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~