ILLINOIS POLLUTION CONTROL BOARD

January 6, 1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

PCB 71—329

AMERICAN GENERATOR 

AND

ARMATURE CO.

James I. Rubin, Assistant Attorney General, for the Environmental

Protection Agency

Raymond I. Suekoff,f or the American Generator and Armature Co.

Opinion and Order of the Board (by Mr. Currie):

American Generator and Armature Co. was charged with

causing air pollution from an incinerator at its Chicago factory

and with installing an afterburner on the Incinerator without

a permit from the Agency. The company denied that it was causing

air pollution but conceded that it had installed the after-

burner without a state permit, believing that only a city permit

was required.

The Agency presented one witness, a neighbor wh~ testified

to considerable smoke and odor problems in past years, to an

improvement sometime in 1971, and to the apparent cessation

of the problem since September. The company’s witnesses testified

that the incinerator problem had been brought to its attention

by the city, that it had promptly purchased and installed the

afterburner in February 1971 to cure the problem, and that

a city

permit was obtained, both the company and its contractor

believing no state permit necessary. Upon receipt of the present

complaint in October, the company immediately shut down and

locked the incinerator, and it has not been used since. At

the

same

time the company applied for a state 

permit, which

has been issued and was introduced at the hearing.

That there was air pollution before the afterburner was

installed is clear under the doctrine of Moody v. Flintkote

Co., 

70-36 (Sept. 2, 1971), for the incinerator emissions

interfered with at least one neighbor’s enjoyment of life, and

reasonable control measures, namely the afterburner, were

available. That a state permit was not obtained before installation

is admitted. That one was required is clear from 

examination

of the applicable law.

—

373

Section 9(h) of the Environmental Protection Act, effective

~3uly 1, 1970, forbids the installation of any equipment designed

to prevent air pollution, of any type designated by Board

regulations, without a permit from the state Environmental

Protection Agency. The Rules and Regulations Governing the

Control of Air Pollution, adopted in 1967 and preserved as Board

regulations by section 49(c) of the Act, provide in Rule

3-2.110 that a permit •is required for installation or construction

of “any new equipment intended for eliminating, reducing or

controlling emission of air contaminants,” with exceptions not

here material.

Nothing in the above regulations themselves limited their

geographical scope; on their face they applied to all facilities

in the State. The old Air Pollution Control Act, under which

the regulations were adopted, contained a provision authorizing

the old Board to exempt from the Act and regulations those

municipalities or other local governments with control programs

of their own meeting certain stated conditions. Pursuant to

that authorization, the old Board adopted regulations providing

for such exemptions, and the City of Chicago, among others, was

granted a certificate of exemption. At that time, prior to the

adoption of the Environmental Protection Act, facilities in the

City did not require state permits.

All this was changed by the new statute in July 1970.

Section 2 of the Act plainly states, in contrast to the earlier

law, the legislative intention to create a state-wide program:

(a) The General Assembly finds;

(ii) that because environmental damage does not

respect political boundaries, it is necessary

to establish a unified state-wide program for

environmental protection

(b) It is the purpose of this Act 

. . -

to establish a

unified, state—wide program 

. .

Conspicuous is the omission of any provision for exemption of

municipalities or counties with their own control programs, for

such would have been wholly inconsistent with the express statutory

finding and policy quoted above. The Governor’s message to

the General Assembly explaining the bill that became the

Environmental Protection Act stressed that the bill would do away

with all local exemptions. Indeed the emphasis on a state—wide

program was increased during the bill’s journey through the

General Assembly by omission of the original provision that

would have allowed the state to grant “primary jurisdiction”

to qualified local agencies. In short, it was one of the major

purposes of the Environmental Protection Act, clearly and publicly

expressed all during the bill’s progress, to abolish local exemptions.

3 — 374

Since the exemption regulations were inconsistent with the

new statute, they were not preserved by section 49(c) but expired

immediately upon the effective date of the statute. To remove

any doubt, and to alert affected persons once again to the

necessity for complying with state law in formerly exempted

communities, we adopted a regulation (#R 70-1, Oct. 8, 1970),

explicitly 

repealing the old exemption regulations.

See the

Board’s opinion in that proceeding Oct. 8, 1970.

Outstanding

exemption certificates were voided by expiration of the regulations

and statute that were their sole authorization.

Since the only geographic limit on the applicability of the

permit regulations was the existence of the exemption regulation,

the repeal of the latter made the permit rules applicable to

formerly exempted areas such as Chicago. Cf. EPA v. Bath, Inc.,

#71-52 (Sept. 16, 1971) 

reaching the same conclusion with re-

gard to the scope of the solid waste regulations.

State permits have thus been required for new Chicago

facilities since July 1, 1970. The installation of the after-

burner in this case without such a permit was a violation of the

state law and regulations.

Because of the company’s professed ignorance that a state

permit had become necessary and because of its prompt cooperation

closing 

the source and applying for a permit when the violation

became known,the Agency dropped its request for money penalties.

The issuance of the state permit on the day of the hearing removes

the necessity for any order against operation without a permit.

And, since the installation of the afterburner is expected by

both the City and the State to cure the pollution problem (else

no permit should have been issued) 

we have no reason to believe

there is a continuing danger of future pollution and no reason

to enter a

cease—and—desist order against further violations.

In sum the Board’s finding is that air pollution was caused

in the past and that the permit provisions were violated; our

order is that the proceedings are hereby closed with no remedial

or penalty provisions. This opinion should serve as a final

notice that state

permits are required for new installations in

formerly exempted areas such as Chicago, and that we shall not

take kindly to pleas of ignorance in the future.

Mr. Dumelle would impose a penalty of $500.

I, Christan Moffett,    

Clerk of the Pollution Control Board,

certify that the Board adopted 

the above Opinion and Order this

day of January, 1972 by a vote of 4-0,

3

—

375