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Incinerator, Inc. v. Pollution Control Bd.

OCTOBER 17, 1973.

INCINERATOR, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



APPEAL from the Pollution Control Board.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Pursuant to provisions of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.), the petitioner, Incinerator, Inc., appeals from the findings of the Illinois Pollution Control Board which resulted in the petitioner being fined $20,000 for air pollution and $5,000 for failure to comply with certain sections of the Illinois Pollution Control Board Rules and Regulations governing the control of air pollution which required the petitioner file an air contaminant emission reduction program. The petition was also ordered to cease and desist operation until such time as the necessary air pollution abatement equipment is installed on its incinerators.

The issues presented for review are: (1) whether the finding of the Pollution Control Board that the petitioner caused air pollution is against the manifest weight of the evidence; (2) whether the assessment of a $5,000 fine for failure to file an air contaminant emission reduction program is against the manifest weight of the evidence; and (3) whether the Illinois Environmental Protection Act vests the power in the Illinois Pollution Control Board to levy $25,000 in fines against the petitioner.

The petitioner, Incinerator, Inc., operates a municipal-size incinerator plant in Stickney, Illinois, consisting of two large rotary kiln incinerators, each having a capacity of 250 tons of solid waste per day. On April 2, 1970, the Illinois Environmental Protection Agency filed a complaint before the Illinois Pollution Control Board, wherein it alleged:

"(2.) That during the period beginning on or about July 21, 1967 and continuing each day of operation thereafter up to the close of the record herein, respondent has operated its incinerating facilities in such a manner as to cause, threaten, or allow the discharge or emission of particular matter, together with other contaminants, into the environment in Illinois from the incinerator stack and from additional as yet undetermined emission sources within the incinerating facilities and plant, so as to cause or tend to cause air pollution in Illinois, either along or in combination with contaminants from other sources, in violation of the following:

a. From on or about July 21, 1967 to and including June 30, 1970, Section 3 of the `Air Pollution Control Act,' and thus caused air pollution as defined in Section 2 of said Act and created a public nuisance within Section 3, Ill. Rev. Stat., Ch. 111 1/2, §§ 240.2(a), 240.2(c), 240.3 (1969).

b. From July 1, 1970 and continuing up to the close of the record herein, Section 9(a) of the `Environmental Protection Act,' and thus caused air pollution as defined in Section 3(b) of said Act, Ill. Rev. Stat., Ch. 111 1/2, § 1003(b) (Supp. 1970).

(3.) That during the period beginning on or about July 21, 1967 and continuing each day of operation thereafter up to the close of the record herein, respondent has operated its incinerating facilities in such a manner as to emit particulate matter in amounts in violation of the provisions of Rule 3-3.232 of The Rules and Regulations Governing the Control of Air Pollution, promulgated by the State of Illinois Air Pollution Control Board, pursuant to Section 5 of the `Air Pollution Control Act,' Ill. Rev. Stat., Ch. 111 1/2, § 240.5 (1969), and continued in effect by Section 49(c) of the `Environmental Protection Act,' Ill. Rev. Stat., Ch. 111 1/2, § 1049(c) (Supp. 1970).

(4.) That since June 15, 1967 respondent has to file with either the Technical Secretary of the Air Pollution Control Board or with the Environmental Protection Agency, complainant in this action, a Letter of Intent to file an Air Contaminant Emission Reduction Program in violation of Rule 2-2.12 of the Rules and Regulations Governing the Control of Air Pollution, or since April 15, 1968 an Air Contaminant Emission Reduction Program (`ACERP') in violation of Rules 2-2.31(f) and 2-2.41 of the aforesaid Rules and Regulations, which Rules were promulgated by the Air Pollution Control Board pursuant to Section 5 of the `Air Pollution Control Act,' Ill. Rev. Stat., Ch. 111 1/2, § 240.5 (1969), and contained in effect by Section 49(c) of the `Environmental Protection Act,' Ill. Rev. Stat., Ch. 111 1/2, § 1049(c) (Supp. 1970).

(5.) That on or about September 30, 1970 and on or about March 4, 1971 respondent caused or allowed the discharge or emission of smoke from its incinerating facilities, the density or shade of which smoke was No. 2 or darker on the Ringlemann Chart, in violation of Rule 3-3.232 (Smoke) of the Rules and Regulations Governing the Control of Air Pollution, promulgated pursuant to Section 5 of the `Air Pollution Control Act,' Ill. Rev. Stat., Ch. 111 1/2, § 240.5 (1969), and contained in affect by Section 49(c) of the `Environmental Protection act,' Ill. Rev. Stat., Ch. 111 1/2, § 1049(c) (Supp. 1970)."

After being served with this complaint, the petitioner filed a petition for variance before the Pollution Control Board and both proceedings were consolidated into a single hearing. Thereafter, on June 1, 1971, the petitioner filed an answer to the Environmental Protection Agency's complaint. In its answer, the petitioner denied causing the air pollution as alleged but admitted its failure to comply with the Pollution Control Board's Rules and Regulations which required the filing of an air contaminant emission reduction program. The petitioner, however, did plead an affirmative defense wherein its was stated that the compliance required by the Environmental Protection Agency was "technologically infeasible as the available pollution control equipment had yet proven to be effectively adaptable to this or similar installations."

The Pollution Control Board subsequently held extensive hearings wherein testimony from numerous sources was heard. In support of the complaint filed with the Pollution Control Board, the Environmental Protection Agency presented the testimony of three investigators. The first investigator, Michael Longo, testified he is the chief pollution control investigator for the town of Cicero, Illinois. In January, 1967, he began investigations of the petitioner because of many complaints from residents in the south end of the community about flyash, smoke emissions and odors emanating from the smokestacks of the petitioner's plant. These complaints, Longo testified, were in letter form and were later presented as exhibits by the Environmental Protection Agency. Longo further testified to four specific occasions on which he personally observed dark smoke emissions and soot coming from the petitioner's smokestack.

The second investigator who testified for the Environmental Protection Agency was David Rosenbaum, the Chief Investigator for the Environmental Control Division of the Illinois Attorney General's office. Mr. Rosenbaum stated he was certified by the Federal Administration Air Pollution Control Board to make readings of visible smoke emissions. As to the smoke emission from the petitioner's smokestack, Rosenbaum testified he had observed smoke emission of heavy intensity on at least one occasion but had not taken an exact reading as to the intensity.

The third investigator to appear at the hearings was William Zenisek, an Environmental Control Engineer for the State of Illinois Environmental Protection Agency. Mr. Zenisek testified he was certified by the Federal Government as a smoke observer. Moreover, Zenisek testified he visited the petitioner's plant for an inspection on September 16, 1970, following the receipt of a complaint filed with the Environmental Protection Agency by the town of Cicero. Zenisek said he made subsequent visits to the plant regarding smoke emission on February 26, 1971, and June 11, 1971. In addition to his three visits to the petitioner's plant, Zenisek testified he also estimated the density of heavy smoke emissions coming from the petitioner's smokestacks on both September 30, 1970, and March 4, 1971. Finally, based upon a document presented by Incinerator, Inc., and certain printed articles, all of which were presented as exhibits during the hearing, Mr. Zenisek testified he made extensive computations which revealed the ...


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