with the state air
pollution control act?
A. Just generally. I’ve read most of it through. As
I say, generally to the extent, I know what the require-
ments are.
'Q. Do you feel qualified to make a statement that you
do or do not conform with the emission standards [63]
in the state air pollution control act?
A. Well, it is my opinion we do conform.
Q. What is the basis of that opinion?
A. On the basis of the people who have separately
taken the Ringelmann readings and furthermore, on the
basis of the reading and observations taken by the engi-
neers who were engaged, namely the firm of Stearns-
Roger who precisely stated that in all three points of
discussions here pertaining to the sources of emission,
that there was no violation and I accept their report to
be quite valid. At least personally this is the way I
took it.
Q. Your statement was that you thought your plants
were among the cleanest in the industry. That does not
imply they conform to the standards, does it?
A. I’m. not a judge of that, no. Like I said, I
couldn’t be precise.
Q. Specifically, when was Stearns-Roger hired?
A. It was subsequent to the cease and desist order
which I suppose been the latter part of June or early
July. I don’t have the date at hand.
BY MR. CHENAULT:
Q. Mr. Syverson, have you experienced similar air
pollution problems in some of your other facilities in
Nebraska, Missouri and Kansas?
- 60
[64] A. Oh, yes, indeed. This is inherent, or typical
of: the alfalfa dehydrating business, unless one does ex-
tensive work to cope with the pollution problem, you will
have it.
Q. These particular plants where you experienced this
problem, your firm or engineering firm installed abate-
ment systems that would control the problem?
A. Yes, indeed.
Q. Would you say that the problem in which you are
confronted with, these facilities here in the state of Colo-
rado, are similar to those problems in where you have
installed abatement systems?
A. Yes, the problems, plant structure, the layout and
so on is similar to the plant we have here. The prob-
lems would be quite alike.
Q. And these systems that were installed were as the
result of a violation or ordinance or law within those
particular states?
A. No. I’m happy to answer your question this way,
that there is more in our mind than the abatement of
this or to solve the problems of air pollution. There is
the economic consideration which is of great concern to
us, because the emission into the. atmosphere, quanti-
ties of this material is emission or the loss of money,
realiy. So even before having received this communi-
cation originally from [65] this Board in 1967, in the
winter of 1966 or that is prior to January 1, 1967 we
had in our engineering group conversations which evolved
a plan to install this prototype system at a location in
Odessa, Nebraska. This prototype was then put into
operation at the site in the 1967 season and it was per-
fected there and this perfected system was then installed
here in the plants in northern Colorado and improved
upon when brought here to the extent that we brought
them up in our minds where they would pass the Colo-
rado requirements.
61
BY MR. SETTER:
Q. What is the daily capacity of these plants? Are
they all about the same in tonnage?
A. In Colorado?
Q. Yes.
A. The capacity of these, yes. They are designed to
be quite alike. But there’s little variations which is
unexplainable. But they are quite alike.
Q. What sort of average production is it?
A. These units are rated in terms of their capability,
rate of so many pounds of water per hour. These have
an optimum of approximately 22,000 pounds per hour.
Q. Ten tons per hour?
A. Twenty-two thousands pounds of water evaporated
per hour.
Q. And what you are doing is dehydrating.
{(66] A. Right. ;
Q. Then the moisture content of the alfalfa is quite
a variable thing. Is this correct?
A. Yes. I think one of the gentlemen said here that
it varies from 75 to 90. Ninety exceeds what would be
expected to be the limit. Maybe 86 would be the top
side.
BY MR. HEATON:
Q. If I visited anyone of your plants in the four-
‘state area that you mentioned, would I find the equip-
ment to be exactly the same?
A. Not exactly. We have various equipment. And
some we have, are single pass drum which admittedly
are not good and efficient as you find in northern Colo-
rado. We have differences in the hammer mills, for ex-
ample, because they are made by different suppliers or
fabricators. And you find different types of pelleting
equipment for example and different designs of flow lines.
Q. Would I find the control procedures, the operating
procedures different than any of these plants?
62
A. This is very critical here. You would find control
of the fueling systems and the systems that regulate
the volume of air through the drying process, which are
under very strict control because this is, economically,
terribly important.
[67] Q. These are corporate standards and not plant
standards.
A. Yes, this is a program.
MR. FOSTER: Some of the previous testimony given
on behalf of the Department mentioned taking the effluent
now being discharged, putting it through water. Would
not that be additional control that would be feasible
to eliminate practically all of the emissions from the
plant?
A. I presume that it would be possible, yes, which is
a method of scrubbing, I think it’s preferred to. It would
be, in our opinion, beyond the limits of economic feasi-
bility for this type of installation.
Q. Costwise?
A. Capital cost, yes, and the engineering, all things
considered plus the operational cost. So then you im-
mediately create another pollution problem.
MR. CHENAULT: Any reason why a bag type col-
lector could not be used as a collection media as ——_
to a scrubber system?
A. For a good reason, and that is we have in the
past, the industry, our company we used this extensively
with extreme difficulty which the main reason is loss by
fire. Fire is ever present here, an ever present condition.
Bag type collector means not only the loss of that unit,
but perhaps your buildings with it. Very great hazard
for fire.
MR. CHENAULT: If you had a bag house after
[68] the cyclone, would you still be confronted with this?
It seems to me your cyclone is your source.
A. We are talking about a closed system here, really.
You got circulating systems of air here going through
63
and fire can be carried from one end to the other, through -
the whole works. One would have to look at the flow
chart to be able to see this.
THE CHAIRMAN: If there are no further questions
of this witness, you may step down.
CARMEL LAVINCI,
first. being duly sworn to state the truth, the whole truth
and nothing but the truth testified on his oath as follows:
DIRECT-EXAMINATION
BY MR. BLACKWOOD:
Q. State your name, please.
A. Carmel Lavinci, 5501 W. 97th, Overland Park,
Kansas.
Q. What is your occupation?
A. Vice president, Western Alfalfa, Kansas City,
Missouri.
Q. How long have you held that position?
A. Since February 11, 1969.
Q What was your job prior to that time?
A. General manager, Central Storage Elevator.
Q. What does your duty consist of at the present [69]
time?
A. Primarily to assist in the discharge of corporate
management duties with special emphasis on purchasing,
labor relations, on air pollution problems, general advice
on production problems and engineering problems.
(WHEREUPON, a document was marked Defend-
ant’s Exhibit No. 5.)
_ Q. I will show you what has been marked Defend-
ant’s Exhibit No. 5. Could you identify that, please.
A. Yes. This is a flow chart that was prepared by the
Ronning Engineering Co. at my request, showing essen-
64
tially a typical installation of Western Alfalfa Corpora-
tion dehydrating alfalfa plant in northern Colorado.
MR. BLACKWOOD: I would like to offer this dia-
gram at this time.
MR. FOSTER: No objection.
Q. We have heard a lot of talk today in “the two
hearings about what happens in a dehydrating plant or
the dehydration of alfalfa, the facilities. I would like
for you to go through the steps in the production of
alfalfa dehydrating product.
A. Essentially as pointed out previously, we are en-
gaged in physically removing moisture out of what we
call alfalfa chops. We have the drug dryer here which
is [70]. simply a cylinder that rotates, which happens
to be a 10-foot diameter drum, 40 feet long and rotates
from nine to 10 revolutions per minute. It burns natural
gas. We introduce the wet alfalfa chops with high mois-
ture content in this point, the dryer, and as the chops
move through the dryer under the impulse of air from a
fan installed at the end of the drum, it is dried through
the course of its movements, it moves pneumatically to
this primary cyclone where the steam moisture is vented.
Q. The primary cyclone is the No. 1 source of emis-
sion that is cited in the cease and desist order.
A. Right here. Of course, the ‘cyclone is, as you
gentlemen know, is designed for swirling motion and the
gaseous material is emitted to the atmosphere whereas
the solid matter is dropped through the cyclone to the
bottom and discharged to the bottom.
At the bottom of this we have what is called a trash
removal door for foreign matters which is cleaned out.
At that point we have another pneumatic pickup and we
convey the material to the secondary cyclone which is
here.
Q. This is the No. 2 source of the emissions, which
is cited in the cease and desist order. Is that correct?
A. Yes. Now this hammer mill is the swinging type
and the function is to reduce the dehydrated alfalfa chops
Eta ee ee
eae
65
to a size consistent with proper pelleting. From the ham-
mer [71] mill we convey now the ground alfalfa to the
meal cyclone from whence it goes to the meal auger or
the screw, thence to the meal bin and the pellet mill. The
pellet machine itself is a machine which is used to trans-
form the dehydrated meal into compact dense form, into
a pellet form.
Q. And this is the third source of emission for which
we have been cited.
A. Yes. But I haven’t got to that yet. From the
pellet mill by means of an auger and pellet elevator,
then we move the pellets to the cooler. And the function
of the pellet cooler is to cool it down to 10, 15 degrees
above the ambient temperature to remove the heat away
from the pellets for preparatory to storage, shipment
of the pellets to other points because otherwise, the pel-
lets would have too much moisture for proper safe keep-
ing. We introduce a stream of air through the pellet
cooler and the function of the air is to both dry and re-
duce the temperature of the pellets and from thence we
exhaust the gases or the air through this cooler cyclone
with the fines dropping down to the meal bin, for re-
cycling again.
Q. This diagram fairly represents the condition of
your three plants in northern Colorado at the Stepan
time?
A. Diagram, yes, sir.
Q. Are all three of your plants in northern [72] Col-
orado basically equal as far as the mechanical operations
are concerned?
A. Yes.
Q. Now going to Sioe of 1967, does the diagram as
it is shown here fairly represent how the plants were op-
erating at that time?
A. No, it doesn’t. First of all, Mr. Blackwood, the
dryer is a 'three-pass dryer and at that time both Berthoud
and Windsor, we had single pass drums in operation
66
there. Also, this red line here which I hope this Board can
see, the red line from the meal cyclone down to the top
of the hammer mill and also down into the entrance way
to the fan, at the end of the drum dryer, were not in
existence at that particular time.
Q. Do I understand you to say that the vent at the
top of the meal cyclone was open?
A. Yes.
Q. You are aware, are you not that at the hearing
this morning, there was source of emission which Color-
ado Alfalfa admitted was in violation?
A. Yes.
Q. Are you able to identify on this diagram that
source of emission?
A. The meal cyclone, here.
~Q. Which has been closed up since June of 1967.
[73] A. Yes, sir.
Q. Would you briefly tell us the distinction or the
difference between a single-pass and three-pass drum.
A. Within this cylinder we installed two concentric
cylinders and the inner most cylinder is about the diame-
ter of this furnace or the new furnace as redesigned,
by the way, and then with an intermediate cylinder. They
rotate around the same axis, of course. And we also com-
pletely redesigned and rebuilt the furnace. The furnace
was made roughly twice as long and about 2.5 times, I
believe, larger in volume. Also, we increased the size
of the fan to induce more air through the dryer, at the
dryer end. Now the reason for this change is in in-
creasing the capacity of the drum, you therefore need
a larger, more adaptable heat system in the furnace, and
also a larger volume of air to physically move the larger
volume of chops that go through the drum which are
being dried.
Q. What affect, if any, would those changes have on
the emissions of the primary cyclone?
67
A. We think it’s quite substantial, the reduction ef-
fected by the changes as stated.
Q. Do you have an estimate as to the approximate
cost of the changes, the effects of the change that you
have made to your three plants here in northern Colo-
rado?
[74] A. I would say about $60,000.
MR. CHENAULT: Could you point out on the dia-
gram where the fire hazards are providing a dust col-
lecting media is installed?
A. I must say that fire hazards are any place in an
alfalfa plant, not only in this dehydrating system, but
also the storage elevator. I know because I fought fires
all my life. One of the primary source is right from the
hammer mill and anything beyond the hammer mill is a
_ primary fire hazard. Any point in this line here you
‘could have fire. You could have fire any place in here if
the trash removing is not. working properly.
Q. I believe his question referred to Mr. Syverson’s
discussion on the possibility of bag type collector, talking
about placing a bag type collector.
A. I’m sorry, I frankly could not hear. You will
have to refresh me on that.
Q. Is it possible to your knowledge *) have a bag
type collector over your primary cyclone?
A. A bag type collector is not compatible with mois-
ture. It’s just not used in the business to trap dust with
moisture. It is not compatible.
MR. BLACKWOOD: That’s all that I have of him.
MR. CAWELTI: I would like to have this [75]
marked as an exhibit.
(WHEREUPON, a document was marked Defend-
ant’s Exhibit No. 6 attached hereto.)
MR. CAWELTI: This exhibit, marked Defendant’s
Exhibit No. 6 is a letter from Mayor Wayne Miller of
Windsor. I am not going to read the whole thing but
=>
68 "
he identifies himself, states his connection with the city
and the type of work he’s been doing, and incidentally he
is a public health official. He states “It has been our
observation that they have always been very interested
in improving the plant as new ‘developments occur. This
includes matters concerning air pollution. Frankly, as
a casual observer who passes the operation at least two
or three times daily during the course Of my work, all
I can see is white steam, and this dissipates quickly.”
I just want to offer this for what is is worth.
We might handle this next matter by stipulation. And
I would like to get everything before the quorum of
this Board so that we won’t have to return.
I intend ‘to call Mr. Weimer who is the engineer,
project engineer for Stearns-Roger who had the responsi-
bility for the study made by them in July of this year,
after the cease and desist order was received, and very
soon after Stearns-Roger people had gone out to look at
[76] the plants. He made a particulate study of the emis-
sions from this plant and he made it in accordance with
the ASME standards for making grain loadings. And
of course, we would expect in his testimony to describe in
detail hOw the method of testing conformed with the
ASME standards, and announce the results of that par-
ticulate study, and the results of that particulate study.
I don’t have the exact figures here, but in summary it’s
less than the .40 pounds per 1,000 pounds of emission |
gases as set up in the spams being under the limit of
violation.
MR. HEATON: Is this technical report to be sub-
mitted?
MR. CAWELTI: No, no.
MR. FOSTER: On behalf of the Department, I will
stipulate that if this gentleman were to testify, he would
testify essentially as counsel has stated.
However, I would object to the testimony as not being
competent in this hearing, or relevant and furthermore,
the law did not make any provision for grain loading
or any provision whereby the respondent could at his own
expense set forth— If he could show himself home-free
on grain loading why he would not be in violation of
the Ringelmann standards. That’s the only legal question
that there is with reference to this. I do not feel, that
it is competent or pertinent to even consider grain loading
in this at all.
[77] Now, if the Board sees fit to admit that stipulation
on that basis, on the basis that it is competent evidence,
the Board will have to receive it and consider it. If it’s
the Board’s opinion that it should not consider that evi-
dence, then they will have to consider only the evidence
that has been offered in reference to the Ringelmann
standards.
THE CHAIRMAN: I would have to say at this point
that grain loading is not at issue here, and without ques-
tion is not relevant to the testimony presented.
MR. CAWELTI: Mr. Chairman, I will be brief. I
think we have to face fairly this question of whether
grain loading is going to be an appropriate test of this
type of operation. We think it is. I think the Board is
going to have to ask guidance of its staff, as to whether
grain loading is or will be a defense.
MR. FOSTER: It will be if it goes under the July—
THE CHAIRMAN: Gentlemen, I think we should
either close the hearing now or reconvene later.
Mr. CAWELTI: I would suggest, Mr. Chairman, in
view of the fact that the question is pending in the other
case, frankly, I don’t know that we have further testi-
mony to be given. But I think we are pretty well finished
with our testimony. But I don’t see any reason why, so
[78] far as our case is concerned, the matter shouldn’t be
continued until the next meeting.
THE CHAIRMAN: All right, we will adjourn this
meeting then.
(WHEREUPON, the proceedings were adjourned.)
[Certificate Omitted in Printing]
70
BEFORE THE AIR POLLUTION VARIANCE BOARD
STATE OF COLORADO
In the Matter of:
WESTERN ALFALFA,
(Continued hearing from September 11, 1969.)
TRANSCRIPT OF PROCEEDINGS
The above-entitled matter came on for hearing, on
Thursday, October 16, 1969 at approximately the hour
of 1:30 o’clock P.M., in the Conference Room 412, Colo-
rado Department of Health Building, City and County
of Denver; this matter having been recessed, and now
proceeds.
APPEARANCES:
Mr. CLAIR H. IVERSON, Chairman
Mr. E. MCDONALD CHENAULT
Mr. GEORGE SETTER
Dr. ARTHUR M. KRILL
Mr. THOMAS R. HEATON
On behalf of the Board:
> JAMES KREUTZ, Esq.
On behalf of the Colorado State Board:
DAVE FOSTER, Esq.
On behalf of the Applicant, Western Alfalfa:
DONALD CAWELTI, Esq.
PROCEEDINGS
MR. CLAIR IVERSON: I declare the Variance Board
hearing on Western Alfalfa, which began on September
11, 1969 and adjourned that same day to be continued at
this time.
SO ae
71
The members of* the Board present, who were present
at the previous meetting, are Mr. Chenault, Mr. Setter, Dr.
Krill, Mr. Heaton <and myself, Clair Iverson.
At this point wee have Mr. Dave Foster representing
the State Board of * Health and Mr. Jim Kreutz represent-
ing the Board in leegal matters, and we also have present,
Dr. Gibbons, Dr. LLodge and Dr. Dwire, who are present
to listen to the ccontinuance of this case, but will not
vote on the decisionn unless they have ‘completely reviewed
the transcript of tkhe previous session.
MR. FOSTER: Could I make an amendment to your
last remark, unlesgs and until.
CHAIRMAN IVVERSON: Shall we proceed from here.
MR. DONALD ‘CAWELTI: I might point out to the
Board, that since the last hearing, Mr. Foster and Mr.
Kreutz have been, kind enough to spend sometime with
me and discuss whhat yet is to be done in the case.
On behalf of thhe applicant, of course, it is apparent
(3] that I have nnothing further to offer in the way of
evidence. At the cconclusion of the hearing last time, we
had admitted by : stipulation, and if you will recall, we
were running quitte short of time, and so as a convenience
to all of us we adnmitted by stipulations a tender of proof,
particulate emissigon tests being conducted with respect to
the emission sourg@ces that had been cited and those tests
were made in, I believe, in mid August, and that the
tests revealed thaat the particulate emissions were less
than the newly established minimums under the amend-
ment to the Air Peollution Act effective July 1 of this year.
Now, we met ‘since then and I, correct me if I am
wrong, either Dayve or Jim, I believe we stipulated that
the engineering rreport itself could be received into evi-
dence. I have it hhere and will tender it if the Board feels
that it would bee of some assistance. Beyond that, the
only statement thhat I care to make, is I think I would
point out what tlthe obvious is to the Board, it certainly
is to ourselves. I] think we are all in somewhat of a dis-
72
position in this hearing in this matter, because of the
fact that during the pendency of the resolution of this
matter, the law has changed and this is a difficult and
awkward situation for ourselves and I am sure the
Board as well. Certainly the admission of a particulate
standards as [4] far as the cease and desist order itself
is concerned, is irrelevant. The law wasn’t in effect at
the time the cease and desist order was issued. I think
we have to take a realistic look at this. However, not a
great deal is to be obtained by continuance of the cease
and desist order at this time, because of the change that
has been made in the law and I also recognize the diffi-
culty of the position of the staff as I refer to them.
I envision perhaps, in that due to the issuance of the
cease and desist order, the pendency of the hearing here,
they have not had the opportunity to work with the re-
’ spondent, Western Alfalfa in the conduct of the test that
yielded the particulate results.
I know Western Alfalfa would have perferred that
this test. be done in conjunction with or under the super-
vision of and in cooperation of how ever you want to
put the division of the air pollution control. I am sure
there is someway that this can all be worked out to ac-
complish what we all want to do and that is bring these
plants as nearly as economically possible to compliance. -
I don’t know if this is up to me to bring this up, but
I know Mr. Kreutz and Mr. Foster and myself did dis-
cuss some means by which this matter could be handled
and resolved [5] and yet we would all profit by the hear-
ing having been held and work towards getting the sit-
uation improved to the extent we can. I don’t know
really. Is there anything else I should add Dave?
MR. DAVE FOSTER: I might ask the question,
would the respondent be agreeable to leaving the matter
in the hands of the Variance Board with a view of mak-
ing periodic reports when the season starts up again as
to what the situation is? Reports both from the company
aoe
73
and from the division as to what their findings are and
what test, if any,-additional tests are made and what
Rinkleman readings are made and so forth. In other
words, keep jurisdiction of the case rather than to go in
and then have to come back with another cease and desist
possibly and then going through another variance board
hearing, or. would the respondent prefer to let the board
make that decision as what should be done with reference
to the case?
MR. CAWELTI: Well, the problem with that ap-
proach, it seems to me, the cease and desist order which
has now been issued relates to something that ocurred in
June 18 or 16 of this year, has sort of become dated.
And to continue the Board’s jurisdiction on the [6] ba-
sis of that cease and desist order, it would seem:to me
to involve some problems. Western Alfalfa certain ex-
pects to work with the staff division, and with regard to
its continued operation. It would expect as it indeed is
obligated to do under the law, as it is now written, that
the staff feels there are Rinkleman violations, visual vio-
lations, the law says that Western Alfalfa must at its ex-
pense perform these particulate tests and judging from the
testimony I heard here at the first hearing, unless there
is some change in the method of operation of these dehy-
dration plants, I will expect. the staff to come out and
say we are finding Ringleman violations. At that point,
I don’t see that the applicant has any choice to avoid a
cease and desist order, but to say, alright, we are going
to make particulate tests and see if we can get out from
under the Rinkleman by showing particulate compliance,
and at that time, work with the staff and in making
those particulate tests and not go off as we were forced to
do this last time, and do them on our own. I think this
is going to happen without the Board having to retain
jurisdiction, Mr. Foster, is what I am saying.
74
MR. FOSTER: I ask the question anticipating that
the Board would want to give you an opportunity to [7]
respond.
MR. CAWELTI: I think what you are looking to
happen here is going to happen whether the Board retains
jurisdiction or not.
MR. HEATON: I am going to ask our attorney here
to help me a little bit at this time. Reading on page
two, the first full paragraph. “Emission and Excess of
Rinkleman Number two or opasity of 40 percent for
a period aggregating for more than three minutes during
any hour is in violation of Section 66-29-5 (1) (2), Col-
orado Revised Statutes 1963, and may not lawfully be
permitted to continue except under such terms and con-
ditions as may be found appropriate by the Air Pol-
lution Variance Board. That under the facts and cir-
cumstances appearing, it has been determined that West-
ern Alfalfa has been given ample time and opportunity
to bring its three plants into compliance with the law,
and ten days from the date and receipt of this order, are
hereby determined to be reasonable within such company,
shall be required to cease and desist from such violation.”
Now, the way I look at this thing, originally your
statement was that the only hearing would be conducted,
was again whether you were violating or not violating.
[8] MR. CAWELTI: Yes.
MR. HEATON: Would it now be that you might say
that you are willing to operate under such terms and
conditions that be held apropriate by Air Pollution Vari-
ance Board if we so chose to do that until you and the
Department can work together on the thing and it might
be then a rehearing?
MR. CAWELTI: Mr. Heaton, it seems to me, that
the way we would invoke the jurisdiction of this Board,
give you authority to impose terms and conditions on our
operations, would be to admit our violation and ask for
variance and then the mechanics as I understand it, then
75
permits us to operate where we have acknowledged the
violation, but you set terms and conditions upon our
operations.
Now, I don’t think the case is quite in that posture.
We have denied that we were violating and we have pre-
sented evidence that we were not in violation on this
date.
Now, of course, that evidence is contradicted by the
staff and the Board.
MR. HEATON: The violation, I think, is June 4. You
did not present evidence that you were not in [9] viola-
tion on June 4.
MR. CAWELTI: Of course, I think we all have to
realize that it is physically impossible, because we didn’t
even know that we were being examined on June 4, and
it wasn’t until some 20 days later that we had been ex-
amined on that date, so we can’t say exactly what hap-
pened on that day, because it is a matter of history by the
time we heard we were being charged for it.
MR. HEATON: You were cited for violation on Octo-
ber 19, 1967, and were sent a note on the violation then,
and that was at. Eton, October 30 at Birdside, and I
don’t have a note on Windsor when the first time it oc-
curred there. I think it was a series of violations then.
MR. CAWELTI: I think our testimony shows we did
make some significant improvements since those dates too.
I am not saying the Board cannot find us in violation on
June 4, the evidence before the Board was conflicting.
We said that our operation on the date we made obser-
vation were the same as they were on June 4, and that
at this later date then, we did not have violations.
Now, that is as much as we can do, because obviously
we weren’t there, and to make our own observation on
the same date, the Board made, because we didn’t even
know the [10] staff was out making observations on that
day. So the best we could say, we were still doing the
same a month later, and a month later, we looked alright.
76
So I am not saying that.
MR. HEATON: Let me ask you another question.
Do you think yourself able to state that there might have
been a violation on June 4, so the Board can cite some
conditions?
MR. CAWELTI: I suppose I could do that, then we
would have to make application for a variance, which we
have not done.
MR. HEATON: Okay. That is the point I want to
get. You are not willing at this time to make application
for a variance? .
MR. CAWELTI: No, we are not, because we believe
under the law now, we are—
MR. HEATON: Categorically, you are stating with
the regards to the cease and desist order that you re-
ceived concerning a violation on June 4, and that is dated
June 16 with regards to this particular cease and desist
order, at the time, your stipulation is that you still do
not think you were in violation and will not ask for a
variance?
[11] MR. CAWELTI: That’s right.
MR. HEATON: You can make it much easier, I
think, from a legal standpoint, to really accomplish what
is needed to be done on this thing, if you could find
some wavering in the thing, and: be a little soft on
it, if you chose not to, then we can’t find it to be easy.
The objectivity of this board is to try to clean air pollu-
tion in the State of Colorado, but again, we have to have,
I feel we have to have your request to allow you to within
certain rules and procedures, to operate on in your plant,
and again a plan by which you people are going to maybe
make further improvement, or a plan in which you are
going to work test to prove with you and the department,
to prove that you are in compliance over the next period
of time, and your plant is now shut down, so these test
cannot occur in the future until next May, I suspect,
so you are not giving the Board any leeway to do what
you want to do.
TT
MR. CAWELTI: Well, Mr. Heaton, you have got to
understand that, we really honestly believe that we are
in compliance with the Air Pollution Control Standards
as they are now written, and it isn’t fair for me as an
attorney for the group to say, well, why don’t you just
say you are in violation, so the Board can have jurisdic-
tion, when I [12] I don’t think that under the law, we are.
And under the tests that we made, we are. I think it
is incumbent upon the staff.
MR. HEATON: Let me talk about the law on June 4.
The specific law on June 4. As the law reads on that date,
and as it reads on June 16. Could you have been in vio-
lation on those dates?
MR. CAWELTI: Yes. Our own view is that we were
not, and our own testimony is that we were not.
MR. HEATON: No, your testimony was in fact that
you were not in violation on August. I don’t have the date
of that report, but it was August.
MR. CAWELTI: Mid-August.
MR. HEATON: Your testimony is that you didn’t
think you were in violation of the law as the law read on
that date.
MR. CAWELTI: No, we also testified that we oper-
ated the same on that date as we were on June 4, and
that we have testimony that the Rinkleman standard
wasn’t being violated on June 4. Again, on observations
made a month later, related back on the assumption that
the conditions are the same and I realize that is not as
good as a person standing there that day, but the evi-
dence, [13] nonetheless to be weighed and considered. I
would allow that under ordinary circumstances, it
wouldn’t be given as much weight as that evidence pro-
duced that day, but it is just impossible for us to counter
that evidence produced that day.
MR. HEATON: Page 10, Subsection 5 (d).
Now, it is talking about the powers of the Variance
Board. Adopted modified, reject the findings, conclusion
78
of proposed orders of, any hearing officers, designated un-
der paragraph (c) of this subsection concerning vio-
lations or requests for variances under this article.
MR. FOSTER: That is not pertinent here. That is
of the hearing officer.
MR. HEATON: Then it says if such action by the
Air Pollution Variance Board results in findings of vio-
lations or denial of the requested variance, the party shall
have ten days and so forth.
DR. LODGE: There is not a hearing officer involved
in this.
MR. HEATON: I interpret this and maybe I am just
dumb, that this variance comes by request.
MR. POLUMBA: I think because this is a seasonal
operation and has become very apparent here in the dis-
cussion, and the principle by which Mr. Cawelti is [14]
operating, really doesn’t apply in this case, particular
case in effect, even though the law has changed, the
specific standard which was applied in citing the cease
and desist order originally has not. The only difference
being in the new law, that there is a provision whereby
one standard that is the weight per unit volume of gas
could be substituted for the Rinkleman standard, if the
division made a correlation on these two standards.
Now, I think the testimony, if it hadn’t shown or al-
ready continue to show that the division has not made
this correlation, and that any future testing by the re-
spondent, which would show a grain loading or a weight
loading in the stack, which meets that standard, would
not necessarily bring the respondent in compliance with
Section 2 of the law, which is the Rinkleman application.
And so I think next year if we were to proceed or delay
this case until next year, we would be facing the same
situation, the division, if the plant were operating under
violations of the Rinkleman standard, would cause an
order to be issued to cease and desist the violation of
79
=
Rinkleman standard and we would be right back where we
are today.
MR. CAWELTI: Mr. Polumba, I don’t understand.
[15] You are saying that this law becoming effective
July .1 of 1969, the division is going to put off determin-
ing whether there is a correlation indefinitely so that
in effect, the relief and defense offered by the law is
never going to be available to a person charged? I think
at sometime and I should certainly hope by next year, as
far as the applicant is concerned, the division will have
made this determination, so that we know or we don’t
know what the division stand on that is going to be.
The availability of this defense cannot be indefinitely
postponed, because of inaction of the division in this
respect.
MR. HEATON: In defense of Mr. Polumba, Mr.
Cawelti, could you tell me the date that your client or
you submitted copies of your engineering report to the
department of observations?
MR. CAWELTI: That is a very good point, and we
were not able to do that before the hearing.
MR. HEATON: Could you tell me the date?
MR. CAWELTI: I think it was the day before the
hearing.
MR. HEATON: I think it was the day of the hearing.
[16] MR. POLUMBA: There is a misunderstanding
here. The Department is, not maintaining it has not
made a determination. It is maintaining it has not made
a determination that there is a correlation between alfal-
fa dust of .40 pounds per thousand: pound in the stack and
the correlation between the Rinkleman number two.
MR. HEATON: That is very true, and I understand
that, Joe.
MR. POLUMBA: I think Mr. Cawelti was implying
that the Department has not made a determination. We
have made a determination. The determination is that
30°
there is no correlation to Rinkleman Number two and
.40 pounds per thousand pounds.
MR. CAWELTI: That is the first I heard that. The
day of the hearing you said you made those and now
you said you made a determination that there is not.
If I misunderstood you—
MR. POLUMBA: It is a play on words. At the time
the statement was made, it was made in the context that
we have made no determination that there is a correlation
between, and here is where is comes, the confusion, I
guess, we have not made a determination that there is
a correlation between .40 pounds and Rinkleman number
42, which I think is the same thing. I am saying only
[17] in slightly different words.
DR. LODGE: I think it is very easy to be miscon-
strued, but what you are saying is, that you have made
a determination and the determination is that there is no
correlation?
MR. CAWELTI: That is correct.
MR. HEATON: What Mr. Cawelti is asking, he at
his own expense had a study done and submitting the re-
port to you to see if you might change your determina-
tion. Again, am I correct? I may be wrong?
MR. CAWELTI: If he has made that determination,
I expect we are asking him to change it.
MR. HEATON: Again, the Division never got it in
sufficient time before the hearing to bring their findings
before the board at that time.
MR. POLUMBA: From the Department standpoint,
I believe the confusion arises from here. I will not quar-
rel with Mr. Cawelti. We have not made the determina-
tion between Rinkleman Number 2 and .40, which we did
not make. In other words, there is no correlation between
the two, and there is the context within which it was
given. Now, you can play on those words and come up
with perhaps a slightly different—
81
[18] _DR. LODGE: I must confess, I misunderstood
you the first time you said it today.
MR. POLUMBA: I wouldn’t quarrel that point.
DR. LODGE: I think it is reasonable misapprehen-
sion. I think that we are faced here with a problem that
has been skirted around very considerably, and that is
precisely this point, the actually, there is in law, nothing
to keep Western as things now stand from beginning op-
erations next year, assuming that they are in compliance.
The question is compliance with what, and according to
the information we have heard today, and I was absent
at the previous hearing, it apparently has got to be com-
pliance with the Rinkleman standard, and I think this
sets forth something that unless the Variance Board is
requested to make a variance, will be the situation that
exists at start up time next year.
MR. CAWELTI: The only thing I might add is, now
that I understand the position of the Division, I would
hope that we have an opportunity to review this matter of
correlation with the Division, because we believe that there
“NwdS a correlation and we believe that it can be shown that
the Rinkleman sightings and the particulate [19] emis-
sions will move on a parallel course, and we believe that.
DR. LODGE: I think this is indisputable, sir. The
question, and I must, confess that I think here that per-
haps better legal wording could be used. I don’t think
that the grain loading increases, the opacity increases.
It is my reading of this, and I think that of the majority
of the Board,‘that what is called for in law here is not
the fact that there is a curve that moves the two together,
but rather that there be the equivalent between two
standards, reasonable equivalent between the two stana-
ards, that is .40 pounds per thousand pounds of the stuff
that you are putting out, produce an opacity of approxi-
mately the equivalent to Rinkleman 2.
82
MR. CAWELTI: I don’t kffow the law requires that
equivalency. The law requires the relationship, not exact-
ly the equivalency.
CHAIRMAN IVERSON: I will say this will have
to be determined in a court, the way it is written.
MR. CAWELTI: You still ask, Mr. Cawelti, the Board
make a finding of fact under the cease and desist order of
violation or non-violation? om
MR. CAWELTI: That is right, Mr. Heaton. I sug-
gest that it would also be appropriate for the Board (2Q]
to find that even if there had been a violation on June 4,
that the continuance of the cease and desist order would
serve no useful purpose, because of the situation we all
find ourselves in, of the law having been changed.
CHAIRMAN IVERSON: For our deliberations, Mr.
Cawelti, I would like to have submitted into evidence,
the engineering report, if you will do so please?
MR. CAWELTI: I will be glad to remain around
while you are in deliberations in case you care to call
on me.
(Board’s Exhibit A was marked for identification.)
MR. KREUTZ: I have one statement. This is re-
garding our meeting. I jotted dowe a few notes on what
you and I and Mr. Foster discussed. I think, did we not,
come up to a meeting of the minds regarding the cease
and desist order? It was properly issued by the Depart-
ment of Health and that for further stipulations show
that subsequent tests were made by the respondent,
namely, Western Alfalfa and are relevant sofar as the
law exists as of the July 1, namely, subsequent to the
cease and desist order, and further that this doesn’t pre-
_ clude the Department or the Division from conducting
more tests to [21] determine whether or not Western
Alfalfa was in compliance; is that just about what we
agreed upon? That is what I have in my notes. I wanted
to see if we could agree on those facts.
|
|
|
co DAR AY Hie Moe tht
Fi A vee stared Patt gis
83
MR. CAWELTI: That was part of it. I think you
understand I didn’t stipulate that we were in violation.
I said that in order that we would not appeal from this,
could be one finding that the cease and desist order was
properly issued in June, that the Board recognizes the
law pertaining to this matter changed on July 1, that
we had made grain loading tests after July 1, showing
the particulate emission below the level prescribed by
statute and that the Board further find that continuance
of the cease and desist order would serve no useful pur-
pose, and also if any orders or directions of suggestions
of the Board pertaining to future surveillance of this
operation by the Division, could also be set forth by the
Board and I indicated that on order such as this would
not be appealed by my client.
CHAIRMAN IVERSON: Any further questions on
the part of the Board?
MR. HEATON: Could I ask one thing? Mr. Cawelti,
you made this final statement, could you submit that in
writing to the board? Would you care to?
MR. FOSTER: We have it in the record.
[22] CHAIRMAN IVERSON: Are there any further
questions? If not, this meeting is closed.
Whereupon the meeting was closed.)
[Certificate omitted in printing]
84
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
February 18, 19700—Petitioner Western Alfalfa Cor-
poration’s original Complaint for Review Pursuant to
1963 C.R.S., 66-29-13, and Rule 106 R.C.P. filed in the
District Court in and for the County of Weld, State of .
Colorado. ‘
February 19, 1970—Petitioner’s Cost Bond filed.
March 5, 1970—Order and Citation to Show Cause
entered.
March 20, 1970—Order extending the date within
which Respondent shall file record, responsive pleading
and show cause.
April 17, 1970—Respondent’s original answer filed. |
July 27, 1970—Order of Court setting cause for trial.
November 20, 1970—Petitioner’s Amended Complaint
for Review Pursuant to 1963 C.R.S., 66-29-13, and Rule
106 R.C.P. and for Declaratory Relief filed.
December 7, 1970—Order of Court vacating original
trial date and re-setting cause for trial.
March 22, 1971—Respondent’s Answer to Amended
Complaint filed. . i
April 23, 1971—Transcript of Trial. :
April 23, 1971—Order of Court reserving ruling until
Court has had opportunity to review Petitioner’s brief
and Respondent’s answer. ¥
May 8, 1971—Order of Court granting Plaintiffs (sic.)
an extension of time within which to file their Brief.
July 28, 1971—Findings and Judgment of the District
Court entered, remanding matter to Air Pollution Vari-
ance Board of the State of Colorado for further proceed-
ings.
= PRE NN eA ARE AEN NRT RENE NTI ARERR TENNENT THIEN LOLS GE IRI FTN REAR SAO IT AAR EEO RE IPE
85
August 5, 1971—Respondent’s Motion for Amendment
of Findings and Judgment filed.
August 31, 1971—Order of Court entered, setting cause
for hearing on Petitioner’s Motion for Amendment of
Findings and Judgment.
November 11, 1971—Order of Court entered, continu-
ing cause for fufther hearing.
November 18, 1971—Amended Findings and Judgment
entered, setting aside decision of Air Pollution Variance
Board.
December 22, 1971—Respondent’s Notice of Appeal
Filed. .
December 22, 1971—Designation of Record on Appeal
filed.
December 22, 1971—Designation of Parties filed.
December 30, 1971—Designation of Additional Part
of Record filed.
January 20, 1972—Order of Court entered for filing
of Transcript, of the Record in Court of Appeals by Re-
porter.
February 22, 1972—Certification of Record filed.
February 23, 1972—Notice of Filing of Record mailed.
April 12, 1972—Motion for Extension of Time filed.
May 31, 1972—Motion for Extension of Time filed.
August 8, 1972—Motion for Extension of Time filed.
September 29, 1972—Motion for Extension of Time
filed.
November 2, 1972—-Motion for Advancement on Docket
filed.
November 14, 1972—Notice of Oral Argument.
86
November 17, 1972—Continuance of Oral Argument.
November 17, 1972—Oral Argument vacated.
January 5, 1973—Notice of Oral Argument.
April 3, 1973—Opinion of the Colorado Court of Ap-
peals announced.
April 19, 1973—Petition for Rehearing filed.
April 24, 1973—Petition for Rehearing denied.
April 30, 1973—Motion for Stay of Mandate filed.
April 30, 1973—Order for Stay of Mandate issued.
June 25, 1973—Petition for Writ of Certiorari Denied.
June 26, 1973—Mandate issued.
ors Sal es SP BS Qa oF 3.
7 eee meee _ SET LIE EE OTT TE LN PRT Te SAE EE RTA RDN WR CRN Net RR, BEAM ARE Ae
. ~ boy me ’ ah te >
87
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND
STATE OF COLORADO
Civil Action No. 19974
[Title Omitted]
AMENDED COMPLAINT FOR REVIEW PURSUANT TO
1963 C.R.S., 66-29-13 (1967 PERM. CUM. SUPP.) AND
RULE 106 R.C.P. AND FOR DECLARATORY RELIEF
COMES NOW the above named Petitioner by its at-
torneys and for its complaint and petition for review
against Respondent, alleges and avers as follows:
First Claim for Relief
1. Western Alfalfa Corporation, a Kansas corpora-
tion, and with its principal office and place of business
located in Kansas City, Missouri, is engaged in the manu-
facture, storage and marketing of dehydrated alfalfa in
a four state area, including two locations in Weld County,
Colorado at Windsor and Eaton.
2. Respondent, Air Pollution Variance Board, is a
regulatory commission created by the statutes of the
State of Colorado as a Division of the State Department
of Public Health. \
3. On June 16, 1969, Petitioner was issued a Cease
and Desist Order with respect to its operations in the
within County, based on the allegation that petitioner
was operating in violation of the emission standards of
the Air Pollution Control Act of 1966, as set out in
Section 66-29-5, CRS 1963 (1967 Perm. Cum. Supp.).
4. Thereafter, within the time established by law,
Petitioner requested a hearing before the Air Pollution
Variance Board of the State of Colorado to determine
88
the question of whether or not there was, in fact, viola-
tion of the applicable Colorado statutes.
5. Thereafter, on September 11, 1969, and October
16, 1969, a hearing was conducted before the said Air
Pollution Variance Board at which. evidence was pre-
sented by Respondent and Petitioner only as to the ques-
tion of the alleged violation. In opening statements by
counsel for petitioner it was reiterated that Petitioner
was specifically not asking for a variance in accord with
Section 66-29-11, CRS 1963 (1967 Perm. Cum. Supp.).
6. Thereafter, on January 31, 1970, the said Air Pol-
lution Variance Board issued its decision holding that
Petitioner’s operations are in violation of the emission
standards of the Air Pollution Control Act of 1966, as
amended, and further denying Petitioner a variance from
said emission standards as outlined in Section 66-29-11,
CRS 1963 (1967 Perm. Sum. Supp.).
7. Said decision of the Air Pollution Variance Board,
together with purported findings of fact and conclusions
of law contained therein, is unjust, unlawful, unreasona-
ble, exceeds the jurisdiction of the Variance Board, con-
stitutes an abuse of the discretion of the Variance Board,
and is contrary to the law and the evidence.
8. Petitioner has no plain, speedy and adequate remedy
other than as provided by this proceeding.
WHEREFORE, Petitioner prays that this Court:
1. Enter an order directing Respondent to show cause,
if any it has, within thirty days, why the heretofore re-
ferred to decision herein alleged to be unlawful, should
not be set aside.
2. Enter an order directing the Air Pollution Vari-
ance Board of the State of Colorado to certify within
thirty days to this Court a complete transcript of the
record, exhibits, orders incorporated by reference in
iG ia a Ha 1 Seni ha. lp €
RE aS On
89
said record, and all proceedings in connection with or
related to the hearings held by Respondent Variance
Board in connection with Petitioner.
3. Review the records of the aforesaid hearing before
the Air Pollution Variance Beard of the State of Colo-
rado, and set aside the purported decision heretofore
referred.
4. Issue forthwith an order staying the enforcement
of the aforesaid Cease and Desist Order pursuant to
Section 66-29-13 and 66-29-15, CRS 1963 (1967 Perm.
Cum. Supp.).
5. Upon compliance by Respondent with Order of this
Court within thirty days by answering or otherwise
pleading to this Complaint, and by the Air Pollution Vari-
ance Board of the State of Colorado certifying to this
Court its record as aforesaid, that this matter be set
for hearing upon notice to the parties hereto.
6. For such other and further relief as to the Court
may seem proper.
Second Claim for Relief
1. Petitioner incorporates herein the allegations set
forth in its First Claim for Relief.
2. The business conducted by Petitioner, referred to
in the First Claim for Relief, is a valuable property and
Petitioner has invested in it a substantial amount of
money; Petitioner‘s said--business and investment will be
taken from it if the Cease and Desist Order against it
should be sustained as to its validity.
3. The provisions of 66-29-5(2), Colorado Revised
Statutes, 1963, as amended (1967 Perm. Cum. Supp.) and
presently effective as law in Colorado by virtue of 66-
31-24(1) of Section 1, Chapter 64 Session Laws of
Colorado 1970, applied to Petitioner have no reasonable
EERO LE RETO TRA
90
relation to the maintenance of public health, welfare,
convenience or comfort of the public, or to the objectives
of the Air Pollution Control Act of achieving air purity,
and thus deprive Petitioner of its property without due
process of law and deny Petitioner the equal protection
of the law contrary to the Fourteenth Amendment to the
Constitution of the United States and Sections 25 and 6
of Article II of the Constitution of the State of Colorado.
WHEREFORE, Petitioner prays for a declaratory
judgment under Rule 57 Colorado Rules of Civil Pro-
cedure that the provisions of Section 66-29-5(2) CRS
1968, as amended aforesaid, are void, unconstitutional,
ineffective and without force of law as applied to Peti-
tioner.
Third Claim for Relief
1. Petitioner incorporates herein the allegations set
forth in its First Claim for Relief and paragraph 2 of
its Second Claim for Relief.
2. The action of Respondent Variance Board in de-
termining that Petitioner’s operations are in violation
of the emission standards of the Air Pollution Control
Act 1966 was without authority because Petitioner was
not accorded due process of law and was denied the
equal protection of the law contrary to the Fourteenth
Amendment to the Constitution of the United States and
Sections 25 and 6 of Article II of the Constitution of the
State of Colorado.
WHEREFORE, Petitionér prays that the determina-
tion’ and decision of the Respondent Variance Board be
declared void, unconstitutional, ineffective and without
force of law for the failure of said Board to afford Peti-
91
tioner due process of law and the equal protection of
the law in its proceedings before the Board.
HOUTCHENS, HOUTCHENS & DOOLEY
By /s/ S. Robert Houtchens
By:
1007 9th Avenue
Greeley, Colorado 80631
LINDE, THOMAS, VAN DYKE,
FAIRCHILD & LANGWORTHY
George D. Blackwood
Floor 3, Columbia Union National
Bank Building
900 Walnut Street
Kansas City, Missouri 64106
LEE, BRYANS, KELLY & STANSFIELD
: Donald D. Cawelti
990 Public Service Company
Building
Denver, Colorado 80202
Address of Petitioner:
Western Alfalfa Corporation
Suite 300, 4800 Main
Kansas City, Missouri 64112
92
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND
STATE OF COLORADO
[Title Omitted]
ANSWER TO AMENDED COMPLAINT
COMES NOW the respondent by and through its at-
torneys Duke W. Dunbar, Attorney General of the State
of Colorado, and William Tucker, Assistant Attorney
General of the State of Colorado, and answers the Peti-
tioner’s Amended Complaint as follows:
1. Respondent admits the allegations set out in para-
graphs numbered 1, 2, 3, 4 and 6 of petitioner’s first
claim for relief (amended complaint).
2. Respondent admits that a hearing was held before
the Air Pollution Variance Board on September 11, 1969
and October 16, 1969, but denies each and every other
allegation set out in paragraph numbered 5 of petitioner’s
first claim for relief (amended complaint).
3. Respondent denies each and every allegation set
out in paragraphs numbered 7 and 8 of petitioner’s first
claim for relief (amended complaint).
_ 4, Respondent incorporates the admissions and de-
nials set out above in regard to paragraph numbered 1
of petitioner’s second claim for relief (amended com-
plaint).
5. Respondent denies each and every allegation set
out. in paragraphs numbered 2 and 3 of petitioner’s sec-
ond claim for relief (amended complaint).
6. Respondent incorporates the admissions and denials
set out above in regard to paragraph numbered 1 of
petitioner’s third claim for relief (amended complaint).
93
7. Respondent denies each and every allegation set |
out in paragraph numbered 2 of petitioner’s third claim
for relief (amended complaint).
WHEREFORE, respondent requests that this Honor-
able Court dismiss petitioner’s complaint and affirm the
decision of respondent and for such other and further
relief as the Court may deem just and proper.
Duke W. Dunbar
Attorney General
John P. Moore
Deputy Attorney General \
/s/ William Tucker
William Tucker
Assistant Attorney General
¢
Attorneys for Respondent.
. 104 State Capitol
Denver, Colorado 80203
892-2351
[Certificate of Mailing Omitted in Printing]
94
ke Ch
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND
STATE OF COLORADO F
Civil Action 19974
[Title Omitted]
REPORTER’S TRANSCRIPT OF TRIAL
(APRIL 23, 1971)
APPEARANCES:
HOUTCHENS, HOUTCHENS & DOOLEY, 1007 Ninth Ave-
nue, Greeley, Colorado,
By Mr. S. ROBERT HOUTCHENS;
LINDE, THOMSON, VAN DYKE, FAIRCHILD & LANG-
WorRTHY, Columbia Union National Bank Building,
900 Walnut Street, Kansas City, Missouri,
By Mr. GeEorGE D. BLACKWOOD;
Sat MES 5 pee 5 . ecacibi ”
LEE, BRYANS, KELLY & STANSFIELD, Suite 990, 550 15th
Street, Denver, Colorado,
By Mr. DONALD D. CAWELTI,
Attorneys for Petitioner;
Mr. DuKE W. DuNBAR, Attorney General, State of
Colorado, 104 State Capitol Building, Denver,
Colorado,
By Mr. WILLIAM TUCKER, Assistant Attorney
General,
Attorney for Respondent.
Also present: MR. DAVID FOSTER,
Attorney for Public Health
Department, State of Colorado.
A
95
[3] This matter came on regularly for trial before the
Honorable Donald A. Carpenter, District Judge, 19th
Judicial District, Weld County, Greeley, Colorado, at
the hour of 10:00 o’clock a.m., April 23, 1971.
WHEREUPON the following proceedings were had,
to wit:
THE COURT: Case Number 19974, Western Alfalfa
Corporation, a Kansas Corporation, versus Air Pollution
Variance Board of the State of Colorado.
Is the plaintiff ready?
MR. HOUTCHENS: We are ready, your honor.
THE COURT: Is the defense ready?
MR. TUCKER: Yes, your honor.
THE COURT: You may proceed, Mr. Houtchens.
MR. HOUTCHENS: I would like to introduce counsel
for Western Alfalfa, George D. Blackwood, Jr., from
Kansas City, and Donald Cawelti from Denver.
MR. TUCKER: I would like to introduce Dave Fos-
ter, counsel for the Public Health Department, and I
as William Tucker, assistant Attorney General, State of
Colorado.
MR. CAWELTI: I would like to make brief opening
remarks as to the nature of the proceedings and what I
expect to ensue in the hearing.
(Whereupon opening statements by Mr. Cawelti and
Mr. Tucker were taken, in part, but are not here
transcribed. )
THE COURT: It is my understanding—correct me—
so that I will know the direction of this case, that the
attack will be on the matters set forth in 66-29-4, 66-
29-5, [4] as a proper basis for the evaluation; is that
correct?
MR. CAWELTI: That is essentially correct, and the
general procedures used in administering this, not as
applied to this petitioner.
96
THE COURT: I can’t go into general administrative
things. It has to be specific as related to this case of
application of these sections. But there is no desire on
the part of the plaintiff, is there, to alter, amend or
superimpose the decision of the court over the adminis-
trative activity of the fact-finding body; is that right?
MR. CAWELTI: No, your honor. The only thing is,
I don’t think it proper for the plaintiff to ask to do that.
If there is evidence in the record on which the variance
board acted, I don’t think that I can ask this court to
substitute his judgment for the variance board.
What I can do, and what we are asking, is that this
court consider the constitutional basis, if there is a
constitutional basis, and the statute, for the board to act.
THE COURT: Using these tests as, the basis for,
their act; is that correct? &
MR. CAWELTI: Exactly.
THE COURT: The court understands. You may pro-
ceed.
MR. CAWELTI: I would like to call the first wit-
ness, Dr. Lou York.
DR. LOUIS YORK,
called as a witness and on behalf of the Petitioner,
having been first d sworn, was examined and testi-
fied as follows: ~
[5] DIRECT EXAMINATION
BY MR. CAWELTI:
Q. Please state your name and your business ad-
dress.
A. The name is J. Louis York. I am employed as an
environmental scientist by the Stearns-Roger Corpora-
tion in Denver.
Q. What is the address there?
cee my a
97
A. 700 South Ash Street.
Q. Doctor, would you describe your educational back-
ground?
A. I received a bachelor of science in engineering
from the University of New Mexico in 1938. Then I at-
tended the University of Michigan and received a Mas-
ter’s degree in chemiical engineering from that institution
in 1940, and after sometime which involved teaching
and other activities, I received a doctor’s degree, doctor
of philosophy in chemical engineering at the University of
Michigan in 1950.
Q. Have you been associated with university or teach-
ing activities since that time?
A. I became a member of the faculty of the depart-
ment of chemical and metallurgical engineering at the
University of Michigan in 1942 in February. I had
actually been a teaching fellow prior to that time, and I
remained a member of that faculty, directing research,
teaching courses, writing textbooks, doing consulting
work, until June, 1970, at which time I moved to Denver
and joined the Stearns-Roger Corporation.
Q Have you had during this period of time an area of
special interest or special work in chemical engineering,
mechanical engineering?
A. Ihave worked in several areas, but they would be
generally classified as being inthe field of multiple-phase
[6] systems; that is, suspensions of solids or liquids in
gases or of solids or other liquids within liquids in-
volving research and teaching on their properties and the
way they can be handled. As a major aspect of that I
have been working 15 to 20 years, approximately, in the
field of environmental activities, primarily pollution con-
trol with special emphasis on air pollution control.
Q. Outside of university life, have you been engaged
as a consultant or supervisor to persons, public or pri-
vate, in air pollution matters?
98
A. Yes. I served as a consultant to several corpora-
tions on various types of applications, both in the de-
termination of air pollution problems and in the correc-
tion of such problems; working with firms that designed,
built and installed equipment for this purpose.
Q. And have you written any published works on air
pollution matters?
A. I have written some technical articles that are
related to basic scientific aspects of this work. I was a
co-author of a principle textbook in chemical engineering
operations which dealt with all the principles involved in
this, and touched on the problems of pollution control, to
some extent.
Q. Have you lectured on pollution matters to bodies,
public or private? .
A. Yes, I have taught courses. I developed a course
in the air pollution control equipment about 7 years ago
which I taught exclusively until I left the university. I
have given talks and lectures before public groups, vari-
ous conventions and gatherings.
{7] Q. And what are your duties and responsibilities
presently with Stearns-Roger Corporation as an environ-
mental scientist?
A. The environmental sciences department of which I
am a part—I am the staff assistant, basically, to the
manager of that department, is charged with assisting
the customers of the corporation in analyzing their prob-
lems in all forms of environmental problems and solu-
tions thereto, air and water; other areas. And we work in
the design and construction and installation of control
equipment for this purpose. I have a rather large re-
sponsibility in the area of air pollution because of the
background experience I have had.
Q. Doctor, are you familiar with the term Ringel-
mann as described in U.S. Bureau of Mines Information
Circular 7718, dated August, 1955?
7
99
A. I am. There is a later circular which includes
the same material as that one, plus some additional
instructions on how to use it.
Q. Well, I was referring to the definition as given in
our Colorado statutes. What is basically meant by the
Ringelmann, as referred to in the statutes I just men-
tioned in this information circular?
A. Would it be all right to show such a chart?
Q. It certainly would.
(Whereupon a document was marked for identifica-
tion Petitioner’s Exhibit A.)
Q. Dr. York( I hand you what has been marked as
Petitioner’s Exhibit A. Would you first identify that
exhibit?
A. This is an information circular Number 8333, pub-
lished by the United States Department of Interior, Bu-
reau of Mines, [8] which is stated to be a revision of the
one you mentioned, 7718, which is no longer in print, and
in the introduction to this and the abstract, it states that
it incorporates the same material, but adds more detail
regarding the use of the chart. |
Q. You intend to use that exhibit only to refer to
the Ringelmann chart that is in the exhibit?
A. Yes, which is identical with that in the previous
chart.
MR. CAWELTI: I belive I shold offer this into evi-
dence at this time if we are going to refer to it further.
MR. TUCKER: No objection, your honor.
THE COURT: Let it be received.
Q. (By Mr. Cawelti) Dr. York, I hand you back Ex-
hibit A. You were going to proceed with an explantion
of what the Ringelmann test refers to. You may do so.
A. The Ringelmann test is named after a man named
Maximilian Ringelmann who was a professor in Paris,
and in 1898 he published the first known information
about it. He might have developed it earlier, but we
100
know nothing about it before that time. His objective
was simply to attempt to establish a means by which
the amount of smoke leaving a chimney could be evaluated
particularly in regard to the efficiency of the combustion,
recognizing that if the combustion is inefficient, there
will be more carbon monoxide and therefore black smoke.
His concept was to develop a chart which was printed in
a pattern involving differing areas of black and white,
and this chart shows such a patern. This, in connection
with the two others which are not bothered to be print-
ed here because one of them is a perfectly white sheet
of paper and the other is a perfectly black sheet of
paper, constitute the so-called [9] Ringelmann numbers
which is the white one, (1) which is the one to your
left, which shows a 20 percent black space and 80 percent
white space; the Ringelmann 2 is 40 percent black space,
60 percent white space, and so on in 20 percent incre-
ments. The last one on the right is Ringelmann 4, which
is 80 percent black and 20 percent white, and, of course,
100 percent black would be Ringelmann 5 by the scale
which he developed. The purpose of this chart was to
have it set at a distance from the observer such that the
black and white lines could merge into a shade of gray.
It requires it be located perhaps 50 feet away, depending
on the observer and environmental conditions. Then the
observer would look at this chart and look at a stream
of smoke from a chimney; attempt to compare them with
which one of these shades of gray matched that smoke
most precisely. By so doing, he then had some kind of
measure of the smoke leaving the chimney. This chart
was developed only for that purpose for combusion,
carbon smoke, black smoke, and neither Mr. Ringelmann
nor the Bureau of Mines’ report indicates any reason to
consider that it should be applied to anything other than
a carbon smoke.
Q. The statute also refers to equivalent opacity with
regard to Ringelmann. Would you discuss what equiva-
101
lent opacity could or would mean with regard to this
chart? .
A. As I understand the intent of equivalent opacity,
it was to attempt to say that the comparison of smoke
from a chimney with this chart was a little bit cumber-
some to use, because it required setting up the chart at
some distance and comparing the smoke with it. There
was a desire to try to evaluate emissions that were not
black. There was a feeling [10] that the smoke could be
basically estimated in terms of amount of light which
would be transmitted through it and the obvious phrase
“opacity” relates to the opaquesness or the amount of
light which can be transmitted through it, as a percentage
of the light which is impinging upon it, so there has been
an attempt to establish some kind of an equivalent value.
Now, the numbers which are most often used are that
if the Ringelmann chart requires 40 percent black and
60 percent white to match the particular smoke, then
the assumption is that light transmitted through that
particular cloud of smoke would be only 60 percent trans-
mitted and 40 percent would be rejected. This has some
severe difficulties in that a reflected light from a surface
such as the Ringelmann chart, is totally different from
a transmitted light, and certainly when you change
colors, you now have no way to compare the black and
white mixing to form gray, which is the action of the
Ringelmann on black smoke.
Q. Dr. York, in your experience with air pollution
matters, and in handling particulates in streams, can you
give your opinion as to whether the Ringelmann chart
constitutes a reliable means of determining emission
quantities in a given stream?
A. The Ringelmann chart as used, as the Bureau of
Mines proposed it, does form an approximate basis for
evaluating black smoke, particularly carbon smoke. In
terms of how it can be applied to white smoke or smoke
which is mixed with steam, any of these problems, that
|
is almost impossible, and I don’t think that anyone really
attempts to use the Ringelmann chart itself for that
purpose. i
[11] Q. What are the factors that affect the Ringle- Ff
mann observations, opacity observations, that may have
no relationship at all to the amount of the actual emis-
sions involved? Will you discuss those factors? i
A. Since the usual objective of air pollution control
requirements is to control the amount of emissions, the
defect is in attempting to relate such a visual observa-
tion to the actual amount of these emissions. If the
Ringelmann chart is used, then obviously the colors affect
the performance; a steam of white smoke is clearly going
to be Ringelmann zero, regardless of how much material
it may have in it, and, therefore, it cannot be compared :
against such a chart. If, however, the concept is used ;
or at least attempted to be used, that you can relate the
actual Ringelmann number to an opacity in terms of
the amount of light which is transmitted or, conversely,
which is not transmitted by the cloud, you then find that
there are many, many variables involved. One of the
largest, one of the most important of these is the actual
particle size because for the same amount of material
emitted at the stack, the particle size is crucial in de-
termining whether or not light can be transmitted
through it. The spacing between the particles is very
important. The further apart these particles are, the
more light will be transmitted through the cloud in any
case. The wavelength of the light is a significant factor.
The environment, if you please, around it—that is wheth-
er the attempt to measure it is based upon comparing it
with a blue sky in the background or a cloudy sky in
the background or a mixture, or perhaps a stormy day—
it makes a great deal of difference whether or not the
smoke is rising in a stagnant atmosphere [12] and form-
ing a rather undispersed cloud, or whether it is mixed
by the wind.
102
eae IES HN SSE PF SIS"
103
Q. Are you saying by this, that these factors could
determine whether the visual observation was in compli-
ance or not in compliance with the law, and may have
nothing to do with the actual amount of emissions going
up?
A. That’s right; for an emission of the some total
which would be consistent and steady through the day, if
all of these things varied, you would get a totally differ-
ent estimate of the apparent Ringelmann or opacity.
Q. Have you prepared a demonstration of these mat-
ters you are talking about, speaking particularly with
reference to the particle size affecting the appearance?
A. Because it is rather difficult to use smoke in the
courtroom without causing, I think, undue problems,
I chose to suspend some solid materials in water to give
us a similar result.
(Whereupon exhibits were marked for identification
as Plaintiff’s Exhibits B and B-1.)
Q. I hand you what the reporter has marked for
identification as Plaintiff’s Exhibit B and B-1. Would
you first tell us for the record what these are?
A. Exhibit B happens to be simply a small, square
glass bottle which contains water in which I suspended a
small amount of fly ash taken from the residue from
burning coal. B-1 is a bottle of the same size containing
the same amount of water in which I introduced the
same amount of material, in this case, sand, which is of
considerably larger particle size.
Q. From these two bottles, then, what conclusion
do you [13] derive as to the effect, the visual effect, as
related to particle size?
A. Since these contain the same amount of solids,
and the one with the fly ash in it contains thousands,
perhaps millions of particles which are less than a mi-
cron, or in the order of size, that is, a millionth of a
meter, we have that same amount distributed widely
104
throughout the suspension and it is difficult to see through
it. It does not give a very large amount of light trans-
mi
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