Appendix — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.

Supreme Court brief1974

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al ATO RS. OOS

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

Comer

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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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