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Allied Metal Co. v. Pollution Control Bd.

SEPTEMBER 24, 1974.

ALLIED METAL CO., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of the Pollution Control Board.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Allied Metal Co., petitioner (hereinafter Allied), an operator of a Chicage plant engaged in the production of metal ingots, appeals from an order entered by the Illinois Pollution Control Board (hereinafter Board) which found Allied guilty of causing air pollution and violating permit requirements, resulting in a fine of $2,500 as a penalty for the violations. *fn1

Illinois's Environmental Protection Agency (hereinafter Agency) filed a complaint before the Pollution Control Board of the State of Illinois alleging that Allied, on December 27, 1971, and subsequently, operated its plant in such a manner as to cause or allow the emission of particulate matter, gases, odors, and other contaminants into the environment, so as to cause air pollution in Illinois, in violation of section 9(a) of the Environmental Protection Act (hereinafter Act) (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a)). Section 9(a) reads:

"No person shall:

(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment * * * so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act; * * *."

The complaint further alleged that from January 27, 1972, to the time of the filing of the complaint (April 20, 1972), Allied had allowed or permitted particulate-matter emissions from its plant in violation of section 3-3.111 of the Rules and Regulations Governing the Control of Air Pollution. Section 3-3.111 reads, in part:

"Particulate matter emissions from any process shall be limited by process weight in accordance with Table 1 of Chapter III except as provided in Rule 3-3.300, or as provided by separate regulations for specific processes under Rule 3-3.200."

In an amendment to the original complaint, the Agency further alleged that Allied had installed or constructed new equipment capable of emitting air contaminants to the atmosphere and equipment intended for eliminating, reducing, or controlling air contamination without a permit, in violation of secton 3-2.110 of the said rules, which were continued in effect by section 49(c) of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1049(c)). Section 3-2.110 of the rules provides:

"A permit shall be required * * * for installation or construction of new equipment capable of emitting air contaminants to the atmosphere and any new equipment intended for eliminating, reducing or controlling emission of air contaminants."

After conducing hearings and receiving evidence, the Board, by order dated June 7, 1973, adjudged Allied guilty of causing air pollution and of violating the permit requirements as alleged in the Agency's complaint, and assessed a fine of $2,500 against Allied as a penalty for the violations. The Board's order further provided that Allied was to submit to the Board and the Agency, within 60 days from the date of the order, a plan for bringing its operations into compliance with the Act and the above-mentioned rules and regulations governing particulate emissions. Subsequently, the Board granted Allied a stay with respect to the portion of the order assessing the fine. Thereafter, Allied filed a petition for review of the order with this court.

On appeal, Allied contends:

1) that the Agency failed to meet its burden of proof in that:

a) the alleged violations, as predicated upon theoretical calculations, were refuted by "stack tests" performed by experts for Allied;

b) the Agency's evidence of visual observations was insufficient to support the finding of a violation; and

c) the order of the Board was unsupported by findings, as required by Chapter 111 1/2, Section 1033(c) of the Illinois Revised Statutes;

2) that the Board's finding that Allied had installed new equipment capable of emitting air contaminants is against the manifest weight of the evidence adduced below; and

3) that the Board does not have the power to assess a fine.

In the interest of clarity, we shall review and summarize the voluminous evidence as it relates to the particular allegations of the Agency's complaint.

Allied is the operator of a plant engaged in the production of metal ingots at 2059 South Canal Street in Chicago. The basic products of Allied's operation are aluminum-alloy and zinc-alloy ingots, which production represents approximately $5,500,000 in sales per year, or 1/2% to 1% of all sales of such products produced in the country's secondary aluminum industry. The ingots are sold to manufacturers and foundries. Allied maintains a weekly payroll of approximately $10,000, and the only shareholders of the company are Marvin Fink, an Allied vice-president, and his father-in-law.

Allied's plant consists of four units, the main plant being approximately 124 feet by 169 feet by 75 feet; the roof of the main plant has six stacks, each with a built-in exhaust fan. The plant is surrounded on the east by railroad tracks; on the north by the south branch of the Chicago River; on the west by Canal Street, which ...


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