ILLINOIS POLLUTION CONTROL BOARD
July 25, 1972
ENVIRONMENTAL PROTECTION AGENCY
v.
)
~
72—216
IOWA-ILLINOIS GAS
& ELECTRIC CO.
Opinion of the Board
(by Mr. Currie):
The parties have stipulated that,
as alleged in the complaint,
Iowa-Illinois installed four gas-oil turbine generating units at
its Moline electric generating station in April
1970 without
applying for construction permits from the Air Pollution Control
Board.
The parties differ as to what we should do about it.
The company argues that this Board has no jurisdiction over
acts committed before July,
1970, when this Board came into exis-
tence.
We reject this argument for reasons stated at length in
EPA
V.
J.M. Cooling Co.,
#70-2
(Dec.
9,
1970).
Since the complaint
will be judged and any penalties determined on the basis
of the
law in force at the time of the acts in question, there is no
problem of retroactivity; the mere fact that a different tribunal
than at the time of the acts has jurisdiction raises no constitution-
al question.
Cf. Nelson v. Miller,
11 Ill.
2d 378,
143 N.E.
2d
673
(1957).
Various provisions
of the Environmental Protection
Act manifest the legislative concern for continuity in enforce-
ment;
no reprieve for violations of former law was intended;
the
regulations invoked in the complaint were preserved by section
49(c)
of the statute.
Continuing enforcement of prior
law by the
new agencies was explicitly provided for in section 49(b)
All proceedings respecting acts done before the effective
date of
this Act shall be determined in accordance with the
law and regulations in force at the time such acts occurred.
Thus proceedings for violations antedating the new statute were
expressly contemplated.
Since the old Board that formerly had
enforcement powers was abolished,
the necessary implication is that
such proceedings were to be brought before this Board or in the
courts.
As for the concilation requirement of prior law, which the
company says was not here followed,
that
is a procedural provision
no longer available;
like the Air Pollution Control Board~sother
procedures,
it was abolished by the new statute and
is not revived
by section 49(b),
The reference to prior laws in that section
is
to substantive law governing whether or not there was a
violation and the extent of penalties therefor.
2—
The
company
further
argues
that
this
complaint
is
barred
by
a
statute of limitation,
ill, Rev~
Stat~,
ch.
83,
~ 15, which requires
“actions
for
a
statutory
penalty”
to
be
commenced
within
two
years
after
the
cause
accrued.
The
acts
complained
of
occurred
in
April,
1970;
the
complaint
was
filed
in May,
1972.
But
the
Illinois Supreme Court has squarely held this
provision
does
not
apply
to suits filed by governmental units, because statutory
Limitations are construed not to apply to the sovereign
:Ln the
absence of specific inclusion.
Clare
v.
Bell,
378 Iii.
128,
37
N.E.
2d 812
(1941)
The provision in question thus applies to
private
suits for
penal
damages,
such
as
liability
to
an
owner
for illegally cutting his trees, Mueller
v.
Bittie, 32? 111.
App.
363,
53
N.E.
2d
~6
(1944)
,
or the liability of incorporators
to
creditors
before
deposit
of capital,
Gr:Ldiey
v.
Barnes,
103
111,
211
(1882),
not
to,suits
by
a
ccunty
for
penalties
for
nonpayment
of
back
taxes
(Ciare)
or
to
complaints
by
the
State
seeking
money
penalties.
The
company
argues
that
the
complaint
does
not
reasonably
inform
it
as
to
the
claim
asserted,
contending
it
cannot
determine
whether
EPA
sought
a
penalty
for
past
omission
or
to
require
late
comp:Liance.
The
complaint
quite
plainly
seeks
both;
it
is
not
vague
in
the
slightest
and
should
be
guite
easily
understood,
The
company
argues
that
the
regulation
(Rules
and
Regulations
Governing
the
Control
of
Air
Pollution,
Rules
3—2.110,
3~2.l30)
requiring
a
permit
was
“vague
and
indefinite”
as
to
its
applicability
to
gas-~oil
turbines,
contending
that
the
“emphasis”
of
the
State’s
control
program
at
the
time
was
on
smoke
and
particulates,
and
that
the turbines presented little problem
in
this
regard.
It
is
not
entirely clear what legal conclusion
is sought to follow from
these contentions.
No explicit argument is made that a permit was
in fact not required.
Although the emission regulations at the
time did focus upon smoke and particulates, the statutory prohibition
of air pollution
was not
so limited, and the permit regulation
explicitly applied to facilities with potential
for
emitting
any
air contaminant.
Nor
is there any basis
in this record for
suggesting that gas—oil turbines have
no potential
for emitting
smoke or particulates.
That gas-oil t~bines
were
not outside
the permit regulation
is
emphasized by the specific exception for
small gas boilers; no such exception would have been necessary
if
the
regulation itself excluded all gas and oil-fired units,
The basis of the regulation was to allow the Agency to scrutinize
any potential source of harmful emissions
in order to assure that
it would be constructed so as to prevent air pollution or
the
violation of emission regulations.
Prevention
is preferred to cure.
That
a
permit
would
have
been
issued
if
sought
is
no
defense
to
a
complaint
for having failed to seek it;
such
a defense would
destroy the entire permit program with
its
important policy of
prior agency review.
Thus
the failure to obtain permits before
installing these turbines was a violation of the regulations;
and
the further argument that the complaint is moot because a permit
5
—
68
—3—
was
finally
obtained
in
1972
is
without
merit.
Late
compliance
moots
the
request
for
an
order
to
comply
in
the
future
but
does
not
excuse
the
past
omission.
The
thrust:
of
the
above
argument
respecting
the
emphasis
on
smoke
and
particulates
appears
to
be
that
the
requ:Lation
was
un-
constitutionally
vague,
although
the
Constitution
is
not
invoked.
We
think
this
company
should
have
had
no
difficulty
in
determining
from
the
broad
language
of
the
regu:Lation
that
a
permit
was
re-
quired
for
these
units.
The
rule
spoke
of
~
contaminants,
and
there
was
no
applicable
exception.
There
is
no
claim
that
the
company
carefully
perused
the
regulation
and
concluded
it
was
exempt;
admittedly
the
failure
to
fi1e~was
an
oversight.
The
rule
is
not
void
for
vagueness
(cf.
EPA
v.
Granite
City
Steel
Co.,
#70—34
(March
17,
.1971)
,
and
authorities
cited)
,
and Iowa—Illino:Ls
is
in
any
event
in
no
position
to
complain.
Apart
from
these
legal
arguments,
the
company
asks
that
we
exercise
our
discretion
not
to
impose
money
penalties
because
it
acted
cn
good
faith
and
caused
no
environmental
harm,
These
factors
are
of
course
relevant
and
reduce
the
amount
of
the
penalty
that
should
be
assessed.
But
good
faith
cannot
be
a
complete
defense
if
the
regulations
are
to
be
enforced.
It
is
the
affirmative
obligation
of
everyone
building
equipment
that
may
be
a
source
of
emissions to obtain a permit,
for the
important
policy
reasons
indicated above,
just as
it is the obligation
of every citizen
not
to drive before
obtaining
an operator s license.
No
traffic
court
would
allow
as
a
defense
to
driving without a iicense that the
accused
did
not
know
he
needed
one,
or
that
he
had
forgotten
to
apply,
or
that
he
had
not
run
down
any
pedestrians.
The
same
principle
applies
here.
The
integrity
of
the
permit system,
which
is
an
essential
part
of
the
control
program,
requires
a
small
penalty
in
this
case
to
help
assure
that
people
in
similar
positions
are
aware
of
their
obligations.
We
will
impose
a
penalty
of
$1000 after considering all the circumstances,
ORDER
Iowa-Illinois Gas
& Electric Co,
shall, within
35 days after
receipt of this order, pay to the State of Illinois
the
sum of
$1000
as a penalty for the failure to obtain permits before
installing four gas-oil turbines at its Moline plant.
Payment
shall be by check payable to the Fiscal Services Division,
Environmental Protection Agency,
2200 Churchill Road,
Springfield,
Illinois 62706.
I, Christan Moffett, Clerk of
the Pollution Cont;9l Board, certify
that the Board adopted the above Opinion this~.~_‘dayof July,
1972,
by a vote of_____
5
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