ILLINOIS POLLUTION CONTROL BOARD

October

14, 1971

ENVIRONMENTAL PROTECTION AGENCY

V.

)

#

71—69

INCINERATOR,

INC.

Opinion of the Board

on Motion to Stay

(by Mr. Currie):

On September

30 we entered an order finding Incinerator

in violation

of the law and regulations with respect to air pollution,

particulate emissions,

and failure

to file

a compliance program.

We imposed

a penalty of $25,000

and ordered the plant closed until

the following conditions

were met:

1)

the gross interference

with

the neighbors was reduced substantially:

2)

a firm program

for compliance with

the particulate regulations

was submitted and

a bond posted to secure

its completion;

and

3)

thermocouples

indicating operating temperatures were made operable.

Our order

specifically provided that upon receipt of

a variance petition

committing the company to such

a program

a further hearing would

be held and

the Board would enter

“such further order

as

it deems

necessary under the circumstances.”

On October

6 we received

a motion asking us to stay the

order.

The Agency filed

a motion to strike,

and the parties

appeared before us October

12.

We denied the motion to strike

and granted the stay motion in part,

for reasons given

in this

opinion,

I.

Stay Pending Review

In part the motion seeks that enforcement of the order--

and most importantly the plant shutdown--be delayed pending the out’~

come of judicial review proceedings concurrently filed

in which

the validity of our initial order

is challenged.

As in other

cases decided today, we think

it appropriate,

upon the filing of

a suitable bond,

to suspend payment of the money penalty pending

appeal.

But to suspend the cease

and desist portions of the

order would allow the very harm

the order meant

to prevent,

and delay

would be injurious to the public interest,

Therefore we would

not be inclined to stay the shutdown order simply on the ground

that judicial review has been sought.

See Spartan Printing Co.

v,

EPA,

#

7l~l9 (Oct.

14,

1971);

Citizens Utilities

Co.

v.

EPA,

#

71—125

(Oct.

14,

1971);

Pyramid Mobile Estates,

#

71—154

(Oct.

12,

1971).

---

II.

Rehearing

The motion also contains allegations respecting the hard-~

ship that

a shutdown would impose on the company and arguments

that the Board lacks power to order

a shutdown.

But

the Act

is

clear that the sanctions we may impose include not only money

penalties but also the familiar order to stop violating the

law

(Environmental Protection Act, section 33

(b)).

There is no right

to pay and pollute.

Money penalties,

like money damages

in private

nuisance cases, are often inadequate,

and

they have the further

disadvantage of conferring no direct relief upon the victims of

the emissions.

In a case such ~s

this,, where there

is essentially

no control equipment at present,

there is no chance that the in-

cinerator can be operated without violating the regulations,

and

an order requiring shutdown is the equivalent of an order for-

bidding violation of the law.

That such an order

is contemplated

by

the statute

is emphasized by the provisions requiring the Board,

as it did in this

case,

to take

into account the social and economic

value of the pollution source in determining what order is appropriate

(section 33

(cfl;

for t1~evalue of the source is far more relevant

in determining whether

or not

to forbid continued operation than

in determining the amount of

a money penalty.

The special provision

for

a shutdown order

in section

43

in no way detracts from this con-

clusion;

that

is an emergency provision allowing ex parte shtitdowns

in crisis situations without the usual requirements

of notice

and

hearing.

We therefore reaffirm our authority to order

a shutdown

where operation would in itself violate the

law or regulations,

and we decline to reconsider the merits

of our original order, since

the place to argue about the hardships of

a shutdown--and there

was testimony on that issue by

the respondent--was

in the initial

hearing.

We cannot be forever rehashing what we have already

decided.

III.

Compliance with Order

But in our view the significant part of the motion

is that

the company has—already,

only

a

few days after entry of our

order,

come up with

the control program that we required.

We construe

the motion as the variance request contemplated by that order;

the procedural objections suggested by the Agency are of little

weight compared with the important business of getting this incinerator

operating with adequate controls

as soon as possible.

So construed,

the motion alleges that Incinerator

is

prepared

to purchase immediately

a scrubber of

a type believed

adequate

to meet the regulations—-not the questionable wet baffles

discussed.in the initial hearings--to have it in operation within

five months;

and to post security

for its completion.

In the

meantime,

Incinerator promises to operate only one

of its two units,

thus reducing emissions by half

to begin with;

to avoid any over-

loading;

to restrict the types of refuse accepted

so as

to minimize

unnecessary emissions;

and

to repair or replace and operate the

thermocouples.

It further alleges that it has made improvements

2— 608

---

that have “substantially increased” the efficiency of its existing

sprays.

Upon completion

of the scrubber installation on the one

unit,

the other will be closed down until

it too

is equipped with

a scrubber.

On the basis

of this program Incinerator asked that

we allow operation under the proposed conditions.

It is Incinerator’s contention that operation of

its

facility under the proposed conditions will substantially reduce

the nuisance.

If

so,

the company will have satisfied the essential

purpose of paragraph

I of our original order, which required such

a reduction before operation of the incinerator would be allowed.

It is immaterial that the improvement is

to be achieved by means

other than the installation of

a control device; what counts

is

the effect on the neighbors.

And of course it

is not fatal that

the improvements will not enable

the incinerator

to comply with

the

numerical emission standards;

the initial order expressly comtemplated

that operation would be allowed prior to ultimate compliance

as

soon as the more serious neighborhood effects could be cured.

Moreover,

the company’s plan for ultimate compliance looks ex-

tremely promising.

In short,

Incinerator

is telling us that it

has already done what our order required as

a condition of

reopening the plant

(which was shut down October

10)

and there-

fore asks that we allow operation on the ground that it has complied

with the

order.

A hearing,

as stated in the first order, will be necessary

to determine whether or not the program

is adequate for ultimate

compliance

and, most importantly, whether or not the nuisance has

been sufficiently reduced

to make operation tolerable during the

five months while

the scrubber

is being constructed.

The difficult

question

is what

to do in the meantime.

It is clear that the shut-

down does cause considerable hardship,

and we do not know the

effects on the neighborhood

of operation under

the new conditions

except

that

mathematically

we can expect at least a

50

reduction

in emissions.

The only way to find

out whether

the plant will

still be

a nuisance

is to allow limited operation

for the next few weeks

until our decision after the hearing.

While

this procedure exposes the

neighbors

to an additional risk

of nuisance

for a short period,

it also

assures the company of the opportunity to prove

the adequacy of its interim

program.

The burden will be

on the company to show that the

nuisance has been reduced

to

a tolerable level;

if it fails

to do

so the shutdown order will remain in effect,

For now, however,

the shutdown order has been stayed pending our decision after

the

hearing.

We stress that

the new hearing

is not to be

a rehashing

of the

old, but only an inquiry into the adequacy of the interim

and ultimate compliance measures described ~in the motion.

The issue

is whether the company has complied with

the terms of our ord~r

that impose conditions upon reopening the plant.

As for the ultimate

scrubbers,

we urge that no time be

lost

in getting them ordered

and installed,

Probably the quickest assurance

of their adequacy

would be

to obtain

a permit from the Agency,

if possible in advance

of

the hearing;

for

if the Agency certifies that the scrubbers

2— 609

---

will meet the particulate standard there

is

no doubt that the

Board will approve the five-month schedule.

The company’s swift action in the

face of the shutdown

order

in no way affects

the. penalty provision of the initial order,

which was based upon the failure to pursue

a plan comparable

to

its present one some time

ago.

Mr.

Dumelle dissented from the grant of the stay

and will

file

a separate opinion.

I, Regina E.

Ryan,

Clerk of the Pollution Control Board, certify

that

the Board adopted the above Opi

thi.s

14

day

of

October

,

1971.

2

—

610