ILLINOIS POLLUTION

 CONTROL BOARD

June

28,

1973

ENVIRONMENTAL

 PROTECTION AGENCY,

Complainant-Respondent

#71—4

REVEREND LOUIS HEMMERICH,

et

al,

)

 #71-33

#72—85

Complainant-Respondent

v.

LLOYD

A.

FRY

 ROOFING COMPANY,

a Delaware corporation,

Respondent-Petitioner

JAMES RUBIN,

 ASSISTANT ATTORNEY

 GENERAL,

 ON BEHALF OF

INVIRONMENTAL PROTECTION AGENCY

BURTON

 Y. WEITZENFLED OF ARNSTEIN,

 GLUCK, WEITZENFELD

 & MINOW, ON

BEHALF

OF LLOYD A.

 FRY ROOFING COMPANY

PATRICK

A.

 KEENAN OF DEPAUL LAW CLINIC,

 ON BEHALF OF REVEREND

LOUIS HEMMERICH,

et

al

OPINION AND ORDER OF THE BOARD

 (BY SAMUEL

T.

 LAWTON,

 JR.):

On October

 14, 1971,

 in consolidated cases

 #71-4 and #71—33,

we entered the following

 order:

“1.

 That Lloyd

 A. Fry Roofing Company cease and desist

emissions

 from its Summit operation until such time

as air pollution abatement

 equipment has been installed

and is properly onerating, which equipment shall bring

Fry’s emissions within the particulate regulations,

as

set forth

 in the Rules and Regulations Governing the

Control of

Air

 Pollution, Sections 2-2.11

and 3-3.111.

2.

Fry

 shall advise this Board when such installation

has been completed.

 This proceeding shall remain open

and the Board shall conduct a further hearing not less

than

 30 nor more

than

 60 days after

notice of the instal—

lation of said air pollution abatement equipment

 in order

to ascertain

whether

 odors being

emitted

Fry’s

opera—

tion

have

been

abated

 consequence

 of the air pollution

control

equipment

installed,

Such

further

orders

shall

~ssued

th±s Board

are

appropriate

consideration

che

hearir~s.

3.

 Penalty in the amount of $50,000

 is assessed against

Fry for violations

 of the particulate emissions

provisions

 of the Rules and Regulations Governing the

Control of Air Pollution,

 for failure to file a Letter

of Intent and Air Contaminant Emission Reduction Program

 as required by the Rules

 and Regulations Governing the

Control of Air Pollution, Sections 2-2.3 and 2-2.4,

and for causing air pollution as defined within the

Environmental Protection Act, Section 9(a).”

On March

6,

 1972,

 in Case #72-85,

 the Environmental Protection

Agency filed a complaint alleging that Fry had made installation

of, and operated, certain equipment designed to prevent air pollu-

tion without the requisite permits, thereby violating Section

 9(b)

of the Act.

The only issues with which the Board is presently confronted

relate to whether Fry’s operation is presently in compliance with

our October 14,

 1971 Order, and secondly, whether Fry has violated

Section 9(b)

 of the Act by failing to obtain the necessary

 instal1a-~

tion and operating permits.

A series of hearings was conducted on both of the foregoing

issues subsequent to our October 14,

 1971 Order.

 The parties have

filed various memoranda with the Board, and counsel for the parties

appeared to discuss the pending issues remaining to be

 resolved.

Notwithstanding the length and complexity of the various proceedinqs

filed herein, the disposition of the case at the present time does not

present any difficulty.

 Counsel

 for the Environmental Protection

Agency states that the receipt of an operating permit by Fry on

December 26, 1972 moots any remaining issues with respect to the

 Board’s original order above set forth and we so find.

 ~e concur

that the issuance of an operating permit by the Agency connotes

compliance with our order and the relevant regulations,

 at least at

the time of the issuance of said permit,

 and no further action

by

the

Board in this respect is necessary or appropriate.

Stipulation filed by the parties acknowledges

 that Fry’s

application for a construction permit on June 12, 1972 was subse-

quent to the actual installation of the equipment for which the permit

was sought.

 Accordingly,

 there is no issue of fact with respect to

the Agency’s allegations

 in #72-85 that the installation was made

without a construction permit.

 Fry’s defense

 to this

allegation

is two-fold,

 first, that the installation was made pursuant to

order entered on May 6, 1971 in Case #71-CH585 in the Circuit Court

of Cook County, directing the installation

 of abatement equipment

and secondly,

 that the Board’s original order above quoted directed

installation of abatement equipment but made no reference for the

need for obtaining the necessary permits.

—2—

8

378

We find these contentions lacking in merit and hold Fry has

violated Section

 9(b)

 of the Acb in installing the abatement equip-

ment without the requisite permit.

 We have examined, the Circuit

Court Order above referred to and find nothing therein that abrogates

the Environmental Protection Act or the relevant Rules with respect

to obtaining state permits.

 The Order does not purport to excuse

Fry from obtaining such permits nor enjoin any agency of the State

from requiring them.

 The Order expressly requires Fry to obtain

a permit from the County authorities thereby

 recognizing that

the permit process

 is inherent in

 the right to install and operate

equipment of the sort involved.

Likewise, nothing in our October

 14, 1971 order can be construed

in any manner

 as excusing Fry from complying with the relevant

regulations and statutory provisions with respect to the issuance

of permits.

 Direction to comply with the statute and regulations

has implicit in it, the requirement to comply with the necessary

steps

 in achieving such compliance which require the issuance of

permits for the purpose of ascertaining whether the equipment will,

in fact,

 do that which it

 is being installed to accomplish.

We conclude that nothing contained in either our Order or the Cir-

cuit Court Order

in

any way excused Fry from compliance with the

relevant permit requirements contained in the statute and regulations.

However, considering

 the totality of all proceedings involved

in

this matter, the evident

 achievement of compliance by Fry in an

admittedly difficult situation,

 the possible confusion that the

multiplicity of orders and jurisdictions might have created and

the lack of any benefit that would accrue, should we hold otherwise,

we are not disposed to impose a penalty for the foregoing violation.

This opinion constitutes the findings of fact and conclusions

of law of the Board..

IT

IS THE ORDER of the Pollution Control Board that:

Lloyd

 A. Fry Roofing Company, by installation of equipment

without

 a permit as charged in the complaint in Case

#72-85, has violated Section 9(b)

 of the Environmental

Protection Act.

 For reasons set forth in the opinion,

no penalty is imposed.

Mr. Dumelle dissents believing that a penalty should be imposed.

I,. Christan L. Moffett, Clerk of the Pollution (‘ontrol ~

 certify

that the above Opinion and Order was adopted on the

~5’~”

day of

June.

 1973,

 by a vote of

to