ILLINOIS POLLUTION CONTROL BOARD
    September
    30,
    1971
    CLAYTON
    MARK
    &
    CO.
    v.
    )
    #
    71—176
    ENVIRONMENTAL
    PROTECTION
    AGENCY
    Alan
    Becker,
    for
    Clayton
    Mark
    &
    Co.
    Roger
    C.
    Ganobcik,
    for
    the
    Environmental
    Protection
    Agency
    Opinion and Order of the Board
    (by Mr. Currie):
    Clayton Mark operates
    a brass foundry in Vermont,
    Illinois,
    consisting of five uncontrolled melting furnaces producing an
    aggregate 2,500 pounds of brass per hour and emitting, on the basis
    of standard emission factors,
    an estimated
    20 pounds
    of particulate
    matter per hour to the atmosphere.
    Regulations adopted
    in 1967
    limit emissions from such operations to 4.76 pounds per hour.
    After
    an Agency investigation
    in 1971 the company petitioned
    for
    a variance,
    seeking
    to continue operations
    in excess of regulation
    limits pending implementation of
    a compliance program.
    The parties have helpfully stipulated
    the relevant facts
    (B.
    5-15)
    .
    In addition to
    the
    facts stated above,
    the
    stipulation
    relates that the plant has never been
    a serious nuisance
    to
    its
    neighbors;
    that
    it
    is the principal
    source of employment
    in Vermont,
    employing 110 persons with
    a payroll of over
    $800,000
    per year;
    that
    it
    has operated
    at
    a loss
    for several years; and that,
    as
    confirmed
    by
    later citizen testimony
    (R.
    36-62)
    ,
    there was widespread
    citizen
    opposition
    to
    closing
    the
    plant.
    The
    parties
    have
    agreed
    that
    Clayton
    Mark
    should
    be
    given
    until
    November
    1,
    1971
    to
    submit
    a
    firm
    program
    and
    until
    August
    31,
    1972
    to
    carry
    it
    out,
    with
    a
    bond
    to
    assure
    compliance.
    We
    think
    this
    entirely
    appropriate;
    the
    hardship
    to
    the
    community
    from
    closing
    the
    plant~ -~~ouldgreatly
    outweigh
    the
    harm
    from
    pollution
    in
    the
    short
    time
    agreed
    uDon,
    given
    the
    facts
    of
    this
    case.
    The
    sole
    disagreement
    between
    the
    parties
    is
    over
    the
    question
    of
    a
    penalty.
    The
    Agency
    points
    out
    that
    four
    years
    passed
    without
    word
    or
    action
    from
    Clayton
    Mark
    after
    the
    regulation
    was
    adopted
    and
    urges
    that
    a
    penalty
    be
    made
    a
    condition
    of
    the
    variance,
    as
    in
    prior
    cases
    of
    unexcused
    delay,
    e.g.,
    Marquette
    Cement
    Co.
    v.
    EPA,
    #
    70-23
    (Jan.
    6,
    1971),
    Not
    only
    has
    continued
    operation
    without
    controls
    enabled
    the
    company
    to
    profit
    from
    its
    violation
    “in
    that
    it
    has
    thus
    far
    avoided
    the
    expense
    of
    installing
    equipment
    needed
    to
    meet
    applicable
    standards,”
    says
    •the
    Agency
    recommendation,
    but
    “a
    course
    of
    conduct
    in
    violation
    of
    the
    Regulations
    will
    be
    attractive
    to
    others
    in
    the
    industry
    unless
    this
    Board
    imposes
    an
    appropriate
    money
    penalty.”
    2
    525

    The company replies that
    it has no record of receiving the
    notice,
    admittedly mailed in
    1967,
    informing
    it of the regulations
    and of the duty
    to file
    a control program for sources in violation.
    The company also argues that
    it
    did not know its emissions were
    over the standard and therefore that it did not know
    it had to take
    action.
    But neither of these facts can be an excuse.
    Businessmen
    are expected
    to keep abreast of applicable regulations even
    in
    the absence
    of individual notice;
    it cannot likely have escaped
    the
    company’s attention that there have been particulate regulations
    for
    four years, but
    if
    it has that indicates an inattention that
    must be discouraged.
    It
    is
    equally
    the
    duty of every manufacturer
    to
    find
    out
    whether
    his
    operations
    violate
    the
    law,
    and
    there
    is
    no
    indication
    that
    Clayton
    Mark
    ever
    made
    any
    effort
    to
    do
    so.
    Standard
    texts
    have
    long
    been
    available
    to
    indicate
    probable
    emissions
    for
    anyone
    taking the least trouble to investigate.
    We cannot condone
    the principle that
    a company may simply ignore the regulations
    until someone proves it to be in violation.
    We think
    a penalty of
    $2000
    is an appropriate variance condition in the light of
    the
    company’s apparently difficult profit-loss situation.
    We note
    in the stipulation
    that the company
    is considering
    “whether installation of new equipment
    is
    a feasible alternative
    to closing the foundry”
    (B.
    11)
    and also the threat that “the company
    will
    be obliged to consider any penalty
    in addition
    to the
    cost of
    new equipment
    in determining whether to install new equipment or
    whether
    to close
    the foundry”
    (R,
    8~3-89)
    .
    Of course
    it must,
    but
    the sums involved here are minimal.
    The stipulation
    is that control
    equipment
    could have been put
    in for about
    $30,000
    CR,
    7)
    ,
    and the
    amortization of this figure over several years, together with the
    small penalty we impose,
    is not
    a major expense for
    a company with
    a payroll exceeding three—quarters of
    a million dollars,
    If this
    plant closes
    it will be because of the persistent losses it has
    incurred
    in operating without benefit of pollution control equip-
    ment
    (e.g.,
    $170,000 in 1968;
    $35,000
    for the first half of 1971
    (B.
    11))
    ,
    and not because of minor expenditures required by the
    pollution laws.
    This opinion constitutes the Board’s findings of fact and
    conclusions
    of
    law.
    ORDER
    Clayton Mark
    &
    Co.
    is hereby granted
    a variance to permit
    particulate emissions
    in excess of regulation limits from its
    five brass melting furnaces
    in Vermont,
    Illinois, until August
    31,
    1972,
    on the following conditions:
    1)
    Within 35
    days after receipt of this order Clayton Mark shall
    post with the Agency
    a bond
    in
    an amount equal to the
    cost of
    appropriate control equipment, which shall be forfeited if the
    foundry is operated
    in violation of
    the particulate regulations
    after August
    31,
    1972;
    2
    526

    2)
    Within 35
    days after receipt of this order Clayton Mark shall
    pay to the State of Illinois the sum of $2000
    as
    a penalty
    for
    its unexcused delay in complying with
    the particulate regulations;
    3)
    On or before November
    1,
    1971, Clayton Mark shall file with
    the Agency and with the Board
    a
    firm program to achieve
    compliance with
    the particulate regulations
    by August
    31,
    1972;
    4)
    Failure to adhere to such program or to the conditions of this
    order shall be grounds for revocation of the variance;
    5)
    Clayton Mark shall file detailed quarterly progress reports
    with the Agency
    and with
    the Board beginning February
    1,
    1972.
    I.
    Regina E.
    Ryan,
    Clerk of the Pollution Control Board, certify
    that the Board adopted the above Opinion and Order this
    3p
    day
    of
    ~
    l97l~

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