ILLINOIS POLLUTION CONTROL
BOARD
February 27,
1973
ENVIRONMENTAL PROTECTION AGENCY
#72—172
v.
VAN DER MOLEN MIDWEST INCINERATOR
CO., an Illinois corporation
VAN DER MOLEN MIDWEST INCINERATOR
CO.,
an Illinois corporation
#73—5
V.
ENVIRONMENTAL PROTECTION AGENCY
JAMES RUBIN, ASST.
ATTORNEY GENERAL, APPEARED ON BEHALF OF
ENVIRONMENTAL PROTECTION AGENCY
ROBERT F.
CASEY, APPEARED ON BEHALF OF VAN DER MOLEN MIDWEST
INCINERATOR CO.
OPINION AND ORDER OF
THE
BOARD
(BY SAMUEL T.
LAWTON, JR.):
Complaint was filed against Van Der Molen Midwest Incinerator
Co. alleging that its public refuse incinerator in Melrose Park
emitted particulates between July
1,
1970 and “the close of the
record herein”,
in violation of Rule 3-3.232 of the Rules and Regu-
lations Governing the Control of Air Pollution and caused air
pollution in violation of Section 9(a)
of the Act.
On January
4,
1973, Van Der Molen Midwest Incinerator Co. filed
a petition for variance requesting authorization to continue opera-
tion in violation of the relevant regulations and statutory provi-
sions
“through February,
1973,
pending discontinuance of its opera-
tions”.
In the petition,
it states:
“Petitioner submits that
approval of this variance will permit it to complete an orderly
transition of its incinerator operation by conversion to a landfill
type of operation”.
The prayer for relief, among other things,
states that petitioner would report to the Pollution Control Board
its progress in the transition
of its business and the closing down
of its incinerator during the period for which the variance is
sought.
A stipulation and proposal for settlement were entered into be-
tween the parties, which was received by the Board on January
9,
1973.
In the stipulation, Van Der Molen admits the emission of particulates
in amounts constituting violation of Section 9(a) and Rule 3-3.232
7
—
139
of the Rules and that not less than twice each month, Van Der Molen,
in its incinerator operation, has permitted smoke,
fly ash and
particulates
to be emitted, settling on residential swimming pools,
backyards of nearby residences preventing out-of-door laundry drying,
and that ash and particulates
fell on automobiles of nearby residents
and on buildings,
creating additional cleaning problems,
A hearing
had
been scheduled
and was
convened on December 26,
1972 but because of the submission of the stipulation, was declared
closed without the hearing of
the
witnesses,
The stipulation states
that “Van Der Molen is presently in the process of phasing out its
closing down operation.
A petition for variance has been filed to
permit continued operation until February
28,
1973.”
The stipulation
concludes with a statement
that
complainant prays
for
the
relief
sought in the complaint,
which was the entry of
a cease and desist
order and the imposition of fines in the maximum statutory amounts.
The Respondent asks
that the petition for variance be granted and
that any fine imposed be nominal.
Based
upon
the
stipulation
aforesaid,
the
Board
was
prepared
to
enter
its
order
on
February
6,
1973.
A
request
was
received
by
the
Board
from
the
Company
asking
that
no
decision
be
rendered
on
February
C,
1973,
pending
determination
as
to
whether
Van
Der
Molen
did,
in
fact,
intend
to
discontinue
its
incinerator
operation.
The decision was deferred to the meeting
of
February 21,
1973,
which
meeting was cancelled because of lack of a quorum.
On February 20,
1973,
the
Board
received
a
“Motion
To
Hold
Board
Final
Decision
in
Abeyance
Pending
Development
of
New
Facts,
or
in
the
alternative,
to
Render
a Decision Which does not Order Shut Down,”
The substance
of
the
new
petition
is
the
contention
that
incinerator emission
control
technology
is
available
that
would
enable
compliance
with
regulations
that
would
become
effective
December 31,
1973,
and
that
the possible unavailability of gas would preclude Van Der Molen from
complying with certain requirements
if, in fact,
the operation
was shut down on February 28,
1973,
as intended.
Other allegations
are made which need not be commented on for purposes of this Order.
The essence of the motion is to defer a shut-down of the facility
as originally contemplated.
A response and objection to the motion was filed by the Agency
noting that in the stipulation, Respondent had admitted violation
of the Rules with respect to particulate emissions and the statutory
provision prohibiting the causing of air pollution.
The Agency
prays that the Board decide the case as quickly as
is practicable
and order abatement
of
continuing
violation
and
the
imposition
of
a
penalty.
A reply was filed by Van Der Molen commenting on specific assertions
of the Agency’s response.
On this state of the record,
the matter
came up for consideration at the Board meeting on February
27,
1973,
at which time both the Company and the Agency were represented
by
counsel.
Because of the somewhat muddied status
of the stipulation,
—2—
7
--
140
and
its apparent
reoudiation by Van Der Molen before the rendition
of
any
decision,
coupled
with
the
absence
of
any
testimony
at
the
hearing
on which the Board could render a definitive decision, we
are
rejecting
the
stipulation
and
directing
an
immediate
hearing
on
the
complaint,
as
filed.
Van
Der
Molen
has
withdrawn
its
peti-
tion
for
variance,
which
would
be
moot
in
any
event
on
February
28,
1973.
The
motion
to
hold
our
decision
in
abeyance
is
not
construed
as
a
new
variance
petition.
The
Agency
is
authorized
to
amend
its
petition
if
it
so
chooses
without
any
further
order of the Board
or
the
Hearing
Officer.
This
opinion
constitutes
the
findings
of
fact
and
conclusions
of
law
of
the
Board.
IT
IS
THE
Oi~DERof
the
Pollution
Control
Board:
1.
Hearing
on
the
complaint
filed
by
the
Environmental
Protection
Agency
in
Case
#72—172
shall
be
held
at
the
earliest possible date.
2.
Petition for variance in Case #73-5
is withdrawn.
Stipula-
tion heretofore filed by the parties
is rejected.
I,
Christan Moffett, Clerk of the Illinois Pollution Control Board,
certify
~ha
the
above
Opinion
and
Order
was
adopted
on
the
~7~’
day
of
9
,
1973,
by
a
vote
of
~
to
O
.,
.~
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