ILLINOIS POLLUTION CONTROL BOARD
April
4,
1972
ENVIRONMENTAL PROTECTION AGENCY
v.
)
#
71—320
CilICAGO HOUSING AUTHORITY
Mr. Melvyn A.
Rieff,
for
the Environmental PrOtection Agency
Mr.
Robert K.
Hick
&
Mr.
Calvin
H.
Hall,
for Chicago Housing
•
•
Authority
Opinion
&
Order of the Board
(by Mr. Currie)
On October 12,
1971,
the Agency filed
a complaint charging
the Chicago Housing Authority
(CHA) with operating incinerators
at
its Bridgeport Homes in Chicago in such
a manner as
to cause
the emission of particulate matter in excess of limits set by
the
Rules
and Regulations Governing the Control of Air Pollution,
and to cause air pollution
in violation
of section 9(a)
of the
Environmental Protection Act.
After
a hearing we entered
a
preliminary order December
9,
1971, authorizing further proceed-
ings to determine what CHA should be ordered to do in the
event
a violation was
found.
That hearing has since been held,
the parties have stipulated to
a solution to the problem for the
future,
and the case
is ready for decision.
We find
the Agency’s
allegations
amply sustained,
order CHA to cease
and desist
from use
of the incinerators at once in accordance with the
stipulation,
and impose
a nominal penalty
of $200,for reasons
given below.
CHA
moved at the hearing to exclude any evidence relating
to the statutory air pollution count on the ground that the
allegations were not sufficiently precise, citing as authority
our decision in EPA v.
Commonwealth Edison Co.,
~ 70-4
(Feb.
17,
197l)(R.
9-14).
The case is not in point.
The vice
in the
Edison case,
as
the opinion stressed, was that the Agency attempted
to utilize
a general air pollution
count as
a vehicle for intro-
ducing evidence
as to sulfur dioxide in
a case otherwise
appearing to be concerned exclusively with particulate matter,
to
the demonstrated surprise of the respondent and to the
detriment of its ability to prepare its
case:
The natural implication
of this paragraph,
tucked away
as
it
is like
a boilerplate catchall provision,
is that
it
is
just another handle for establishing
excessive
emissions of the type already charged
in the complaint,
namely smoke and other particulates.
.
.
.
Nowhere
in the complaint was sulfur adverted
to.
.
.
.
We do not
ask
that the Agency plead all
its evidence; we do think it
is not
too much to insist that the words
‘tsulfur dioxide”
be mentioned if that substance
is
to be brought
into
a
case otherwise dealing with particulates alone by reference
to the general prohibition against air pollution.
~45
•
.
.
The third paragraph of the final complaint is
hereby stricken insofar as it applies to contaminants
other
than
smoke or particulate matter.
(po. 4-ST
bnphasis supplied).
In the present case the
air
pollution count
is just what we
nzt
in Edison was permissible:
an alternative legal theory for
demonstrating that particulate emissions were illegal.
Thor’?
was no lack of fair warning as to that, for particulate emissi•~ns
from the incinerator were clearly mentioned throughout the
complaint.
Edison itself, as the
above
quotation indicates,
allowed the air pollution count to stand insofar as it related
to
smoke and
particulates.
Beyond particulates, the statutory
count in the present case specifically mentions odors and
therefore satisfies the Edison requirement th&t additional
contaminants intended to be brought into the case be specified.
The propriety of this count is sustained by our decision in
EPA
v. Granite City Steel Co.,
#70—34
(March 17, 1971).
Moreover, the motion.in essence was one to strike
a portion
of the complaint,
and
it was not timely made under the Rules.
Nor
was any motion made for a more definite statement, which
might have clarified any uncertainty
in CHA’s understanding of
the complaint.
Moreover, the Hearing Officer specifically
offered to allow additional time at the close of the hearing
to
rebut
any
testimony
introduced
under the challenged count if
aia
was
caught
by
surprise
at
its
introduction
(R.
23).
No
motion for additional time was ever made, and
it
is
clear
CHA
was
in
no
way
prejudiced
or
taken
off
guard
by
the
evidence
introduced
under
the
air
pollution
count.
Finally,
at
the
close
of
the
hearing
the
complaint
was
amended,
as
authorized
by
our
rules,
to
conform
to
the
proof
by
making
the
allegations
of
this
count
more
specific.
While
such
an
amendment
could
not
cure
any
initial
defect
that
exposed
the
respondent
to
un-
fair surprise, we find the original complaint entirely adequate
and uphold the Hearing Officer’s denial of the motion to exclude
evieence.
In any event a contrary ruling on this motion would
make
no
difference
in
the
outcome
of
the
case
in
view
of
our
decision,
below,
that particulate emissions in excess of regulation
limits
occurred
and
that
the
sanctions
we
impose
are
justified
by
either
count
alone
since
there
was
essentially
a
single
continuing violation.
Turning first to the particulate regulation count, it is
conceded that
CHA
at
the
time
alleged provided seven single—
chamber incinerators for garbage disposal by the residents of
Bridgeport Homes
(R.
7).
Rule 3—3.232(b) of the regulations
limits emissions from new incinerators of less
than
1000
pounds
per hour capacity (such as those in this case,
R. 154) to 0.35
grains
per
standard cubic foot of exhaust gas.
CHA argues that
this regulation is inapplicable because its incinerators are
4—146
not new ~thin
the meaning of the
Rules.
But
Rule
2-2.11
quite
licitly
makes Rule
3-3.232(b),
along
with
numerous
other
~u.Les,applicable to existing equipment within
Standard Metropolitan
Statistical
Areas,
which
include
Chicago.
That
the
complaint did not
cite Rule 2-2.11
is
not fatal,
as
CHA
argued
in
ts
‘notion
to strike evidence relating
to
the
particu1at’~
~-
(R.
190)
.
There
is
no
showing
that
this
nurely
tec~u~cdj. o~rersight
in
any
way
prejudiced
CHA’s
ability
~o
defend
itseli.
CHA
was
clearly
on
notice
that
it
was
charged
with
a
particulate
violation,
and
the
numerical
limits
of
the
standard
were
plainly
indicated
in
the
section
referred
to.
CHA
carefully
cross-examined
the
EPA’s
witness
on
this
issue
as
to the
substance
of
his
testimony
and
clearly
was
prepared
to
contest the merits of
the particulate charge.
The
Rule cited in
the complaint was
in fact the operative
Rule and
its citation
gave
all
the
warning
that
was
necessary.
The
Agency
proved
by
the
use
of
standard
emission
factors
that single-chamber incinerators
of the size and
type employed
by CHA, burning refuse such as CHA’s burned,
could be expected
to emit
1.58 grains of particulate matter per standard cubic
foot, over
four times
the permissible level
(R.
165)
.
CHA
objected to
the use
of standard emission
factors,
arguing that
a stack
test was necessary, citing Rule
3-3.113, which prescrib-
es methods for stack testing.
As the Agency correctly points
out in its
brief,
that Rule merely specifies
a standard method
so there will be uniformity when stack testing
is employed;
it does
not require
a stack test
in every case,
since
to do
so
would require an unnecessary and wasteful expenditure of resources.
We have repeatedly allowed emissions to be shown prima
facie
on
the basis of emission factors based upon testing of similar
facilities.
See.
e.g.
,
EPA
v. Lindgren Foundry
Co.,
#
70-1
(Sept.
25,
1970)
,
and numerous
later cases.
CHA argues Lindgren
is inapplicable
since
a variance was requested
in that case
and
since
a variance applicant concedes he
is
in violation.
We did
not find any such concession in Lindgren, and
the basis
for our
decision there was that a violation had been shown by the use
of standard emission factors
just as
in the present case.
CHA
had the opportunity to introduce stack
tests
of
its
own or
other evidence to rebut
the calculated emissions,
see
Norfolk
&
Western
Ry.
v.
EPA,
#70—41
(May
26,
1971)
,
but
failed
to
do
so.
The
Agency’s
evidence,
which
included
references
to
several
different source materials,
was clear and convincing and
demonstrated estimated emissions
so grossly
in excess of those
allowed as
to leave no credible possibility that the incinerators
were
in
compliance.
CHA
also attacked
the qualifications
of
EPA’s witness,
largely on the irrelevant ground that
he
had
never
conducted
stack
tests.
He
was shown clearly competent
to read
and
to
interpret
the
relevant
literature
and
to
perform
the
calculations
necessary
to
show
the
violation.
S
14
CHA further contends
that
its incinerators were exempt
from
the
particulate
limitation
because
of
Rule
2-1.4
of
the
regulations, which provided that “backyard incineration
is not
intended to be covered by these Regulations”(R.
196—97).
To
begin with,
this provision was repealed September
2,
1971,
when this Board adopted new open burning regulations
eliminating
the exception for backyard incineration.
Open
Burning Regulations,
~R 70—11.
Whatever the earlier effect of
this provision,
a violation occurred whenever
the
incinerators
were used after that date.
Moreover, the backyard incineration
provlsiOfl was
a part of
the
old open burning regulations,
Section
1 of
the Rules and Regulations, which were adopted
in 1965.
Rule
2—1.2 of that section forbade open burning
of
refuse
“except as provided in Section
2—1.4
“
the
backyard
provision.
Thus
Rule 2—1.4 was plainly intended as an exception
to the open burning provision, not
to the later adopted and
entirely separate incinerator limitation that
is invoked
in
this case.
It allowed individuals
in some cases to engage
in
open burning;
it did
not allow them to operate incinerators
that did
not meet the standards.
If
it did it would have rendered
the incinerator provision meaningless as applied to domestic
incinerators.
Further,
this
is
not
a case of backyard incineration
at
all, even
if open burning were
at
issue.
The term
is de-
fined as
“the burning of material originating on the premises
by individuals domiciled on the premises, excluding commercial
establishments”
(Rules
and Regulations, Section
1)
.
CHA re-
lies on
the fact that tenants were sometimes expected
to light
the incinerators
themselves.
But the
CiIA’s own adnlission that
it operated the incinerators,
amply supporte& by the evidence
(R.
64)
,
shows that this was
not a case
of an individual burn-
ing his trash in
the back yard.
It was
an incinerator provided
by the landlord for ths use of numerous tenants,
an institution-
al rather than
a domiciliary effort,
and the arguments favoring
allowance
of small individual burning activities
are not
applicable when the landlord provides incinerators for
the
use of many tenants.
Finally, even if CHA were correct that
the particulate regulation
is inapplicable despite all
the
foregoing arguments, nothing
in the regulations could constitute
a defense to
a violation of the statute itself as alleged
in
the alternate count of the complaint,
for the regulations
cannot repeal
the
statute.
See EPA v.
Commonwealth Edison Co.,
supra.
The evidence as to air pollution
is also clear and con-
vincing.
An investigator
for the Attorney General’s office testified
without contradiction
that on eight occasions
since July,
1971
he had observed
fly ash being emitted from the incinerator
stacks;
that
the
fly ash consisted
of
“loose garbage burnt,
•
.partially burnt paper”;
that
this material
“was landing
on the builidngs
or around the ground,
on the sidewalks”;
that
“there were odors from the Incinerators.
This
is
the burning
garbage odors”;
and
that perhaps
80
of
the
138
homes
in
the
development were within
50
feet of an incinerator
CR,
27-36)
4
—
One resident
of the Bridgeport homes testified that “when
you.
have clothes hanging out,
it
is miserable;
it has those great
big pieces of paper and stuff that blows out on your clean
clothes;
and it smells.
Then in the summertime you have to close
the windows,
the smell
is
so bad”
(R.
52-53),
On the question
of where the problem came from she was unequivocal:
Q
Do yoU-ever have
that smell when the garbage isn’t burning?
A
No.
C
R.
52).
Three other residents corroborated
this testimony with additional
graphic descriptions of the adverse effect of these emissions
on persons living in the vicinity
(R.
90—93, 117—18,
124—25).
CHA called no witnesses and introduced no evidence to dispute
any of this testimony.
The undisputed evidence therefore conclusively
shows
a
serious
interference with
the enjoyment of life
in the vicinity
of the incinerators,
as
a result of incinerator emissions.
Such interference
is unreasonable
in the absence of proof that
there
is
no
economically, justifiable r~ethodof preventing
it.
See EPA v.
General Iron Industries,
Inc.,
#
71—297
(March
7,
1972);
Moody
v.
Fiintkote
Co.,
#
70—36
(Sept.
16,
1971),
The
burden
of
proof
is
on
the
respondent
to
show
that
compliance
would
cause
an
unreasonable
hardship,
Environmental
Protection
Act, section
31(c).
There was no
such proof
in this case.
Indeed
CHA
in
the
first
hearing
endeavored
to
show,
in,
mitigation
of the offense, that it had made pl~ns’for an improved
incinerator that would eliminate the nuisance
(R.
208),
and the
stipulation reached after the second hearing shows the practicability
of having the refuse removed
to an approved disposal
site.
Since
the evidence shows
a substantial interference with the neighbors
without proof that it could not practicably be
avoided, air
pollution
in violation of the statute has been established.
The final question is that of remedy.
The final stipulation
recites
that incineration had ceased March
6, 1972
and would not
be resumed.
The refuse is
to be taken
away
for disposal else-
where.
We assume it will be properly disposed of there;
if not
a further proceeding can be brought against whoever
is responsible.
We are enabledby this stipulation
to enter
an immediate cease
and desist order against further incineration at Bridgeport
Homes.
The complaint also requested
a money penalty,
and we think
such
a penalty entirely appropriate.
The violations were not
mere technical ones but caused serious discomfort to the many
residents of Bridgeport Homes.
The offenses continued unabated
for
a long period,
no plans
for abatement having been developed,
despite resident protests, until after
the close of the hearing
in this case, well over than a year after
the state law became
applicable.
We recognize
the undesirability of imposing steep
4
---
149
money penalties against municipal corporations, especially one
like CHA, since every dollar taken away is one less available
to provide adequate housing
for those of modest means.
Yet
we cannot let this serious violation go totally unpunished,
for
to do
so would encourage foot-dragging in similar cases.
Government officials,
like everyone else, must pay attention
to the pollution laws and must exercise diligent efforts
to
achieve compliance as expeditiously as
is practicable.
After
considering all relevant factors we will impose the rather
nominal penalty of
$200.
Cf.
EPA
v. City of East
St. Louis,
# 71—26
(July
8,
1971).
This
opinion
constitutes
the
findings of fact
and conclusions
of law of the Board.
ORDER
1.
Chicago Housing Authority
(CHA)
shall forthwith cease
and desist
from the incineration of refuse at Bridgeport
Homes.
2.
Within 35 days after receipt of this order,
CHA shall
pay to the State of Illinois the sum of $200 as
a
penalty for the violations found in the Board’s opinion.
Penalty payment by certified check or money order shall
be made
to the Fiscal Services Division, Environmental
Protection Agency,
2200 Churchill Road, Sp~’ingfie1d,
Illinois
62706
I, Christan Moffett, Clerk of
the Pollution Control Board,
certify that the Board adopted the above Opinion and Order
this
4th
day of April,
1972, by
a vote of
4-0
4
—
150