ILLINOIS POLLUTION CONTROL BOARD

November 13,

1975

BIRD

& SON,

INC.,

)

Petitioner,

)

v,

)

PCB 75—166

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

Mr. William R. Carney and Mr.

George J.

Casson,

Jr.,

Attorneys, appeared

for the Petitioner;

Ms. Kathryn Sheehan Nesburg, Attorney, appeared for

the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr.

Zeitlin):

Petition for Variance was filed by Bird

& Son,

Inc.,

(Bird

& Son), on April 21,

1975, seeking relief from

Rules

103(b) (2) and 203(g) (1) (A)

of Chapter

2: Air Pollution,

of the Pollution Control Board,

(Board), Rules and Regulations.

PCB Regs., Ch.

2, Rules 103(b) (2), 203(g)(1HA).

On

April 25,

1975,

the Environmental Protection Agency,

(Agency),

filed an Objection and Motion for Hearing and on May 15,

1975,

the Board entered an Interim Order authorizing a hearing.

A

Recommendation was filed by the Agency on June

10,

1975, and

Petitioner filed a Reply Memorandum

in support of its Petition

on September

29, 1975.

A hearing was held in Chicago on October

3,

1975,

at

which time very little testimony was taken, and the parties

indicated a desire to rely on the pleadings previously filed.

The important matters which were noted at the hearing are as

follows:

a.

Bird

& Son’s facility which

is the

subject matter of this case

is now in compliance

with the applicable particulate regulations,

pursuant to its previously

filed compliance

plan,

and has been in compliance since

September 17, 1975,

(R. 4,8).

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290

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b.

All proper EPA permits for the subject

facility were issued prior to September

17, 1975,

CR.

8).

c.

The Agency stipulated that no enforce-

ment action would be brought against Bird & Son

for violations from May 30, 1975 to the date of

hearing, October

3,

1975,

(R.

6).

Bird

& Son runs a roofing felt mill on the south side of

Chicago, more fully described in Bird

& Son v.

EPA, PCB75-4

(April 24, 1975).

Emissions of particulate matter subject to

the limitations of Rule 203(g) (1) (A) were generated by a coal-

fired boiler at that plant in excess of the amounts allowed

under that Rule after May 30,

1975.

Prior

to that date,

Bird

&

Son had an operating permit for the boiler in question, under a

compliance plan calling for conversion to oil by May 30,

1975.

Bird

& Son sought this Variance for a period of six months after

May 30,

1975, claiming that it was unable to meet that compliance

plan, and operate within the requirements of Rule 203(g) (1) (A),

due

to an inability to obtain fuel oil commitments and unavoidable

delays in the delivery of equipment necessary for the conversion

from coal to oil.

We shall deny the Petition for two reasons:

a.

From the matters adduced at hearing,

it appears that Bird

& Son is no longer

in need

of a shield from prosecution from the Agency.

b.

Despite an able attempt

in its Reply

Memorandum of September

29,

1975, Bird

& Son

has failed to show that its emissions during

the requested period of Variance would not cause

or contribute to violations of the national

ambient air quality standards for particulate

matter.

(Such a showing was expressly required

in our Interim Order of May 15,

1975.)

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER OF TH~POLLUTION CONTROL BOARD that the

Petition for Variance in this matter be dismissed.

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291

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I, Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board,

hereby certify the above Opinion and Order w~re

adopted on the

~~+‘

day of

_________

1975 by a vote of

4-c

C ristan L. Moffett

rk

Illinois Pollution C

ol Board