ILLINOIS POLLUTION CONTROL

BOARD

October

22,

1981

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

)

Complainant,

)

PCB

80—22

v.

)

PCB

80—193

Consolidated

CATERPILLAR

TRACTOR COMPANY,

)

Respondent.

ORDER OF THE BOARD

(by

I.

Goodman):

On September 24,

1981 the Illinois Environmental Protection

Agency

(Agency)

filed a Motion for Modification and Clarification

of the Opinion and Order entered herein on August

20,

1981.

The

Agency objects to the Board’s consolidation

of its

final decision

pursuant to its own motion and requests that the Board enter

separate Opinions and Orders

in

each case.

In addition,

the

Agency requests clarification concerning the finding of

“arbitrary

and unreasonable hardship”,

the grounds for not imposing

a penalty,

and

clarification of why there

was

no violation

in

Count III of

the Complaint.

With respect to consolidation,

the

Board

notes

that

after

having been denied consolidation

by the Board early in

the

proceedings, the parties sidestepped

the

Board’s denial by simply

adopting the record in the

enforcement.

case

as

the

record

to be

considered by the Board

in

the

variance

case.

Having

accomplished

in

fact what the Board had refused

to

allow

legally,

the

Agency

cannot: now be heard to object

t.o

the

Board

finishing

what

the

parties had begun.

In

addition

it

is

clear that Rule 309 of the

Board’s Procedural

Rules

allow

such

consolidation

and indeed

consolidation and severance for

the

purpose

of

administrative

expediency

is

routinely

done

by

the Board~

The Board presumes

that

the

findings

of violation by the

Board with respect to the phenol discharge and

pH

level

are clear

to the Agency.

Furthermore, the record supports that a cease and

desist order with respect

to the phenol excursions “would impose

an arbitrary and unreasonable

hardship~”

The

subsequent com-

pliance program contained

in the Board Order,

an often ased

method to provide corrective action,

is intended to correct

Respondent’s violations of the phenol limitation.

Since this

is

sought by both the enforcement action and the variance petition,

and the record in both proceedings is nearly

identical, the Board

need not distinguish such a plan as

a compliance order

or variance

condition, but rather determine that the elements of proof for

each proceeding

is satisfied by

the

record.

This it has done.

4

3—525

---

2

The Board Opinion recites the problems encountered by

Caterpillar with respect to the startup of a new facility and

found that little or no “environmental harm has occurred” and

that “Caterpillar proceeded

in a reasonable manner considering

the facts in this case.”

The Board considers such information

when it decides whether or not to impose a penalty.

Here the

Board exercised its discretion and determined that the imposi-

tion of a fine would not further the purposes of the Environmental

Protection Act.

With respect to Count III, after determining that there was

no obvious answer to the question of reporting mass discharges

while the

limitations themselves were stayed under appeal, the

Board weighed the evidence before it and determined that the

reporting requirement in this case was contingent on a determin-

ation with respect to the mass limitation requirement.

Pursuant to the foregoing, Motion for Clarification is

granted and Motion for Modification is denied.

IT

IS SO ORDERED.

Mrs. Anderson dissents.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control ~oard1 hereby certify that the above Order was adopted on

the

~

day of

otht...~)

,

1981 by a vote of ~

Christan L. Mo1~’t~,Clerk

Illinois Pollution Control Board

43—526