ILLINOIS POLLUTION CONTROL BOARD
November
15, 1971
LLOYD
A. FRY ROOFING COMPANY
v.
)
PCB 71—4
ENVIRONMENTAL PROTECTION AGENCY
REV.
LOUIS HENMERICH, ET AL
v.
)
PCB 71-33
LLOYD
A.
FRY
ROOFING COMPANY
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD
(by Mr. Lawton):
On October
14,
1971, we entered an order in the above con-
solidated proceeding as follows:
HIT
IS
THE
ORDER of the Pollution Control Board:
1.
That Lloyd
A.
Fry Roofing Company cease and desist
emissions from its Summit operation until such time
as air pollution abatement equipment has been in-
stalled and
is properly operating, which equipment
shall bring Fry’s emissions within the particulate
regulations,
as set forth in
the Rules
and Regula-
tions Governing the Control of Air Pollution,
Sections 2—2.11 and
3—3.111.
2.
Fry shall advise this Board when such installation
has been completed.
This proceeding shall remain
open and the Board shall conduct a further hearing
not less than
30
nor more than 60 days after notice
of the installation of said air pollution abatement
equipment in order to ascertain whether odors being
emitted by Fry’s operation have been abated as
a
consequence of
the
air pollution control equipment
installed.
Such further orders shall be issued by
this Board as are appropriate in consideration of
the hearings.
3.
Penalty
in
the amount of $50,000
is assessed
against Fry
for violations of the particulate
emissions provisions of the Rules and Regulations
Governing
the Control of Air Pollution, for fail-
ure to
file
a Letter
of Intent and Air Contaminant
3—89
Emission
Reduction
Program as
required
by
the
Rules
and
Regulations
Governing
the
Control
of
Air
Pollution,
Sections
2-2.3
and
2-2.4,
and
for
causing
air
pollution
as
defined
within
the
Environmental
Protection
Act,
Section
9.a.”
On
November
12,
1971,
we
received
from
respondent,
Lloyd
A.
Fry
Roofing
Company,
a
Petition
for
Rehearing
and
a
separate
Motion
to
Stay
the
Order
and
Decision
of
the
Board
of
October
14,
1971.
The
Petition
for
Rehearing
is
denied.
The
Motion
to
Stay
the
Order of
the
Board
is
granted with
respect
to
the
assessment
of
the
penalty
subject
to
the
conditions
hereinafter
provided,
and
is
denied
in
all
other
respects.
The
Petition
for
Rehearing is
premised
on
the
failure
of
the
Board
to
enter
an
Order
establishing
a
briefing
schedule
and
per-
mitting
oral
argument,
and
on
its
failure
to
enter
&
separate
Order
on
complainant’s
Motion
to
Reopen
the
case.
However,
it
is
mani-
fest
that
the
October
14,
1971
Order
of
the
Board
is
dispositive
of
all issues raised in
Fry’s
Motion.
The
Board
chose
not
to await
the filing of briefs for the rendering of its decision, but took
the case on the record.
Furthermore, since no Brief was filed by.
complainant, there was no occasion for respondent to file an Answer-
ing Brief.
Likewise, the Board chose to proceed without hearing
oral argument.
Nor is respondent in any position to complain because of the
Board’s failure to reopen complainant’s case.
Indeea, respondent
filed an
Answer
to the Motion to Reopen the complainant’s case pray-
ing that the Motion
be
denied.
In this respect respondent has pre-
vailed
and
cannot
now
challenge
the
action
of
the
Board
in
compliance
with its prayer.
Respondent’s Motion to Stay the October 14, 1971 Order of the
Board was filed pursuant to Supreme Court Rule 335 which governs
procedure where judicial review of our proceedings is sought.
While
we do not accept
the
le7al argument of respondent in support of its
~otion,we do stay our Order with regard to the assessment of penalty
on condition that a bond to secure payment of
the
pebalty
in the
event of an adverse judicial decision is filed with the Environmental
Prctection Agenc~~
within 15 days after receipt of this Order.
As we
said in Spartan Printing Company v. EPA, PCB 71-19, dated October 14,
1971:
Wie
see no point in requiring the money to be
paid now if it may have to be repaid after judicial
review.
The purposes of the order will be as well ser;ed
by later payment if the appeal fails.”
3—fl
However, we
decline to stay the other portions of our Order.
If in
fact respondent is proceeding with an Air Pollution Abatement Pro-
gram and
the installation of suitable equipment as alleged,
and such
equipment brings respondent’s operation into complaince with the
law,
it has nothing to fear
from either the Board or the Environmental
Protection Agency by having complied with our Order.
Further delay
in this regard would only continue the obnoxious burden to the
community caused by respondent which was the basis of the original
Order of the Board.
IT
IS THE ORDER of the Pollution Control Board:
1.
The Petition of Lloyd A. Fry Roofing Company for
Rehearing is denied.
2.
The Motion of Lloyd A.
Fry Roofing Company to Stay
the Order and Decision of the Pollution Control
Board of October 14,
1971,
is granted as to the
penalty provisions of
the Order
(i~ 3)
on condition
that a bond to secure payment of the penalty in
the event of
an adverse judicial decision is filed
with
the Environmental Protection Agency within
15
days after receipt of this Order,
and is denied
in all other respects.
I,
Christan Moffett, Acting Clerk of the Illinois Pollution
Control
Board, certify
that the Board adopted the above Opinion
and Order on this /~“~~day
of November,
1971.
Christan Moff
Acting Clerk
3—91