ILLINOIS POLLUTION CONTROL BOARD

April

8,

1976

INTERNATIONAL HARVESTER COMPANY,

Petitioner,

V.

)

PCB 73—211

ENVIRONMENTAL PROTECTION AGENCY,

-

and

-

CITIZENS FOR A BETTER ENVIRONMENT,

Complainant,

v.

)

PCB 74—318

INTERNATIONAL HARVESTER COMPANY,

Respondent.

Mr. Alan

I. Becker, Kirkland

& Ellis, appeared for Petitioner.

Mr.

Roger

C.

Zehntner, Appeared for Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr. Goodman):

This matter comes before the Board upon Petition of International

Harvester Company

(Harvester)

in PCB 73-211 appealing the Illinois

Environmental Protection Agency

(Agency) denial of their operating

permit application for coke ovens at Harvester’s Wisconsin Steel

facility.

PCB 74-318 was consolidated, herewith,

by the Board Order

of November 13,

1975.

In PCB 74-318,

Petitioner

is charged with

operating a pollution source without an operating permit issued by

the Agency in violation of Rule 103(b)

of the Air Pollution Control

Regulations of the State

of Illinois.

The issue to be determined

in this case

is whether the Agency

rightfully denied Petitioner

a permit to operate their coke ovens

at Wisconsin Steel.

The resolution of that issue will be determi-

native of the issue

in PCB 74-318,

i.e., whether Harvester has been

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operating its coke ovens without a permit.

A hearing was held in

this matter on October 14,

1975,

following which a number of briefs

were filed by both parties, the last being filed with the Board

on

January 26,

1976.

An open waiver of Harvester’s right to

a decision

within

90 days pursuant to Section 40 of the Environmental Protection

Act was filed by Harvester on August

9,

1974,

The Permit Appeal, PCB 73-211, was filed by Harvester on May

21,

1973.

At that time Harvester requested the Board to defer consider-

ation of the permit appeal until after the proceedings

in

a pending

variance case,

PCB 73-176, were concluded.

The Board, on May 24,

1973,

granted this motion to defer consideration and subsequently granted

the variance on July

26,

1973.

Nothing in

the variance Opinion and

Order referred to a variance from the Permit Rules

or required

Harvester to obtain a permit.

On August

4,

1975, Harvester moved to amend

its Notice of

Appeal incorporating the variance petition and supporting testimony

of PCB 73-176.

In an Order of August 28,

1975,

the Board

in grant-

ing Harvester’s motion to amend their petition stated:

“The question

of whether a permit should have been forth coming

(sic)

after the

grant of a variance

in International Harvester Company v. Environ-

mental Protection Agency,

PCB 73—176 of July

26,

1973,

is not at issue

in this case.”

What

is at issue in this case

is whether Harvester is entitled

to an operating permit for their coke ovens based upon their original

application for a permit together with the variance granted by this

Board in PCB 73—176.

Harvester argues that during negotiations with

the Agency concerning the permit application and the variance pro-

ceeding,

it was their understanding that,

should the Board grant the

variance,

the Agency would thereafter issue an operating permit.

This, Harvester claims,

is the basis for the voluntary dismissal of

an appeal they were prosecuting concerning the air regulations.

The

Agency, on the other hand,

argues that

it was incumbent upon Harvester

to reapply for an operating permit subsequent to the issue of the

variance by the Board

in PCB 73-176.

There can be no question that this situation

is the progeny of

a very heavily burdened permit procedure which existed back

in 1972.

There

is also no question that this case is stale.

The Board, after

full consideration of the three year old permit denial and the more

recent arguments by the parties concerning that denial,

finds that

the Agency did not err

in their denial of a operating permit for the

coke ovens.

This

is based upon the fact that Harvester’s permit appli-

cation did not contain a proposed compliance plan.

In mitigation, the

Board finds that there was some basis for Harvester’s belief that their

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procedure, whereby they sought to cure the defect

in their permit

application through a variance proceeding,

was reasonable.

The Board

must,

nevertheless, find that Harvester’s reliance on its novel pro-

cedure was misplaced and that the permit denial was correct.

Having upheld the permit denial,

it

is an inescapable conclusion

that Harvester has been operating their coke ovens at Wisconsin with-

out an operating permit issued by the Agency.

Harvester,

therefore,

has indeed operated in violation of Section 103(b)

of the Air Regu-

lations as

alleged by Citizens For A Better Environment

in PCB 74-318.

Considering the confusion inherent

in the permit procedure

in l972-

1973,

the Board finds that a penalty would he unjustified

and none

will be assessed.

This Opinion constitutes the finding of fact and conclusions

of

law of the Board

in this matter.

ORDEP

It is the Order of the Pollution Control Board that:

1.

The operating permit denial appeal by International

Harvester Company in PCB 73-211 be, and

is hereby,

denied.

2.

International Harvester shall apply for and receive an

operating permit for their coke ovens at Wisconsin Steel

Division within 120 days from the date of this Order.

IT IS SO ORDERED.

I, Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby c~rtify the above Opinion and Order

were adopted on the

8’

~‘

day of

,

1976 by a vote

of

~

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