ILLINOIS POLLUTION CONTROL BOARD
February 4, 1988
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 86-27
MODINE MANUFACTURING COMPANY,
)
Respondent.
MESSRS. MICHAEL JOHN tIAHER AND MICHAEL K. OHM, ASSISTANT
ATTORNEYS GENERAL, APPEARED ON BEHALF OF THE COMPLAINANT;
MESSRS. ROY M. HARSCH AND DANIEL F. O’CONNELL APPEARED ON BEHALF
OF THE RESPONDENT MODINE MANUFACTURING COMPANY, INC.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board upon a February 25, 1986
complaint filed on behalf of the Illinois Environmental
Protection Agency (“Agency”) against Modine Manufacturing
Company, Inc. (“Modine”). In Count I of the complaint the Agency
alleges that Modine violated Section 9(b) of the Illinois
Environmental Protection Act (“Act”) and 35 Ill. Adm. Code
201.141 and 201.144 by operating without a permit from October
31, 1983 to the time of filing of the complaint. In Count II of
the complaint the Agency alleges that stack tests show that on
various dates from December 15, 1981 to March 28, 1985 Modine’s
emissions exceeded allowable limits under the Air Pollution
Regulations which constitute violations of Section 9(a) of the
Act and 35 Ill. Adm. Code 201.141 and 212.322. The Agency
requested that for each count the Board impose a penalty not to
exceed $10,000 for each violation plus a fine of $1,000 for each
day during which the violation continued. A hearing was held on
June 19, 1987 during which the parties entered into a Stipulation
of Facts (hereinafter cited as “Stip.” and “Stip. par.
_____
with exhibits. The Agency filed its brief on September 9, 1987
and Modine filed its brief on November 6, 1987.
BACKGROUND
Modine engages in the manufacture of aluminum air
conditioning condensers and evaporators for use in automobiles,
trucks and off—highway vehicles at a plant located near Ringwood
in McHenry County, Illinois (“Ringwood plant”) (Stip. par. 1).
From at least December 15, 1981 to January 24, 1986, Modine
manufactured evaporators using the Alfuse process. In the Alfuse
process, unassembled aluminum evaporator cores and fins are
86—43
—2--
preparec~ror bonding and a bonding slurry is applied. The bond
is cure4
~.n
a~evaporator oven which is a source of particulato
emissior~, Partjc~.~1atesemitted by the evaporator oven pass
through ~ venturi scrubber before emission from the stack (SUp,
par. 2—5)~
The Stipu1~jion indicates that Q~ september 21, 1982, the
agency issued a renewal operating permit to Modine for it~
condenser ~ evaporator m~nufacturingprocess. A special
condition
c~
the permit req9ired that a particulate stack test be
performed o~the evaporator oven not more than 180 days from the
late
of permit issuance. The permit was to expire on October 31,
1983 (Stip, par. 10). A stack test performed on January 11, 1963
demonstrated that flodine~s emissions from the bonding oven were
in compliance. However, subsequent stack tests, including those
conducted February 25 and April 19, 1983, indicated non—compliant
emissions rates (Stip. par. 11—13).
On June 28, 1983 Modine submitted an application for renewal
of its operating permit for its aluminum condenser and evaporator
production operations (Stip. par. 17; Stip. Ex. K). On August 3,
1983 the Agency denied Modine’s application and on August 9, 1983
Modine resubmitted a renewal operating permit application
covering evaporator production only. The Agency denied the
application on September 13, 1983 (Stip. par. 18—19).
VIOLATIONS
The Board finds that since Modine’s operating permit for its
evaporator production expired on October 31, 1983, and that
Modine continued operation of the evaporator line from that date
until January 28, 1986, Modine violated Section 9(b) of the Act
and 35. Ill. Adm. Code 201.141 and 201.144 during that time
period. Although the Agency’s complaint states that Moc3ine
operated without a permit to February 25, 1986, the date of the
filing of the complaint, the Stipulation indicates that on
January 28, 1986 the last evaporator was manufactured at the
Ringwood plant using the Alfuse process (Stip. par. 30). The
Agency also acknowledges in its brief that to at least January
24, 1986 Modine operated its evaporator line (Agency Brief p. 2,
3). The only issue remaining regarding Count I is the amount of
any penalty to be imposed. The penalty will be discussed later.
The Stipulation indicates that Modine’s stack test results
for parti~culateemissions at the Ringwood facility were as
follows:
1 Section 212.322 of the Air Pollution Regulations utilizes an
equation which considers the data of the specific facility
process and results in an allowable emission rate of pounds per
hour. In each of the six excursions one or more stack tests were
conducted to obtain the data which was inserted in the above
mentioned equation (Agency brief at 4).
86—44
—3—
Allowable lbs/hr
Actual lbs/hr
December 15, 1981
1.75
5.72
February 25, 1983
4.26
6.73
April 19, 1983
2.79
8.13
2.83
10.40
March 29, and
2.54
11.80
30, 1984
2.42
13.90
2.48
14.80
March 28, 1985
2.71
9.30
2.71
13.50
2.71
13.70
(Stip. par. 6, 12, 13, 25, 29).
In view of the above stack test results, the Board finds
that on six different days Modine’s particulate emissions
exceeded allowable limits. Modine therefore violated Section
9(a) of the Act and 35 Ill. Mm. Code 201.141 and 212.322.
ES TO P PE L
Modine asserts that the Agency is estopped from bringing
this enforcement action because of an alleged agreement by the
Agency not to bring the action if Macline would take certain steps
to achieve compliance, and in the alternative, that the Agency is
estopped from seeking penalties for the violations because of its
prior actions. The Board in determining whether there is a basis
for application of the doctrine of estoppel in this instance will
initially set out the relevant facts and allegations.
As the Stipulation indicates, there were pre—enforcement
conferences and numerous communications between the Agency and
Modine. Macline presented details of these conferences through
the testimony of Gary A. Fahl, Supervisor of Environmental
Engineering for Modine. There were three pre—enforcement
conferences, on July 21, 1983, June 25, 1984, and June 26,
1985. Modine asserts that at all three the Agency, after
reviewing Modine’s proposed compliance efforts, had agreed not to
bring an enforcement action. At the third conference, Modine
testified that the Agency specifically agreed to accept Modine’s
compliance plan to phase out, rather than attempting further
upgrading, of the Alfuse process and install the Nocolok process.
Modine asserts that “in so doing”, the Agency agreed not to bring
an enforcement action, and to support a grant of variance from
wastewater effluent limitations (which the Agency later did),
while the Alfuse process was being replaced. Modine also
testified that the Agency subsequently advised Modine that it
would not need variance from excess particulate emission
limitations during the Alfuse phase—out. (R76,77,81,82,88—90, Ex.
86—45
—4—
J). The Agency’s enforcement action was filed on February 25,
1986, approximately one month after Modine shut down its Alfuse
process.
Mr. Fahl further stated that because of the projected
environmental benefits and specifically in reliance upon
statements made by the Agency at the June 26, 1985 pre—
enforcement conference and thereafter, Modine decided not to
install the Nocolok system at an out of state plant and close the
McHenry plant and to use the Nocolok process on the evaporator
line and so informed the Agency at the meeting (R. at 89)
(emphasis added). The Agency’s only response to Modine’s
testimony was the testimony of Mr. Sudhir Desai, environmental
engineer, whose June 29, 1984 internal staff memorandum
concerning the second conference on June 24, 1984 indicates that
the Agency was continuing to determine whether to initiate an
enforcement action; the Board notes that no enforcement
proceedings were initiated at that time. (Agency Ex.l, R. at 59—
60).
The Board notes that Illinois courts have been reluctant to
apply the doctrine of estoppel against the State. As the Second
District Appellate Court in Tn—County Landfill v. Pollution
Control Board, 41 Ill.App. 3d 249,255, 353 N.E. 2d 316 (1976);
quoted People ex rel. Brown v. Illinois State Troopers Lodge
No.41, 7 Ill.App. 3d 98, 104,105, 286 N.E. 2d 524 (1972), leave
to appeal denied.:
An estoppel in this situation is not appropriate
for the reason there is involved a public right and
the protection of the public. As was said in C.J.S.
Volume 31, Section 138 at page 675:
Estoppels against the public are little
favored. They should not be invoked
except in rare and unusual circum-
stances, and may not be invoked where
they would operate to defeat the
effective operation of a policy adopted
to protect the public.
In cases involving public revenue, public rights and
the exercise of governmental functions, estoppel
against the State has been denied citations
omitted. In the case of Hickey v. Illinois Central
R.R. Co., 35 Ill. 2d 427, 220 N.E. 2d 415, the
Supreme Court did find an estoppel against the State
when acting in a proprietary function, as against a
governmental function. The court therein points out
that there may be estoppel against the State when
operating in a governmental capacity but only under
compelling circumstances. In explaining the
hesitancy of the courts to apply estoppel to public
bodies, the court stated on page 447:
86—46
—5—
There are sound bases for such policy.
It is said that since the State cannot be
sued without its consent, an inevitable
consequence is that it cannot be bound by
estoppel. More importantly, perhaps, is
the possibility that application of
laches or estopped sic doctrines may
impair the functioning of the State in
the discharge of its government
functions, and that valuable public
interests may be jeopardized or lost by
the negligence, mistakes or inattention
of public officials.
In this case, the court is involved with a matter of
rights of the public and a statutory proscription.
The mere registration of the defendant is not
sufficient to justify the curtailing of the police
powers of the State and preventing the State from
proceeding to remedy a continuing violation of the
statutory provisions of the Solicitation Act. To
hold otherwise would effectively curtail the power
and the right of the State to enforce public rights
when mistakes on errors in judgment of those acting
in an official capacity appear.
In view of the above, the Board finds that the extraordinary
or compelling circumstances which would warrant application of
the doctrine of estoppel do not exist in this instance. Such
application of the doctrine would impair the functioning of the
State in its role of protecting valuable public interests in the
environment. The Board agrees that the Agency presented little
evidence to dispute Modine’s testimony as to what the Agency had
agreed; however, “to allow estoppel here would be to permit the
people of Illinois to be denied their constitutional right to a
healthful environment (Ill.Const., art. XI, 2), because of the
actions of certain State officials” Tn—County Landfill supra, at
255. See also, Dean Foods Co. v. Pollution Control Board, 143
Ill.App. 3d 322, 492 N.E. 2d 1344 (1986).
The Board notes that under the Act, entities are expected to
achieve compliance whether that compliance comes through
improvements made to existing control devices or through the
application of new technologies, irrespective of any alleged
agreements with the Agency. Mr. Fahl’s above cited testimony
that Modine chose the Nocolok process because of the “projected
environmental benefits” illustrates this fact. The Board further
notes that Macline’s reliance on Wachta v. Pollution Control
Board, 8 Ill.App. 3d 436, 289 N.E. 2d 484 (1972); is misplaced.
As the Second District stated referring to a petitioner’s
reliance on Wachta:
That case and two succeeding cases, Bederman v.
Pollution Control Board (1974), 22 Ill.App. 3d 31,
86—47
—6—
316 N.E. 2d 785, and Kaeding v. Pollution Control
Board (1974), 22 Il1.App. 3d 36, 316 N.E. 2d 788
while holding the Board estopped from revoking a
permission previously granted the landowners to
connect to the North Shore Sanitary District after
the landowners had incurred considerable expense in
reliance on the permits, did not involve the
question of pollution. emphasis added Indeed, in
Kaeding v. Pollution Control Board, this court
specifically pointed out that the Board had found
that none of the defendants including Kaeding had
violated the Environmental Protection Act.
Tn—County Landfill, supra at 249.
PENALTY
Having found that the violations existed as stated in the
complaint, and further that the doctrine of estoppel is
inapplicable in this instance, the only question remaining is the
penalty to be imposed. In that regard the Board must consider
the factors set forth under Section 33(c) of the Act.
The first consideration under Section 33(c) is the character
and degree of injury to, or interference with the health, general
welfare or property of the public. As Modine correctly states in
its brief, there is very little information in the record
regarding any possible environmental impact from Modine’s
operations. The Agency presented none. Mr. Fahl presented
estimates of what the excess particulate emissions might have
been for 1982 through 1985. He calculated that the excess
emissions for each of the above years had been 1.4, 3.6, 4.7, and
3.2 tons respectively; totalling 12.7 tons for the four year
period (R. at 92—3). It is also worth noting that McHenry County
is designated as an attainment area for total suspended
par ticulates.
While these sparse facts seem to indicate no significant
interference with the public health, welfare, or property from
Modine’s emissions, the Board is compelled to find such
interference does in fact exist because of its operation without
a permit. The Board’s rationale in Illinois Environmental
Protection Agency v. Tnilla Steel Drum Corporation, PCB 86—56,
June 25, 1987, modified August 6, 1987 is equally applicable
here:
On the other hand, the Agency correctly points out
that the Board has long held that operation without
a permit is a serious violation of the Act. (Reply
at 3). Asstated in Illinois Environmental
Protection Agency v. George E. Hoffman & Sons, Inc.,
PCB 71—300, 12 PCB 413, 414 (May 29, 1974):
86—48
—7—
We have often stated that enforcement of
the permit provisions
...
is essential to
the environmental control system in
Illinois. It is rare indeed when a
permit violation does not call for at
least some monetary penalty.
The permit system is the cornerstone of the State’s
environmental program. Through that system the
Agency’s ability to monitor compliance is greatly
enhanced as, in turn, is the protection of the
public. Any failure to comply with the permit
requirement, therefore, interferes with the
protection of the public.
It is this extremely important point that Modine passes
over, particularly in its estoppel arguments. The real problem
here is that whatever reliance was placed on an Agency decision
not to enforce after looking at compliance plans to reduce
emissions simply does not relieve Modine of its continuing
responsibility to operate with a permit, and to seek a variance
if it needed temporary relief from the general standards, the
violation of which caused the permit to be denied. The Agency
had twice denied Modine’s permit reapplications on August 3, 1983
and September 19, 1983.
A pre—enforcement conference, rio matter what the Agency’s
view is of Modine’s compliance efforts or what the Agency’s
statements were regarding its enforcement intentions, does not
excuse Modine from taking steps it was certainly familiar with to
protect against operating without a permit, which it failed to
take from October 31, 1983, when an earlier permit expired, until
January 28, 1986, when it finally decided to phase out its
Alfuse—process, about two and one—quarter years later. Moreover,
Modine’s own tests showed it was in violation of its earlier
permit some time before it expired. Whether Modine could have
demonstrated that its hardship and compliance efforts were
sufficient to justify variance is another matter. The point is
that Modine simply did not make the effort; instead, Modine
continued to operate without a permit. Staving off an
enforcement action is not a substitute forum.
The second consideration under Section 33(c) is the social
and economic value of the pollution source. Evidence in the
record pertaining to the social and economic value of the Modine
facility consists of the fact that the plant manufactures
evaporators and condensers and employs between 25 and 40 people
(R. at 72, 103). The Board finds that the social and economic
value of Modine’s facility is significant, but that that social
and economic value is substantially reduced when the facility
fails to secure a permit and emits pollutants in excess of
standards.
86—49
—8—
The third consideration under Section 33(c) is the
suitability of the location of the site. The Board notes that
there is no evidence in the record regarding the lack of
suitability of the location of the site, and so will presume the
site suitable for a properly run facility.
The fourth consideration is the economic reasonableness and
technical feasibility of reducing the pollution. The record
shows that after notification of the excess particulate emissions
from the evaporator oven as revealed by the stack tests, Modine
retained a consultant and proposed to implement his suggestions
for alterations to the scrubber in attempting to achieve
compliance (Stip. par. 7, 8). Modine apparently attempted
further alterations, including the installation of a new I.D. fan
for the scrubber and adjusting the liquid to gas ratio, which
were unsuccessful (R. at 102). Modine then opted for
discontinuing the use of the Alfuse process and installation of
the Nocolok process. Mr. Fahl testified that Modine has
presently achieved compliance on the evaporator line (R. at 90—
1). The Agency does not dispute this. The Board notes that
Modine was economically able and did install the technology to
come into compliance. However, this did not occur until over two
years after its permit expired and at least four years after the
initial noncompliant reading in December, 1981.
Modine asserts that there should be no penalty since it was
indeed making all good faith efforts to bring its operation into
compliance and that all it needed was some time. The Board finds
it difficult to give much weight to this argument in an
enforcement setting when Modine chose to operate without a permit
rather than subject its good faith arguments to variance review,
a proce:~sby which the Agency would have made a formal
recomme,idation and given its views regarding Modine’s compliance
efforts. Modine argues that the Agency, by declining to enforce,
agreed that Modirie was doing its good faith best; however, the
Board believes that three enforcement conferences followed by an
enforcement action suggest otherwise. Also, the Agency testified
that it did not believe Modine was being aggressive enough (R at
26).* In any event, the Agency correctly argues that Modine
should have applied for a variance during the time of its
intermittent noncompliance. (Agency Brief at 5; R. at 27).
Based upon its consideration of the factors set forth in
Section 33(c) of the Act and other matters as stated in this
Opinion, the Board finds that a penalty of $10,000.00 for the
above cited violations is warranted in this case. As stated
above, Modine operated its facility for a period of over two
years after its permit expired and for at least four years after
the initial noncompliant reading was reported. This was
*
In so saying, the Board emphasizes that it is not making any
comment about the use the Agency makes of enforcement
conferences.
86—50
—9—
inexcusable. For this violation alone a $10,000 penalty is
warranted.
Modine’s good faith arguments are considerably under—cut by
its failure to do anything to operate lawfully. The little
weight that can be given to Modine’s good faith arguments serves
to mitigate against the finding of a more substantial penalty.
Under these circumstances, the Board believes that imposition of
a greater penalty would not aid in the enforcement of the Act.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Board that:
1. Respondent has violated Sections 9(a) and 9(b) of the
Act; 35 Ill. Adrn. Code 201.141; 201.144; and 212.322.
2. Respondent shall cease and desist from further
violations of the Act and regulations promulgated
thereunder.
3. Respondent shall, by certified check or money order
payable to the State of Illinois and designated for
deposit into the Environmental Protection Trust Fund,
pay a civil penalty of $10,000.00. Respondent shall pay
this penalty within forty—five (45) days of the date of
this Order to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, IL 62706
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 1111/2 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.
IT IS SO ORDERED.
3. D. Dumelle and R. Flemal dissented.
J. T. Meyer concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the -~y~Q~day of
-~-e4~~
,
1988, by a vote
of
3- ~ .
~.
Dorothy ri. ~Cunn, Clerk
Illinois Pollution Control Board
86—51
