ILLINOIS POLLUTION CONTROL
BOARD
October 14, 1976
ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
V.
)
GENERAL
MOTORS
CORPORATION,
a Delaware corporation,
)
)
PCB
74~475
Respondent;
)
PCB
75~35
(CONSOLIDATED)
)
GENERAL MOTORS CORPORATION,
a
Delaware
corporation,
Petitioner,
v.
ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
INTERIM
OPINION
AND ORDER OF THE BOARD
(by
Pr.
~ektlin)
The Complaint in the Enforcement
act:~
fire,
PCB 74-475, was
filed
by the
Environmental
Protection
Agc~~
~Ac~ency)
on December 17,
l974~
That Complaint alleged,
in two
co~nrs1~that
Respondent General
Motors Corporation
(General Motors)
operateo
three
coal—fired boilers
at its locomotive manufacuturing facility
in
McCook,
Cook County,
Illinois, without the requisite operating
permits
from the Agency,
in violation of Rule 103(b) (2)
of this Board~sAir Pollution Regula-
tions
and Section
9(b)
of the Environmental
Protection
Act
(Act),
and
without
a
compJ. lance
program
and
J)rolert.
cornp.1
~t:
ion
scheduie
approved
by
the
Agency
indicating
compliance
with
the
particulate
limitations
of
Rule
203(g)
of
the
Air
Pollution
Regulations,
in
violation
of
Rule
104(g)
of
the
Air
Pollution
Regulations,
and
thereby
in
violation
of
Section
9(a)
of
the
Act.
Ill.
Rev.
Stat.,
Ch.
llfii/2,
§~l009(a),
1009(b)
(1975);
Ills
PCB
Regs.,
Ch.
2:
Air
Pollution,
Rules
103(b)
(2),
104 (g)
,
203
(g)
(Although
the
docket
does not indicate formal amendment,
the
Agency
did note at a pre—
hearing conference,
(R.4), an indication
to amend the alleged
violation of Rule 104(g)
to indicate an alleged violation of Rule
104 (a)
.)
24
—
1
—2—
The Permit Appeal portion of this matter, PCB 75-35, was
filed
as
a “Counter—Claim Requesting Review of Environmental Protection
Agency Refusal
to Issue Operating Permits” along with General Motors’
Answer and Affirmative Defense to the Enforcement matter on Jan.
24,
1975.
PCB 74—475 and PCB 75—35 were consolidated for hearing by
order of the Hearing Officer on February 13,
1975.
Although several
pre—hearing conferences have been held, and the records thereof
filed
with the Board, no true public hearing has been held to date.
The Board has considered this matter several times previously,
largely on procedural grounds,
including several Motions
for Stay
or for continuances.
Interim Orders were entered on:
January
9,
1975
January
8,
1976
March
13,
1975
(two Orders)
April
8,
1976
August
7,
1975
April
22,.
1976
August 14,
1975
July
8,
1976
November
6,
1975
The matter is now before the Board on a Motion for Judgement
on the Pleadings,
filed by General Motors on April
2,
1976.
That
Motion asks that both counts of the Enforcement matter,
PCB 74~475,
be summarily dismissed, and that the Permit Appeal,
PCB 75-35, be
decided summarily for General Motors.
General Motors asks that the
Board order the Agency to issue all appropriate permits for General
Motors’
operation of the boilers
in question,
instanter.
ARGUMENTS
The instant Motion by General Motors i~besed entirely on the
Illinois Supreme Court’s January
20,
1976 bcsion
in Commonwealth
Edison v.
Pollution Control Board,
62 Ill.2u 494,
343 N.E.2d 459
(1976).
In pertinent part,
the Supreme Court there said that:
(W1e decline
to determine the
validity of
Rules
203(g) (1)
,
204 (a) (1) and 204 (c) (1) (A)
on the basis
of evidence adduced at
heari.nqs he
ci in
97()
,
1971
and 1972,
and the Board’s Opinion of April
13,
1972.
•
.
.Under these circumstances,
the Judgernent of the
Appellate Court reversing the Board’s adoption of
Rules
203(g) (1) -and 204(a) (1) and
(c) (1) (A)
is
affirmed.
For the reasons stated,
the Judgement of the
Appellate Court holding Rule 303 invalid
is reversed,
and its Judgement reversing the adoption of Rules
203(g) (1) and 204(a) (1)
and
(c) (1) (A) and remanding
for further consideration is affirmed.
Slip Opinion
at
6,
7.
24
—
2
—3—
General Motors claims that Count II of the Complaint in PCB
7fi475,
alleging violation of Rule 204(a) must be dismissed,
inasmuch
as that Count
is grounded on a failure of General Motors to have a
compliance plan indicating timely compliance with Rule 203(g) (1)
General Motors claims that Count I, alleging violation of the permit
requirement,
should be dismissed inasmuch as
it,
(a) had timely
applied for the appropriate permits, and
(b)
those permits were
denied by the Agency based only on a failure of General Motors to
show that it could achieve compliance with Rule 203 (g) (1).
General
Motors alleges that,
as a matter of law,
the Supreme Court’s action
with regard to Rule 203(g) (1) provides it a complete defense for
each of the violations alleged in PCB 74-475.
Relying again on Commonwealth Edison,
General Motors argues
for Judgernent on the Pleadings in the Permit Appeal,
PCB 75-35,
alleging that the Agency’s refusal to grant the permits
in question
was based entirely on Rule 203(g) (1).
General Motors argues that
the Edison decision operates by rule of law to reinstate the
previously applicable particulate limitation under the old Rules
and Regulations of this Board’s predecessor, the
Illinois
Air
Pollution Control Board
(APCB).
General Motors further alleges
that it is
in compliance with the applicable APCB rule, Rule 3.112,
and based on such compliance, a permit should issue forthwith by
Order of this Board.
The Agency argues, on the contrary,
that in refusing various
permit applications by General Motors,
it did only as
it
was
required
under then-applicable
law.
Following that reasoning, the Agency
claims that its refusal to issue permits was a valid act,
and that
General Motors
is culpable for any operation without a permit.
The
Agency argues that the Supreme Court’s decision did not void the
applicable rules ab initio, and that the
P~r~
rme Court’s action in
Edison does not preclude a Board finding of violation under the
Complaint in PCB 74-475.
Nor,
the Agency argues,
did the Edison
decision affect in any way the permit requirement itself.
The Agency also raises with regard to the Permit Appeal
(r~cR
7rN~)
,
Lid
u.il
i~:;w’
~i~:
L
wIi~(lur
h~~i~:~i~n:;
I
General Motors
feel ii ty are
in compi
I
ance wi
tTJ~
0
i.
thor APCG Rule
3~l12or Rule 203(q) (1).
Finally,
the parties have argued the basic issue
of
whether
this Board is empowered to grant
Judgement
on the Pleadings,
General
Motors argues
in its Motion, and in
a later memorandum in support
thereof, that the Board is so empowered under applicable portions
of the Civil Practice Act of Illinois, which act
is
alleged
to
be
applicable
in the absence of any special statutory procedure.
The
Agency argues that issues of fact remain outstanding in this case,
and that Judgement on the Pleadings cannot be granted,
in either
the Enforcement or Permit Appeal cases;
these remaining
facts
are,
(a) compliance with the existing emission standards
(whether APCB
Rule 3.112 or Rule 203(g) (1)),
applicable to General Motors during
the relevant period, and
(b)
the issue of the need for permits.
24
—
3
DISCUSSION
With regard to the Enforcement matter,
PCB 7fi475,
the question
which must be decided is:
Where the Agency has denied a permit
solely on the grounds of non—compliance with a Regulation
later
invalidated by the Supreme Court, citing no other reasons
for a
permit denial, does the Supreme Court~saction provide a permit
applicant a complete defense to an Enforcement action later brought
for failure to have the permits applied for?
The Board has previously
stated that:
Even
if it was established that the permit was
not issued solely on the basis that Winnetka had
failed to comply with Rule 203 (g) (1) (A)
,
such
fact would not constitute a defense but would
be considered solely in mitigation.
Winnetkans
Interested in Protecting the Environment
(WIPE)
v.
Village of Winnetka, PCB 75-363,
PCB
___
(Feb.
19,
1976)
Our opinion in this matter has not changed,
Respondent’s Motion
here does not,
as
a matter of law,
provide grounds for Judgement
on the Pleadings based on the existence of a complete defense to
the offense charged with regard to the permit violation.
With regard, however,
to the remaining allegations as to
violation of Rule 104(a), we have no applicable precedent.
Rule
104 states that,
a,
PROHIBITION.
No person shall cause or allow the
operation of an emission source which is not
in
compliance with the standards or limitations set
forth in Part
II of this Chapter
(after the date
by which such emission source is required to have
an Operating Permit pursuant to Rule
103)
without
a Compliance Program and a Project Completion
Schedule approved by the Agency.
I::s~entía
ly,
an analysis ol
lPlirm
a~
c
oomRJot
dofens~wi thi
r~ard to Rule
104
is
the
seine as
that for lie permit
rvuui reinents.
Respondent’s argument in this regard
is the same as that with regard
to the operating permit requirement:
(a)
We are unable to have a
compliance
program
and
project completion schedule approved by the
Agency
because
the
Agency
does
not feel that our program and schedule
indicates
compliance
with
Rule
203(g)
(1) by the applicable date;
(b) the Supreme Court has invalidated Rule 203(g) (1)
in the Edison
case;
(c) we cannot be held liable for a violation of Rule 104(a)
under those circumstances,
24
—
4
—5—
We feel that the above quoted language from WIPE v. Winnetka,
supra,
is again applicable.
As is true of the operating permit
requirements, the compliance program and permit completion schedule
requirements exist independently of the rules discussed by the Supreme
Court in the Edison case.
That being the case,
Respondent has not
stated grounds for Judgement on the Pleadings
in its favor.
Although General Motors argues at length that this case may
be distinguished from WIPE v. Winnetka on several grounds, we fail
to see a distinction.
First,
General Motors’ claim that it does
not contest the necessity of operating permits generally,
as
it
claims was the case in WIPE
v. Winnetka,
is not relevant here
to
Edison’s status as a defense, complete or otherwise.
Second,
General Motors’
argument that this case has no possible issues of
fact remaining to
be determined, unlike WIPE v.
Winnetka where we
said that,
“furthermore,
the exact reason(s)
the operating permit
has not been issued,
if in fact it has not,
has yet to be determined,”
is unfounded;
General Motors itself raises compliance with Rule
203(g) (1) and APCB Rule
3.112
as an
issue.
In a later Interim
Order in
WIPE v. Winnetka
(entered April
8,
1976), we further stated that,
In situations of this nature,
it seems fair and equitable
for all parties concerned
to allow for a resubmission of
a permit application for Agency consideration hereof.
The Board would
be willing to entertain a Motion of
Respondents staying these proceedings pending such a
permit reconsideration.
We shall follow the
same course of action
in this case.
Turning to the Permit Appeal, PCB 75~35, we also find that
Respondent’s Motion for Judgement on the Pleadings cannot be granted,
and that the proper course is submission of a new permit application
by General Motors.
General Motors argues at length that,
under
Edison,
the particulate limitation applicable
is that of APCB Rule
3, 1 12, and
Iurt:her
that
i Lu per~n
I L should
ho
I ustied
hy
I
Iii
hoard
as
a matter of
.1
aW,
i nasmuch as Genera 1 Motors
COIHI)
I
i
&o;
W
i
Lii
t:he
1un i taLions
of
that:
rule
•
Even
assuming
Lila
t:
Lha L rule
I u
lound
to be
applicable in this situation,
such compliance remains
a
contested issue of fact.
Beyond the existence
of those fact issues,
however,
we find
sua sponte that compliance with APCB Rule
3.112
is not properly an
issue in this case,
for
proof at hearing
or otherwise.
Likewise,
because Rule 203 (g) (1)
is no longer the test for issuance of permits
under the Air Pollution Regulations,
such compliance
is not properly
in issue in
a Permit Appeal before this Board subsequent
to the
Edison decision.
Our finding,
in keeping with the above decision
concerning Respondent’s
motions on PCB
74-475,
is that this case
must be dismissed as moot in light
of Edison.
24
—
5
—6—
As was the case in WIPE v,
Winnetka,
When the Agency denied the permit in this case,
it cited as grounds a regulation which then
assured
compliance
with
the
Act,
the
Regulations
and Ambient Air Quality Standards,
Since that
regulation
has
subsequently been held invalid,
Respondent
is not entitled to a
permit without
any further action on his
part, but must resubmit
an application with proof that
the facility
will
comply
with
the
provisions
of the Act and any
other
regulations.
(Interim
Order, April
8,
1976.)
Inasmuch as APCB Rule 3.112 was not
an issue before the Agency
previously,
compliance with that Rule does not provide
the basis
for a Permit Appeal before us.
Such compliance should be raised
if necessary in a future Permit Appeal.
INTERIM ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent’s Motion for Judgement on the
Pleadings be denied;
and
2.
Case No. PCB 75—35 be dismissed as moot.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control
Board
,
hereby
c
~rti
fy
the
abpv~
I
uteri
rn
Op
i
n
i on
and
Order
were
adopted
on
the
~
day
of
~
,
V)7h,
Lv
a
vote
of
Illinois
Pollution
24
—
6