ILLINOIS POLLUTION CONTROL BOARD
July 9,
1992
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
v.
)
PCB 91—193
(Enforcement)
PARK
CREMATORY,
INC.,
)
an Illinois corporation,
)
Respondent,
MICHAEL K. FRANKLIN, ASSISTANT ATTORNEY GENERAL,
AND
JULIE K. ARMITAGE, ENVIRONMENTAL PROTECTION AGENCY, APPEARED ON
BEHALF OF COMPLAINANT;
RICHARD W. COSBY, COSBY
AND
BELL, APPEARED ON BEHALF OF
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board by a complaint against
Park Crematory,
Inc.
(Park)
filed on October 9,
1991.
The
crematory includes two incinerator units and is located in Park
Forest, Cook County,
Illinois.
The complaint was filed on behalf
of the People of Illinois by Roland Burns, Attorney General of
Illinois, on his own motion and upon the request of the Illinois
Environmental Protection Agency
(Agency) pursuant to Section 31
of the Illinois Environmental Protection Act (Act).
(Ill. Rev.
Stat.
1989,
oh.
111—1/2, par.
1031.)
Count
I of the complaint alleges that Park constructed
incinerator—2 at its facility sometime after September 7,
1982,
without obtaining the required construction permit from the
Agency.
Construction of an emission source without a
construction permit violates Sections 9(a) and
(b)
of the Act
(Ill. Rev. Stat.
1989,
ch.
111—1/2,
pars.
1009(a) and
(b)) and 35
Ill.
Adin.
Code 201.142.
Count II of the complaint alleges that Park operated
incinerator—2 at its facility from approximately September 7,
1982 until December 12,
1990, without .the required operating
permit.
Operating an emission source without the required
operating permit violates Sections 9(a) and
(b) of the Act and 35
Ill. Adm. Code 201.143.
Count III of the complaint alleges that Park violated
conditions of its air pollution control permit by failing to
install temperature gauges on incinerator—i and by not
maintaining a maintenance log.
Failure to follow a permit
condition violates Section 9(b)
of the Act.
0135-0017
2
A hearing was held on January
3,
1992,
in Chicago,
Illinois.
At the end of the hearing, the parties waived closing arguments
and the hearing officer set a schedule for the filing of briefs.
On February 25,
1992, the Agency filed its post hearing brief.
On March 24, 1992, Park filed its brief and the Agency filed its
reply brief on April 15,
1992.
BACKGROUND
Park is lOcated in Park Forest, Illinois.
(Tr. at 13,
62.)
Park cremates human remains.
(Tr. at 63.)
The crematory facility
contains two incinerator units connected to a single stack.
(Tn.
at 14.)
The crematory facility is in the rear of the building
housing the Lain Sullivan Funeral Home
(Tr. at 62) and is
approximately 100 yards from a ten-story senior citizen
residence.
(Tn. at 63.)
Park is owned and operated by Gerald Sullivan
(Tn. at 61)
and was incorporated in 1979.
(Tn. at 64.)
At the time of
incorporation, there was one incinerator; the second incinerator
was installed sometime in 1982.
(Tr. at 64.)
The two
incinerators are both double—fired units consisting of two
chambers,
a primary chamber and a secondary chamber.
(Tr. at 64.)
In October of 1990,
Mr. Mel Villalobos of the Agency,
inspected the incinerators at Park as part of a routine
inspection.
(Tr. at 13.)
Mr. Sullivan accompanied him during the
inspection.
(Tr. at 14.)
At the time of the inspection,
one
incinerator was operating and the other unit was shut down,
having completed its burn cycle.
(Tn. at 14.)
Mr. Villalobos
described his observations of the inspection as follows:
A.
I observed that the incinerator was a double chamber
incinerator without
—
—
and
I was not able to see any
indication of a temperature gauge.
Q.
When you were at the site, did you ask to observe any
maintenance records or logs?
A.
Yes.
I asked Mr. Sullivan if they had any maintenance
records and he said there was none
(.ai~)
that he could
show me.
(Tr.
at 14—15.)
Mr. Villalobos also noted that there was no smoke coming out of
the stack.
(Tn. at 15.)
Based on his inspection and the Agency’s
files on Park,
Mr. Villalobos prepared an inspection report.
(Tr.
at 16.)
He also reviewed the Agency file and discovered that an
inspection of Park had occurred in February of 1982.
(St. Exh.
14.)
The report from the previous inspection indicated that
there was one incinerator for which there was no permit and that
Park intended to construct another incinerator.
(St. Exh.
14.)
0135-0018
3
The Agency file also showed that an operating permit was issued
to Park on September 7,
1982.
(St.
Exh.
9, Def. Exh.
2.)
~Based
on the inspection report by Mr. Villalobos and the Agency’s file
on Park,
the Agency sent Mr. Sullivan a compliance inquiry letter
(CIL)
informing him of the apparent violations observed at the
inspection.
(St.
Exh. 4, Def.
Exh.
4.)
ARGUMENT
Park believes that no penalty should be imposed.
Park
argues that the complaint was not brought as a result of a
complaint of the emission of any smoke or odor.
Park further
argues that upon receipt of the CIL letter from the Agency, Park
took the necessary steps to come into compliance.
Park further argues that the Agency failed to prove the
allegations as set forth in the complaint.
Park argues that the
Agency did not prove that incinerator-2 was constructed after
September 7,
1982,
as alleged in the complaint.
Park also
contends that the operating permit issued to Park, on September
7,
1982, was for incinerator—2.
The Agency argues that the testimony clearly shows that Park
constructed and operated incinenator—2 without the required
construction and operating permits.
The Agency argues that Park
has not produced a permit for the incinerator.
The Agency
concludes that the permit issued in September 1982,
was for
incinerator-?.
In the alternative, the Agency asks for leave to
amend its complaint in accordance with the facts
ores~rit~d1w
Park.
Concerning the temperature gauges on the units, Park argues
that the manufacturer of the unit did not recommend an operating
temperature,
but instructed that the incinerator was at the
proper operating temperature when the bricks were a cherry red.
Park contends that this was the method used in operating the
incinerators and that this method of operation prevented the
emission of smoke and odor.
Even with the temperature gauges
installed, Park crematory does not depend on the gauges for
operating the incinerators.
The Agency argues that temperature gauges were required by
the permit and should have been installed.
The Agency contends
that Park could not determine if the unit had reached the
operating temperature without temperature gauges.
The Agency
argues that temperature gauges are necessary to determine that
the recommended operating temperature has been reached.
Concerning the maintenance log, Park argues that the Agency
did not specify the required form for maintenance records.
Park
further argues that at the inspection,
Mr. Villalobos requested a
“maintenance log”.
Mr. Sullivan responded that there was no
0135-0019
4
maintenance log because the records were not k~~pt
in the form of
a “log”.
Park kept all maintenance documents on the incinerator
in their general files and not in log form.
The Agency argues that while Park may not have been informed
of an exact form for keeping maintenance records, the records are
to be available for inspection by Agency personnel.
The Agency
argues that maintenance records filed in the general filing
system are not accessible for inspection.
DISCUSSION
The Board must first determine if the violations as alleged
in the complaint occurred.
If a violation is found to have
occurred the Board will then consider all relevant factors to
determine the appropriate penalty to be assessed.
In order to
prevail on Counts
I and II the Agency must show that the
incinerator was a potential source of emissions requiring a
permit and that Park failed to obtain the required construction
and operating permits.
To prevail on Count III the Agency must
show that Park violated a condition of its operating permit.
The incinerator is clearly an emission source that requires
a. permit.
An emission source is “any equipment or facility of a
type capable of emitting specified air contaminants into the
atmosphere”.
(Section 201.102.)
No person shall construct
install or operate any equipment capable of causing air pollution
without a permit.
(Section 9(b).)
An incinerator is capable of
causing air pollution.
Section 201.142 requires a construction
permit for any new emission source (constructed or installed
after April 14,
1972).
An operating permit is required for the
operation of any new emission source.
(Section 201.143.)
Incinerators are not listed in Section 201.146 as equipment
exempt from the permit requirement.
Therefore,
construction and
operating permits were required for the incinerator at Park’s
facility.
Park was aware of the permit program and that its
incinerator was included in the permitting program.
This is
evident by the fact that Park had a permit for one incinerator
since September of 1982.
(St.
Exh.
9, Def. Exh.
2.)
This permit
was renewed in 1983, 1985 and 1987.
(St. Exh.
6,
7 and 8,
Def.
Exh.
3.)
An operating permit for both incinerators was obtained
by Park in December of 1990.
(St. Exh.
1, Def. Exh 7.)
Section 33(a)
of the Act states:
..It shall not be a defense to findings of
violations of the provisions of the Act or Board
regulations or a bar to the assessment of civil
penalties that the person has come into compliance
subsequent to the violation,
except where such
0135-0020
5
action is barred by any applicable State or
Federal statute of limitation.
In the case at bar, no such statute of limitation applies and
subsequent compliance by Park is no defense to operating without
a permit.
COUNT
I
Construction Permit
The Agency file for Park did not contain a construction
permit.
(Tn.
at 19
& 36.)
The Agency has established a prima
facie case that Park did not have a construction permit.
Park
did not present any evidence to counter the Agency’s case.
Park
does not argue that it had a construction permit but instead
questions the intention of the Agency in raising the issue of the
construction permit when the unit was constructed almost 10 years
ago.
Park further contends that the incinerator was constructed
sometime in the spring or summer of 1982
(Tn. at 64) and not
after September 7,
1982,
as alleged in the complaint.
Park did not provide an exact date of when the incinerator
was constructed.
Park is the party most able to supply an exact
date of when the incinerator was constructed.
The Agency has
requested leave to amend its complaint if the Board finds that
the incinerator was constructed prior to September 7,
1982.
There is no statute of limitations or other regulation that
prohibits the Agency from pursuing a violation that occurred
almost 10 years prior to the commencement of the action.
(Pielet
Bros.
Tradinci Co.
v. PCB
(5th Dist.
1982),
110 Ill. App.
3d 752,
442 N.E.2d 1374.)
Regardless of whether the incinerator was constructed before
or after September 7th in 1982,
a construction permit was
required.
It is undisputed that Park installed the incinerator
sometime in 1982 without a permit.
The Board finds that Park
violated Sections 9(a) and 9(b)
of the Act and 35
Ill. Adm. Code
201.142 by constructing incinerator—2 without a permit in 1982.
The Board finds a violation against Park regarding Count I
of the complaint for constructing incinerator-2 without a permit
sometime in 1982.
0135-0021
6
COUNT II
Operating Permit-
The Park facility was inspected on February 9,
1982.
(St.
Exh.
14.)
At the time of this inspection there was only one
incinerator at the site.
(St.
Exh.
14.)
The inspector noted that
Park had indicated that it planned to install a second
incinerator.
(St. Exh.
14.)
As a result of this inspection, Park
was sent a letter on February 17, 1982,
stating the apparent
violations discovered by the inspection.
(St. Exh.
13.)
The
letter stated that Park had failed to obtain construction and
operating permits for its incinerators and the forms to obtain
these permits were enclosed.
(St. Exh. 13.)
Park responded to
this letter on March 1,
1982, noting that once the information
was gathered it would return the forms to the Agency.
(St.
Exh.
12.)
A follow-up letter was sent to Park on July 29,
1982,
referencing the Agency’s previous letter and noting a violation
for failure to obtain an operating permit.
(St. Exh.
11.)
On September
1,
1982, Park submitted an application for an
operating permit to the Agency.
(St. Exh.
10,
Def. Exh.
1.)
The
permit application indicates that the permit is for a G
&
S
Crematory, Model JN—1-GA.
(St. Exh.
10, Def.
Exh.
1.)
This
designation was taken from a report of a stack test supplied to
Mr. Sullivan from the manufacturer.
(Def.
Exh.
1, Tn.
at
66.)
The permits and permit applications do not use the designation of
incinerator-l on incinerator—2.
Mn. Sullivan testified that he•
believed that the permit applied to incinerator-2.
(Tr.
at 69.)
The permit application submitted by Park in 1990,
in
response to the CIL letter from the Agency, specifies the same
model number and notes that the permit is for retort
#2.
(St.
Exh.
2, Def. Exh. 5.)
The CIL letter specified that a permit was
required for incinerator-2.
(St.
Exh.
4, Def. Exh.
4.)
The
record does not contain any information on incinerator—i•
concerning model number or manufacturer.
The inspection report
from the 1990 inspection describes the two units as identical,
both being G
& S Crematory.
(St. Exh.
5.)
The Agency questions why Mr. Sullivan would submit a permit
application for an incinerator that he believed was already
permitted.
Park argues that Mr. Sullivan was merely attempting
to comply with the Agency’s request and achieve compliance.
Question ha on the permit application asks if the equipment
was owned or contracted for by the applicant prior to April
14,
1972.
(St. Exh.
10, Def.
Exh.
1.)
On the application this
question was answered “yes”.
(St. Exh.
10, Def.
Exh.
1.)
Mr.
Sullivan testified that the “yes” answer was in error and that he
did not fully understand the question.
(Tn. at 87.)
The answer
to this question does not prove whether the application was
0135-0022
7
intended to cover incinerator—h or
2.
Park was incorporated in
1979,
so it could not have contracted for either incinerator
prior
to, 1972.
The record does not indicate when incinerator-i
was installed or that the answer for question ha would be
different if the application were for incinerator—i.
The main issue is whether the operating permit issued in
1982 was for incinerator-h or incinerator—2.
If the permit
applies to incinerator-i, Park has operated incinerator—2 from
1982 until
1990 without a permit, as alleged in the complaint.
If the permit was for incinerator—2,
Park has operated
incinerator—h since sometime in 1980 until 1990 without a permit.
The Agency has requested leave to amend its complaint,
if it is
determined that the permit was for incinerator—2.
Park argues
that allowing the Agency to amend the complaint would violate the
notice requirements of Section 31(d).
The Board does not find a
notice problem with allowing the Agency to amend its complaint.
The change from incinerator—2 to incinerator—i would not result
in a substantial change to the charges against Park.
Park would
not be prejudiced by this amendment.
However, an amendment to
the complaint is not necessary, because the Board finds the
permit applied to incinerator-i.
The Board finds that the permit issued in 1982 was for
incinerator—i due to the circumstances that preceded the filing
of the application.
The application was filed as a result of the
inspection in which Park was informed that an operating permit
was required for its existing unit and construction and operating
permits would be needed for any new unit.
The model number on
the application was pulled from a test stack report;
it was not
taken from the unit or literature on the unit.
This model and
stack test report could also be related to incinerator—i.
The
application submitted in 1990 referenced incinerator-2 where no.
prior reference was made in previous applications.
The Board
questions why Park did not inquire of the Agency why a new permit
was required for incinerator—2
if it believed it was covered by
an existing permit.
The Board finds Park in violation of the Act for operating
incinenator—2 from approximately September 7,
1982 until December
12,
1990,
without an operating permit as alleged in Count II of
the complaint.
COUNT III
Temperature Gauges
With the temperature gauges installed,
the primary chamber
of the incinerator cannot be used if the secondary chamber is
below 1450 degrees Fahrenheit.
(Tr. at 79.)
Mr. Sullivan
testified that the secondary chamber is loaded when the bricks
0 135-0023
8
are cherry red and the temperature gauges are not used to
determine when the unit is up to temperature.
(Tn. at 77.)
Condition #2 of the permit requires that “(the
secondary
combustion chamber must be preheated to the incinerator
manufacturer’s recommended operating temperature before any waste
is loaded into the unit.”
(St. Exh.
1, Def. Exh.7.)
An
indication that the chamber has reached the proper operating
temperature can reasonably be determined by the appearance of the
bricks.
Park has operated the incinerators in this manner for
years without any problem and the manufacturer suggested this
procedure.
The Board agrees that the addition of temperature
gauges provides extra assurance that the unit will be operated
properly.
However, the Board does not believe that the permit
required the installation of temperature gauges.
The permit
requires that the unit be at the manufacturer’s suggested
temperature before operating.
The temperature can be indicated
by the cherry red color of the bricks.
Therefore, the Board
finds that Park did not violate this condition of its permit.
The Board finds no violation against Park for failure to
install temperature gauges on its incinerators as alleged in
Count III of the complaint.
Maintenance Records
The standard conditions attached to every permit require a
maintenance record be kept on the premises.
(St. Exh.
16,
Def.
Exh.
2.)
The conditions further require that the maintenance
record shall be available for inspection by agents of the Agency
at any time during normal operating hours.
(St. Exh.
16, Def.
Exh.
2.)
The Agency is not sure if a revised version of the
standard conditions was attached to any of Park’s renewal
permits.
(Tn. at 58.)
However, the Board sees little difference
in the two versions of standard conditions concerning maintenance
records.
Condition 7 of the standard conditions for operating
permits revised 11/05/81 provides:
The permittee shall maintain a maintenance record on
the premises for each item of air pollution control
equipment.
This record shall be available to any agent
of the Environmental Protection Agency at any time
during normal working and/or operating hours.
This
record shall show,
as a minimum, the:
(a)
date of performance of, and nature of,
preventative maintenance, and....
(Def.
Exh.
2.)
The language in condition
8 of the standard conditions revised
10/85 is identical except for some minor changes in wording.
(St.
0135-002L~
9
Exh.
16.)
These conditions both require the permittee to
maintain a record on all preventative maintenance performed on
the equipment and to provide the record to Agency personnel for
inspection.
Park argues that the Agency inspector asked for a
maintenance
“log” and Mr. Sullivan did not show the inspector any
records because there was no “log”.
The Board notes there is a
conflict in the testimony as to whether Mr. Villalobos asked for
a maintenance “record” or “log”.
Mr. Villalobos testified;
A.
Yes.
I asked Mr. Sullivan if they had any maintenance
records and he said there was none that he could show
me.
(Tn. at 15.)
He later testified that he “asked Mr. Sullivan for a maintenance
log and he
didn’t see any.”
(Tn. at 23.)
The inspection report
that Mn. Villalobos made noted that “no maintenance log was
available during inspection.”
(Tn. at 25,
St.
Exh.
5.)
Mr.
Sullivan also testified concerning the production of maintenance
records during the inspection.
Q.
Mn. Sullivan, when Mr. Villalobos came to your site
back in 1990, did you produce for him your maintenance
records when requested?
A.
He didn’t ask for our maintenance records.
Q.
Okay.
But when he was there,
..-ou did not produce any
maintenance records for him, correct?
A.
Because he did not ask for any.
(Tr. at 85.)
Park attempts to make a distinction between maintenance
records and a maintenance log.
The Board sees little
differentiation in the terms and feels that a request by Agency
personnel to see a maintenance log is an adequate request to
place an obligation on Park to disclose those maintenance records
which are required to be kept by the permit condition.
Park filed its maintenance records
(invoices)
in its general
filing system.
(Tr. at 71.)
In response to the Agency’s
notification of violation,
Park pulled the maintenance records
from the general filing system and compiled a log.
(Tn. at 75.)
Park did have records of the maintenance work done on the
incinerator but failed to provide maintenance records when
requested by the Agency inspector.
0135-0025
10
~
The form and content of Park’s records ar~not at issue.
Park violated the standard permit condition by failing to produce
a maintenance record for the inspector’s review.
The Board finds
that Park violated a condition of its operating permit by failing
to produce maintenance records for inspection by Agency personnel
when requested.
The Board finds a violation against Park as alleged in Count
III of the complaint of violating a permit condition by not
furnishing maintenance records to Agency personnel for inspection
on October 17,
1990.
33(c)
FACTORS
Having found violations,
we must determine an appropriate
penalty under the 33(c)
factors contained within the Act.’
Section 33(c)
states:
In making its orders and determinations, the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of the
emissions, discharges,
or deposits involved including,
but not limited to:
1.
the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
2.
the social and economic value of the pollution
source;
3.
the suitability or unsuitability of the pollution
source to the area in which it is located,
including the question of priority of location in
the area involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
5.
any subsequent compliance.
For criteria
(1), “interference with the protection of the
health, general welfare and physical property of the people”
is a
1
Both Section 33(c)
and Section 42(h)
factors will be
considered because hearing was held after September 8,
1990, when
Section 42(h) became law.
See Peoplev.
Sure Tan,
Inc.
(April
11, 1991),
PCB 90—62,
121 PCB 9.
0135-0026
11
very important factor in the instant case.
This factor is
especially important considering Park’s close proximity to a
residential area.
The permitting process is the nucleus of the
Agency’s regulatory scheme.
Without the threat of penalties for non-compliance with the
permitting process, companies will seek to avoid the necessity of
obtaining permits.
Without the permitting process, the air
quality in Illinois would be threatened because the Agency would
be unable to assess all the sources of air pollution and act
accordingly.
This is a crucial point.
The air permit system is designed
to regulate all those pollution sources which contribute
particulate and other matter into the Illinois airshed.
The only
way such a system can operate effectively is for the Agency to be
aware of all sources and to permit accordingly.
Without a
comprehensive system, projections are skewed and air quality
determinations as well as the goals thereof suffer.
This is
especially true in the Chicago area, which is a non—attainment
area under the provisions of the Clean Air Act.
If the Agency is
unable to ascertain the location and output of pollution sources,
it would be impossible to regulate those sources towards the
goals mandated under the Clean Air Act.
The ultimate effect is
detrimental to the “health, general welfare and physical property
of the people.”
For criteria
2, the Board presumes that a functioning
business entity which employs people and provides a needed
service has a certain degree of social and economic value.
For criteria 3, the crematory is located near a residential
area.
The crematory has operated at this location for 13 years
without complaints.
Criteria
4 is not applicable to the case at hand because
there is nothing on the record that indicates that there is or
ever has been a problem with the emissions from the crematory.
Concerning criteria 5, there is no doubt that Park
eventually came into compliance by obtaining an operating permit
from the Agency on December 12,
1990.
Park also installed the
temperature gauges
(Tn. at 74) and established a maintenance log.
(Tn. at 78) to correct the alleged violations.
0135-0027
12
Section 42(h)
The Board also considers the factors in Section 42(h)
in
determining whether a penalty shall be imposed.
Section 42(h)
authorizes the Board to consider the following factors:
1.
the duration and gravity of the violation;
~
2.
the presence on 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;
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.
Park has operated without a permit from the construction of
the incinerator in 1982 until obtaining a permit from the Agency
in 1990.
Park cooperated with the Agency during the inspection.
Upon
notification of the violations,
Park took steps to correct the
violations.
Park applied for and received operating permits for
incinerator—? and incinerator—2 in 1990.
Based on the record,
it is impossible to determine with any
certainty the amount of economic benefits accrued by Park as a
result of its noncompliance with the regulations.
At the very
least,
however, the company did save any applicable permitting
fees.
The economic benefits received because of the delay in
compliance are minimal.
Park saved any costs associated with
permitting the unit and renewing the permit.
The Agency has recommended that a $15,000 penalty be
assessed against Park.
The Agency feels that this penalty will
best serve to deter further violations of the Act as well as
enhance voluntary compliance from Park and the regulated
community subject to the Act.
The Agency is unaware of any previously adjudicated
violations against Park.
0,135-0028
13
Section 42(fl
The complaint alleges that the violations were wilful,
knowing or repeated.
If the Board finds that the violations ‘were
wilful, knowing or repeated, the Board may pursuant to Section
42(f)
of the Act, award costs or reasonable attorney’s fees to be
paid by the Respondent.
The Attorney General did not pursue this
issue at hearing.
The Board does not find sufficient evidence to
find that the violation was wilful, knowing or repeated.
Mr.
Sullivan responded to the Agency’s letters and did eventually
obtain operating permits for both incinerators.
After being
notified of the problems discovered by the Agency in the
inspection,
Mr. Sullivan added the temperature gauges and began
maintaining a maintenance log to correct the problems.
Mr.
Sullivan was cooperative with the Agency during the inspection
and in the actions that resulted from the inspection.
While Mr. Sullivan was aware of the permitting process, the
record indicates that he may not have fully understood the
permitting requirements and procedures.
While ignorance of the
law is not a defense for not following the permit requirements it
may have relevance in determining if the violation was wilful,
knowing or repeated.
CONCLUSION
In short, we find that Park has violated Sections 9(a) and
9(b)
of the Act as well as Section 201.142 and 201.143 of the
Board’s regulations.
The record amply demonstrates that Park 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 record
also shows that Park failed to produce its records for inspection
by Agency personnel.
The Board notes that Park is potentially
subject to a fine of $50,000 for each violation of the Act in
addition to a daily penalty on each violation of $10,000 for each
day the violation continued.
(Section 42(a).)
Considering that
Park has operated without a permit from 1982 until
1990, the
penalty could be substantial.
In light of the above, the Board,hereby assesses a penalty
of $9,000 payable to the Environmental Trust Fund.
This amounts
to a fine of $1,000 per year of violation.
This penalty
is
necessary to aid in the enforcement of the permit requirements.
This opinion constitutes the Board’s findings of fact and
conclusion of law in this matter.
0135-0029
14
ORDER
1.
Park Crematory has violated Sections 9(a) and
(b)
of
the Illinois Environmental Protection Act and 35 Ill.
Adin. Code
201.142 by constructing incinerator-2 without a construction
permit sometime in 1982.
2.
Park Crematory has violated Sections 9(a) and
(b)
of
the Illinois Environmental Protection Act and 35 Ill.
Adm. Code
201.143 by operating incinerator—2 without an operating permit
from approximately September 7,
1982 until December 12,
1990.
3.
Park Crematory has violated a condition of its permit
and Section 9(b)~of the Environmental Protection Act by failing
to produce maintenance records for inspection by the Agency as
requested on October 17,
1990.
4.
Within 30 days of the date of this order Park Crematory.
shall,
by certified check or money order, payable to the State of
Illinois, designated to the Environmental Protection Trust Fund,
pay the penalty of $9,000 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.
Park Crematory,
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.
1991.,
ch.
120, par. 10-1003),
as now or hereafter amended, from the date
payment is due until the date payment is received.
Interest
shall.not occur during the pendency of an appeal during which
payment of the penalty has been stayed.
5.
Park Crematory,
Inc.
is hereby ordered to cease and
desist from all violations
of.
the Illinois Environmental
Protection Act and from Board regulations.
6.
This.docket is hereby closed.
IT IS SO ORDERED.
J. Anderson abstained.
0135-0030
15
Section 41 of the Environmental Protection Act (Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041) provides for the appeal of
final orders of the Board within 35 days.
The Rules of the
Supreme Court of Illinois establish filing requirements.
I,
Dorothy Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov
opinion and order was
adopted on the
~7~-
day of
______________,
1992, by a vote
of
~-o
.
Dorothy N.
c3~/nn, Clerk
Illinois PcWtution Control Board
01350031
