ILLINOIS POLLUTION CONTROL BOARD
    March
    3,
    1977
    ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    )
    Complainant,
    v.
    )
    PCB 75—388
    CLARK OIL
    AND
    REFINING CORPORATION,
    )
    Respondent.
    ORDER OF THE BOARD
    (by Mr. Young):
    This matter is before the Board on Respondent’s Notion
    for Reconsideration
    of our Opinion and Order in
    this
    matter.
    The Agency
    filed an Objection to the grant of this Motion
    and both parties have additionally
    filed certain affidavits
    an’d material in response to our Order of December 16,
    1976.
    In
    the
    instant
    Notion,
    Respondent
    argues
    three
    reasons
    why the Board should reconsider this matter.
    First, Respondent
    argues that the Board erred in finding that Respondent had
    ootions
    available to it other than ceasinq operations.
    In
    explanation why Clark did not choose to file
    a variance oeti-
    tion, Clark cites four cases in support of its contention
    that such application would have been a useless act.
    Mt.
    Carmel Public Utility v.
    EPA, PCB 71-15,
    1 PCB 469; York
    Center Comm. Coop v. EPA, PCB 72-7,
    3
    PCJ3 485; EPA v. Holland
    Ice Cream and Custard Co..,
    PCB 71-319,
    3 PCB 587; Loesch
    Dairy Co.
    v.
    EPA, PCB 72-93,
    4 PCB 69.
    The Board beff~es,
    however,
    that all of the cited cases are readily distinguishable.
    In the instant matter,
    unlike any of the cited
    cases,
    the variance
    petition would have involved a request to employ new technology.
    In each of
    the cited
    cases,
    the netitioner ~imp1y wanted
    a
    I iccnse
    Lu
    con Lirtue
    to pollute but was unwillinq
    to enter into
    ,any proqram to achieve compliance.
    This inaction the Board
    will not condone, but petitions involving experimental techno-
    logy stand on entirely different grounds.
    As a matter of fact,
    it is only through the variance procedure that
    a person can
    obtain authorization to utilize such technology if its use is
    expected
    to violate existing regulations.
    The Board realizes
    full well that advances in both production and control techno-
    logy will
    continue to occur, but exoects at the same time that
    persons employing such technoloqy will do so only under a
    variance granted by the Board.
    To allow any other procedure,
    such
    as
    emDloyed
    by
    Clark
    in
    this
    matter,
    will
    lead
    to
    general
    chaos in the State’s pollution control proqram.
    25
    13

    —2—
    In addition to utilizing the
    variance
    procedure,
    the
    Board
    believes
    Clark
    could
    have
    operated
    within
    the
    law
    by
    following
    a
    much
    simpler
    course
    of
    action.
    In
    the
    fall
    of
    1972, when Clark decided to install the experimental tech-
    nology, Clark could have avoided
    all its difficulties
    if it
    had
    decided
    instead
    to
    install
    a
    carbon
    monoxide
    boiler.
    Havinu
    deliberately and unilaterally decided to
    utilize
    untested technology, Clark is not now in
    a position to argue
    that
    it
    had
    no
    options
    available.
    Options
    were
    available
    to Clark, but they were
    rejected.
    Respondent
    once
    again
    argues
    in
    this
    Motion
    that
    all
    of
    its problems occurred
    because the Agency acted arbitrarily
    and unreasonably with
    its permit application.
    On page three
    of its Reply of December 17,
    1976, Respondent states:
    What
    the
    Respondent
    has
    presented
    to
    this
    Board
    in
    its
    Motion
    pursuant
    to
    Procedural
    Rule
    334
    is
    evidence,
    the
    permit,
    which
    conclusively
    demonstrates
    that
    the
    Agency’s
    failure
    to
    issue
    a
    permit
    with
    the
    same
    data
    before it as was before it when it did issue
    the
    permit
    in
    August,
    1976,
    was
    arbitrary,
    unreasonable
    and
    contrary
    to
    the
    Illinois
    Environmental Protection Act.
    All information
    was supplied to the Agency before the hearing
    on this cause.
    The facts affied to by
    Mr.
    Keith J. Conklin are not to the contrary.
    In
    fact,
    the Agency does not contest that it had
    all the pertinent information before it prior
    to the hearing on this cause.
    (Objection,
    Para.
    3.)
    What the Agency did was to wait
    until long after the hearing on this matter
    to do what it was required by law to have done
    prior
    to the hearing:
    issue a permit.
    The
    Board
    finds
    this
    statement
    at
    variance
    with
    the
    facts;
    Respondent’s
    own
    Memorandum
    of
    January
    24,
    1977,
    I~xhihit
    #3,
    indicates
    thai.:
    not
    only
    stack
    testing
    data,
    hut
    other
    information
    as
    well,
    was
    submitted
    to
    the
    T\qoflcy
    after
    the hear
    i nt
    i n t~is
    matter.
    In addition
    to
    this,
    Clark’s
    correspondence
    to
    the
    Agency
    dated
    August
    20,
    1976,
    indicates
    there
    has
    been
    a
    change
    in
    Clark’s
    operating
    conditions.
    (Aqency
    Affidavit
    of
    January
    25,
    1977,
    Exh.
    A.)
    The
    permit
    finally
    issued
    by
    the
    Agency
    reflects
    this
    change
    as
    the
    permit
    was
    conditioned
    upon
    the
    FCC
    unit operating with a generator bed level not exceeding
    90 inches
    of water.
    As
    in our Opinion, the Board is once again unable
    to find
    that the Agency acted either arbitrarily or unreasonably with
    this December 1975 permit application.
    Whatever the case,
    the
    25
    14

    —3—
    Board reminds Clark that the operating permit was required by
    February
    1,
    1973, not December of 1975 when
    the apnlication was
    filed.
    Thirdly, Respondent
    argues
    that
    the
    Board
    should
    reconsider
    and reverse
    its assessment of a penalty.
    In support of this,
    Respondent sets
    forth the two issues discussed above and,
    in
    addition to this, Respondent submits
    no penalty should be
    assessed because compliance with the regulations has finally
    been achieved some 30 months after it was required.
    Although
    no authority for this position was cited,
    the decision of the
    Supreme Court in I~ystikTaoe v. PCB
    (1975)
    61)
    Ill.
    2d 330
    does lend some guidance.
    In that case,
    the Court upheld a
    $3,500.00 oenalty which was assessed because Mystik installed
    and ouerated certain
    equipment
    despite
    Agency
    denial
    of
    permits
    for the equipment.
    The Board sees no
    reason
    why
    Clark
    should
    stand on any
    better ground than Mystik.
    Clark’s violation
    resulted directly from its own unilateral and deliberate decision
    not
    to install the approved and existing technology or to seek
    a variance to utilize experimental technology.
    An additional
    aggravating factor in this matter, not present
    in Mystik,
    is
    that the violation was for a very extended period of time.
    The Board has consistently held that the permit system is
    a cornerstone of the environmental protection effort.
    See, e.g.,
    In the Matter of Emission Standards,
    R7l—23,
    4 PCB 298,
    303
    (4/3/72); EPA v. Hoffman
    & Sons, PCB 71—300,
    12 PCB 413,
    414
    (1974); Borg-Warner
    v. EPA,
    PCB 74-115,
    12 PCB 585
    (1974).
    Cf.,
    EPA v. E
    & E Hauling, PCB 74-473
    (3/26/75)
    (Solid Waste Permits).
    The use of the penalty power as an economic incentive for com-
    pliance with the permit requirement has been upheld in Mystik
    Tape, su~ra, and other cases;
    e.g., Baker
    v.
    PCB,
    32 Ill.App.3d
    660,
    336N.E.2d 325,
    328
    (5th Dist.,
    1975), aff’g.
    PCB 72—23
    (Sept.
    12,
    1972).
    Without the availability of that incentive,
    a recalcitrant offender is left in a position superior to
    similarly situated emitters who have complied.
    In light of
    the length of the violation, the penalty here is minimal.
    For the reasons set forth herein, Respondent’s Motion for
    Reconsideration
    is denied.
    IT
    IS SO ORDERED.
    I,
    Christan L. Moffett, Clerk of the Illinois Pollution
    Control ~8ard,
    hereby certify the above Order was adopted on
    3
    day of
    __________________,
    1977 by
    a vote of
    trol Board
    25
    15

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