July 22,

ENVIRONMENTAL PROTECTION AGENCY

v.

)

~

Opinion of the Board

(by Mr. Currie):

The Agency charged that Hyman-Michaels had engaged in the

open burning of railroad cars on eight occasions

in late 1970

at

its

salvage yards

in Venice and in Alton.

Two of the eight

counts were dropped before the hearing, and another at the close

of

the

~evidence(R~ 3

,

226).

the entry of a cease-and-desist order against future burning

(R,

4,

223), but we hold the evidence too meager to justify

the imposition of

money penalties as requested by the Agency.

Complicating the Agency~scase was the fact that some time

ago the

old Air Pollution Control Eoard had approved an Air

Contaminant Emission Reduction Program

(Acerp)

that allowed

the company to continue burning, at a declining rate,

until

May 1971,

Although we have held that such

a program expired in

fact after one year

(EPA v.

Commonwealth Edison Co., ~ 70—4,

Feb.17,

1971), we have also refused to impose money penalties

on those who followed

a program in good faith for more than

a

year, since that Board itself believed

it

had authority to approve

a longer program

(EPA v, M.S,

Kaplan Co., ~ 71—50, July

8,

1971).

Consequently

it

is

not enough to show that open burning

occurred; to justify penalties

it

must also he shown that such

burning was in violation of the terms of the Acerp.

Of the five incidents remaining for consideration after

the hearing, two appear quite trivial from the evidence.

On

December 11 and

15,

EPA witnesses testified, they saw “smoldering

metal” and a “smoldering”

railroad car bed on the company~s

premises at Alton

(R,

53—55)

The company denied knowledge of

any open burning on those dates

(R~ 154-55),

The use of torches

to cut silvageable metal

is common at both sites; whether it

constitutes open burning every time this practice results

in

“smoldering metal”

is doubtful.

But

even

if there was open burning

on these two dates, there was no

proof

that

it

was

done

in

violation

2

14~

---

of the ~Acerp. The company was allowed

to burn only during

“ideal”

weather conditions for smoke dissipation, hut there was no

evidence as

to weather on December

11,

and December

15

was

clear with

a wind blowing away from the nearest homes

(P.

5~),

The Agency did not suggest that any other condition was broken,

except that

a report required by the Pcerp had not been

filed

(P.

215,

225); we do not think the failure

to file

the renort

makes every burning incident cause

for

money

penalties, es~eciallv

since

the complaint did not allege the failure to

file,

The company conceded ‘that

on Sentembor

9

at Venice anr~en

December

1

at Aiton

a railtoad c~raccidentally

caunht

fire

in the cutting process

(P.

11,

180),

There

is

a duty

to r~re~~ent

and to extinguish

fires

that

is

not always satis~iod

by

proof

that

the

fire

was

not

deliberately

set

(EPA

v.

Cooling,

~

7~—7,

Dec.

9,

1970).

But

in

the

December

incident

there

was

no

nroo~

that

the

burning

occurred

in

violation

of

the

Acerp;

we

know

nothing

of

the

weather

save

that

the

wind

was

blowing

toward

East

Alton

to

the

northeast

(P.

~

en

Sentember

‘~

there

was

a

south

wind

of

only

4

m.p.h.

blowing

toward

a

nearby

ro~idential

area,

so

conditions

were

not

“ideal”

(P.

16—19);

there

was

a

suggestion,

though

not

sufficient proof,

that this

fire

was

the

cause

of

a

spoiled

wash

(P.

71),

We

find

a

violation

on

~enten’her

9,

hut,

since

it

was

accidental

and

not

repeated,

we

think

no

penalty

is

called

for

under

these

narro~~icircumstances.

The

final

allegation

is

the

most

serious.

Ar,

EPA

witness

testified

that

on

September

16

he

had

observed

the

hurnina

o~

six

boxcars

at

the

Venice

site

when

there

was

a

light

north

wind

and

an

overcast

sky

(P.

32—34).

Overcast

conditions and low

winds

are

far

from

“ideal”;

the

Acero

did

not

allow

such

burning.

But

the

question

is

whether

Hyman~”ic1iaeis

actually

burned

that

day.

The

company

has

no

record

of

this

incident

(P.

l~1),

a~

it

has

of

days

of

apparently

lawful

hurnincx

(P.

IOR,

7~1)

.

would

not

be conclusive alone.

Put

the

company

points

(~t

tha~I

its

property

abuts

that

of

another

company

that

~as

eneacino

in

open

burning

during

the

period

in

question

(P,

~i4,

l~2),

suq~ests

the

witness

may

have

seen

burning

by

that

comnany

rather

than

Flyman—Michaels

(P.

194),

The

witness marked

a~i~ on

the

~nap

to

show

the

burning

site,

at

a

point,

the

company

ac~nowledoed

as

its

property

(P.

200),

Put

we

think

there

is

sutantia.i

doubt,

given

his

distant

vantage

point,

whether

the

!-~.trnino

cars

he

saw

were

actually

at

the

point

describe~or

a

~ew

to one side on

someone

else’s

property.

Civ~n

this

doubt

and

the company’s general record of complying with

the conditions

of

its

Acerp,

we

think

there

is

to~

little

proof

to

justi~

a

money

penalty

in

this

case.

Finally,

there

was

an

effort,

by

E~A

to s~o~

violat’ioac

or

dates

not

alleged

in

the complaint

(P. 2~)

T~js doe

process

does

not allow;

a respondent- is

entitled

to

notice

o~ the

charo~

it must meet.

2—

142

---

This opinion constitutes the Board’s findings of fact and-

conclusions of

ORDER

Hyman—Michaels Co.

shall cease and desist from the open burn-

ing of railroad cars or related equipment at its Alton and

Venice premises.

I, Regina E, Ryan, Clerk of the PollutiOn Control Board, certify

the Board adopted the above Opinion this

22

day of

July

,

l~7l.

2—

143