# Appendix — Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0286%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 416 U.S. 861 ## Text 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 ‘ i ® CYCLONE | | 7 wer Comer 1 ' ! 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 Mtns A RPMS 9 Cet Lind Ree ey 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 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 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- mission. The identical amount in a larger particle size in this case of the sand, gives essentially little effect upon the transmission of light through that bottle. Q. Exhibit B you have just referred to with the fly ash in it, would that be over 40 percent opaque, judging from you experience in air pollution work? A. Now you ask me for a personal judgment since I am not and cannot be qualified to make an official judg- ment, but this is more than 40 percent. Q. Which is the standard in the statute on a violation, is it not? A. Right. MR. TUCKER: I would object to this testimony in regard to these two exhibits. The witness is testifying in regard to particulate matter, which is a fly ash in the one bottle and sand particles in the other bottle, and the whole purpose of the air pollution law is to pro- hibit the emission of particulate matter that is fine enough to go into the atmosphere. I can bring a boulder in here and give the same example, but that boulder is never going to get in the atmosphere because it is not of the weight and density that [14] is going to be emitting into the atmosphere, so this testimony is completely irrele- vant to air pollution control, plus he has them in a bottle of water, and we are talking about smoke. THE COURT: Isn’t this more or less foundation testi- mony in the area of demonstrative evidence to illustrate to the court that the fineness of particles have to do with the transmissibility of light through it? I think that is the sole reason for the exhibit, is it not? MR. CAWELTI: Yes. THE COURT: I will overrule the objection. Q. (By Mr. Cawelti) You also refer, Dr. York, to, I believe, the effect of the diameter of the emission that is being valued under the Ringelmann test, and how that ER ee 105 might influence the Ringelmann observation or opacity observation, did you not? A. I referred to the problems of the space between the particles, which is a function of whether or not the cloud expands and has a larger diameter at one point than another, and the effect of diameter is important because the distance through which we look at a—we look at this cloud, makes quite a difference in the im- pression of the smoke on the actual observer. Q. A cloud of the same density, if you look through twice as much, will look darker or more opaque? A. That’s right. Q. Have you prepared any demonstrations of that effect you just described? (Whereupon exhibits were marked for identification as Plaintiff’s Exhibits C and C-l1.) [15] Q. Referring, Dr. York, to what the reporter has marked as Exhibit C and C-1, they look identical to me. Will you describe what they are? A. They are intended to be identical. Each of these bottles contain some water and one drop of India ink, the black drawing ink which basically is a suspension of carbon vary finely divided soot in liquid, which is ad- mixable with water. Therefore, these two each have soot present in them as a fine suspension. I used this simply because it shows a little more clearly the effect, and they should be essentially alike. You have to have the same background. I have a point of interest here in order to make sure that they are alike. If you look at one against a light background and one against a dark, there is quite a difference. If you look through two of them ' together, both of them, the light is obscured much more. Therefore, the concern here is that if we had a large stack with a certain concentration of solids in it, in the gas this would appear to be much darker than several small stacks with the very same concentration operating at the same number of pounds of emission, per thousand pounds 106 of gas. Therefore, the size of the stack is important in determining what the actual emission, Ringelmann read- ing, might be. Q. In other words, looking through those, you will have a: higher Ringelmann number than you would through any one of them by themselves. A. Based on simply the fact of the light opacity, a larger amount of the light is bound to be obscured by twice the thickness, even though the concentrations are the same. Q. Referring back to your exhibit B, I believe it ‘was, [16] the bottle with the fly ash in it, could you demon- strate with that exhibit the effect of the background against which emission may be read in determining the Ringelmann reading? A. I indicated earlier that the background light is important in determining what we have, and I just showed a moment ago that the background makes quite a difference. I have here a show card which is simply an off-white color which corresponds, roughly, to a lightly clouded sky. You can get one effect there. If you have a blue sky, which this card is intended to represent, you will get a different effect, so that you can get some contrast in the way this is read, depending upon the . background light. If you actually went to a black card, it appears to be much whiter than it would have been, and therefore, might well acquire a much lower Ringel- mann number. Fortunately, we don’t have many black skies, but sometimes we have black hillsides.or back- ground, depending on the local situation. Q. This will affect the Ringelmann reading, even though the same densities may be involved? A. Well, it probably will. This depends a great deal on the observer whose judgment is necessarily used here. MR. CAWELTI: I wonder if we ought to offer those three colored charts. (Whereupon exhibits were marked for identification as Plaintiff’s Exhibits D-1, D-2 and D-3.) 107 Q. (By Mr. Cawelti) I hand you what the reporter has marked as exhibits D-1, D-2 and D-3. Would you please, by referring to your past testimony, tell which is which? A. D-1 is a card which is a bluish color. D-2 is [17] a gray or off-white color, and D-3 is black. MR. TUCKER: I have no objection, your honor. THE COURT: Let them be received. MR. CAWELTI: I am not sure I made the offer of Exhibits C and C-1, and I would do so at this time. THE COURT: Any objection? MR. TUCKER: Same objections as were lodged be- fore, your honor. THE COURT: Objection overruled. Let them be received, as demonstrative evidence only. Q. (By Mr. Cawelti) Would you comment on the effect of the presence of steam or uncombined water particles and a path of emission in making these observations you described, Ringelmann opacity? A. Obviously, steam, or what most people call steam is really condensed water vapor in fine particles, which is often seen an an emission from cooling towers; oc- casionally, from combustion sources. Nearly always on days of reasonably high humidity from alfalfa dehydrat- ing plants. Any source which involves combustion to in- crease the amount of water will cause the emission of water vapor which condenses as soon as the steam is cooled to dew point. This creates a cloud of steam which is pure white and which cannot be separated from any other particles which may be suspended in it. There- fore, it obviously affects the color and it affects the opaci- ty of that plume to a considerable extent. In many cases it may evaporate as the air mixes and it blows further away. In some cases, such as this morning, when we had a relatively high humidity, some of this often rises right up into the clouds and it appears to vanish and perhaps it [18] doesn’t vanish. It may actually become a part of the 108 cloud. That obviously must affect any measure of opacity because it is opaque as anyone who has even driven through a cloud of fog from a cooling tower realizes, the visibility is greatly impaired by that. Since it is white, it cannot give you a reasonable reading on the Ringelmann number, and since it is opaque, it cannot give you a reasonable number of opacity. Therefore, eval- uation must be made either in the absence of such water vapor, or at some point far down the stream after the cloud is well mixed with air and the steam has evapor- ated again into water vapor. Q. Are you familiar with the nature of emissions from alfalfa dehydrating operations? A. Yes. Q. Is there a quantity of steam present, a signi- ficant quantity of steam present in these dehydrating operations? A. A large amount of steam, because the prime pur- pose of alfalfa dehydration is to evaporate the water from the alfalfa, so its primary emission is that of steam. Q. We have discussed the frailties of the Ringelmann test and equivaient opacity and so forth. Are there ac- cepted means of measuring the amount of particulates or emission in a given emission source? A. Yes. There are some accepted means. These usu- ally involve sampling of the actual emissions going up the stack and removing the sample and collecting it, analyzing it, determining its nature and its total quanti- ty, calculating back to the total quantity of the emissions in the stack. Q. Are there publications describing these accepted means of making samples? {19} A. Yes. That method is actually described in the Colorado law as referred to. The American Society of Mechanical Engineers has a very active committee on power test codes and this is one of the things they ac- ea es 109 tually did develop as a method of determining dust con- centration in a gas stream. It is know as P.T.C. 27 which stands for power test code 27 of the American So- ciety of Mechanical Engineers. Q. Dr. York, in your familiarity with matters con- cerning air pollution testing for air pollution, are you aware of any publications or studies, published studies concering the accuracy of inspectors in making their read- ings of opacity or Ringelmann? A. There have been many publications which have been based upon experimental tests. One of the more obvious ones was published by Professor Mayers back in 1937 in which he spotted some difficulties involved in the use of the Ringelmann number. The most important of these, however, was published as a document of the’ Department of Health, Education and Welfare through the National Air Pollution Control Association, which is now the Air Pollution Control organization of the Environmental Protection Agency. This is what they designate as A.P. 30 and is entitled “Optical Properties _ and Visual Effects of Smoke-Stack Plumes.” It was pub- lished in 1967. Q. Did that study report the results of testing that was done with experts, inspectors in Ringelmann and opacity matters? A. Among other things, it did involve the operation of having several trained inspectors who, I believe, were [20] employed by the Bay Area Pollution Control Dis- trict. Q. Is that San Francisco? A. San Francisco area; present at a site where a spe- cial form of smoke emission apparatus was established that would produce smoke that was black by virtue of incomplete combustion of oil, or that was white by virtue of the high pressure atomization of oil, into the stream of gas. These inspectors were qualified, trained and experienced, although nothing is given of their indivd- 110 ual experience or their names. They were established to the east and to the west of that site. Occasionally, their results were combined. They were asked to de- termine the apparent Ringelmann number of plumes of both black and white smoke which had been gener- ated, particularly in this apparatus, and measured by a special light transmission device to determine the amount of opacity of the stream in the stack prior to the time it was emitted into the atmosphere. MR. TUCKER: I will object to this testimony. This witness is testifying to something that is in a booklet which I would think would fall within the purview of the hearsay rule. He is talking about something he knows nothing about, except what he has read in this book. The people who conducted the tests are not here for us to cross-examine in regard to the conditions they were conducted under, and the purpose for which they were conducted or the people involved, and he is merely telling us what he has read in a book. He doesn’t know about these particular tests. THE COURT: I agree with you that the best evi- dence rule is involved, if there is an official. document. Doesn’t this come within the purview of the statute of official [21] documents being acceptable in evidence? But your objection is tenable as far as being not within the best evidence rule. The court will sustain the ob- jection. MR. CAWELTI: I would like to have marked for an exhibit, your honor, this document that the witness has been referring to. (Whereupon an exhibit was marked for identification as Petitioner’s Exhibit E.) MR. TUCKER: Our understanding of the introduc- tion of official documents is that they can only be intro- duced if 1) the official is present, or 2) if the party has lll a certified document from the officials saying that that is a true and correct copy. THE COURT: Your understanding differs from mine. Q. (By Mr. Cawelti) Dr. York, I hand you what the reporter has marked as Petitioner’s Exhibit E. Would you please identify what this exhibit is? A. This is the report AP-30 which I referred to earlier, which is the publication of the Department of Health, Education and Welfare, entitled “Optical Prop- erties and Visual Effects of Smoke-stack Plumes.” Q. This is an official governmental agency? A. Yes. It is published by the National Air Pollu- tion Control agency which was at that tim@.an arm of the United States Department of Health, Education and Welfare. Q. Now it is part of the Environmental Protection Agency? A. Now it is part of the Environmental Protection Agency. [22] Q. The testimony you were engaged in before the objection was made, is that from a particular por- tion or page in that Exhibit E? A. I think the most pertinent sections of it involve the Tables 1 and 2 on page 28 which show the results of the tests by the inspectors examing these plumes, both black and white. Q. Thank you, doctor. MR. CAWELTI: I would offer in evidence Exhibit E. MR. TUCKER: Our objection is the same. THE COURT: Yes. Objection overruled. Let page 27 and 28 be received in evidence. Q. (By Mr. Cawelti) Dr. York, have you been in- volved as a consultant or otherwise in the manufacture and design of equipment, design for air pollution mat- ters to prevent air pollution? A. To some extent I have. I have also been much more deeply involved with the specification and evalu- 112 ation of bids and purchases and guarantees for such equipment from the manufacturers who specialize in it. Q. In your familiarity with specifications and guaran- tees then, on air pollution, on air abatement equipment, is it possible, or is it done that manufactures of this equipment or designers of this equipment will design to meet a Ringelmann number or capacity standard in their eventual emission? A. They will not. They will design to meet a mass quantity emitted, or concentration. They will design to a specification percentage removal, but no manu- facturer will design any piece of equipment or guarantee its performance at least, to meet a standard which is as variable and as [23] dependent upon the observer’s judgment as the Ringelmann number. MR. CAWELTI: I have no further questions. THE COURT: You may examine. CROSS-EXAMINATION BY MR. TUCKER: Q. You have testified in regard to opacity as an equivalent to the Ringelmann reading. Is an opacity simply the amount of light that passes through material or substance? . A. Transmission is the amount of light which passes through. Opacity is basically the amount which does not pass through. It is the degree of opaqueness. Q. And do you accept the Ringelmann as a valid means of determining the opacity of black smoke? A. It can be correlated with opacity by an experienced - observer, but I think it is a very poor standard. Q. But it can be correlated by a trained observer? A. On black smoke it has worked reasonably well, if the man is trained and is able to evaluate the differ- ences in the lights and the visibility. However, you do have the difficulty that it cannot give you a decent number 118 for different thicknesses of smoke, nor can it take into acount the mixing and the concentration, adequately. So the only real advantage of the Ringelmann number as a measuring quantity is to have it correlated with an actual measurement from a particular source, and it can then be used to compare‘the performance of that source on that material from time to time, but it is im- possible to compare one source f one size stack burn- ing one fuel or producing one kjnd of carbon [24] with that of another, and expect it/to be perfectly reliable. Q. But the Ringelmann has never been put forth to determine quantity. We are worried about opacity, not quantity, so it is a valid means of determining opacity of black smoke is it not? A. I don’t think that, in my judgment, it is a valid means of determining opacity, because it depends upon the angle of the light and the experience of the observer. I think it has rather servere disadvantages in that the possibilities of error are manifold in the system, and there is no possible way for a so-called violator to check up on the performance of his equipment. Q. So you disagree with your exhibit, then, in regard to the Ringelmann, that it is a means of reading the opacity of black smoke? A. Which exhibit, sir? Q. The Exhibit A. A. I don’t disagree with it in terms of being a com- parison. This exhibit is not intended to be a law. It is simply a service which the Bureau of Mines furnished to the public at large. If a particular information agency or legislative body wishes to establish the Ringelmann number as a basis for legal enforcement, they have the problems then of making it stand up. Q. You have also testified that there are more prob- lems in getting a Ringelmann reading on white smoke as opposed to black smoke. It that a correct statement of your testimony? 114 A. Very many problems, yes. Q. Don’t you have the same variables in regard to the background, the weather, the atmosphere, etc., with black [25] smoke as you do with white smoke? A. By and large, yes. In regard to the wave length of light, which is absorbed, the effect of the thickness and the forward scattering of the light, you get a dif- ferent effect for different colors of smoke. Therefore, it makes a different impression upon the observer. Q. In regard to Exhibits C and C-1, You have testi- fied that if an observer was looking through both of those, he would probably get a higher Ringelmann read- ing than he would if he was simply looking through one of them; is that correct? A. That’s correct. Q. Don’t you think he probaby should, because the emission would be twice the amount if he were looking through both, as if he were looking through one? A. From that standpoint, yes, but that does not tell him what the concentration is. Q. He would, though. Now, you also testified that no one uses the Ringelmann for white smoke, or smoke mixed with steam; is that correct? A. The Ringelmann chart, I believe I said. Q. Are you familiar with the air pollution laws in the United States? A. Most of them, yes. Q. Is it not true that practically every air pollu- tion law in the United States uses the Ringelmann chart as a means of determining a violation of the law or not? MR. CAWELTI: I would object to this question in finding out what the laws of 48 adjoining states are. I don’t know if we should get this from the mouth of an [26] engineering witness qualified— MR. TUCKER: He has testified no one uses it. I want to see if he knows no one uses it or not. 115 THE COURT: Well, that isn’t quite the way I un- derstood his testimony, but I will permit the question. Q. (By Mr. Tucker) You may answer the question. A. The way most of these laws are written is similar to the one in Colorado which states the Ringelmann chart of such and such a report number are an equivalent opacity and to my knowledge at least no employee of the State of Colorado or most of the other states I have any familiarity with ever carries a Ringelmann chart with him and sets it up and compares it to any white smoke. Q. But is it your testimony that no air pollution control officials in the United States use the Ringelmann on white smoke, or smoke mixed with steam, to cite a violation? A. That is my testimony because I believe the only ones who do that are using an opacity term which they believe is equivalent. Q. Now, you have also testified that there are ac- cepted means of measuring particulate emissions from a stack, and that the recognized or accepted methods of measuring these particulate emissions are set out in Col- orado statutes; is that correct? A. I believe the current law does specify that particu- late emissions can be measured or must be measured ac- cording to the Power Test Code 27 or an equivalent approved standard method by the State Health Depart- ment. Q. Are you familiar with the Colorado air pollution act? [27] A. Reasonably so. I can’t quote it, of course. I am talking about the one which is now in effect. Q. I am going to hand you a copy of the 1970 air pollution control act and ask you to point out to me the statement you just made. A. This is the enabling act. It provides a con- trol emission be established which sets up rules and reg- 116 ulations and they are granted that authority in this act, and obviously the statement is in the rules and regula- tions, because this act was deliberately changed in or- der to extract from it, from the previous act, specific emission standards. Q. So it is not in the law? A. Not in the enabling act. MR. CAWELTI: I think the question is unfair to the witness. The law can well constitute lawfully adopted rules and regulations as well as statutes themselves. The witness has said it is in the rules and regulations I think the question is a little unfair to this witness, who is not a lawyer, to say what is in the law and what is not, which maybe comes back to my original question. THE COURT: Yes. MR. TUCKER: I am asking about a question he made. I didn’t bring it up. He did. MR. CAWELTI: I think he has shown it is in the law. He said it is in the lawfully adopted regulations. THE COURT: It has been asked and answered, gentlemen. I don’t sée any reason for ruling, not at this point. If the court believes it is improper question, the court will consider it at the time it makes its decision. I think your objection was directed more to the line of [28] questioning than to the specific question. MR. CAWELTI: I think it was probably a little too late, too, your honor. Q. (By Mr. Tucker) In regard to Exhibit E, are you familiar with the fact that the purpose of the charts in there was to show the variation which trained ob- servers would get when they were facing different direc- tions and looking into or away from the sun? A. As part of the problem, yes. The direction was important. There was also the comparison of both black and white plumes. 117 Q. The purpose of that pamphlet is to show variables which a trained observer takes into consideration when he is viewing a smoke plume; is that not correct? A. That was one of its purposes. It also reports the results obtained when such trained observers actually are confronted with plumes, and shows their difficulties in actually estimating these values as closely as the law or the regulations or the public would desire. Q. Do you know what the cost of setting up and samp- ling a particulate emission from a stack would be? MR. CAWELTI: I object to that question, your honor. I fail to see its relevancy. If the state intends to justify its standards used by means of expediency that it costs too much to do it property, I think that is not a— THE COURT: Objection sustained. Q. (By Mr. Tucker) You have testified that you are familiar with the Ringelmann chart and of the Ringel- mann readings. Are you also familiar with the fact that it is a necessarily recognized test? [29] MR. CAWELTI: I object to that question, your honor. What a necessarily recognized test may be is anybody’s judgment. Necessarily recognized by whom? Dr. York himself is a necessarily recognized expert. Certainly he doesn’t recognize it. I think the question could be rephrased, perhaps, to get a more factual answer. MR. TUCKER: Your honor, he has testified he is familiar with this. THE COURT: The question isn’t a very good question in that it “is necessarily recognized.” Necessarily rec- ognized by whom? Experts in the field, or recognized by persons that have not attended the fourth grade, or which group is it that is recognizing, and what gives it recognition? Q. (By Mr. Tucker) Mr. York, is not the Ringel- mann test necessarily recognized by experts in the field of air pollution as a means of determining the capacity of smoke emissions? (118 A. It is incorporated in many laws and it is em- ployed by many state enforcement agencies, but the people who design equipment and who have to design plants and who have to live under those regulations, do not recognize it as being a fair and valid method of measuring. MR. TUCKER: No other questions, your honor. THE COURT: Thank you. MR. CAWELTI: I have no redirect, your honor. THE COURT: You may step down. Thank you, doctor. MR. CAWELTI: I would like to call James R. Taylor, please. JAMES R. TAYLOR, called as a witness by and on behalf of the Petitioner, having [30] been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. CAWELTI: Q. Please state your name and your business address. A. James Robert Taylor, 4210 East 11th Avenue, Denver, Colorado. Q. By whom are you employed and in what capacity? A. Colorado Department of Health, Air Pollution specialist. Q. What are your duties and functions in that posi- tion? A. Right now I am working mostly in monitoring, coordinator with the laboratory. Q. By monitoring you mean making observations of emission sources in Colorado? A. No, sir. Q. You have done that work in the past? A. Yes, sir. 119 Q. You have been an inspector for the department? A. Yes. Q. You are not doing this any more? A. No, sir. Q. In connection with the inspections you made for the department, are you familiar with the Ringelmann test chart? Let’s put it this way. Are you familiar with the U.S. Bureau of Mines Circular 7718 dated August 1 of 1955? A. Yes, sir. Q. In your training to make inspections, did you train with the Ringelmann chart set forth in that Bureau of Mines circular I have mentioned? A. I think at one time we did use the chart, but I think later on as the school progressed in its activities we started using it more from observation from the stack in [81] comparison with the meter. Q. You did not train as such with the Ringelmann chart? A. No, sir. Q. Did you ever train to determine equivalent opacity from the Ringelmann chart as mentioned in this circular? A. No, sir. Q. Were you ever trained at this school you referred to, or otherwise, in making opacity readings where steam was also present in the source of emission? A. No, sir. We don’t have that capability. Q. From your knowledge of the smoke school con- ducted by the state, is there any way a non-publicly employed person can be graduated from or certified by this school? A. I think it is the decision of the division that they not be. Q. They are not? A. Right, sir. Q. You were the inspector that made the observa- tions that led to the cease and desist order with regard to the Western Alfalfa? 120 A. One of them, yes.’ MR. CAWELTI: I have nothing further. THE COURT: Doesn’t this go into the matter per- tajning to the administrative hearing, gentlemen? This testimony? MR. CAWELTI: I didn’t intend it would, your honor. I intended only to show the method by which the Ringel- mann chart was or was not used by the state generally. THE COURT: Thank you. CROSS-EXAMINATION BY MR. TUCKER: [82] Q. Did you attend a so-called smoke school to learn to read opacity and Ringelmann readings? A. Yes. MR. CAWELTI: I object, your honor, being beyond the scope of my direct examination. THE COURT: Objection overruled. It is already answered. You may proceed. Q. (By Mr. Tucker) Would you explain to the court what this school consists of and what you do there? A. Well, we have a smoke generator at the camp that produces both black and white smoke, and in vary- ing degrees, to read by a meter, and the— Q. May I interrupt you? What is the meter you are referring to? A. It is a meter that is with the light source with a photo-electric cell that measures the stack and relates it back through relays onto a meter which is graduated in percent opacity or Ringelmann reading. We run pri- marily—When the school starts, originally, we run a series of black smoke. We tell the observer what this reading is. Then we run this white smoke and tell the observer what the opacity is. We do this several times, and then we do what we consider an official run where we make the densities of the smoke. We ring a bell. At 121 that time they make their observation. We change it, ring another bell and we do this for 25 black readings and 25 white readings. And then we are graded after the series is run. Then we call off what the meter readings were. They, in turn, make the relationship between what they read and what the meter reading was. Q. What percent of error do you have to have to [83] graduate from the school? A. Five percent. Q. And are you required to attend this school on a regular basis once you have graduated from the school? A. Yes. I think the established time now is every six months. Q. Are you trained at the school to take into con- sideration when you are making Ringelmann or opacity readings, the background, the weather, the atmosphere, the temperature, and the position of the sun and other variables which can affect the reading which you get? MR. CAWELTI: I object to this question. It is ob- viously a leading question, and this is an employee of the— THE COURT: Objection sustained. Q. (By Mr. Tucker) Are you taught at the school to take into consideration variables when you are taking your Ringelmann opacity readings, and if you are, what are the variables? A. Yes, we do. We have the background, the con- ditions of the sky, whether it is cloudy, clear; we take into consideration the temperature, the wind, direction, the sun; in what position you are standing. We usually pretty well travel completely about 360° around the gen- erator during the course of the training period where you get probably most of the variables in there. MR. TUCKER: I have no other questions. 122 REDIRECT EXAMINATION BY MR. CAWELTI: Q. In this smoke school you have just described, is the [84] Ringelmann chart described in U.S. Bureau of Mines 7718 dated August 1, 1955, is that used at that school in terms of training the personnel there? A. No, sir. Q. Can anyone graduate from that school other than public employees in enforcement work? MR. TUCKER: I object to that question. It has nothing to do with whether the school is competent or incompetent, and whether the people who graduate are competent or incompetent. MR. CAWELTI: I thigk it is a very material point. A person charged ought to know whether or not he is violating the law. If there is no way he can be trained in the same way the enforcement people can be trained, there is no way he can himself know in advance whether or not he is violating the law. THE COURT: Is this man in such an official position that he could answer that question? There is no founda- tion for the question at all. MR. CAWELTI: I simply asked him if he knew. If he doesn’t know, he can say so. I think he does know. THE COURT: You can answer the question whether you know or not. Q. (By Mr. Cawelti) Do you know, Mr. Taylor, whether persons who are not publicly employed in en- forcement work can be graduated from the smoke school you graduated from; do you know? A. May I ask you what you mean by “graduated’’? Q. Certified, or given a certificate as having passed. A. Like I said before, it has been the policy of the [35] division not to do this. Q. And the practice of the division not to do it? A. Pardon? 123 Q. And the practice of the division not to do it, the policy and the practice of the division. They have not certified anyone. A. As far as I know. I don’t do the certifying. MR. CAWELTI: Thank you. RECROSS EXAMINATION BY MR. TUCKER: Q. Mr. Taylor, is anyone allowed to attend this so- called smoke school? A. Yes, sir. MR. TUCKER: I have no other questions. Q. (By the court) The certification is only that you have attended; not certification one has developed ex- pertise in the field; is that correct? A. No, sir. I think the certification is the expertise. THE COURT: All right. I understand now. MR. CAWELTI: I believe that concludes the evidence the plaintiff would like to put on. It might be an appro- ‘priate time for lunch break. THE COURT: I think so. Court will be in recess until 1:15 this afternoon. . AFTERNOON SESSION, APRIL 23, 1971, 1:15 p.m. THE .COURT: I understand you have rested. MR. CAWELTI: That’s correct, your honor. MR. TUCKER: I would like to call Mr. Joseph Palombo as a rebuttal witness. [36] JOSEPH PALOMBO, JR., called as a witness by and on behalf of Respondent, hav- ing been first duly sworn, was examined and testified as follows: 124 DIRECT EXAMINATION BY MR. TUCKER: Q. Would you state your name and address, please? A. My name is Joseph Palombo, Jr., 4210 East 11th Avenue, Denver. Q. What is your occupation? A. TI am presently assistant director, Division of Air Pollution Control, State Department of Health. I form- erly was a section chief when Air Pollution was in a section, and acting director until March 1 of this year. Q. How long were you the acting director of the Air Pollution Control program in Colorado? A. Since its inception. Since its inception as a state program in 1963. ‘ Q. Through— A. Through 1970. Q. Are you familiar with the smoke school that is put on and conducted by the Department of Health? A. Yes, I am. Q. And how does this school operate? A. The school is set up to train smoke inspectors to be able to determine various shades of smoke. We actually divide the school into two separate issues, one dealing with black smoke, and one dealing with white smoke. Ringelmann numbers are applied to black smoke. Equivalent opacity, which is another way of describing the obstruction to which a smokestack has an effect, is the other measure. In other [37] words, a Ringelmann Num- ber 1 is equivalent to 20 percent opacity. These are not synonymous terms, although there is a correlation be- tween the two. We train our inspectors to visually get a mental image of the stack emission as it is metered against a smoke meter. Now, in our school we do not use the edie chart as the mental image that the inspector first gets, EE, Se 125 but we rather use a meter, and the meter is, in fact, calibrated, using Ringelmann numbers, so that when we put an emission through the smokestack, ring the bell and declare what number Ringelmann or equivalent opacity that smoke happens to be, the inspector can get a mental image of it. We will put s of a density number 2 Ringelmann, or 40 perceyt, opatity, tell the observer that what he is seeing is shade. It takes the place of the chart. It is equally acceptable to plant a mental image in the observer’s mind so that when he “is in the field he can correlate that mental image to what he sees. The smoke school is operated once a month during the spring, summer and fall months. During the winter we operate it a little less frequently, depending on the weather. The inspectors are required to come out at least once every six months. However, we encourage them to come out as often as the school is given so that they can continually refresh this mental image they have of what a number 2 or number 3 Ringelmann looks like, or its equivalent opacity. We certify by certificate only those who are qualified, who have passed the examination as was described by Mr. Taylor earlier. The school, however, is open to all people who want to come out and see how we measure the smoke [38] and how we make our determinations. As a | matter of fact, we have had a number of industrial people come out and go through the same procedures that the inspector goes through. Q. Do some people fail to qualify and to be certified after they have gone through the school? A. Our experience has been that there are a number of inspectors who can come back to the school time after time, and have no difficulty in passing the examination. There are others who have quite a bit of difficulty in being able to relate this mental image back to the metered amount of smoke going through the stack. Not all people can qualify and not all people, therefore, are certified. 126 Q. Did you hear Dr. York’s testimony in regard to methods other than the opacity equivalent and the Ringel- mann readings to measure particulate emissions? A. Yes, I did. Q. Are you familiar with these other methods other than the Ringelmann and opacity? A. Yes, I am. I would assume that the method Dr. York was referring to is the method where measurements are made in the stack of the material going through the stack and actually you collect the material and go through several procedures to determine the weight of material per volume of gas. MR. CAWELTI: Your honor, I don’t think there is any question pending right now. He asked him if he was familiar with other methods and his answer is yes. I don’t know what the witness is responding to now. Q. (By Mr. Tucker) What are these other methods? A. Okay. The method I attempted to describe, the method [39] of going into the stack and actually metering the particulate in the stack, a unit weight per unit volume of gas going through the stack. This method is recognized, as a matter of fact, the statute under which our department operates uses both standards, both the particulate measurement in the stack by the weight per volume basis, as well as the Ringelmann opacity stand- ard. As a matter of fact, the statute does not indicate you have to pass one or the other, but indicates you have to pass both; either one are applicable. Q. What effect does moisture have on the appearance of an emission from the stack? A. Well, as Dr. York pointed out in his testimony, there are frequent occasions when a stack contains not only particulate emissions, but moisture. The moisture usually comes out of the stack and after a period of time depending on climatic conditions, will dissipate. As was pointed out, a very heavy, humid day, the moisture will be in the stack plume for a longer period 127 of time than it would be in a hot, dry day. Trained inspectors on some days would not be able to read a stack because of the moisture contént. The moisture would continue to persist in the plume for a period of time so that they could not make a reasonable deter- mination of the visible emission. However, there are days when the moisture dissipates quite rapidly and the smoke plume, the particulate matter, continues on and then the trained inspector can again look at that plume and make a determination. Obviously, moisture does have an effect but a person qualified and trained to recognize this as a disadvantage or shortcoming of the method can overcome this in his field [40] inspection. Q. Does the smoke school here in Colorado instruct the instructors in regard to the effects of moisture on stack emissions? A. Yes. Most of our members have—most of the people who attend the school have been given material of the background of the Ringelmann standard and its ap- plication and the subsequent application of equivalent opacity as an enforcement tool. Q. What degree of accuracy must a person attain in reading the Ringelmann or the opacity, prior to being certified by the school? A. In order to be certified, he must not exceed 5% of the 50 readings, 25 black, 25 white, in either direction. In addition, if he has one reading in excess of one full Ringelmann number, or 20 percent, his results are thrown out. In other words, he can still fall within 5%, but if he has one reading completely in error by one Ringelmann number, or a 20 percent figure, his results are thro out and he cannot be certified. Q. Does this degree of accuracy have any effect on the policy of the division in regard to the Ringelmann and opacity citations by the inspectors? 128 A. It does in this regard: My inspectors and field people have been instructed that we do not cite violators who fail by the precise number as stated in the statute. If I may explain that the statute says that no person shall emit a shade of smoke as dark or darker than number 2. We don’t normally cite a violator if he has a Ringel- mann number [41] more than two. We don’t cite a person if he has the 40% or Ringelmann 2. As a matter of fact, in the case before us, the citations were for equivalent opacities in the range of 10 to 40% above the stated standard. MR. TUCKER: I have no other questions. CROSS-EXAMINATION BY MR. CAWELTI: Q. I think you may have simply misstated, or I may have misunderstood you. You said that all that qualified were certified at the smoke school. Now, did you mean by that that I could go there, and if I sh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0286%3A01. Public record. Not legal advice.