ILLINOIS POLLUTION CONTROL BOARD

August 14,

1986

VILLAGE OF ADDISON,

Complainant,

v.

)

PCB 84—161

L

& S INDUSTRIES,

INC.,

Respondent.

SUPPLEMENTAL ORDER OF THE BOARD

(by 3.D. Dumelle):

On September

5,

1985,

the Board entered an Interim Opinion

and Order, finding that L

&

S Industries,

Inc.

(LSI) had violated

Sections

9 and 24

of the Environmental Protection Act.

That

Interim Order required LSI

to prepare and submit

a report on

methods of reducing or eliminating noise

and odor pollution.

This

report was due no later than December

1,

1985.

However, no

such report was filed and by order

of March 14,

1986,

the Board

provided LSI one last opportunity

to cure this defect.

LSI was

required to file with the Board and the complainant by May 1,

1986,

a schedule for completion of the report on reducing odor

and noise pollution at

its facility which was

to call for a

complete and final report

to be filed with the Board not later

than July

1,

1986, detailing all reasonable methods

of reducing

odor and noise pollution,

the type and degree of

reductions

possible with each method,

its cost and the time required to

implement the method.

Neither the schedule nor the final report

have been filed.

In its September

5, 1985, Opinion and Order,

the Board

stated

that:

The record before

the Board

is presently

inadequate

for

the

Board

to

order

any

particular

remedial

actions.

The

last

noise

survey

in

the

record

is

from

May

19,

1982.

LSI

contends

that

operational

changes

since

that

time

have

significantly

reduced

the

noise.

While

the

record

does

contain

sufficient

evidence

to

conclude

that

noise

violations

continue,

it

does

not

contain

sufficient

information

on

the

extent

of

present

non—compliance

nor

does

it

offer

any

further

specific actions which could

be taken

to assure compliance.

72-19

---

—2—

Nothing further has been entered into the record since that time

and those statements remain true.

Pursuant

to Section

31(c)

of the Illinois Environmental

Protection Act

(Act),

the burden

is on the complainant to show

that the respondent has caused

or threatened

a violation of

the

Act or the Board rules.

If that is proven,

the burden

falls on

the respondent

to demonstrate

that compliance would impose an

arbitrary

or

unreasonable hardship.

Where,

as here,

the

complainant meets his burden and

the respondent

fails to meet

his,

the Board

is

to make

“such final determination as

it shall

deem appropriate

under

the circumstances,” pursuant

to Section

33(a)

of the Act.

Pursuant

to Section 33(b),

“such order may

include

a direction to cease and desist.”

Given

the lack of sufficient information on which to base

any particular remedial program,

there

is little option for the

Board other than the imposition

of

a cease and desist order

(in

addition to the earlier ordered monetary penalty).

Therefore,

the only questions remaining are the scope

of the cease and

desist

order

and when it should become effective.

Given that L

&

S Industries

(LSI)

had the opportunity

to present evidence

regarding the reasonableness of compliance

at the original

hearing in March of 1985 and was given the additional opportunity

to present

a compliance plan by December

1,

1985, which was later

extended

to July 1,

1986,

the Board will not be liberal

in its

decision.

If the Board were simply to order LSI

to cease and desist

violations of the Act

by a date certain,

the failure to attain

compliance would have to be relitigated

to establish

a continuing

violation before further action could be ordered.

Such delay

would be highly inappropriate.

Therefore,

the Board must fashion

its order

in such

a way that compliance with that order

is

quickly and easily determined.

If the Board were able to order

specific compliance actions within a definite time period, this

dilemma would be solved.

However, LSI’s inaction has precluded

such an order.

Therefore, all that remains

is for

the Board

to

order that LSI cease operations at

its plant.

Such

an order is

highly unusual

and,

for that reason,

the Board will

offer LSI a

second last opportunity to avoid this result by taking

expeditious steps

to comply with the Board’s previous orders

(albeit belatedly).

The Board,

therefore, orders that LSI cease and desist all

operations at its facility located at 920 National Avenue in

Addison,

Illinois, on or before October

13, 1986,

unless it has

filed

a report with the Board and the Village of Addison by that

date which evaluates,

to the maximum extent possible,

the type

and degree of noise and odor reductions possible by changes in

operation or construction of noise and odor reduction devices.

This report must be prepared by a competent individual or firm

72-20

---

—3—

and must consider

all reasonable methods of control.

Each

control option shall

include anticipated pollution reductions,

the cost

of implementation,

and

an estimate of

a reasonable time

for implementation.

If LSI

fails

to timely submit the required

report,

the cease and desist order will remain effective until

such a report

is filed.

Once such report

is filed,

the Village

of Addison shall have

30 days

to respond

to that report, and the

Board will take appropriate further action thereafter.

IT

IS SO ORDERED.

Board Member

J. Theodore Meyer dissented.

I, Dorothy

M. Gunn, Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

1~ra

day of

_____________,

1986,

by

a vote

of

___________

Dorothy

M.

thinn,

Clerk

Illinois Pollution Control Board