I3.T.1NOIS

POT,:

:‘~iC:CC:i!E.•:.

F

t)ARD

NORFOLK

AND

WESTERN

RAILWAY

COflPANY)

)

V.

)

IPCB7O—41

)

ENVIRONMENTAL

PROTECTION

AGENCY

)

Opinion

of the

Board

(by

Mr.

Currie):

The

Norfolk

and

Wastcrn

Raiis~’ayCompany

(“N

&

W”)

operates

a

central

locomotive

and

rolling

stock

maintenance

shop

facility

at

Decatur,

Illinois.

The

~nci1ity

includes

twenty—nine

(29)

separate

buiidin’s served by a central healing plant conposed of four

(4)

coal-•fired boilers.

The N & W 21od

a variance petition early in

Novenb:~r,1970 seeking rormission to omit particulate matter in

excosn of regulation limits while converting to cleaner fuzls.

Since

that document fai2ed to indicate the exact tine period

for which the

varia,~:ctwas

‘;ott4ht, a snpple~centaipetition was filed on Nov~,rber

30,

1970.

Accordin? to the ~otitions,the boilers together consume an

average of 2,210,000 pouriCs or ?o.

10

Peabt’z.y

Cau.

per

nonth.

tse

originnl

petitic..n states

that

there is a mecRtr~ica collector

ucated

above the co:abu:~t

ton

ehcw.,,er

with

an efficiency of

approximately

60’1.

tuho

petitions

as

re&d to~yetncr (hereinafter considered an one

document)

state

that

unon

rsotificntion

by

the

Illinois

En’rlronnoutal

Protection

Agency

that

thp

heatizzçv

plant

was

being

operated

in

vtolation

ci

!tilo.3—3.lJ.21

of

the

State’rkules

and

Ragulatio’~

Governin3

the

Control

of

Lir

Po1iution~ the

11

s

W

retained

the

t:crvicez4

of

an

indcm:2ndent

contractor

to

prepare

ruco;:.~endations relating

to

the

convert;ion

of

the

plant.

A

one—year

variance

was

reqwst~d

to

allow

these

studies

to

proqress

and

to

arrange

for

and

conple~c!

necessary

work

for

the

cozwersicn

of

the

plant

in

order

to

comply

with

the

re~ju)

ations.

Tlw

pati tion

went

on

to

outline

what

the

N

&

W

considered

woutd

be

the

widespread

and

substantial

elfact

of

intediate

en2oxcccicnt

of

the

air

poliution

la~ssand

rejulations

on

railway

operations and employees as well as on

thz gonerak public.

A public hearing was held in Decatur cn ~1anuary22,

1970, and

after

a

t.horouyh~review of the record,

tie are of the opinion

that the

request: for a variance i:~thic case shou3d be denied for the rci~tis

set forth boic:~.

itt

tlics

ot...tt~t, ‘;e flnd

that.

t.ie

petition itself

is insuffle:lc:;::.

S.

Ruh~3—3.

112

provides

that

the

maximum allcrcablo

e’u.ssson

t rc’~

1ac~:ca

~

a~t

,C1~~

:~

0

~

ro’v~c~s

of nrti

eui~’

ton

per

~ri

?.Y

ion

ri..r.u.

input.

1281

---

It

neither

touches

upon

nor

details

the

extent

to

which

the

community

would

be

harmed

by

continued

violations

of

particulate

emi asion

regulations

by

petitioner.

the

Procedural

Rules

of

the

Illinois

Pollution

Control

Board

deadILy

specify

the

essential

elements

of

a

variance

petition.

Rule

401

(a)

(2)

orovides

that

the

rotition

roast

contain

u

•

.

a

concise

state;

ant

of

why

the

peti

tioner

believes

that

compliance

with

the

provision

from

which

variance

is

sought

would

impose

an

arbitrary

or

unreasonable

hardshiv,

includino

a

des-

cription

of

the

costs

that

compliance

would

impose

on

the

petitioner

and

others

and

of

the

injury

that

the

erant

of

the

variance

would

impose

on

the

public.

.“

lime

petition

here

consained

no

allegation

regarding

harm

to

the

communit.

Although

we

could

forgive

this

omission

and

allow

the

pleadings

to

conform

to

the

proof,

no

evidence

whatsoever

was

offered

at

the

hearino

that

the

ultimate

harm

to

the

community

was

tolerable

or

excusable

when

balanced

against

the

effect

of

a

denial

of

the

variance.

We recognize the importance of railway operations

to the general

welfare and economy of the revion,

be

also

appreciate the importance

of

the

heating

plant

which

serces

the

shops

of

uetitioner

at

the

hub

of

its

regional

operations.

hut

section

37

of

the

Environoental

Protection

Act

makes

olain

that

the

pe titioner

must

prove

that

the

pollution

caused

b

its

continued

vioLation

is

not

so

great

as

to

justify

the

hardship that immediate

coach

once

would

proctuce

.

We

cannot

detevicine

whether

or

not

the

costs

of

co:iliance

significantly

cure

nigh

the

benefits

as

the

statute

requires,

5?re

Environmental

Protection

Anency

v.

Lindcrren

Foundry

Co.,

#PCB7Oli

(decided

Sept.

25,

1970)

unless

we

have

some

idea

of

what

the

benefits

era,

~or

all

we

know

on

the

present

record,

the

railroad

s

shops

mao

he

an

;unhaarabie

nuisance

and

health

hazard,

The

petitioner

has

clearly

tailed

to

meet

its

burden

of

proof.

More

distressing,

perhaos,

than

the

insufficiency

of

the

petition

and

than

the

failure

of

pete

sinner

to

meet

its

borden

of

oroof,

in

the

extent

to

which

petitioner

was

completely

oblivious

of

its

legal

obligations

and

unaware

of

the

actual

amount

of

earticuleto

matter

being

poured

into

the

air

~

its

hoe sing

plant.

The

followin

exchange

occurred

at.

the

hearing

(lil0—112)

IIEARIMP

OFFICER

KLEIN:

QuO

point

disturbs

rae.

Pr,

me:role.

In

considering

tee

transcr~ pt

of

this

case,

the

PcI

Thu

a can

Control

Board

will

went

to

know

what

the

imoact

on

the

corsaroity would

be

of

continued

unabated

omissions,

I

thinK

that

LIe

best

evidence

of

that

goes

towards

the

level

and

intensi

lv

of

the

emissions,

and

I

don’t

think

that

we

have

had——

MR.

SLEPLE:

We

frankly

don’t

know,

I

cacao

,

rae

are

very

truLhful

about

this,

\e

aren’t

~1nL

~

~

a

or

rTe

have

not

once

a

~

of

the

o

~ti~

L

onat

is

meng

e~

?~

We

frankly

don

1k

new

he

amount.,,

-~

282

---

1fl’.’~Rl?1G

ovricr.’t RIiLIN:

I

take

it,

then,

you

are

requestinc

a

variance

:‘or

a

per io~

of

one

yuar

to

continue

emitting

an

anount

of

pollutants,

the

&c:re, and intensity of which you do not know?

MR._SAMPLE:

We

don’ t

know.

I

think

what

you

are

saying

ray

be

correct,

but

we an.

ackin~ for

it

variance

to

install

a

new

heating system, and

tie

arc

willing

to

discard

thic

old

one.

But as far as what we ~rc discarding in the way of pollution,

we don’t know ‘that it is.

The Agency alleges that it’s in

violation and we are willin’; to accept that.

The particulate regulation wh~ichapplies to petitioner’s operations

has been in e~fOct since

1967.

Petitioner has been running its fac-

ility a~Decatur for lcn~orthan

tint.

Yet petitioner blithely admits

that

it has no krscwledç;e whatsocnnr of the quantity, aneunt, level,

or

de9roe

of

p:~rtict’1~t.c

diseharç”~s from

its

Occatur

facility

and

is

so

ignoran~ o~the

o::tent

to

which

it

nay

be

violating

the

law

that it is willira~to cmbark on a coaversion project which

may

cost

$500,000,

on

;it’Lhing

zacre

than

the

ale?ation

of

the

Environmental

Protocticn

Agency.

Ue

think

this

a

rather

extraordinary

way to

run

a

ra1lroad.

In

our

oy’.

nion it

is tine

tha4

those

who

enga~yein

business

oper;itions in Illinois rc.oçnize

thst our poilution control

laws and

regulations

ttu..

t

ho

co:. pUod

uiU’

in

the

same

way

as

must

other

laws

rc37’~cttncJ

the

transaction

oC

butiness

in

this

state.

There

is

ample

tea tiitony

in

the

record

to

snow

Li~ut

the

petitioner

was

well

aware

of the tax cb1i~ationsthich arise as a consequence of its business

operations

ar;dl we are cer~’ainthat petitioner is equally apprised of

relovent llcenuinç restrictiens, real estate

and

corporate law require-

ments and other measures ie’,.ulatin~the transaction of petitioner’s

busine:;s

in

11

:.ianl

~.

We

think

the

complete

disregard

for

the

air

pollution

lawi

shown

by

petition~:r,

and

evidenced

by

its

total

tacit

of

ki~cwlcdge x

s1;nctin~. the

consequences

of

its

operations

on

Vie

cor:auni ty

nearby,

is

ine:~:usethlo.

Since

we

hzive

heJd

that

the

netitioner

has

not

made

a

s~sfficient

case

to

ju’;ti fy

the

~jr’n.~ing

of

the

variance,

there

is

no

need

for

us

to

reach

the

issue

cZ

the

effect

of

the

untimely

reconmendntion

filed

by

Uan

,~

!lnicV

in

this

case.

In

computing

the

tire

for

the

subni ~sion

of

:tocw

ten

:t~

hcrei

it,

we

const,-te

the

supplenental

petition

Iilccl on !~ovci~or30,

l!~7O,

as the initiation of the case.

Rule 403

(a)

n~the

!h-occiural Rrias requires the Agency to file its recom—

mcndaLic~within 21 days after the filing of the petition, but here

the

lv;ctncy filed its recommendation only on the day of the hearing.

The petitioner in a variance case is entitled to fair notice of

the ease it

t.it::t

neet and to sufficient time to prepare to meet.issues

i-rn

---

raised by the Agency.

Furthermore,

Section 38 of the Environmental

Protection

Act

requires

the

Pollution

Control

Board

tb

dociclo

a

variance

case

within

90

days

alter

the

lilinrj of thc~petition or

else

the

request

may

be

doomed

y:antod.

‘rho

Norfolk

and

Western,

in

order

to

enable

us

to

asser.hl

e

a

more

adequate

rccord,

has

waived

application

of

the

90—day

provision

in

this

case.

~e

have

abked

that

the

Act

be

a;:nnded

in

this

area

but,

in

the

neanti:e,

we

urge

the

Agency

to

file

its

Recoramendations

ucre

expeditiously

in

the

future.

The

Agency’s

recommendation.

discussed

above,

was

to

grant

the

variance

but

only

subject

to

certain

condi Lions.

We

have

denied

the

variance.

We

construe

the

Agency’s

request

for

a

money

penalty

as

a

countercomplaint

and

schedule

a

hearinç

at

which

the

A~ency’

s

enforcattent

case

can

be

presented.

Leave

will

be

rrrantod

to

the

Environmental

Protection

Agency

to

amend

the

countorconplaint.

Our

denial

of

the

variance

does

not

automatically

shnt

the

heating

plant

or

force

the

haltin’j

of

all

rotated

railroad

activities

by

petitioner

in

the

region.

We

do

not

order

the

railroad

to

do

or

not

to

do

anything.

We

si

.uty

re!tuso

on

the

present

record

to

give

the

railroad

protoction

;c’ainst

an

onforcenenL

action

for

violation

of

the

air

pollution

:aws.

At

the

hearing

on

the

enforca—

ment

action,

the

railroad

may

.t~

terapt,

an

a

defense,

to

prove

the

same

matters

put

forth

U1SUCOC~!~ttl

ty

in

the

variance

cane.

In

any event, the petitioner would be well

advised to move ahcta~towar~

conpliance

~ith

the

liw

as

rapidly

as

possible.

thatever

dia

reasons

may

be

for

:hrce

yeari;

of

inaction,

thor:!

is

no

lonçer

any

semblance

of

an

excuse

for

furthor

dalay.

The

Ce~

.pany

shou La

he

awara

that

this

Board

will

not

take

kin:.ly

to

any

a~:tenptto

use .the

ir.portanco

of railroad operations as an excuse for callous disregard of the

pollution

laws.

This

opinion

cotistitutes

the

Board’s

findings

of

fact

and

conclusions

of

law.

ORDER

The Board, having cor.sidered the transcript and exhibits in

this proceeding, hereby enters the fellowin~order:

1.

The

petition

of

the

Norfolk

and

Western

Railway

Conpany

for a Variance is hereby denied;

2.

A heating will be held on the Agency’s countereo:’nlaint

for money penalties Friday, April

2,

1971, in Dect~tur,

Illinois

at

a

location

to

be

designateC;

3.

Lenve

Ia

hereby

::rr.1J~t!:~

to the Environmental

i’roL’:c’..)efl

Agency to

zi:.tonc said countcrcc.plaint.

I,

Regina

E.

Ryan,

certi~’

that

the

Board

adopted

the

above

opinion

and

order

this

..

:r

of

_______

-

,

1971.

RCGfl.;

~:.

nr;.:.

tr,’

~

:.c’;.E!3

1—