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.
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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
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—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
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