ILLINOIS POLLUTION CONTROL BOARD
    September 30,
    1976
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 73—285
    PCB 73—286
    PCB 73—457
    CITY OF CHICAGO,
    a municipal
    corporation,
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Dumelle):
    This Opinion and Order deals with three enforcement actions
    filed by the Environmental Protection Agency against the City of
    Chicago.
    PCB 73-285 concerns the City of Chicago Southwest
    Incinerator.
    PCB 73—286 concerns the City of Chicago’s Calumet
    Incinerator.
    PCB 73-457 concerns the City of Chicago’s Northwest
    Incinerator.
    On March 26,
    1975 the Board ordered these cases,
    along with PCB 73-216,
    consolidated.
    On February
    19, 1976
    the Board granted the Agency’s Motion to Dismiss PCB 73-216
    without prejudice.
    This Opinion and Order of the Board deals
    with the three remaining cases.
    PCB 73-285
    (Southwest Incinerator)
    This matter comes before the Board on a Complaint filed
    by the Environmental Protection Agency
    (Agency)
    against the
    City of Chicaqo on July
    13,
    1973.
    The subject of
    the Complaint
    is
    the
    Ci Ly ol Chicaqo’ s Southwest
    I ricinerator
    ,
    located
    at
    1
    ~00
    Persh
    I n~ Road
    ,
    Clii caqo
    ,
    Cook
    (‘ou
    n ty
    ,
    1
    1
    i
    nois
    .
    A
    lic~i
    ri
    nq
    was
    held
    on
    April
    2,
    1976
    at which the parties, pursuant
    to
    Rule 333 of the Board’s Procedural Rules,
    read into the record
    a Stipulation
    (R.
    36-46)
    and a partial Settlement Proposal
    (R.
    47-53) leaving the issues of penalty and performance bond
    to the Board
    (R.
    46,
    54).
    23
    549

    —2—
    The Complaint consists of three Counts.
    Count I alleges
    that emissions from the Incinerator constitute “air pollution”
    under Section
    3(b)
    of the Act and therefore violated Section
    9(a)
    of the Act from on or about July
    1,
    1970 to the filing
    of the Complaint.
    Count II alleges that particulates were
    emitted in violation of Rule 3—3.232 of the old Air Rules
    from November
    3, 1971 to the filing of the Complaint,
    and
    thus also Section 9(a)
    of the Act.
    Count III alleges that
    since April
    1,
    1973 the City of Chicago operated the
    Southwest Incinerator without the required permit and there-
    fore in violation of Rule 103(b) (2)
    of the Air Pollution Control
    Regulations and Section 9(b)
    of the Act.
    The City of Chicago stipulates to the violations alleged
    in
    Counts
    II and III
    (R.
    41,
    42).
    However, at
    R.
    42 the Agency
    moves,
    as part of the Stipulation,
    to dismiss Count
    I without
    prejudice.
    The proposed Settlement provides for the con-
    struction of
    a Supplemental Fuel Processing Plant to be
    operated in conjunction with the Commonwealth Edison facility
    located adjacent to it.
    The plant will process all refuse
    currently incinerated at Southwest Incinerator for combustion
    as a source of fuel for the Commonwealth Edison Crawford Power
    Plant.
    The City of Chicago states that contracts for con-
    struction of the facilities, conveyor intercomingling, and acceptance
    of all burnable shredded combustible refuse for ten years have
    already been signed
    (R.
    55).
    The following completion schedule
    is proposed:
    A.
    Construction
    of the City’s building by September
    1,
    1976;
    B.
    Installation of component equipment by January
    1,
    1977;
    C.
    Facility completed and in operation by March 31,
    1977;
    The City of Chicago explicitly agrees at R.
    53 to cease operation
    of Southwest Incinerator on or before March
    31,
    1977.
    The E~oardmust determine whether
    t:.he
    interests
    ol the
    cit.
    .1 zeus
    oF
    tlii s Stale will
    be
    bus
    L served by
    the accepLance
    of this Settlement.
    The City of Chicago conducted stack tests
    which indicate that the emissions are up to five times the
    particulate standard of old Rule 3-3.232 and up to 35 times
    the particulate limits
    of new Rule 203(e) (1) (R.
    41)
    .
    These
    are gross violations indeed, especially considering the
    270,000 tons
    of refuse incinerated yearly at this facility
    (R.
    36, Exhibit No.
    2,
    p.
    23).
    23
    550

    —3—
    Further, Exhibit
    1 indicates that Southwest Incinerator
    is
    located
    in an area which is
    in violation
    of United States
    and Illinois Ambient Air Quality Standards for Particulates
    of
    75 ug/m3
    (annual average).
    These standards were set as
    being a minimum necessary to protect the public health.
    In spite
    of the progress made over the years toward meeting the air standards,
    there can be no doubt that Southwest’s emissions contributed to
    their violation.
    The Incinerator, according
    to Exhibit
    2, Fig.
    4,
    emits 19.41
    lbs. of particulate per ton of refuse burned.
    In one
    year,
    some 5,241,000
    lbs. of particulates
    (2,620 tons)
    were emitted.
    This Complaint was filed more than
    3 years
    ago.
    During
    that time these substantial violations were allowed to continue.
    Now
    a compliance plan is proposed.
    Yet the violations still
    exist and will continue to exist until March
    31,
    1977 under the pro-
    posed settlement.
    A slight reduction in total amount of emissions
    has been made because of a reduction in refuse throughput
    in
    September
    1975.
    The Board has taken note of the delays caused by the concrete
    strike which made
    it impossible to complete the City’s fuel pro-
    cessing facility
    in the fall of
    1975.
    However, even the loss of
    one entire construction season due to a strike and other delays
    does not offset gross violations which have contributed to violations
    of ambient air quality
    standards from at least November
    3, 1971
    to the present date.
    The Board has considered the factors which bear upon
    the reasonableness of these emissions.
    The Board recognizes
    the social and economic value of the incinerator and the
    economic difficulties related
    to compliance with the applicable
    standards.
    However, on balance,
    the Board finds that the
    environmental damage caused, especially the danger to human health,
    outweighs the factors
    of mitigation very substantially.
    The maximum penalty allowed by the Act for the continuing
    violations
    found heroin would
    total many
    thousands
    oF
    dollars.
    The
    Ro<j
    rd
    i
    I
    jr
    I
    h
    r
    (Jflj)ow(~rud
    Lu
    order
    LIie
    iiiuiiudia Lu
    cessa
    Lion
    of
    these
    violations.
    The
    Board
    believes
    that
    such
    actions
    would
    not
    best
    serve
    the interests
    of
    the
    people
    of
    Illinois
    in
    this
    case.
    However,
    a
    substantial
    penalty
    is
    nonetheless
    warranted
    to
    aid
    in
    the
    enforce-
    ruent
    of
    the Act in this case.
    The parties have submitted their Settlement proposal to this
    Board
    pursuant
    to
    Rule
    333
    of
    the
    Board’s
    Procedural
    Rules.
    That
    proposal left the imposition of any penalty to the Board’s discretion.
    The Board
    finds
    a penalty of $10,000 to be necessary.
    The Board
    does not find
    a performance bond necessary.
    23
    551

    —4—
    The Board finds this penalty to be necessary to aid in
    the
    enforcement
    of
    the
    Act;
    to
    protect
    the
    integrity
    of
    the
    permit system and to demonstrate and ensure that the purposes
    of the Act will be carried out.
    Section 2(b)
    of the Act
    states
    as the purpose of the Act,
    “to restore, protect, and
    enhance
    the
    environment,
    and
    to
    assure
    that
    adverse
    effects
    upon the environment are fully considered and borne by those
    who cause them”.
    The City of Chicago should bear some small cost
    for the adverse effects upon the environment which it has caused.
    Further,
    the
    imposition
    of
    the
    penalty
    will
    serve
    to
    aid
    in
    the
    enforcement
    of
    the
    Act
    by
    working
    to
    secure
    voluntary
    compliance
    with
    the
    Act
    in
    other
    cases,
    especially
    by
    the
    City
    of
    Chicago
    and
    this and its other facilities.
    Aluminum Coil Anodizing Corp.
    v.
    Pollution Control Board,
    ____Ill. App.
    3d
    (1976).
    The Board will accept the proposed Stipulation and
    Settlement
    entered
    into
    and
    submitted
    to
    this
    Board
    at
    the
    April
    12,
    1976 hearing.
    The Board will find the violations
    as enumerated,
    assess the above—stated penalty,
    and order the
    proposed
    compliance
    program.
    PCB 73—286
    (Calumet Incinerator)
    This matter comes before the Board on a Complaint filed by
    the Environmental Protection Agency
    (Agency)
    against the City
    of Chicago on July
    13,
    1973.
    The subject of the two-count
    Complaint is the City’s Calumet Incinerator,
    located at 103rd
    Street and Stony Island Avenue, Chicago, Cook County, Illinois.
    A hearing was held on June 11,
    1976,
    at which a Stipulation was
    submitted by the parties.
    The Calumet Incinerator facility includes six furnaces,
    and provides a disposal method for residential household refuse
    collected
    from 10 of the City’s
    50 wards
    (R.
    4).
    Count
    I alleges
    violation of Rule 3—3.232
    of the old Air Rules.
    Count II alleges
    violation of the requirement of obtaining an operating permit,
    Rule 103(h) (2)
    of the Board’s Air Pollution Control
    Pequlations.
    The City of Chicaqo admits
    1:0 violatinq Rue
    3—3.232
    during the time period from November
    1,
    1971
    to July 13,
    1973
    (R.
    5).
    The admitted violations vary in length from furnace
    to furnace.
    However, it is not admitted that any furnace is
    currently in violation of any applicable standard.
    The City
    also admits to operating without a permit as alleged in Count
    II
    (R.
    7).
    Aside from these admissions,
    the record
    in this matter
    is quite barren.
    The Board is nowhere apprised of the severity
    of the admitted violations or their effect on the environment.
    23
    552

    —5—
    Exhibit No.
    1 shows that the Calumet Incinerator is in an area
    which has been in violation of the United States and Illinois
    Ambient
    Air
    Quality
    Standards
    for
    Particulates.
    However,
    the
    record does not provide facts necessary to assess the nature
    of the Calumet Incinerator’s contribution to the violation of
    those public health standards.
    The City states that Furnace No.
    1
    is presently shut down
    and sealed,
    and will not be operated until it obtains the
    necessary equipment and state permits
    (R.
    3,
    5).
    The City of
    Chicago installed venturi scrubbers on Furnaces Nos.
    2—6 between
    April
    11,
    1971
    and
    March
    22,
    1973
    (R.
    5,
    6)
    at
    a
    total
    cost
    of
    $2,015,000
    (R.
    4).
    There is no evidence that any of these furnace5
    are currently operated in violation of any emission standards.
    However, permits for these furnaces have not been obtained as of
    ~E
    The City is currently in the process of running stack tests to
    determine whether pending permit applications sufficiently
    show compliance with applicable standards
    (R.
    7,
    8).
    A new hearinc
    should examine these stack test results.
    The Board thus finds itself in a peculiar situation.
    It
    is asked
    to resolve
    a case in which past violations are only
    vaguely admitted and the present status of the emissions
    is,
    for one reason or another, not shown.
    When the Board hears
    an enforcement action it properly has before
    it the entire
    subject matter of the Complaint.
    Instead,
    the parties have
    stated that only
    “narrow issues” are presented here
    (R.
    11).
    The Board is thus asked to fashion a remedy without
    important information which bears upon the reasonableness of
    the emissions.
    Section 31(c)
    of
    the Act states that Complainant
    has the burden of proving a violation and Respondent then has
    the burden of showing mitigation, See Processing and Books
    v.
    PCB, _____Ill.
    2d
    (1976).
    Complainant should address Section
    3
    of the Act in a future hearing.
    Since it is Respondent’s burden to present such evidence,
    the lack of
    33(c)
    evidence could not be held
    to prevent
    the
    Board from resolving the cause.
    Further, the failure
    to
    secure a permit interferes
    very substantially with the Act’s
    method of protecting the health and welfare of the People of
    Illinois: namely, the permit system.
    The social and economic value
    of the Calumet Incinerator is great, but greatly diminished by
    unlawful operation.
    The City has an investment of
    $5,820,000
    in the Calumet Incinerator
    (B.
    4)
    .
    However, it has not been shown
    that an alternative to operating in violation of the law was
    not feasible and economically reasonable.
    23
    553

    —6—
    While
    the
    Calumet
    Incinerator
    is
    located
    in
    an
    industrial
    area,
    it
    is
    located
    adjacent
    to
    residential
    areas
    and further
    is
    in
    an
    area
    in
    violation
    of
    primary
    (health-related)
    ambient
    air quality standards. No contributing source can be called suitable
    if it is dispersing pollutants in an area violating
    such public
    health standards.
    The Board
    finds the record inadequate
    to fully and comprehensively
    resolve this case.
    The fashioning of a remedy designed to protect
    the health and welfare of the people of Illinois is no “narrow”
    matter.
    This cause must be remanded to the Hearing Officer.
    PCB 73—457
    (Northwest Incinerator)
    This matter comes before the Board on a Complaint filed by
    the Illinois Environmental Protection Agency
    (Agency)
    against
    the City of Chicago,
    Illinois on October 31,
    1973.
    This case
    concerns the City of Chicago’s Northwest Incinerator facility,
    located at 700 North Kilbourn Avenue, Chicago, Cook County,
    Illinois.
    The Complaint consists of three Counts and alleges
    the following:
    Count
    I.
    That from July 1,
    1971 to October 31,
    1973 the
    City caused or allowed
    the emission of particulate matter in
    excess of and in violation of Rule 3-3.232 of the Rules and
    Regulations Governing the Control of Air Pollution
    (old Air
    Rules).
    Count
    II.
    That
    on
    several
    specified
    dates
    the
    City
    caused
    or allowed emissions which violated the opacity standards of
    old Air Rule 3—3.232(b).
    Count III. That since April
    1,
    1973, Respondent has
    operated the aforesaid facility without having obtained a
    permit from the Agency as required by Rule 103(b) (2)
    of the
    Board’s Air Pollution Control Regulations.
    A heariny was held in this matter on June 11,
    1976 at which
    a Stipulation and Proposal for Settlement was presented pursuant
    to
    Rule
    333 of the Board’s Procedural Rules.
    The Board must
    determine whether it is in the best interests of the People
    of Illinois to accept that Proposal.
    The Northwest Incinerator represents an investment of
    $23 million to the City of Chicago and is used to dispose of
    23
    554

    —7—
    residential household refuse collected from 14 wards located
    in the Northwest and South Central portions of the City
    (approximately
    858,000 persons).
    The Agency and the City have stipulated to the results of stack
    tests which indicate that the Incinerator did not violate Rule
    3-3.232 as alleged in Count
    I.
    Therefore, Count
    I must be dismissed.
    The Agency further requests that Count II be dismissed due to a
    lack of evidence on that alleged violation.
    The City does admit,
    however,
    to violation of Rule 103(b) (2)
    as alleged
    in Count III.
    Under the proposed Settlement,
    therefore, the Board could find only
    the failure to secure the required Agency permit.
    However,
    as the
    Board has often stated,
    the permit program is the cornerstone of
    Illinois’
    effort to protect the environment.
    The parties have proposed the following Settlement:
    13.
    In lieu of paying a penalty for causing a violation
    of Rule 103(b),
    the City agrees to do the following:
    a)
    To install two Lear—Siegler Transmissonmeters
    to automatically monitor the opacity from its
    stacks.
    Said device would allow the U.S.
    and Illinois Environmental Protection Agency
    to test such device for feasibility
    in other
    installations.
    b)
    Said device will be installed by July,
    1976.
    14.
    The City also agrees to obtain an operating permit
    within ninety
    (90) days of the date of the Order
    of the Board entered herein.
    The cost of the proposed device will total approximately
    $125,000
    (R. 11).
    The installation of this device was suggested
    by the Illinois Environmental Protection Agency and the U.S. Environ-
    mental Protection Agency
    (R.
    9).
    The Board
    is in no position to
    determine the context
    of those suggestions
    ~nd whether
    the City has
    committed
    to the installation for purposes and
    parties
    other than the
    Settlement
    in this pending matter before the Board.
    The Board finds the Proposed Settlement to be reasonable,
    given the fact that no substantial adverse effect upon the environment
    has been shown to have been caused by violations
    at the Northwest
    Incinerator.
    The Board has some doubt concerning the use of 1975 stack tests
    (R.
    7)
    to disprove violations which allegedly occurred
    in 1971.
    23
    555

    —8—
    However, inasmuch as any problem which may have existed
    has now apparently been corrected, the Board
    finds that the interests
    of the People of Illinois will best be served by finally disposing
    of
    the instant cause
    (which is nearly
    3 years
    old)
    This Opinion constitutes the Board’s findings of fact
    and conclusions of
    law.
    ORDER
    A.
    In
    PCB
    73—285,
    which
    deals
    with
    the
    City
    of
    Chicago’s
    Southwest
    Incinerator,
    the
    Board’s
    Order
    is
    as
    follows:
    The
    Proposed
    Settlement
    enumerated
    at
    the
    April
    12,
    1976
    hearing
    in this matter, and incorporated by reference as
    if fully set forth herein,
    is hereby accepted and adopted.
    1.
    The Board hereby finds Respondent City of Chicago
    to have violated Rule 3—3.232
    of the old Air Rules and
    Rule 103(b) (2)
    of the Board’s Air Pollution Control
    Regulations.
    2.
    The Board hereby orders Respondent
    to adhere to
    the Compliance Plan set forth at the April 12,
    1976
    hearing
    (R.
    53).
    3.
    Respondent City of Chicago shall pay to the State
    of Illinois,
    the sum of $10,000.00,
    payment to be made
    within
    35 days of the date of this Order to the State
    of Illinois by certified check or money order, payment
    to be made to:
    Fiscal Services Division, Illinois En-
    vironmental Protection Agency,
    2200 Churchill Road,
    Springfield, Illinois 62706.
    4.
    Count
    I of the Complaint
    is hereby dismissed without
    prejudice.
    In PCR
    73—286, which deals with the City of
    Chicano’s
    (‘a
    I
    umet
    I nc
    i
    ner;i
    I
    or
    ,
    I lie Board
    s
    I nfur
    i m ()rde
    i
    I s
    ~
    I
    I
    I
    This cause
    is hereby remanded
    to the assigned Hearing Officer
    for further action not inconsistent with this Opinion.
    C.
    In PCB 73—457, which deals with the City of Chicago’s
    Northwest Incinerator, the Board’s Order is
    as follows:
    1.
    Counts
    I and II of the Complaint are hereby dismissed.
    23
    556

    —9—
    2.
    The Board finds Respondent City of Chicago,
    to have
    caused a violation of Rule 103(b) (2)
    of the Board’s Air
    Pollution Control Regulations,
    and hence Section 9(b)
    of
    the Act,
    at its Northwest Incinerator.
    a)
    Respondent City of Chicago shall install two
    Lear—Siegler Transmissonmeters
    at its facility,
    within
    30 days of the date of this Order, and
    allow the Agency access to the device and the
    data resulting from its operation.
    b)
    Respondent City of Chicago shall, within
    ninety
    (90)
    days of the date of this
    Order, obtain the required permits from
    the Agency, thereby ceasing and desisting
    from the aforesaid violation.
    IT IS SO ORDERED.
    I, Christan
    L. Moffett,
    Clerk of the Illinois )oiiution Control
    Boa~d, hereby certify
    the above Opinion and ()ider were adopted on the
    ~_day
    of September,
    1976 by
    a vote of
    ~t~~()
    ci~1A~-L.
    ~
    Christan L.
    Moffett, 9~rk
    Illinois Pollution Cc~.z’olBoard
    23
    557

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