ILLINOIS POLLUTION CONTROL BOARD
April
11,
1991
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
v.
)
PCB 90—62
(Enforcement)
SURE-TAN,
INC., an Illinois
)
Corporation
)
Respondent.
MR. JOSEPH WILLIAMS APPEARED ON BEHALF OF THE PEOPLE OF THE STATE
OF ILLINOIS, NEIL F. HARTIGAN, ATTORNEY GENERAL, COMPLAINANT.
MR.
V. JOHN SURAK APPEARED PRO SE AS RESPONDENT.
ORDER OF THE BOARD
(by J.
C. Marlin):
This matter is before the Board upon a Complaint filed April
17,
1990 by the People of the State of Illinois,
on behalf of the
Illinois Environmental Protection Agency against Respondent,
Sure-Tan,
Inc.
(“Sure—Tan”).
The Complaint alleges that Sure-
Tan violated Section 9(b)
of the Illinois Environmental
Protection Act (“Act”)
(Ill. Rev. Stat.
1989,
ch.
111 1/2 par.
1001 et seq.) and Board regulations by its failure to obtain the
required construction and operating permits for its leather goods
manufacturing processes,
found at 35 Ill. Adm. Code 201.142 and
201.143.
Hearing was held December 18,
1990
in the City of Chicago,
Illinois.1
Mr.
V. John ~~rak appeared p~
~.
No
members of the
public attended.
No post-hearing briefs were filed in this
matter.
STATUTORY
AND
REGULATORY FRAMEWORK
Section 9(b)
of the Act,
Ill. Rev. Stat.,
ch.
111
1/2,
par.
1009(b)
(1989), provides:
No person shall:
Construct,
install, or operate any
equipment,
facility,
vehicle,
vessel, or aircraft capable of
causing or contributing to air
On February 15,
1991 Sure-Tan filed its Motion to Reconsider
Denial of Hearing Reopening.
The Board had previously denied Sure-
Tan’s Motion of February
1,
1991 to
reopen the hearing in this
matter.
Sure—Tan’s motion for reconsideration is also denied.
12 1—09
2
pollution or designed to prevent
air pollution,
of any type
designated by Board regulations,
without a permit granted by the
Agency, or in violation of any
conditions imposed by such permit;
Section 201.142 of the Rules and Regulations of the
State of Illinois,
35,
Ill.
Adm. Code 201.142, titled
“Construction Permit Required”, provides in pertinent part:
No person shall cause or allow the
construction of any new emission source or
any new air pollution control equipment, or
cause or allow the modification of any
existing emission source or air pollution
control equipment, without first obtaining a
construction permit from the Agency
Section 201.143 of the Rules and Regulations of the
State of Illinois,
35 Ill.
Adm. Code 201.143, titled “Operating
Permits for New Sources”, provides in part:
No person shall cause or allow the operation
of any new emission source or new air
pollution control equipment of a type for
which a construction permit is required by
Section 201.142 without first obtaining an
operating permit from the Agency
At hearing, the Complainant moved to amend the Complaint to
add a violation of Section 201.144 for operation of existing
sources with out a permit
(R.95).
The Hearing Officer allowed
the amendment over Respondent’s objection
~
That section
reads,
in pertinent part:
No person shall cause or allow the operation
of any existing emission source or any
existing air pollution control equipment
without first obtaining an operating permit
from the Agency
BACKGROUND
Sure-Tan conducts business at 1464—70
W. Webster Street in
Chicago, Cook County, Illinois.
Mr.
V. John Sura’k is the
president of Sure—Tan.
The business was incorporated in 1973.
The manufacturing process at the facility involves the shaving,
sanding,
and buffing of animal hides into leather goods.
The
tanning operation started at that location in 1965
(R.69).
121—10
3
The operation takes in hides,
such as cowhides and
sheepskin, and tans them (R.61).
The hair is removed from the
hide by a chemical process called “soaking.”
The hide is then
removed to a vat bath which cleans the fat off the hides.
The
hides are then preserved by pickling.
After pickling, they are
tanned by chromium salt,
or, on
a few occasions, with vegetable
tan.
The hides are then dried in a drying room, milled to soften
them, placed into bundles and shipped (R.62-63).
Some of the
leathers are buffed as part of the process.
The facility has two shaving machines, which are currently
permitted.
One of the machines was replaced in 1972.
The
facility has one buffing machine, which was installed in 1964
(R. 69).
The facility’s operating permits for its emission sources
expired December 10,
1984.
The facility next received operating
permits in August 1990.
The facility did not have any operating
permits during this interim (R.68).
ALLEGATIONS
The People allege that Sure—Tan required construction and
operating permits for its potential air emission sources.
The
sources are alleged to be the equipment at the facility, namely
shaving, sanding and buffing equipment.
Sure—Tan’s defense is
that the equipment does not cause significant air emissions.
Sure—Tan also submits that the reason Sure—Tan applied for the
permits in the first place is that it was under threat of
enforcement to do so
(R.l66-67).
DISCUSSION
An Agency inspector,,
Mr. Mohammed Ali, inspected the
facility on May 10,
1989.
It was in full operation, except for
the buffing machine, which was not operating at the time.
The
buffing machine was however,
surrounded by dust
(R.
15,16).
The
witness testified that the emissions from the operation would be
small particulate matter
(R.17).
A cyclone machine, an
apparatus to remove the particulates from the air,
stood near the
buffer (R.17,26).
Several exhibits were introduced via Mr. AlL
Exhibit D-l,
a letter from the Agency to respondent,
dated October 21,
1985,
gave notice pursuant to Section 31(d)
of the Act, that the
respondent was in violation of Section 201.144 for failure to
renew operating permits for the leather buffing machines, Section
201.161 for operation of the leather buffing machines in a manner
which violated the permit, Section 201.141 and 202.322 for
operations in excess of emission standards and Section 201.141
12 1—11
4
for operations which unreasonably interfered with the enjoyment
of life and property.
A letter of November 7,
1985 to Mr. Surak
requested a pre—enforcement conference with the Agency
(Exh.D—
2).
Paragraphs
6 through
9 of Attachment A to the letter alleges
again that respondent was in violation of Section 201.144,
201.161 and 201.141 of the Act.
Following the pre-enforceinent conference of December 12,
1985, the Agency sent a letter dated January 24,
1986 to Mr.
Surak outlining a compliance plan and schedule asserted to have
been reached during the pre—enforcement conference
(Exh.D—3).
According to paragraph 7 of that exhibit, Sure-Tan,
Inc. was to
have filed the necessary permit application forms for the twin
cyclones, three buffing machines, two shaving machines, two
splitting machines, three dehairing tanks,
three tanning drums,
and two fleshing machines on or before January 12,
1986.
The
letter stated that due to difficulties respondent was having
obtaining data and information to complete the permit application
forms, the Agency was extending the application deadline to
February 12,
1986.
A letter of March 24,
1986 from the Agency to
Mr. Surak stated that Mr. Surak’s failure to comply with this
item,
as well as others, had caused the Agency to refer the case
to the Enforcement Division.
The forms were received by the
Agency on June 20,
1990 (Exh.C).
The forms show permits from the
two buffing machines, two shaving machines and a cyclone dust
collector were applied for.
The emission rates for the buffing
and shaving machines are shown as 0.75 lbs./hr.
(Exh.C).
Mr.
Surak received the operating permits on August
5,
1990
(R.23).
The permits were for all potential emission sources (R.24).
On examination by Mr. Surak,
Mr. Ali admitted that he did
not check the cyclone during his inspection.
He also admitted
that he did not know if any of the machines were in operating
condition at the time of his visit (R.27,37).
Mr. Ali assisted Mr.
Surak in filling out the application
forms
(R.25,35).
When asked by Mr. Surak why the Agency asked
Surak to apply for permits if they had not been known to emit
anything, Mr. All explained that all potential emission sources
needed a permit under the rules
(R.40).
The applicant must renew
existing permits unless the applicant notifies the Agency that a
change in operations makes it unnecessary
(R.42).
The original
determination of whether a permit is needed at all is done by an
Agency engineer reviewing the applicant’s submitted information
(R.44)
On re-direct examination, Mr. All testified that there would
be emissions from the buffing machine if it were
in
operation
(R.49).
In assisting Mr. Surak in filling out the application,
Mr. All did not supply Mr. Surak with any numbers on the form
(R.5l).
Mr. All stated that Mr. Surak never told him that
certain pieces of equipment were not in operation (R.52—3).
121—12
5
Mr. Surak was called by the People as an adverse witness.
Mr. Surak testified that the operating permits for some of his
machinery expired December 10,
1984.
The next time he received a
permit for air emission sources was August of 1990 (R.68).
He currently has permits for his two shaving machines
(Rh).
He doesn’t recall when he told Mr. Au
that some of his
machines were no longer in operation (R.70—3).
The reason he
applied for the permits, he stated, was
because he was
threatened with sanctions unless he did so (R.74-5).
Mr.
Surak
testified that he did not comply with the original conditions
attached to his agreement to apply for permits with the Agency
because “nobody was pushing”
(R.75,91).
Mr. Surak stated that since 1984 the buffer has not been in
operation.
The glove manufacturer who bought buffed leather from
him went out of business.
The company didn’t use the machines
until at least September 1990
(R.89).
Upon re-examination Mr.
Surak admitted that his present operating permit included the
leather shaving and buffing machines (R.92).
The emission rate
from these sources was
.08 pounds per hour as reflected upon his
amended permit application
(R.93).
Mr.
David Blustein,
an industrial hygienist, testified as an
expert witness for Respondent.
He performed the tests which led
to an estimation that the facility emitted
.08 pounds per hour of
air emissions from its sources
(R.98,9).
A worker, equipped with
a tie-on breathing zone sampler collected particles by operating
the shaving machine over
a four hour period.
A pre—weighed
filter was again weighed to determine particulate accumulation
(R.101-2).
The test showed
.08 milligrams per cubic meter being
emitted.
He stated that OSHA standards refer to this level of
emissions as nuisance dust
(R.102)
•2
Mr. Blustein’s study was
offered as Respondent’s Exhibit No.1.
He believes the particles
emitted are too large aerodynamically,
to be airborne for large
periods of time.
Unless the Agency has other measurements to
suggest the facility is a source,
he believes it is not
(R.1l6-
7)
Upon examination by the People, he stated that it was his
estimation that .75 pounds per hour were the maximum emissions,
per line
15
(a)
of the original application (R.125).
This was
the best information he had at the time (R.130).
On his visit to
the facility on November 14,
1990 the shaving equipment was
in
operation
(R.132).
He did not measure emissions from the buffing
machine as it was not in operation
(R.133).
2
The Agency objected to the exhibit because it had never seen
it prior
to hearing admission.
We affirm the Hearing Officer’s
ruling.
12 1—13
6
ANALYSIS
In order to prevail upon its complaint against Sure Tan, the
People must prove that Sure—Tan’s operations included sources
which could potentially emit air pollution and that Sure-Tan
failed to obtain operation or construction permits for these
sources.
We believe that the People have met their burden.
Operating Permits
With regard to the allegations concerning operating permits,
it is undisputed that Sure-Tan’s operations include shaving and
buffing machines.
The Agency inspector stated that these
machines were “emission sources” which the regulations define as
“any equipment of a type capable of emitting specified air
contaminants to the atmosphere”.
See 35 111. Adm. Code 201.102.
Sure-Tan originally held operating permits for these emission
sources and allowed them to expire.
Sure—Tan presently holds
operating permits for these sources.
Their original and amended
permit application of 1990 lists these machines as potential
sources.
At least for the shaving machine,
Sure—Tan’s own expert
witness stated the machine had measurable emissions.
The Agency
inspector noted the presence of dust around the buffing machine.
The specified contaminant for each is particulate matter.
We
conclude therefore that these were existing emission sources for
which Sure-Tan was required to obtain an operating permit.
35
Ill. Adm. Code 201.144.
Construction Permits
In considering the allegations concerning construction
permits for new emission sources, Sure—Tan operated a shaver and
a buffer from inception of operation in 1965.
Later,
in 1972,
Sure—Tan replaced a shaving machine.
It has not been shown when
in 1972 Sure—Tan made this change.
35 Ill. Adm. Code 201.102
defines a “new emission source” as “any emission source, the
construction or modification of which is commenced on or after
April
14,
1972.”
Because the People have not shown the machine
to have been installed after the named date, we cannot find that
the shaver constitutes a new emission source.
At closing
argument, the People did not attempt to argue this count.
(R.168-
70).
The Board finds that Sure—Tan has not violated Section
201.143 for operating a new emission source without first
obtaining an operating permit from the Agency.
The Complaint also alleges a violation of
35- Ill. Adm. Code
201.142 for causing or allowing the construction or modification
of an existing emission source without first obtaining a
construction permit.
“Construction” as defined by the
regulations,
includes “installation of an on—site emission
121—14
7
source.”
The evidence shows Sure—Tan operated existing sources
with permits until their expiration.
The modification to their
operation,
if any, was
in the addition of the new shaving machine
sometime in 1972.
We do not find that the People have
demonstrated any other construction or modification of Sure—
Tan’s operations.
We do not find,
from our review of the record,
that installation of the shaver was unpermitted.
Hence Sure—Tan
has not “constructed” an “emission source” as that term is
defined in applicable regulations.
Again,
at closing argument,
the People seemed to abandon this allegation.
We also find that
Sure-Tan has not violated 35 Ill. Adm. Code 201.142.
Section 9(b) of the Act
Finally, we find that Sure-Tan has violated Section 9(b)
of
the Act.
The discussion relating to violations of Section
201.144,
infra;
supports our finding that Sure-Tan did “install,
or operate any equipment,
facility
...
capable of causing or
contributing to air pollution, of any type designated by Board
regulations, without a permit granted by the Agency ...“..Ill.
Rev. Stat.
1989,
ch.
111 1/2 par. 1009(b).
The emissions shown
to be emanating from Sure—Tan’s
operations, even if minimal, are
capable of causing or contributing to air pollution.
Therefore,
Sure-Tan has violated Section 9(b)
of the Act.
RESPONDENT
‘
S
DEFENSES
Sure-Tan has interposed
a defense that the Agency compelled
it to apply for permits when there was no showing they were
needed.
Our review of the evidence does not show that
Respondent’s attempted “~~fense”based upon “force” shows
anything other than an effort to make Sure-Tan comply with the
applicable laws and regulations.
Likewise, Sure—Tan’s defense based on non—operation of the
buffing machine from 1984 onward is not a total shield against
enforcement.
The People’s Complaint does not contain individual
counts for individual machines.
Count
I alleges that Sure-Tan
caused or allowed construction of a new emission source by
beginning operations of its facility in 1973.
Count II alleges
that Sure-Tan failed to obtain operating permits for the shaving,
buffing tire and roller sander after its permits expired in
October of 1984.
The amendment allowed at hearing added an
allegation that Sure-Tan allowed the operation of existing
emission sources without Agency operating permits.
Sure—Tan’s
purported defense to these allegations, therefore,
only reaches
one aspect of its operation:
its buffing machine.
Under our review of the evidence we find Sure—Tan’s
contention to be proven as true.
Mr. Surak testified that the
buffing machine was not operating from 1984 until late 1990.
121—15
8
Sure—Tan’s expert witness also testified it was not operating
during the times he visited the plant.
The Agency inspector
could not say that the machine had been in recent operation.
The
evidence does not show that the buffing machine was operating
from 1984 to 1990.
It is, however, the applicant’s duty to
report such changes in his operations.
See 35 Ill. Adm. Code
201.123.
PENALTY DETERMINATION
Any person who violates the provisions of the Act or any
regulations adopted by the Board shall be liable to a civil
penalty of not to exceed $10,000 for said violation and an
additional penalty of not to exceed $1,000 for each day during
which violation continues,
Ill. Rev. Stat.
1989 ch.
111 1/2, par.
1042.~ Sure-Tan operated its facility without the requisite
operating permits for its shaving equipment from December 10,
1984 until August 5,
1990,
some
5 years and 9 months.
Under the
terms of the Act, Sure-Tan is potentially liable to a penalty in
excess of two millions dollars.
Section 33(c)
Factors
Section 33(c) provides the minimum factors which must be
considered in reaching a penalty assessment.
As we stated in our
Allen Barry decision, these will be considered by the Board in
each penalty determination to the extent relevant evidence
exists.
These factors affect the calculation of the penalty by
increasing or decreasing the penalty amount depending on whether
the statutory factor, when evaluated by the Board, weighs in
favor of a larger or smaller penalty within the range of
penalties derived pursuant to the first part of the penalty
evaluation.
IEPA v. Allen Barry,
PCB 88-71
(May 10,
1990)
The statutory penalty criteria are:
*
All the facts and circumstances.
Section 33(c)
*
Character and degree of injury or interference.
Section 33(c)(l)
*
Social and economic value of the pollution source.
33(c) (2)
*
Suitability/unsuitability of pollution source to
its locale.
Section 33(c)(3)
3The maximum
penalties
in Section
42(a)
were
increased
to
$50,000 for violation and $1,000 per each day which the violation
continued by P.A.
86-1014, effective July 1,
1990.
121—16
9
*
Technical practicability and economic
reasonableness of pollution abatement.
Section
33(c) (4)
*
Economic benefits of non—compliance.
Section
33(c) (5)
*
Any subsequent compliance.
Section 33(c) (6)
The Board finds that its review of all the facts and
circumstances of this case demonstrates that a penalty should be
imposed on Sure-Tan.
From December 1984 until August 1990 the
Respondent operated its tanning facility without operating
permits from the Agency.
The record does not establish any
pollution caused by the violation, Section 33(c)(1).
Such action
served to undermine the permitting process set up through the Act
and Board regulations, Section 33(c)(l).
The Board finds that
operation of Sure—Tan’s tanning facility has social and economic
value.
However, operation of such facilities without operating
permits for its air emission sources diminishes such value as it
violates the law Section 33(c) (2).
We do not find Section
33(c)(3) and
(4) to be applicable.
We do find,
however, that
non-compliance saves permitting fees.
It may also lead to the
non-discovery of unregulated emissions, Section 33(c)(5).
The
Board further finds that Sure-Tan’s ultimate, though unwilling,
compliance indicates that a slightly lesser penalty should be
imposed, Section 33(c)(6).
Section 42(h)
Factors
Section 42(h),
effective September 7,
1990
(P.A.
86—1363),
sets forth additional factors which the Board is authorized to
consider when setting a penalty.
It states:
(h)
In determining the appropriate civil penalty to be imposed
under subdivisions
(a),
(b)(l),
(b)(2)
or
(b)(3)
of this
Section, the Board
is authorized to consider any matters of
record in mitigation or aggravation of penalty, including
but not limited to the following factors:
(1)
the duration and gravity of the violation;
(2)
the presence or absence of due diligence on the part of
the violator in attempting to comply with requirements
of this Act and regulations thereunder or to secure
relief therefrom as provided by this Act;
(3)
any economic benefits accrued by the violator because
of delay
in compliance with requirements;
12 1—17
10
(4)
the amount of monetary penalty which will serve to
deter further violations by the violator and to
otherwise aid in enhancing voluntary compliance with
this Act by the violator and other persons similarly
subject to the Act; and
(5)
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act by the
violator.
Ill.
Rev. Stat.,
1990
Supp..,
ch.
111 1/2,
par.
1042 (h).
As a general rule prospective application of statutes is to
be preferred to retroactive, or retrospective, application.
Rivard v. Chicago Fire Fighters Union,
122 Ill.2d 303,
308.
This presumption may or may not apply depending upon the
characterization of the statute.
A procedural statute may have
retroactive effect while a substantive one cannot.
Illinois v.
Zeisler,
125 Ill.2d 42,
48.
Procedure embraces pleading,
evidence and practice whereas substantive law,
in contrast,
establishes the rights whose invasion may be redressed through
those procedures.
Rivard,
122 Ill.2d 310,
311.
Under these
rules
it can be fairly said that Section 42(h)
is procedural and
can be retroactively applied.
This doctrine is revised if the particular statute or
provision can be characterized as punitive.
If a punitive law
has an ex post facto effect, retroactive application
is not
allowed.
People v. Shumpert, 126 Ill.2d 344,
352.
The Board chooses to apply this procedural statute
•retroactively.
The Board will consider applying the Section
42(h)
factors in those cases where hearing was held following the
effective date of Section 42(h).
Should evidence concerning
these factors be introduced at hearing, the parties will then
have the opportunity fully air these factors at hearing.
Turning then to the Board’s consideration of these factors,
the permit violations by Sure-Tan lasted five years and nine
months.
(Section 42(h)(1)).
As discussed above, Sure—Tan failed
to renew the permits because,
in its president’s words,
“nobody
was pushing”.
(Section 42(h)(2)).
Failure to renew permits saves
the offender the time and expense of permit renewal.
(Section
42(h) (3)).
The Board finds that imposition of a penalty will serve to
deter further violation by the violator and to otherwise aid in
enhancing voluntary compliance with the Act by the violator and
others similarly subject to the Act.
(Section 42(h) (4)).
The
12 1—18
11
record does not reveal any previously adjudicated violations by
Sure—Tan.
(Section 42(h)(5)).
Considering the facts and circumstances of this case, and
after weighing both the 33(c) and 42(h)
factors the Board finds
that a penalty of $10,000 for violation of 35 Ill. Adm. Code
201.144,
should be imposed against Sure-Tan.
The Board notes
that this is orders of magnitude less than the maximum penalty
allowable.
No additional penalty is imposed for violation of
Section 9(b)
of the Act.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The Respondent, Sure-Tan,
Inc.,
has violated Section 9(b) of
the Illinois Environmental Protection Act and 35 Ill.
Adm. Code
201.144.
2.
Within 30 days of the date of this Order the Respondent
shall, by certified check or money order payable to the State of
Illinois, designated to the Environmental Protection Trust Fund,
pay the penalty of $10,000, which is to be sent by First Class
Mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, Illinois
62794—9276
Sure-Tan,
Inc. shall also place its Federal Employer
Identification Number upon the certified check or money order.
Any such penalty not paid within the time prescribed shall
incur interest at the rate set forth in subsection
(a)
of Section
1003 of the Illinois Income Tax Act,
(Ill. Rev.
Stat. 1990 Supp.,
ch.
120, ¶10—1003),
as now or hereafter amended, from the date
payment is due until the date payment is received.
Interest
shall not accrue during the pendency of an appeal during which
payment of the penalty has been stayed.
3.
Sure-Tan,
Inc.
is hereby ordered to cease and desist from
all violations of the Illinois Environmental Protection Act and
from Board regulations.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989 ch.
111 1/2, par.
1041, provides for appeal of final
12 1—19
12
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Ord~rwas
adopted on the
______________
day of
~7A~Ji
1991 by a vote of
_________________.
~
~1.
Dorothy M.
qç~fin, Clerk’
Illinois Po1~utionControl Board
12 1—20
