ILLINOIS POLLUTION CONTROL BOARD
September 30,
1976
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 73—285
PCB 73—286
PCB 73—457
CITY OF CHICAGO,
a municipal
corporation,
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
This Opinion and Order deals with three enforcement actions
filed by the Environmental Protection Agency against the City of
Chicago.
PCB 73-285 concerns the City of Chicago Southwest
Incinerator.
PCB 73—286 concerns the City of Chicago’s Calumet
Incinerator.
PCB 73-457 concerns the City of Chicago’s Northwest
Incinerator.
On March 26,
1975 the Board ordered these cases,
along with PCB 73-216,
consolidated.
On February
19, 1976
the Board granted the Agency’s Motion to Dismiss PCB 73-216
without prejudice.
This Opinion and Order of the Board deals
with the three remaining cases.
PCB 73-285
(Southwest Incinerator)
This matter comes before the Board on a Complaint filed
by the Environmental Protection Agency
(Agency)
against the
City of Chicaqo on July
13,
1973.
The subject of
the Complaint
is
the
Ci Ly ol Chicaqo’ s Southwest
I ricinerator
,
located
at
1
~00
Persh
I n~ Road
,
Clii caqo
,
Cook
(‘ou
n ty
,
1
1
i
nois
.
A
lic~i
ri
nq
was
held
on
April
2,
1976
at which the parties, pursuant
to
Rule 333 of the Board’s Procedural Rules,
read into the record
a Stipulation
(R.
36-46)
and a partial Settlement Proposal
(R.
47-53) leaving the issues of penalty and performance bond
to the Board
(R.
46,
54).
23
—
549
—2—
The Complaint consists of three Counts.
Count I alleges
that emissions from the Incinerator constitute “air pollution”
under Section
3(b)
of the Act and therefore violated Section
9(a)
of the Act from on or about July
1,
1970 to the filing
of the Complaint.
Count II alleges that particulates were
emitted in violation of Rule 3—3.232 of the old Air Rules
from November
3, 1971 to the filing of the Complaint,
and
thus also Section 9(a)
of the Act.
Count III alleges that
since April
1,
1973 the City of Chicago operated the
Southwest Incinerator without the required permit and there-
fore in violation of Rule 103(b) (2)
of the Air Pollution Control
Regulations and Section 9(b)
of the Act.
The City of Chicago stipulates to the violations alleged
in
Counts
II and III
(R.
41,
42).
However, at
R.
42 the Agency
moves,
as part of the Stipulation,
to dismiss Count
I without
prejudice.
The proposed Settlement provides for the con-
struction of
a Supplemental Fuel Processing Plant to be
operated in conjunction with the Commonwealth Edison facility
located adjacent to it.
The plant will process all refuse
currently incinerated at Southwest Incinerator for combustion
as a source of fuel for the Commonwealth Edison Crawford Power
Plant.
The City of Chicago states that contracts for con-
struction of the facilities, conveyor intercomingling, and acceptance
of all burnable shredded combustible refuse for ten years have
already been signed
(R.
55).
The following completion schedule
is proposed:
A.
Construction
of the City’s building by September
1,
1976;
B.
Installation of component equipment by January
1,
1977;
C.
Facility completed and in operation by March 31,
1977;
The City of Chicago explicitly agrees at R.
53 to cease operation
of Southwest Incinerator on or before March
31,
1977.
The E~oardmust determine whether
t:.he
interests
ol the
cit.
.1 zeus
oF
tlii s Stale will
be
bus
L served by
the accepLance
of this Settlement.
The City of Chicago conducted stack tests
which indicate that the emissions are up to five times the
particulate standard of old Rule 3-3.232 and up to 35 times
the particulate limits
of new Rule 203(e) (1) (R.
41)
.
These
are gross violations indeed, especially considering the
270,000 tons
of refuse incinerated yearly at this facility
(R.
36, Exhibit No.
2,
p.
23).
23
—
550
—3—
Further, Exhibit
1 indicates that Southwest Incinerator
is
located
in an area which is
in violation
of United States
and Illinois Ambient Air Quality Standards for Particulates
of
75 ug/m3
(annual average).
These standards were set as
being a minimum necessary to protect the public health.
In spite
of the progress made over the years toward meeting the air standards,
there can be no doubt that Southwest’s emissions contributed to
their violation.
The Incinerator, according
to Exhibit
2, Fig.
4,
emits 19.41
lbs. of particulate per ton of refuse burned.
In one
year,
some 5,241,000
lbs. of particulates
(2,620 tons)
were emitted.
This Complaint was filed more than
3 years
ago.
During
that time these substantial violations were allowed to continue.
Now
a compliance plan is proposed.
Yet the violations still
exist and will continue to exist until March
31,
1977 under the pro-
posed settlement.
A slight reduction in total amount of emissions
has been made because of a reduction in refuse throughput
in
September
1975.
The Board has taken note of the delays caused by the concrete
strike which made
it impossible to complete the City’s fuel pro-
cessing facility
in the fall of
1975.
However, even the loss of
one entire construction season due to a strike and other delays
does not offset gross violations which have contributed to violations
of ambient air quality
standards from at least November
3, 1971
to the present date.
The Board has considered the factors which bear upon
the reasonableness of these emissions.
The Board recognizes
the social and economic value of the incinerator and the
economic difficulties related
to compliance with the applicable
standards.
However, on balance,
the Board finds that the
environmental damage caused, especially the danger to human health,
outweighs the factors
of mitigation very substantially.
The maximum penalty allowed by the Act for the continuing
violations
found heroin would
total many
thousands
oF
dollars.
The
Ro<j
rd
i
I
jr
I
h
r
(Jflj)ow(~rud
Lu
order
LIie
iiiuiiudia Lu
cessa
Lion
of
these
violations.
The
Board
believes
that
such
actions
would
not
best
serve
the interests
of
the
people
of
Illinois
in
this
case.
However,
a
substantial
penalty
is
nonetheless
warranted
to
aid
in
the
enforce-
ruent
of
the Act in this case.
The parties have submitted their Settlement proposal to this
Board
pursuant
to
Rule
333
of
the
Board’s
Procedural
Rules.
That
proposal left the imposition of any penalty to the Board’s discretion.
The Board
finds
a penalty of $10,000 to be necessary.
The Board
does not find
a performance bond necessary.
23
—
551
—4—
The Board finds this penalty to be necessary to aid in
the
enforcement
of
the
Act;
to
protect
the
integrity
of
the
permit system and to demonstrate and ensure that the purposes
of the Act will be carried out.
Section 2(b)
of the Act
states
as the purpose of the Act,
“to restore, protect, and
enhance
the
environment,
and
to
assure
that
adverse
effects
upon the environment are fully considered and borne by those
who cause them”.
The City of Chicago should bear some small cost
for the adverse effects upon the environment which it has caused.
Further,
the
imposition
of
the
penalty
will
serve
to
aid
in
the
enforcement
of
the
Act
by
working
to
secure
voluntary
compliance
with
the
Act
in
other
cases,
especially
by
the
City
of
Chicago
and
this and its other facilities.
Aluminum Coil Anodizing Corp.
v.
Pollution Control Board,
____Ill. App.
3d
(1976).
The Board will accept the proposed Stipulation and
Settlement
entered
into
and
submitted
to
this
Board
at
the
April
12,
1976 hearing.
The Board will find the violations
as enumerated,
assess the above—stated penalty,
and order the
proposed
compliance
program.
PCB 73—286
(Calumet Incinerator)
This matter comes before the Board on a Complaint filed by
the Environmental Protection Agency
(Agency)
against the City
of Chicago on July
13,
1973.
The subject of the two-count
Complaint is the City’s Calumet Incinerator,
located at 103rd
Street and Stony Island Avenue, Chicago, Cook County, Illinois.
A hearing was held on June 11,
1976,
at which a Stipulation was
submitted by the parties.
The Calumet Incinerator facility includes six furnaces,
and provides a disposal method for residential household refuse
collected
from 10 of the City’s
50 wards
(R.
4).
Count
I alleges
violation of Rule 3—3.232
of the old Air Rules.
Count II alleges
violation of the requirement of obtaining an operating permit,
Rule 103(h) (2)
of the Board’s Air Pollution Control
Pequlations.
The City of Chicaqo admits
1:0 violatinq Rue
3—3.232
during the time period from November
1,
1971
to July 13,
1973
(R.
5).
The admitted violations vary in length from furnace
to furnace.
However, it is not admitted that any furnace is
currently in violation of any applicable standard.
The City
also admits to operating without a permit as alleged in Count
II
(R.
7).
Aside from these admissions,
the record
in this matter
is quite barren.
The Board is nowhere apprised of the severity
of the admitted violations or their effect on the environment.
23
—
552
—5—
Exhibit No.
1 shows that the Calumet Incinerator is in an area
which has been in violation of the United States and Illinois
Ambient
Air
Quality
Standards
for
Particulates.
However,
the
record does not provide facts necessary to assess the nature
of the Calumet Incinerator’s contribution to the violation of
those public health standards.
The City states that Furnace No.
1
is presently shut down
and sealed,
and will not be operated until it obtains the
necessary equipment and state permits
(R.
3,
5).
The City of
Chicago installed venturi scrubbers on Furnaces Nos.
2—6 between
April
11,
1971
and
March
22,
1973
(R.
5,
6)
at
a
total
cost
of
$2,015,000
(R.
4).
There is no evidence that any of these furnace5
are currently operated in violation of any emission standards.
However, permits for these furnaces have not been obtained as of
~E
The City is currently in the process of running stack tests to
determine whether pending permit applications sufficiently
show compliance with applicable standards
(R.
7,
8).
A new hearinc
should examine these stack test results.
The Board thus finds itself in a peculiar situation.
It
is asked
to resolve
a case in which past violations are only
vaguely admitted and the present status of the emissions
is,
for one reason or another, not shown.
When the Board hears
an enforcement action it properly has before
it the entire
subject matter of the Complaint.
Instead,
the parties have
stated that only
“narrow issues” are presented here
(R.
11).
The Board is thus asked to fashion a remedy without
important information which bears upon the reasonableness of
the emissions.
Section 31(c)
of
the Act states that Complainant
has the burden of proving a violation and Respondent then has
the burden of showing mitigation, See Processing and Books
v.
PCB, _____Ill.
2d
(1976).
Complainant should address Section
3
of the Act in a future hearing.
Since it is Respondent’s burden to present such evidence,
the lack of
33(c)
evidence could not be held
to prevent
the
Board from resolving the cause.
Further, the failure
to
secure a permit interferes
very substantially with the Act’s
method of protecting the health and welfare of the People of
Illinois: namely, the permit system.
The social and economic value
of the Calumet Incinerator is great, but greatly diminished by
unlawful operation.
The City has an investment of
$5,820,000
in the Calumet Incinerator
(B.
4)
.
However, it has not been shown
that an alternative to operating in violation of the law was
not feasible and economically reasonable.
23
—
553
—6—
While
the
Calumet
Incinerator
is
located
in
an
industrial
area,
it
is
located
adjacent
to
residential
areas
and further
is
in
an
area
in
violation
of
primary
(health-related)
ambient
air quality standards. No contributing source can be called suitable
if it is dispersing pollutants in an area violating
such public
health standards.
The Board
finds the record inadequate
to fully and comprehensively
resolve this case.
The fashioning of a remedy designed to protect
the health and welfare of the people of Illinois is no “narrow”
matter.
This cause must be remanded to the Hearing Officer.
PCB 73—457
(Northwest Incinerator)
This matter comes before the Board on a Complaint filed by
the Illinois Environmental Protection Agency
(Agency)
against
the City of Chicago,
Illinois on October 31,
1973.
This case
concerns the City of Chicago’s Northwest Incinerator facility,
located at 700 North Kilbourn Avenue, Chicago, Cook County,
Illinois.
The Complaint consists of three Counts and alleges
the following:
Count
I.
That from July 1,
1971 to October 31,
1973 the
City caused or allowed
the emission of particulate matter in
excess of and in violation of Rule 3-3.232 of the Rules and
Regulations Governing the Control of Air Pollution
(old Air
Rules).
Count
II.
That
on
several
specified
dates
the
City
caused
or allowed emissions which violated the opacity standards of
old Air Rule 3—3.232(b).
Count III. That since April
1,
1973, Respondent has
operated the aforesaid facility without having obtained a
permit from the Agency as required by Rule 103(b) (2)
of the
Board’s Air Pollution Control Regulations.
A heariny was held in this matter on June 11,
1976 at which
a Stipulation and Proposal for Settlement was presented pursuant
to
Rule
333 of the Board’s Procedural Rules.
The Board must
determine whether it is in the best interests of the People
of Illinois to accept that Proposal.
The Northwest Incinerator represents an investment of
$23 million to the City of Chicago and is used to dispose of
23
—
554
—7—
residential household refuse collected from 14 wards located
in the Northwest and South Central portions of the City
(approximately
858,000 persons).
The Agency and the City have stipulated to the results of stack
tests which indicate that the Incinerator did not violate Rule
3-3.232 as alleged in Count
I.
Therefore, Count
I must be dismissed.
The Agency further requests that Count II be dismissed due to a
lack of evidence on that alleged violation.
The City does admit,
however,
to violation of Rule 103(b) (2)
as alleged
in Count III.
Under the proposed Settlement,
therefore, the Board could find only
the failure to secure the required Agency permit.
However,
as the
Board has often stated,
the permit program is the cornerstone of
Illinois’
effort to protect the environment.
The parties have proposed the following Settlement:
13.
In lieu of paying a penalty for causing a violation
of Rule 103(b),
the City agrees to do the following:
a)
To install two Lear—Siegler Transmissonmeters
to automatically monitor the opacity from its
stacks.
Said device would allow the U.S.
and Illinois Environmental Protection Agency
to test such device for feasibility
in other
installations.
b)
Said device will be installed by July,
1976.
14.
The City also agrees to obtain an operating permit
within ninety
(90) days of the date of the Order
of the Board entered herein.
The cost of the proposed device will total approximately
$125,000
(R. 11).
The installation of this device was suggested
by the Illinois Environmental Protection Agency and the U.S. Environ-
mental Protection Agency
(R.
9).
The Board
is in no position to
determine the context
of those suggestions
~nd whether
the City has
committed
to the installation for purposes and
parties
other than the
Settlement
in this pending matter before the Board.
The Board finds the Proposed Settlement to be reasonable,
given the fact that no substantial adverse effect upon the environment
has been shown to have been caused by violations
at the Northwest
Incinerator.
The Board has some doubt concerning the use of 1975 stack tests
(R.
7)
to disprove violations which allegedly occurred
in 1971.
23
—
555
—8—
However, inasmuch as any problem which may have existed
has now apparently been corrected, the Board
finds that the interests
of the People of Illinois will best be served by finally disposing
of
the instant cause
(which is nearly
3 years
old)
This Opinion constitutes the Board’s findings of fact
and conclusions of
law.
ORDER
A.
In
PCB
73—285,
which
deals
with
the
City
of
Chicago’s
Southwest
Incinerator,
the
Board’s
Order
is
as
follows:
The
Proposed
Settlement
enumerated
at
the
April
12,
1976
hearing
in this matter, and incorporated by reference as
if fully set forth herein,
is hereby accepted and adopted.
1.
The Board hereby finds Respondent City of Chicago
to have violated Rule 3—3.232
of the old Air Rules and
Rule 103(b) (2)
of the Board’s Air Pollution Control
Regulations.
2.
The Board hereby orders Respondent
to adhere to
the Compliance Plan set forth at the April 12,
1976
hearing
(R.
53).
3.
Respondent City of Chicago shall pay to the State
of Illinois,
the sum of $10,000.00,
payment to be made
within
35 days of the date of this Order to the State
of Illinois by certified check or money order, payment
to be made to:
Fiscal Services Division, Illinois En-
vironmental Protection Agency,
2200 Churchill Road,
Springfield, Illinois 62706.
4.
Count
I of the Complaint
is hereby dismissed without
prejudice.
In PCR
73—286, which deals with the City of
Chicano’s
(‘a
I
umet
I nc
i
ner;i
I
or
,
I lie Board
‘
s
I nfur
i m ()rde
i
I s
~
I
I
I
This cause
is hereby remanded
to the assigned Hearing Officer
for further action not inconsistent with this Opinion.
C.
In PCB 73—457, which deals with the City of Chicago’s
Northwest Incinerator, the Board’s Order is
as follows:
1.
Counts
I and II of the Complaint are hereby dismissed.
23
—
556
—9—
2.
The Board finds Respondent City of Chicago,
to have
caused a violation of Rule 103(b) (2)
of the Board’s Air
Pollution Control Regulations,
and hence Section 9(b)
of
the Act,
at its Northwest Incinerator.
a)
Respondent City of Chicago shall install two
Lear—Siegler Transmissonmeters
at its facility,
within
30 days of the date of this Order, and
allow the Agency access to the device and the
data resulting from its operation.
b)
Respondent City of Chicago shall, within
ninety
(90)
days of the date of this
Order, obtain the required permits from
the Agency, thereby ceasing and desisting
from the aforesaid violation.
IT IS SO ORDERED.
I, Christan
L. Moffett,
Clerk of the Illinois )oiiution Control
Boa~d, hereby certify
the above Opinion and ()ider were adopted on the
~_day
of September,
1976 by
a vote of
~t~~()
ci~1A~-L.
~
Christan L.
Moffett, 9~rk
Illinois Pollution Cc~.z’olBoard
23
—
557