ILLINOIS POLLL1TION CONTROL BOARD
November
19,
1987
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 86—26
FOREST ELECTRIC COMPANY,
Respondent.
MR. GERALD KARR,
ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF
COMPLAINANT;
MR.
DENNIS KING, VICE PRESIDENT OF FOREST ELECTRIC,
CO., APPEARED
ON
BEHALF
OF
COMPLAINANT.
OPINION AND ORDER OF THE BOARD
(by J.D.
Dumelle):
This matter comes before the Board on Complainant’s February
25, 1986 one count complaint alleging Respondent was operating
without
a required operating permit.
Complainant alleges
violations
of
Ill.
Rev. Stat.
ch. 111 1/2,
par. 1009(b),
1012(b)
and 35
Ill.
Adm.
Code Section 201.141 and Section 201.144.
After
numerous continuances, hearing was held on October
7,
1987 at
1
N.
LaSalle Street,
Criicago,
Illinois.
No members
of
the pubiic
attended.
The facts
as set forth
at hearing,
are
as follows:
Respondent has operated at 1001 N.
25th Avenue, Meirose Park,
II,
since December
of
1959.
The nature
of Respondent’s business
operations
is designing and manufacturing power supplies and
solid state devices,
including specialty transformers
and
magnets.
This involves assembly and fabrication
in addition
to
painting and
in curing ovens.
The curing oven,
as
a source
of
emissions,
is required to
be permitted by
IEPA.
35
Ill.
Adm.
Code Sections 201.102,
201.144.
Respondent was issued its first
operating permit
on March
17, 1986
——
but this permit was
retroactive
to November
25,
1985.
On February 26,
1986, prior
to
the actual,
physical issuance
of the permit,
the Agency filed
this complaint alleging Respondent
operated unpermitted equipment
in violation
of
law.
As
a threshold
n-iatter
it
should be noted
that there
is
conflicting evidence regarding the issuance of permits prior
to
November
25,
1985.
Complainant called Ms. Corazon Mata
as
its
only witness.
Ms. Nata testified that she
is an Environmental
83—15
Protection Engineer,
assigned
to the area which includes
respondent’s
facility.
Sne further
testified
that she cnecked
tfle IEPA file
in Maywood, microfiche
files
in Maywood, computer
print—outs and she consulted
tne Permit Section
(of IEPA)
in
Springfield prior
to hearing.
(R.
8).
Ms. Mata stated
tnat
Respondent did not possess an operating permit
for
its curing
oven.
However
——
and although Respondent never contested Ms.
Mata’s assertion
——
Respondent introduced evidence indicating
that the equipment used was previously permitted.
In specific,
Respondent’s Exhibit
4 at Question #llb,
a certified statement,
states that equipment covered by the permit application has
previously received an operating permit.
The answer to Question
#llb appears
to
be
an error
——
perhaps caused
by the inartful
phrasing
of Question #llb.
Nonetheless, Respondent never
claimed
to have
a permit,
nor did
it introduce any evidence indicating
the issuance of
a permit.
The Board finds
tnat Complainant has
substantiated its averments
concerning Respondent’s lack
of
a
required operating permit until November
25,
1985.
Another threshold matter which will
be addressed
at this
time
is Complainant’s allegations that Respondent’s conduct
constitutes
a violation of Ill.
Rev.
Stat.
ch. 111
1/2 par.
1012(b).
(Complaint p.
3 par.
12).
Respondent’s activity,
at
least
insofar
as the pxoofs and evidence,
is not a violation of
Section 1012(b).
Ill.
Rev.
Stat.
oh.
111 1/2, par. 1012(b)
concerns water pollution not air pollution.
The proofs and
evidence contain no evidence relative
to
a water pollution
violation;
therefore the Board
finds no
violation of water
pollution rules or
regulations.
The Board
finds
that Respondent violated Ill.
Rev.
Stat.
cti.
111 1/2,
par.
1009,
35
Ill. Adm. Code Sections 201.141 and
210.144.
Section
9 of the Environmental Protection Act prohibits
the operation of equipment capable
of causing
air pollution
in
the absence of
a permit
issued by IEPA.
Respondent’s curing
oven, which dries painted power supplies and solid state devices,
is
a source
of emissions
as that term
is defined at
35 Ill. Adm.
Code Section 201.102.
Hence,
Respondent may not operate that
equipment without
a permit.
Ill.
Rev.
Stat.
1985 ch. 111 1/2,
par. 1009(b);
35
Ill.
Adm. Code Section 201.144.
Additionally,
in this case, the discnarge of air emissions
in violation of
Section 201.144
constitutes
a violation of 35
Ill. Adm. Code
Section
201.141.
Respondent,
by operating
its curing oven
without
an
IEPA
permit
has
violated
Ill.
Rev.
Stat.
ch.
11.
1/2,
par.
1009(b) and
35
Ill.
Adm. Code Sections 201.141, 201.144.
PENALTY
Ill.
Rev.
Stat.
oh.
111 1/2,
par.
1033(c)
sets forth
tne
elements
for this Board
to consider
in reviewing actions
of
tnis
sort.
Par.
1033(c) elucidates the following criteria:
83—16
—
“c.
In making
its
...
determinations,
the
Board
shall
take
into considering
all facts
and circumstances bearing
upon tne
...
emissions
...
but not limited
to:
1.
tne character
and degree of injury
to
or
interference with the
...
nealth, general welfare
and pnysical property
of
trie people;
2.
the social
and economic value
of
the
...
source;
3.
the
suitability
...
of
the
...
source
including the question of propriety of location
in
the
area
involved.
4.
the technical practicability
and economic
reasonableness of
reducing
or eliminating the
emissions,
...
from such pollution source.
Respondent’s
facility is not
a
‘major source’
(emissions
in
excess
of
100
tons/yr)
as that term
is defined
at
35
Ill. Mm.
Code Section 203.206;
but that
does not mean Respondent’s
facility and
operations are innocuous.
Varnish, lacquer, paint
and paint thinner are all substances which can be harmful if not
handled properly.
Because IEPA never
reviewed Respondent’s
handling
of these substances nor Respondent’s operations,
the
public health and welfare was less than secure.
Additionally,
because
it was unaware of
this emission source,
IEPA,
as the
Agency charged with monitoring
air quality and enforcing
compliance with same,
is nindered
in its efforts to analyze
regional air quality standards,
causes of pollution and formulate
possible
solutions.
Hence
tne
public
injury
was
both
localized
to
the
area surrounding Respondent’s plant, and generalized
to
the
entire
community
because
a
potential
source
of
dangerous
emissions was unknown to State officials.
There
is
no
question
that electrical transformers and solid
State
electrical
equipment
serve
useful
social
and
economic
purposes.
But this does not outweigh tne need for Respondent
to
supply IEPA with data relative to air
emissions;,, nor does this
mitigate or eliminate Respondent’s duty to obtain required
permits.
There
is no direct evidence
in the
record relative
to
Respondent’s social and economic value.
Likewise,
there
is no direct evidence regarding Respondent’s
suitability
to the area in which
it
is located.
Nonetneless,
wnatever the area
in which Respondent
is located,
that area
is
better
served by Respondent’s compliance with Illinois law by
providing IEPA with data relative
to
air emissions
and
by
obtaining required permits.
Ill.
Rev.
Stat,
cn.
111 1/2 par.
1033(c)
contains another
criteria which
this Board is required
to consider:
“The
83—17
—4—
technical practicability and economic
reasonableness
of reducing
or eliminating
the emissions
.
.
..“
“It should be noted tnat
Respondent was not required
to alter, modify or change
its
operations
in order
to obtain the required permit.
Upon
its
submission
of the required data
and applications
and receipt
of
a
permit, Respondent
may now
‘legally’
conduct
its operations.
Thus,
since
no control equipment
is involved
in
this case
and
emissions
are not required
to
oe reduced
there are no technical
practicability or economic reasonableness factors applicable
regarding tnis emission.
There are two more criteria by wnich
this Board must judge
Respondent’s
actions.
Tne first
is the degree of economic
advantage enjoyed
by Respondent by its failure
co comply with
the
law.
IEPA
v.
Standard Metal Co., PCB 83—22, decided January
10,
1985.
Tne second
additionalj
criterion
is whether
or not the
Respondent made good faith
attempts to comply with the Act.
There
is
no
evidence regarding any degree
of economic
advantage
or cost savings enjoyed
by Respondent from its failure
to obtain the required permit and submit
the necessary,
required
data.
Thus
it can be reasonably assumed that there was
no such
economic advantage.
Unlike major
equipment modifications,
supplying required information and applying
for required permits
does not necessarily carry
a discrete financial component.
The
Board finds tnat there
was no unfair cost savings to Respondent
from its failure
to obtain
the required permit.
The last criterion
to be considered
is whether
the
Respondent has made any good faith attempts
at complying with the
Act.
The facts
are clear
that
an inspection occurred
on
September
10,
1984,
and that
since September
18, 1984 Respondent
has been aware
of
its obligation
to obtain required permits.
Regarding operations before September 18,
1984, Respondent’s
ignorance
is neither
a proper defense nor
a mitigating factor.
After September
18,
1984 Respondent continued
to operate without
permits
until March 17,
1986 at which
time it received
a permit
retroactive
to November
26,
1985.
The fact remains
that
it took
Respondent in excess of one year
to
supply necessary information
and apply for required permits.
Statements by Mr. Dennis King,
Vice
President
and
General
Manager,
for
Respondent,
that “the
IEPA
...
never
gave me a deadline
oy which
these things had
to
be
done” does not alter
the fact that
it
took Respondent too long
to
comply with
the law.
CR.
27).
Mr. King indicated that
the excessively long time between
notification
and permitting was due
to his difficulties
in
completing application forms
(R.
26).
He further testified
as
follows:
“...
I don’t
think
a layman can fill out this form for
a drying oven.”
(R.
37).
The Agency’s witness,
Ms. Cora Mata,
nowever stated
as follows”.
“...
in
fact,
Forest Electric,
they
seemed to be coming
to the Agency without no information
sic
83—18
Nothing
at all.
I explained one
by one how the
forms worked,
what the necessary information are
sic
required in order
to
complete those.
Those informations
sic
that are required does
sici
not necessarily need
a technical background.
Anybody can
fill those
out.”
(R.
36).
The
issue
is not whether
Mr.
King nas
a technical
background;
or whether
a layman could understand
those forms;
or
whether
the IEPA was
‘helpful’ enough
to Mr.
King.
The duty
is
Respondent’s
to comply witn Illinois
law
——
and Illinois
law
requires Respondent
to submit sufficient
data
to demonstrate
compliance and to obtain operating permits.
Ill.
Rev.
Stat.,
ch,
ill 1/2,
par.
1039(a); 1009(b);
35
Ill.
Adm.
Code Section
201.144.
The sole
issue
is whetner
or not Respondent was
operating without required permits.
This Board finds
that Respondent
is required
to possess
an
operating permit;
this Board also
finds that Respondent operated
for at least
1 1/2 years prior
to receiving that required
permit.
The Board
assesses Respondent
$3,000
for failing
to
comply with
the permitting requirements
of the Act and
Regulations.
Failure
to obtain required permits
is not
a “paper
violation”
or
a technicality.
The violation of
a permit
requirement goes directly to the heart
of the State’s enforcement
program and ability to protect against environmental damage.
IEPA
v.
Standard Scrap Metal Company, PCB 83—22, decided January
10,
1985.
Additionally, the permitting program is the principal
method of informing owners and operators of pollution sources
about what
is required
of them to comply with the regulations
intended to prevent pollution.
This constitutes
the Board’s findings of
fact and conclusion
of law
in this matter.
ORDER
The Board finds Respondent Forest Electric Company
in
violation of
Ill. Rev.
Stat.
ch 111 1/2 par.
1009(b)
and
35
Ill.
Mm.
Code Sections 201.141,
201.144,
in that
it operated its
curing oven
without required permits
since at
least September
10, 1984
until November
26, 1985 in violation
of
law.
The Board orders Respondent,
Forest Electric Company
to
cease and desist from operating
equipment which
is required
to
be
permitted
——
but which
is not currently permitted.
The Board further orders Respondent
to pay,
within
90 days
of the date
of this Order, a penalty
in the amount of $3,000
for
the violations
of the Act and Regulations as described
in this
Opinion and Order.
Payment shall
be by certified check or money
order made payable
to:
83—19
—6—
State of Illinois Fiscal Services
Illinois Environmental Protection Agency
2200 Churchill
Rd.
Springfield,
IL 6270ó.
IT
IS SO ORDERED.
Section
41
of
the Environmental Protection Act,
Ill. Rev.
Stat.
1985,
ch.
111—1/2, par.
1041,
provides
for appeal
of final
Orders of
the Board within
35 days.
The Rules of the Supreme
Court
of Illinois establish filing requirements.
I, Dorothy N. Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify that the above 0 inion and Order
was
adopted on the
/~Z.’
day of
____________,
1987 by a vote
of
I
-O
.
Dorothy
-
.
Gunn, Clerk
Illinois Pollution Control Board
83—20