ILLINOIS POLLUTION CONTROL BOARD

October

24, 1974

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 72—466

RAIL-TO-WATER

TRANSFER

CORP.,

Respondent.

ORDER

OF

THE

BOARD

(by

Dr.

Odell)

On October 10, 1974, Rail-To-Water Transfer Corp.

(RTW)

moved that we modify or vacate our final Order of September

5,

1974,

arguing that the imposition of

a fine was inappropriate

and that the part of our Order dealing with controls for the

pan established a date of compliance too difficult to achieve.

We do not believe that a penalty was inappropriate in

this case.

First, technology was available before the time of

the violations

so that some of the pollution problems could have

been solved.

This case,

therefore,

is clearly differentiated

from City of Monmouth v. Pollution Control Board 57 Ill.

2d 482

where the Court struck down the penalty because the City had done

all it could to solve its environmental problems.

Second,

a

person can be found to have violated Section

9(a)

of the Environ-

mental Protection Act

(Act) any time after July

1,

1970,

even if

at the time of the hearing in the enforcement action those pollution

sources

have been successfully curtailed.

To rule out a penalty

simply because conformity with the law is achieved before the hear-

ing occurs would encourage others to procrastinate in their abate-

ment efforts;

it could persuade some to delay pollution control on

the chance their violations might not be noticed until after com-

pliance had been achieved.

Third, the penalty of $6,000 was reason-

able in light of the factors in Section 33(c)

of the Act.

The

record substantiates the character and degree of injury and un-

reasonable interference suffered by citizens over a prolonged period.

Also, it was technically feasible and economically reasonable for

RTW

to reduce emissions before the time that the enforcement action

was brought.

The changes

in Phases I and III

(for non-tween-

deckers)

could technically have been completed before June 1972;

the Phase II dust collection system was feasible before 1973;

the coke piles could have been covered earlier •than they were.

When technology

is available,

failure to implement controls means

that the community must pay the price of the violator’s pollution

problem.

Simply because Respondent orderly went about the task of

14—241

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abating major pollution sources does not mean neighbors should

be made to suffer in the interim.

The fact that the Respondent

did not intend to create

a pollution problem is not relevant to

the determination of a violation, because the Act is malum

prohibitum.

See Meadowlark Farms

v. PCB 17 Ill. App.3 851

(February,

1974).

Respondent’s second motion stems from technical diffi-

culties

it

is having controlling the emissions from the pan.

Respondent argues that the pan should be considered as part of

Phase III for purposes of compliance.

However, on page 11 of

Respondent’s May 9, 1974,

brief,

RTW

clearly includes the pan in

its Phase II operations.

The inability of Respondent to meet

the Phase

II. compliance date for the pan is not to be resolved by

making the pan subject to the more lenient Phase III schedule.

Inadequate information was given to determine whether the com-

pliance schedule for the pan merited alteration.

A request for

a variance through the mechanism outlined in Procedural Rule 401

is the proper way to handle such difficulties.

The Motion to Modify or Vacate Order is hereby denied.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby cer~ifythat the a ove Opinion and Order was

adopted on the~~J_“day of

____________,

1974, by a vote of~

o

t~

ristan L. ~4~ett

14

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