ILLINOIS POLLUTION CONTROL
    BOARD
    February 27,
    1973
    ENVIRONMENTAL PROTECTION AGENCY
    #72—172
    v.
    VAN DER MOLEN MIDWEST INCINERATOR
    CO., an Illinois corporation
    VAN DER MOLEN MIDWEST INCINERATOR
    CO.,
    an Illinois corporation
    #73—5
    V.
    ENVIRONMENTAL PROTECTION AGENCY
    JAMES RUBIN, ASST.
    ATTORNEY GENERAL, APPEARED ON BEHALF OF
    ENVIRONMENTAL PROTECTION AGENCY
    ROBERT F.
    CASEY, APPEARED ON BEHALF OF VAN DER MOLEN MIDWEST
    INCINERATOR CO.
    OPINION AND ORDER OF
    THE
    BOARD
    (BY SAMUEL T.
    LAWTON, JR.):
    Complaint was filed against Van Der Molen Midwest Incinerator
    Co. alleging that its public refuse incinerator in Melrose Park
    emitted particulates between July
    1,
    1970 and “the close of the
    record herein”,
    in violation of Rule 3-3.232 of the Rules and Regu-
    lations Governing the Control of Air Pollution and caused air
    pollution in violation of Section 9(a)
    of the Act.
    On January
    4,
    1973, Van Der Molen Midwest Incinerator Co. filed
    a petition for variance requesting authorization to continue opera-
    tion in violation of the relevant regulations and statutory provi-
    sions
    “through February,
    1973,
    pending discontinuance of its opera-
    tions”.
    In the petition,
    it states:
    “Petitioner submits that
    approval of this variance will permit it to complete an orderly
    transition of its incinerator operation by conversion to a landfill
    type of operation”.
    The prayer for relief, among other things,
    states that petitioner would report to the Pollution Control Board
    its progress in the transition
    of its business and the closing down
    of its incinerator during the period for which the variance is
    sought.
    A stipulation and proposal for settlement were entered into be-
    tween the parties, which was received by the Board on January
    9,
    1973.
    In the stipulation, Van Der Molen admits the emission of particulates
    in amounts constituting violation of Section 9(a) and Rule 3-3.232
    7
    139

    of the Rules and that not less than twice each month, Van Der Molen,
    in its incinerator operation, has permitted smoke,
    fly ash and
    particulates
    to be emitted, settling on residential swimming pools,
    backyards of nearby residences preventing out-of-door laundry drying,
    and that ash and particulates
    fell on automobiles of nearby residents
    and on buildings,
    creating additional cleaning problems,
    A hearing
    had
    been scheduled
    and was
    convened on December 26,
    1972 but because of the submission of the stipulation, was declared
    closed without the hearing of
    the
    witnesses,
    The stipulation states
    that “Van Der Molen is presently in the process of phasing out its
    closing down operation.
    A petition for variance has been filed to
    permit continued operation until February
    28,
    1973.”
    The stipulation
    concludes with a statement
    that
    complainant prays
    for
    the
    relief
    sought in the complaint,
    which was the entry of
    a cease and desist
    order and the imposition of fines in the maximum statutory amounts.
    The Respondent asks
    that the petition for variance be granted and
    that any fine imposed be nominal.
    Based
    upon
    the
    stipulation
    aforesaid,
    the
    Board
    was
    prepared
    to
    enter
    its
    order
    on
    February
    6,
    1973.
    A
    request
    was
    received
    by
    the
    Board
    from
    the
    Company
    asking
    that
    no
    decision
    be
    rendered
    on
    February
    C,
    1973,
    pending
    determination
    as
    to
    whether
    Van
    Der
    Molen
    did,
    in
    fact,
    intend
    to
    discontinue
    its
    incinerator
    operation.
    The decision was deferred to the meeting
    of
    February 21,
    1973,
    which
    meeting was cancelled because of lack of a quorum.
    On February 20,
    1973,
    the
    Board
    received
    a
    “Motion
    To
    Hold
    Board
    Final
    Decision
    in
    Abeyance
    Pending
    Development
    of
    New
    Facts,
    or
    in
    the
    alternative,
    to
    Render
    a Decision Which does not Order Shut Down,”
    The substance
    of
    the
    new
    petition
    is
    the
    contention
    that
    incinerator emission
    control
    technology
    is
    available
    that
    would
    enable
    compliance
    with
    regulations
    that
    would
    become
    effective
    December 31,
    1973,
    and
    that
    the possible unavailability of gas would preclude Van Der Molen from
    complying with certain requirements
    if, in fact,
    the operation
    was shut down on February 28,
    1973,
    as intended.
    Other allegations
    are made which need not be commented on for purposes of this Order.
    The essence of the motion is to defer a shut-down of the facility
    as originally contemplated.
    A response and objection to the motion was filed by the Agency
    noting that in the stipulation, Respondent had admitted violation
    of the Rules with respect to particulate emissions and the statutory
    provision prohibiting the causing of air pollution.
    The Agency
    prays that the Board decide the case as quickly as
    is practicable
    and order abatement
    of
    continuing
    violation
    and
    the
    imposition
    of
    a
    penalty.
    A reply was filed by Van Der Molen commenting on specific assertions
    of the Agency’s response.
    On this state of the record,
    the matter
    came up for consideration at the Board meeting on February
    27,
    1973,
    at which time both the Company and the Agency were represented
    by
    counsel.
    Because of the somewhat muddied status
    of the stipulation,
    —2—
    7
    --
    140

    and
    its apparent
    reoudiation by Van Der Molen before the rendition
    of
    any
    decision,
    coupled
    with
    the
    absence
    of
    any
    testimony
    at
    the
    hearing
    on which the Board could render a definitive decision, we
    are
    rejecting
    the
    stipulation
    and
    directing
    an
    immediate
    hearing
    on
    the
    complaint,
    as
    filed.
    Van
    Der
    Molen
    has
    withdrawn
    its
    peti-
    tion
    for
    variance,
    which
    would
    be
    moot
    in
    any
    event
    on
    February
    28,
    1973.
    The
    motion
    to
    hold
    our
    decision
    in
    abeyance
    is
    not
    construed
    as
    a
    new
    variance
    petition.
    The
    Agency
    is
    authorized
    to
    amend
    its
    petition
    if
    it
    so
    chooses
    without
    any
    further
    order of the Board
    or
    the
    Hearing
    Officer.
    This
    opinion
    constitutes
    the
    findings
    of
    fact
    and
    conclusions
    of
    law
    of
    the
    Board.
    IT
    IS
    THE
    Oi~DERof
    the
    Pollution
    Control
    Board:
    1.
    Hearing
    on
    the
    complaint
    filed
    by
    the
    Environmental
    Protection
    Agency
    in
    Case
    #72—172
    shall
    be
    held
    at
    the
    earliest possible date.
    2.
    Petition for variance in Case #73-5
    is withdrawn.
    Stipula-
    tion heretofore filed by the parties
    is rejected.
    I,
    Christan Moffett, Clerk of the Illinois Pollution Control Board,
    certify
    ~ha
    the
    above
    Opinion
    and
    Order
    was
    adopted
    on
    the
    ~7~’
    day
    of
    9
    ,
    1973,
    by
    a
    vote
    of
    ~
    to
    O
    .,
    .~
    —3—
    7
    141

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