L~.~CIS
PCOLUTLN
CONTROL bOARD
bepte~har
1,
1977
~
~N L~ESThL) ~N P~LJ~ECTING
I~L~I1EN~(PIPE),
~LB
75—363
~r
On
ge ~
Brilw’nkel appeared
for
the Complainant.
M~.
In
e
II
Si~e1don
~ppe~ed
for
the
Respondent~
n
ORDER
01
THE
)A ~0
(b~
Mr
Young)
‘~n Bo~d
on
a
Complaint
filed on
-
~-nn~
association,
Winnetkans
n~.r~orment
(V7PE),
charging
uerated Boi1e~:No~ 8
in violation
Pules and
without
an operating
3(b)
(~)
of Chapter 2
and by
on
J~e
Act~
~i
Order
dated
February
19, 1976,
io~. ~ Respoio~~ Jie Board disn~ssed
as moot that
~plaint
~egina
vioiad~n of Rule
203(g) (1).
i
~.
owed the
t~
ng of the Supreme Court
in
~Jdinonv. ~
~2
Ili~ 2d 49~,
343 N~E~2d865
(1976),
te adoption of ~r
~e
203(g)
(1~
was
remanded to the Board
a
cons nern~r,
The
Board
re~used
to dismiss that
~hc ‘omplai~u~volving
the
alleged
permit
violation
y
6,
~976, stayed the proceedings
in this matter pending
s
resubmission
of
a
new
permit application to the
~
~pri1 23
1976, WIPE filed an Amended
Complaint adding
I
~h~h
alleged
thai-
easpondent
had operated
Boiler
No~7
al as fon~Iwithous ~n
operating permit
in
violation of
(h’
of
i-he
Act ann
Rule 103(b) (2)
of Chapter
2e
~
eanin4
was
held ~n
this
matter on March
9~
1977,
in
Coicaqo
I1lir~)~s~After the
conclusion of Comp1ainant’s
case
in
hicf
whfcn included an opening statement of
counsel and
the ~nLduetio~.
of a
Joint
Juimulation
(WIPE Ext~1), Respondent
moved
to
d~smiss~
The
HearJnq
Officer properly reserved to the
Boar
a
ruli~g
on
the
Motion
to
Dismiss in accordance with Rule
306’e1
of
the
Board’s Procedural Rules~
~fr
Llat~er
is
befo~e
rhr
195
by
d
s
i
Pro~ecting
ir
L
-
vi~Jage of Winne
a
o
203(
()
of
the
A~
a
r~q 1edb’T~ne
o~/
~/7
The Board therefore will rule
on
the Motion to
Dismiss
Count
I
and
Count
II
based upon the
record
established
prior
to
the Motion
to
Dismiss and will
only consider testimony
offered after
the
Motion
as is necessary
to
dispose
any alleged
violations
remaining
after ruling
on
the Motion to
Dismiss.
COUjIT
I
Count
i
alleges violation by Respondent,
through
operation
of Boiler
No~
8,
of Section 9(b)
of
the
Envircuinental
Protection
Act
and Rule
103(b)
(2)
of Chapter
2 of the
Board~s
Rules and
Regulations~ Section
9(b)
provides
tfat
no person
shall operate
any
equipment capable
of
causing or
co~
:ributing to
air pollution
without a
permit granted
by the Agency; Rule 103(b) (2)
prohibits
the
operation
of
any existing emission source
without first
obtaining
a~
operating permit from the Agency.
The Joint Stipulation
(WIPE Exh.
1)
establishes
that
Respondent
owned
and operated a fossil-fueled boiler,
designated
as
Boiler No~ 8,
used
in the generation of electricity
during
the
period alleged without a permit issued
by the Illinois En-
vironmental
Protection
Agency
(WIPE
Exh.
1,
p.
1-2),
The basis
for the Motion
to Dismiss made by
Respondent
(R.
p.
8-9)
was that the
Complainant had “failed to
introduce
sufficient evidence with respect to the various factors,
and
technical feasibility, economic reasonableness,
and other
factors set forth
in
Section
33 of the
Act
to renable
the Board
to
make a conclusion on the basis of that case,
whether or not
there
has been a violation and even if there could be a
bare
conclusion
of
a violation,
there is absolutely by
statement by
counsel, no
statement
whatsoever with respect to there
being any
aggravation,
or
other circumstance which would merit
any penalty.
Section
31(c) governs
the
burden
of
proof
in
enforcement
actions
before the
Board and provides
“...
the burden
shall be
on
...
Complainant to show
that the Respondent has
violated
any provision of this Act or
any rule or regulation of the
Board
If
such proof has been
made,
the burden
shall be
on
the Respondent
to
show
that
compliance with
the Board~sregu-
lations would impose arbitrary hardship.”
In ~
~ssin
and Boos
nc.
Poll
ion Control
Board,
351 N.E.2d 865
(1976)
the Illinois Supreme Court
stated at
p.
869:
“The
Appellate Court
(in
328 N.E.2d
338,
341)
apparently concluded that this courtts opinion
in
the
Incinerator
case
(Incinerator,
Inc. v.Pollution
Control
Board
(1974)
319 N.E.2d
794)
had placed
upon
the
Agency
the burden of
proving, by
evidence
which
a
ucreas~rcbleness
o~ Pespordent’s
-
-
~an1-
I the four crit~ria
cc-~on
3
c~.
No such result
was
‘~in
in Incinerator
~.
a~o
r to be settled on this point:
the ~up~a
C
-
as
s
a e~
at a complainant bears the
burden c~p
r
on
e es~ertlalelements of
the offense
otarge
~
nu_
oat to hell that c-~uplainant
bears the ~
n~r
-oof v~~ resoec~
to
ea
1.
of
the criteria
of Se
ti~
r
3
vo~
-
~o~’c~
~t
or co~tradictthe
al~oc
~-
~f t
-~
~~o~f
a.
otion 31(c)
(~92essin
and B ok~,
p
s
thaI
f-hat n
c
does
not
allege
that ty~
~
~r
~
wh~
I-
n~-a~ nably
interferes
with
the
enjoy;er~.o~
Cr
a
t
of o~i-ers.
In the
instant
case
a finding
o
~
~ta~
~
or athe~wise is
not necessary
to
the
ird
o~a
I la~
the
ojinion of the Board
that
t
s as
f-i
-
e~~th
~io
-~nanJf-~the
finding
of a
vaolatJ
r
w
e~ta
f-ac
oy
~-c~- ~orr~a1nar~t
through
the
Joint
Staps
a
io
~terc
~-
~
-ml
the
Motion
to Dismiss
Court
o
L
~c
o
-,
dint
~n.
ad
-
~rer
a~y evidence
in
-
-.
c
the
Noard
notes
that
th
~
.
prior
operating permit
i
oar~ 5),
tnat
permit was denied
C
~
r
fcr
lure
to
demonstrate
corn—
I
r
C~apte— 2.
Following
discussions
coo ~n-c~a
rror~ re~-ap
ications and denials,
~o
arov~
~
Ageoay
wiLd
data
collected
in a
~
up
xc~ 1),
C
lay
6,
1976,
the
Board
r
o~o~e~wf-’nqs
iO
n~low Agency
consideration
-
opera~o~
permit
for
Boiler
No.
8
j
c.
~e
Resoonlent
on
July
15,
1976
~
-ath
~-
~he
proceedings
on this Complaint
as
a
u
o~atad
upon
by the Agency in
pci
~n
or
Aay
7,
1975,
was
Rule 203(g)
-r
theE
ny
f-he
IllinoIs
Supreme Court
I
3
B
(1976)
343
N.E.2d
459) subsequent
n~
rt
in
this
case.
Following the
esoondent
filed
a Motion to Dismiss
•
-
c~
~
:ourt
ruling
and the invalidity of
?tJ
dad
a
~ap1ete
defense
to
the
charge of
0
9
~,
—
I
the
Act
and
Board
Rule
103(b) (2).
Cru
a~r
aggravat
aitho
c’e
aup
in
ear
Jia
~
Txh
by
f-ha
\g’~ c~ o
pliarca
I
with
f
Winnctaa
a
a
new
s
gran~
0
a
‘~ta~
of
tth
0
was
i~
us
(WIP~
w
lies
~
deny
n~ J?
(I).
R
-
(Comr
~a ~u
to
the
u_i
-
decasroc
r
conte~a n~,
Rule
a
3(q)
v1oia~ion
O~
On
February 9, 1976, the Board refused to dismiss that
portion
of the Complaint alleging violation of Section 9(b)
and Rule
103(b) (2) stating
that
even if
~t
we’re
established that the
permit was not
issued
solely
on the basis
of non~comp1iance
with the vacated Rule 203 (g) ‘2) (a)
such
fact
would not
constitute a defense but
u~uid
be considered solely in
mitiga~
tion.
On April
8, 1976,
the
Board refused to reconsider
the
Order of February
9,
1976,
stating, in part,
as follows:
“In order to receive a
permit,
an
applicant
must prove to
the
Agency that the operation of the
facility will not cause a violation of the Act or
Regulations.
Section
39
of the Act gives the
Agency
authority to withhold permits
il
the application
does
not contain such proof.
When
the
Agency denied
the pe±~mit
in
this
case,
it
cit~d
as grounds
a
regu-
lation which then assured comcliance both with
the
Act, the
Regulations
and ambient air quality standards,
Since that regulation has been subsequently held
invalid, Respondent is
riot
entitled to a permit
without any further action on his part, but must re-
submit an application with proof that the facility
will comply with the provisions of the Act and any
other regulations.
Our concept of
justice and fair
play requires this
procedure.
if the Board were to
accept Respondent’s position,
any
future judicial
ruling holding a regulation invalid would result in
a de facto issuance of permits to parties who had not
challenged an Agency permit denial.
This result will
not be permitted and a resubmission of a permit appli-
cation will be required to ensure compliance with the
Act and any applicable Regulations.”
The Board
believes
that in circumstances such as that presented
above and if an expeditious re-application results in the issuance
of the requisite permit, complete mitigation should be allowed.
Applying the foregoing discussion to the facts in this case,
the
Board finds that Respondent made an expeditious re-application
which resulted in issuance of the permit, and although the
Respondent
is found in violation as alleged in Count
I, no penalty
will be
assessed
for the violations.
COUNT
II
Count II alleges violation
by Respondent, through operation
of Boiler No.
7,
of Section 9(b) of the Act
and
Rule
103(b)
(2)
of Chapter
2.
In consideration of the Motion to Dismiss Count
II, the Board finds that while the Joint Stipulation
(WIPE Exh.
1).
establishes that Boiler No.
7 is
a coal-fueled
boiler
(par.
7),
tIa~
thsc
eth
mt
har~. a
permit
fo
Boil
r
No.
7
(par.
5),
~na
tc~t
her
o
~‘
~as
operated
during
the
eriod alleged,
the
th
~
~0cr
does
nec
include the
essential
fact
neceasary
to
aJ
3
‘-~
‘-ha-
Respondent
is ownar and operator
of
BoIler
No,
2
3~l
13
5
fatal
defect
in
the proof and the
Boarn
hIde
tut
~o
nt
II
a~ to
Boiler
No,
7
must
be dismissed,
Nec aise
of
th
determination
the
Board
would
normally
rot
enoage
ir
~y
tu
cher
d’scussian
of
the
alleged
violation.
“t~s
case,
a000c
,
providas
one
c•ircumstanc~
‘-orthy of comment,
in
yard
,
13Th
Rca aor
~ri1
filed
a
pacition
ICE
75-107)
seeking
in
pax~
or
eth
s~o
r
a
o~ior
var1~-r
to
allow
the
use of
Boilur
te
I
icr
c’
oious
simila
those
which were testi-
tied
as
foe
c
df
o
a
of
rae
In
~nstant
case.
(See
condfo-a
r
(a) (3
:
a
Oncr
in
PCP
1-~
180,
13
PCB
587,
589.)
On
‘a
Ioiy
~
ri,6
iI~
B~ard danci
and
dismissed
PCB 75—107
on
the
eround
that
tre
Boath
noes
not
grant
speculative
emergency
variarCe3
~9
r
lB
113
~f--~)
Mr.
‘fobur
F.
Legg,
an attorney
and
one
at
the
inustees
oP
she
~‘iIlage
(
Winnetna and Chairman
of
the
V
I
age
Co~nci’s
I-b~c
~tt1::~as
Committee,
testified that
he
ir
erpretcd
tne
B
irS’s
ocinco
to
mean
that Respondent
could
ocerat
the
boiler
uder
ereroar
‘
-
rcumstances without a permit
(P
p
2).
As
re_ogrizef
by
ccuns~
for
Respondent
is his
c
osinj
reIla~ics
P
p
l0~
~urp~
nt
might
be well advjsed
to
ile
an
updaled
patitiar
~r
varthnce
if
similar
future use
I
-~
‘~It
Ia
conteop~atc~.
us
C~1nro
cnnst•rta-a~
the
Board’s
findings
of fact and
conc1u.~
on’-
of
a
~r
this
rnatier,
ORDER
I
Reapooder
‘~ilaee
of
Winnetth
is
found
to have operated
its
P~
er
No
9
1.~
noLation
of
Ruth
Th3(b) (2)
of Chapter
2
of
tIe
Boa
-1
a
Ru
e~ arE
~cgulations
and
Section 9(b) of the Environ—
rpertl
P
ot~’coo
A’
-
2
Count
11
ot
the
Amended
Complaint is hereby dismissed.
ii
Ja~o~D
bu
~eile
concurred.
,
‘hr’s~a
I
Moffatt,
Clerk
of
the
Illinois Pollution
Con-
trot
o
rd
hcoea1
c’~rt~fy the
above
Opinion
and
Order
were adopted
on
the
/~
*a
rf
~
1977
by
a
vote of
~
Chr~stan
L.
~
Illinois
Pollution
Control Board