ILLINOiS
POLLUTION
CONTROL
BOARD
Novenber
Ii,
1971
ENVI
RONMENTAL
PROTECTI
ON
AGNCY
#7i—234
V.
FRANK
COB1N,
d/b/a
COBIN
SALVAGE
COMPANY
MR.
LARRY
B.
EATON,
ATTORNEY
FOR
ENVIRONMENTAL
PROTECTION
AGENCY
MR.
DONALD
9’.
ELMORE
ALl)
MR.
JAMES
A.
LANDER,
JR.
,
ATTORNEYS
FOR
FRABI:
COBIN,
b/b/a
COBIN
SALVAGE
CONPAdY
OP1N I OP
OF
CCC
BOARD
BY
MR.
LALTON)
Cernelsint
was
filed
by
the
Bnv.tronn:ental
Protection
Agency
:c~ciinst.
Frank
Cobb,
doloB
business
as
Cobb
Salvage
CoripanY,
which
of tor
aoencC:cnt
,
alleges
that
the
Respondent:
11.
3::,
before
or
since
July
1,
1970
and
oarti.cuieriy
or:
Pcvooba’r
17,
970,
January
28,
1971,
June
16,
1971
1
Ju:co
II,
1971,
and
continuino
to
the
pcese::t
fate
,
buroed
aut;ornohi
las
in
the
ocen
in
violatlon
of
SectIon
9
(c)
of
the
Env.aronaiental
Protecti
en
Act
(Lot)
and
Rules
2—1 .1
and
2—1.2
of
the
Bc
Los
and
Reoulations
Governlno
the
Control
of
P;o:
P~1Iut:1 on
iliac)
,
continued
in
effect
by
:fc’ctio;’
~9
o)
of
the
Act;
2.
To “a
..‘crf
c
cried
between
U anua:o
28,
1.971
and
com:’I.cuint,
Rc;snondent
conducted
a
I.
:..
‘
a
aru
I co
av
ouna
burninc
in
violation
a tofu
core
and
re qol atar’~
orovisi
ons;
and
I.
1.
...~
~“
‘‘
oil
~cd
si’are’:n
1
above,
violated
0
Ac~’ Dv
ceus
Ln~
oar
oellution.
ole:
‘~
‘..~:
‘ole’
;.:f
a
cease
and
desist
order
and
the
I;.’:
as ct.i’e’,
~:‘
~
too
:oa~nse:
s:atutor’c
account,
A
a La:
to
cia. 50255
toe
1or’iplaint
was
ailed
by
the
resoondent
aileq—
in:
consti.
cutcoan.
c~fncfs
In
the
Cr:’,’.
so
ontel
Protection
Act,
all,
of
oh
is):
con
t;c::f:,c::s
COY;.
aeon
ans~orad
a a
len
th
in
orevious
decisloes
:il
t1
a
C’;... ‘U.
See
Environnantaf
Protection
Aqency
v.
Grani
to
CII,.’
Seal
Jo.
fr70--34,
March
17,
1971;
Modern
Piatirg
3—6°
Company
v. Environmental Protection Agency,
#70-38, April
28,
1971.
The motion to dismiss
the complaint
is
denied.
The evidence of the Agency, more
fully discussed below, clearly
sustains the allegations of the complaint relative to open burning
of automobiles and the salvage operation by onen burning.
Since
violations of these provisions
are manifest,
we
do not consider
whether the offenses
also constitute
air pollution
as defined in
Sections
3(b)
and 9(a) of
the Act.
Respondent is ordered to cease and desist
the
open
burning and
salvage activities
as
charged in violation of
the Act and the
relevant regulations.
Penalty
in the amount of $3,000.00 is assessed
for the violations occurring
on November
17,
1970,
January
28,
1971,
June 16,
1971 and June 23,
1971,
as set
forth below.
Respondent
operates
a
salvage
yard
in
an
abandoned
mine
site
located
on
the
east
side
of
Route
No.
51
in
Dowell,
Illinois.
We
do not deem it necessary
to go into the refinements of title
as
the
evidence
is
clear
that Respondent
is
the operator
of
the
facility
where
the
alleged offenses
took place
(R.56)
.
Personnel
ccl
the
Environmental
Protection
Agency
observed
burninc
cars
on
November
17,
1970
(R.27)
,
dense
smoke
coming
from the
site on Januar~’28,
1971
(R.51,
67),
cars
burning
on
June
16,
1971
(R.l06)
and
oven
burning,
probably
of
a
car,
on
June
23,
1971
(R.l26)
.
Observations
made
on
January
28,
1971
and
June
23,
1971
confirm
the
s;~ivaqe
oceration
by burning,
notwithstanding
the
inability
of
witnesses
to
testify
that cars were,
in
fact, being burned on those dates.
Section
9(c)
of
the Act prohibits both open burning of refuse
and the conduct of
a salvage operation by open burning.
Section 2—1.1
prohibits
a salvage operation by open burning and Section
2--1.2 pro-
hibits the open burning
of refuse. “Refuse”under the Act
is defined
as
“any garbage or other discarded solid materials” whereas
the word
“refuse”
as used
in the regulations
includes
“garbage,
rubbish and
trade waste.”
Respondent’s defense was essentially based upon an effort to
show an absence of detrimental impact on the surrounding area and the
need for
the type of operation being conducted by Respondent.
Since
we make
no affirmative ruling as to violation of
Section
9(a)
of
the
Act, being
a prohibition of air pollution,
which requires subjective
finding of interference with enjoyment
of life
and prooerty,
the
absence of detrimental
impact on the adjacent areas
is
not the
operative consideration.
Open burning
and salvage by open burning
have been violations
of Illinois
law since
1965.
The fact that
these
obnoxious oractices have not constituted
a severe nuisance in the
3
—
70
area of Respondent’s facility is fortunate, but not
a defense.
Were there a severe nuisance, the penalty imposed might have been
far worse.
Nor does the fact that Respondent was
not caught in
the act of setting
a match to the material burned constitute a
defense.
In
one of the first cases decided by this Board, Environ-
mental Protection Agency v. Neal Auto Salvage,
Inc.,
#70-5,
we held
that once open burning
is observed on premises owned or operated by
Respondent,
the burden falls on him to demonstrate that such burning
was accidental.
In the instant case, Agency witnesses observed person-
nel on the premises in the vicinity of the
fire acting in a manner
which furthered the violation,
rather than prevented it.
(R.55).
Conversation between Agency personnel and Respondent disclosed an
indifference
to the conduct
of
his operation and no effort to abate
the illegal burning.
Nor can we accept the tired excuse that burning
may have taken place accidentally in the course of the stripping
operation.
The likelihood of such occurrence is well known to any-
one
in the salvage business and affirmative steps must be taken to
prevent such fires from taking place.
The Board is not unmindful
of the problems created by abandoned
and wrecked automobiles
and
the’ difficulty in their disposal.
However,
violation
of the law is
not
the answer.
Technology exists within the
State enabling the disposal of auto bodies in compliance with
the
law.
The State
of
Illinois
has
long been concerned with the disposal
of
auto bodies which problem
is
one
of
national magnitude.
See
“Auto Disposal,
a National Problem”,
U.
S. Department of the Interior,
Bureau
of Mines,
1967.
Government
and
industry have been
and are
presently engaged in efforts to eliminate the blight of abandoned
and junk
auto hulks.
Variation and enforcement actions relative
to,
auto salvage operations constituted the principal business of the old
Air Pollution Control Board.
For
a review
of
the Board~s activities
in this respect,
see Opinion of Currie, April
29,
1970 in Britz Auto
Parts,
yR
69-29,
in
which
the subject of auto salvage, it~i~?or~’
and litigation in Illinois
are reviewed in detail.
As th~Opinion
notes:
“The emission of dense, ugly smoke from the burning
of
junk
cars
is
a
familiar
and
unpleasant
sight
for
high-
way
travelers.
This
is
a particularly barbaric,
obsolete,
and inexcusable
form of pollution;
for the smoke
is highly
visible, no attempt
is made
to contain it,
and methods of
reclaiming auto bodies without open burning are readily
available.
The harmful effects of particulate pollution
have been
amply
documented
in the Air Quality Criteria issued
last year by the federal government:
*
71
Health, esthetics,
property values, visibility, weather,
and costs of cleaning, heating
and lighting, may all be
adversely affected.
In this
case,
as
in previous
cases,
there was undisputed evidence of alternate disposal methods:
A mere $25,000 will buy
a relatively smokeless incinerator,
and
a shredding firm at Alton has offered to pay
as much
for auto bodies whether or not they have been burned.”
Commenting on the same regulatory provision with which Res-
pondent is charged in the present case,
the opinion continues:
“Because open burning is so obnoxious and so unnecessary,
this Board banned
it outright in the
first regulations
it
issued:
“No person shall conduct
a salvage operation by
open burning.”
Rules and Regulations ~ 2-1.1.
The regu-
lation constitutes
an administrative finding, amply supported
by the facts, that the open burning of automobile bodies
causes offensive, inexcusable
air pollution not
just in
high-priced residential areas and state parks but whenever
and wherever it occurs.
Proof that the statute itself
is violated
is uxinecessary in an enforcement proceeding
under this section;
to require such proof would deprive
the regulation of any independent significance.”
The opinion notes
the existence of shredders in Peoria and
Alton which will accept salvage auto bodies
in an unburned condi-
tion.
Undoubtedly,
others exist in the State.
Likewise, incinera-
tors complying with the relevant regulations are obtainable
at
a reasonable price which would enable salvage operatipns in com-
pliance with the law,
The statute requires that we take into con-
sideration the social
arid
economic value of the pollution source
and the technical practicability and economic reasonableness of
reducing the emissions
(Section 33(c)).
We have concluded that
no social or economic considerations suggest
a continuation of
respondents operation
in violation of the
law and that suitable
legal alternatives are available that are both technically feasi-
ble
and economically reasonable.
On September
2,
1971,
this Board adopted revised open
burning regulations
(#R70—ll)
.
In the opinion supporting
the regu-
lations,
we said:
“The record contains ample evidence
as
to the pol-
lution caused by open burning of refuse
dumps
and of wrecked
vehicles,and
as to the lack of necessity for such burning. See
Exhibits
4,
5,
7 and
8, giving some indication of the extent
of smoke and other contaminants emitted by such operations,
3
—
72
and Exhibits
3,
8,
9,
10,
and 21,
indicating methods
of sanitary landfill
and of automobile and boxcar hulk
disposal methods
in actual use that obviate
any need for
burning in such cases.
Attention
is particularly called
to
a letter received by the Air Pollution Control Board
from
an auto hulk processor
in late 1969:
“Because of the nature of our shredder
operation at Alton,
Illinois, we do not require.
burned auto bodies;
however, we
do accept both
burned and unburned
auto bodies
at the
same price.
(Ex.
10)
The open burning of refuse dumps and open burning
for
salvage purposes have been illegal since
1965,
and we
reaffirm the prohibition with conviction.”
We cannot conclude that the public interest of the state com-
pels
a continuing allowance of this obnoxious enterprise or ones
comparable
to
it.
Shredders,
f1atteners~. incinerators
and other
means of disposal complying with the
law are available.
Those con-
ducting operations
of this character are obliged to seek
and utilize
them.
We
can no longer condone this unabated
and illegal activity.
See Environmental Protection Agency
v.
Towns Wrecking Company,
#71—226,
decided October 28,
1971, and “Auto Hulk Disposal,
a Growing Business,”
Environmental Science
and Technology, Volume
4,
#1,
1/70,
Page 17
(Ex.
9,
#R70—ll)
This opinion constitutes
the findings of fact and conclusions
of
law of the Board.
IT IS THE ORDER of the Pollution Control Board that Respondent
cease
and desist open burning and the conduct of
a salvage operation
by open burning
at its
Dowell,
Illinois
site.
Penalty
in the amount
of $3,000.00
is imposed for violation of the Environmental Protection
Act,
Section 9(c)
and Section 2-1.1
and 2-1.2 of the
Rules
and Regula-
tions Governing the Control of Air Pollution,
continued in effect by
Section 49(c)
,
on the dates set
forth in this Opinion.
I, Christan Moffett, Acting Clerk of the Board,
certify that the
above
Opinion
was
adopted
on the
//
day of November,
1971.
7’,
‘~l~
(/,f
—
73