ILLINOIS POLLUTION CONTROL BOARD
September 15, 1976
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 75—438
NATIONAL SUPERIOR FUR DRESSING
AND DYEING COMPANY,
)
an Illinois corporation,
Respondent.
James
L.
Dobrovolny, Assistant Attorney General, appeared for the
Complainant;
Harvey M.
Sheldon, Attorney, appeared for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
The Complaint in this matter was filed by the Environmental
Protection Agency
(hereinafter
“Agency’t)
on November 10,
1975,
and
alleged that Respondent National Superior Fur and Dyeing Company
(hereinafter “National Superior Fur”) owned and operated an existing
emission source located at 4447—61 West Cortland Street,
Chicago,
without the requisite operating permit,
in violation of Section 9(b)
of the Environmental Protection Act
(Act)
and Rule 103(b) (2)
of
Chapter
2: Air Pollution,
of this Board’s Rules and Regulations.
Ill. Rev.
Stat.,
Ch.
111—1/2,
§1009(b)
(1975);
Ill. PC.B.
Regs.,
Ch.
2,
Rule 103(b) (2).
Hearings were held
in Chicago on April 15,
1976 and May 26,
1976.
No public comments have been received
in
the matter.
National Superior Fur,
a family owned and operated business,
processe~(dr~e~) unimal
huides
and
cleans
Cur
coat: s
.
Approximately
60—75 persons
are
employed
at
its
plant,
CR.
74),
which
is
located
in a mixed
commercial—residential
area
(H.
94)
The specific processes at National Superior Fur’s plant, which
were the subject of this matter, were:
1.
The fur cleaning operations, wherein furs
are rotated in a drum with sawdust,
shaken out manually,
placed in a shaker or suction drum,
and then further
hand cleaned;
the alleged emissions involved in this
operation result from the suction or shaker drums,
the
exhaust from which is vented
to the atmosphere through
a simple cyclone,
(e.g.,
R.
29,
36,
93).
23
—
463
—2—
2.
The operation
of a small heating boiler,
wherein sawdust from the animal skin curing operations
is burned as needed to provide heat;
it was alleged at
hearing that emissions from this boiler are uncontrolled
and,
without control, may possibly cause or contribute
to air pollution.
Although the Record in this matter describes Respondent’s
processes
in detail and at length,
further explanation is not needed
here,
as the above constitute the only major potential sources of
emissions seriously in issue here.
The Agency’s case
(and grounds for our finding of violation)
are made by Respondent’s admissions
(e.g.,
R.
9,
63,
66), that
it
did not possess the requisite permits.
Because Respondent seeks
dismissal on other grounds,
however, we shall dispose of those issues
before considering matters in mitigation or aggravation of the admitted
violation.
a.
At the close of the Agency’s case,
and
again at the close of the Record,
Respondent
moved for dismissal on the grounds that the
Agency had failed to make a prima facie showing
of violation.
We find that Respondent’s contentions are without merit.
Respondent apparently felt that it was the Agency’s burden to prove
culpability with relation to all the sections in Section 33(c)
of the
Act,
Ill.
Rev.
Stat., Ch. 111—1/2, §1033(c)
(1975),
citing Southern
Illinois Asphalt v.
Pollution Control Board,
60 I1l.2d 204,
326
N.E.2d
406
(1975).
Such is not the case.
Respondent bears that burden.
Processing and Books v.
Pollution Control Board, _____Ill.2d____
No.
47682
(Ill., March, 1976.)
With regard to Complainant’s burden under Section 31(c)
of the
Act,
Respondent’s explicit admissions and the testimony of Respondent’s
president show that Respondent did,
in fact,
(1) operate during the
period
in
(jUe:~Lic;n,
dnd
(2) without
u
pern;
t
.
H; ~uficient..
U.
Respondent
also
moves
dismissal
in its
Brief, claiming
(without citation)
that the
Court Reporter’s failure to strike portions of
witnesses’
testimony upon the Hearing Officer’s
orders deprives it of a fair hearing, and
prejudices
it upon Board review of the Record.
That contention
is without merit.
23
—
464
—3—
c.
Again without citation,
but apparently relyin
upon the Appellate Court’s decision in Commonwealth
Edison
v. Pollution Control Board,
25 Ill.App.3d
271,
323 N.E.2d 84
(1974),
Respondent claims that
the Agency’s denial of
a permit application by
Respondent on August
13,
1975 was improper because
the Appellate Court reversed Board adoption of
certain rules cited in the Agency’s permit denial,
relieving Respondent of culpability for failure
to
have the necessary permit.
Although the Appellate Court’s
1974 Commonwealth Edison decision
was later reviewed by the Supreme Court,
62 Ill.2d 494,
343 N.E.2d
459
(1976)
,
we need not decide this issue.
Respondent failed to
adequately show,
as was its burden upon Complainant’s prima facie
case,
that the Agency’s permit denial was entirely based upon factors
affected by Commonwealth Edison.
In an enforcement case such as
this we presume that the Agency
as a governmental body acted properly
in denying a permit; Respondent presents no showing to the contrary.
Beyond any such presumption, Respondent failed to make an adequate
showing
to support
its defense under this theory, which does
not.
constitute an affirmative defense.
See, Card,
Jones on Evidence,
§~‘
3:29,
3:30,
3:31,
(6th Ed.,
1972); Card,
Illinois Evidence Manual,
§30
(1963)
(“The Rule
is so universal in its application
.
.
.
H)
cases cited in preceding.
In any event,
this theory by Respondent
is rendered particularly
weak by virtue of the dates involved.
Respondent became subject
to
the permit requirement on June
1,
1973, and submitted no permit appli-
cation to the Agency until about July 29,
1975.
No excuse has been
made under this theory for the period from June
1,
1973 until July 29,
1975.
A finding of violation
is mandated.
Turning to matters of mitigation and aggravation,
we have little
competent or relevant evidence before us.
The Agency’s sole witness,
apparently attempting
to show adverse effects from Respondent’s
operations,
qave n~useful
testimony on the
issue.
He observed no
emissions
(H.
39)
,
arid
his estimations were
without:
ade~iuate
foundation
(c.q.
,
H.
32,
29,
39,
4.,
56).
Respondent, on the other hand,
attempted to show that its emissions
were likely within the limitations of Board Regulations.
That attempt,
however, was based on purported “expert” testimony almost totally
without foundation,
(e.g.
,
R.
111,
128,
139)
.
The only useful testi—
mony in this regard was to the effect that Respondent’s operation did
result
in
a barely discernible emission plume with a very slight blue
tinge,
(R.
140)
23
—
465
—4-.~
Despite these inadequacies, we feel that a penalty is warranted
by National Superior Fur’s violation.
Respondent’s explanation that
the individual responsible for obtaining the necessary permits suffered
from some vague emotional difficulties does not explain the inordinate
delay
in even requesting a permit.
In the absence of evidence from Respondent, we cannot judge
the social and economic value of Respondent’s operations.
Certainly
without the permit,
such value
is diminished insofar as its pollution
potential cannot be weighed.
We are therefore unable to judge the
relative weight of any social and economic value against the plant’s
pollution potential.
None
of the remaining factors
in §33(c)
of the Act being in
issue
here, we find that
a penalty is necessary for the protection
of the permit system, and to assure that potential environmental
damage which cannot be prevented without that system does not occur.
A civil penalty of $1,000 should serve the purposes of the Act in
this matter.
This Opinion constitutes the findings of fact and conclusions
of law of the Board
in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent National Superior Fur Dressing and Dyeing Company
is found to have operated an existing emission source without the
requisite permits from June
1,
1973 until November 10,
1975,
in
violation of Section
9(b)
of the Environmental Protection Act and
Rule 103(b) (2)
of Chapter
2: Air Pollution,
of the Board’s Rules and
Regulations.
2.
Respondent shall pay as a penalty for said violation the
sum of One Thousand Dollars
($1,000)
,
payment to be made within thirty
(30)
days of
Lhc
date
of
this Order by certified check or money
order
to the followinq address:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
3.
Respondent shall cease and desist the above violations
unless, within sixty
(60)
days of the date of this Order,
the proper
permit applications have been made to the Environmental Protection
Agency, and within ninety
(90)
days thereafter the proper permits
have been obtained.
23
—
466
—5—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, her by certify th
above Opinion and Order were
adopted on the
/
‘
day of
_________
1976,
by a vote of
______
Christan
L.
Moffe ~‘J4lerk
Illinois Po1lution~-~trolBoard
23—467