ILLINOIS POLLUTION CONTROL

BOARD

July

8, 1971

ENVIRONMENTAL PROTECTION AGENCY

V.

)

PCB #71—50

M. S. KAPLAN COMPANY

Opinion of the Board (By Mr. Aldrich):

C. Dana Eastman, Jr. for Environmental Protection Agency

William D. Stiehl for M. S. Kaplan Company

The Environmental Protection Agency (“Agency”) filed a complaint

against M. S. Kaplan Company (“Kaplan”) alleging violations of the

Environmental Protection Act and of the regulations with regard to

air pollution. Kaplan, which operates a railroad salvage facility

in Madison, Illinois, is alleged to have disposed of railroad cars

by open burning on a number of occasions in 1971, The complaint

also alleges that Kaplan caused or tended to cause air pollution

by the flame cutting of railroad cars and related equipment. The

Agency asks for the entry of a cease—and—desist order and for the

assessment of money penalties.

At the hearing Kaplan admitted that it had conducted open burning

on the dates alleged and indicated it would agree to a cease—and—

desist order prohibiting any further burning. The Company sought

only to present evidence in mitigation of the claim for monetary

damages.

In May of 1969, Kaplan filed an Air Contaminant Emission Reduction

Program (ACERP) with the Air Pollution Control Board (APCB). The

Company proposed a plan whereby its practice of open burning would

cease completely within two years. During the interim, the burning

operation would be phased out at the rate of ten percent per quarter.

At the end of two years installation of smoke control equipment

would be completed (Kaplan Ex, 1). The APCB gave its approval for

the ACERP in June of 1969 (Kaplan Ex. 2). A witness for Kaplan test-

ified that the Company had progressively reduced the number of cars

burned and had otherwise complied with the terms of the ACERP

(R, 13,14). Since April 3, 1971, there has been no further burning.

The essential question raised in this case concerns what protection

from enforcement action is afforded Kaplan by its ACERP, The matter

is not without precedent. In EPA v. Commonwealth Edison, PCB 70-4,

we held that an ACERP could legally have been grantedonly for a

period of one year. Since the ACERP in the instant case was approved

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in 1969 and never renewed, it provides no defense to an enforcement

action in 1971. Nevertheless, as we noted in the aforementioned

case, it is not our desire to impose money penalties on anyone who

has been operating in good faith under an approved program. It is

clear that Kaplan has already suffered hardship in complying with

the terms of its ACERP. No alternative method of salvaging railroad

cars has proved satisfactory (R. 19). The Company has been required

to abandon virtually all salvage operations at its Madison facility.

Furthermore, Kaplan may be liable for damages for cancelling con-

tracts it had previously made, Kaplan testified that 132 railroad

cars had been returned to the senders in abrogation of contracts

(R. 16). Returning the cars to the source doe~not solve the problem

of constructive salvaging and recycling at least of the steel com-

ponent. An acceptable technique is needed. Money penalties would

add unjustifiably to the hardship already suffered by Kaplan. We will

not impose such penalties.

In order to dispel any false sense of security harbored by others in

a position similar to Kaplan’s, the Agency should notify all holders

of ACERPs that these programs are now invalid. We reiterate that the

APCB could legally issue ACERPs for a maximum of one year. That

period has now passed. Those who need additional time to come into

compliance with the laws of the Statemust secure a variance from

this Board. Only then is any protection from enforcement action

conferred.

In the instant case Kaplan stipulated only that it would cease and

desist the open burning of railroad cars. The Company did not agree

to cease its flame cutting operations. The record is incomplete as

to the amount and types of pollutants generated in these operations.

The Agency did not, in fact, present any evidence in. support of its

allegation that the operations are in violation of the Environmental

Protection Act. The charge is therefore dismissed.

Kaplan is hereby ordered to cease and desist any further salvage by

means of open burning.

This opinion constitutes the Board’s findings of fact, conclusions

of law, and order.

~I CON~UR

I DISSENT

I, Regina E. Ryan, Cl~r~of the Po1lutionGe~trol Board, hereby

certify that the Board~adoptedthe above opi ion and ord~z~- is

~ day of July, 1971.

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