ILLINOIS POLLUTION CONTROL BOARD
September
3,
1992
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
v.
)
PCB 86—161
(Enforcement)
ELIZABETH STREET FOUNDRY,
)
INC.,
an Illinois Corporation,
)
Respondent.
MESSRS GERALD KARR
AND
JOSEPH PODLEWSKI APPEARED ON BEHALF OF
COMPLAINANT, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
MR. RICHARD
3.
TROY APPEARED ON BEHALF OF RESPONDENT, ELIZABETH
STREET FOUNDRY,
INC.
OPINION
AND
ORDER OF THE BOARD
(by G.T. Girard):
This matter comes before the Board upon complainant’s
October
1,
1986,
three count complaint which alleged the
following:
respondent operated its facility without required
operating permits in violation of Section 9(b)
of the Illinois
Environmental Protection Act
(Act)
and 35
Iii.
Adm. Code 201.144;
respondent’s facility caused emissions in excess of maximum
allowable rates in violation of Section 9(a)
of the Act and 35
Ill.
Adin.
Code 201.144 and 212.321; and that respondent has
violated this Board’s Order of April 17,
1973 in PCB 72-468.
Respondent failed to answer the complaint; therefore,
pursuant to
35 Ill. Adm. Code 103.122(d), all material allegations of the
complaint are denied.
Respondent filed interrogatories on May 7,
1987, requesting complainant to explain the emission calculations
referred to in Count II and also requesting an explanation as to
why complainant’s calculations invoked the use of “new process
sources,” as opposed to “existing process sources”.
Complainant
responded on May 22,
1987.
Hearings were held on May 26,
1987
and July 27,
1987.
On March 24,
1988, the Board issued an interim opinion and
order finding violation of all three counts.
The Board did not
set forth penalties at that time; rather, the Board directed
respondent to contact Harry Pestine at the Department of Commerce
and Community Affairs to investigate the availability of
financing for conducting a stack test and purchase of pollution
control equipment.
OI35-O~~73
2
BACKGROUND1
Respondent,
an Illinois Corporation,
is a grey iron foundry
located at 5838 S. Racine Avenue, Chicago, Cook County, Illinois.
The foundry has been in operation for at least forty-one
(41)
years, and has been at the same location for 100 years.
Respondent “currently employs 25 or 26 persons who work an
average of 25 to 30 hours a week”.
(Elizabeth Street Foundry,
AS91-5, August 13,
1992.)
However, respondent has experienced
both good and bad times during the last 15 years.
(Tr. at l57.)2
The foundry operation produces cast iron repair parts for
machine tools.
(Tr.
at 104,
156.)
A cupola stack furnace is
used to melt iron.
(Tr. at 92.)
Basically the furnace operates
as follows:
the furnace is filled with coke and metallic
materials.
Air is blown into the lower part which ignites the
coke to a temperature of 3300 F and melts the material.
Molten
iron
is tapped out at the bottom and slag is tapped out via a
different exit.
The iron is then poured into molds for later
use.
(Tr.
at 93.)
The overall operation is antiquated,
cupola furnaces
operating essentially the same since 600 B.C.
(Tr. at 99.)
The
equipment and operation of respondent’s foundry has been the same
for at least twenty
(20) years
——
except for an afterburner which
was installed several years ago pursuant to this Board’s Order in
PCB 72—468.
(Tr. at 101.)
On June 14,
1973,
the Board accepted respondent’s proposal
to install an afterburner as part of a compliance plan.
The time
limit for installing this afterburner was initially set at
October
1,
1973, but was later extended until January 15,
1974,
in PCB 74—200.
The Board
in its March 28,
1988 interim opinion and order
found that respondent,
Elizabeth Street Foundry was in violation
of Ill. Rev.
Stat.
1987,
ch.
ill 1/2,
par.
1009(b) and 35 Ill.
Adm. Code 201.141 and 201.144
in that it operated its facility
since December 2,
1972 without required operating permits.
The
Board also found respondent in violation of Ill.
Rev. Stat.
1987,
ch.
111 1/2, par.
1009(a) and 35 Ill. Adm. Code 212.321 in that
respondent’s air emissions are and were in excess of the maximum
1
The Board notes that the information concerning Respondent’s
operations
is taken from material filed with the Board in 1987;
however,
updated
information
was
available
from
the
Board’s
opinions and orders
in Elizabeth Street
Foundry,
AS
89-2
and
Elizabeth Street Foundry, AS 91-5.
2
The transcript
is
cited
as
“Tr.
at
“;
the respondent’s
report is cited as “Res. rep.
at
“.
01 35-OL~7L~
3
allowed for that facility.
Finally, the Board found that
respondent was in violation of Ill. Rev. Stat.
1987,
ch.
111 1/2,
par 1042(a)
for its failure to obey the Board’s Orders of April
17, June 14, July 19,
1973
(in PCB 72-468) and the Board’s Order
of July 30,
1974
in
PCB 74—200).
The Board reviewed the factors enumerated in Section 33(c)3
of the Act and found with regard to the four factors in Section
33(c)
at that time that there was no evidence in the record
regarding the degree of injury or health problems caused by the
emissions and that the facility served an important function in
the neighborhood.
(87 PCB 152.)
In addition, the Board found
that both sides failed to introduce evidence regarding the
suitability or unsuitability of the location of the source and
the Agency failed to introduce evidence concerning the technical
practicality and economic reasonableness of reducing the
emissions.
(87 PCB 152.)
Therefore, rather than set forth in a final order the amount
of any penalties or other conditions to be imposed for
respondent’s violations of the Act, the Board ordered the
following:
1.
Respondent shall contact:
Mr. Harry Pestine
Senior Economic Development and Retention
Specialist
do Illinois Department of Commerce and
Community Affairs
100 W. Randolph
—
3—400
Chicago,
IL
60601
(312)
814—3131
2.
In consultation with the Agency, respondent
shall discuss with Mr. Pestine or other
appropriate person in the Department the
availability of Governmental Assistance for
conducting a stack test; and assistance in
obtaining or financing the purchase of
pollution control equipment,
including plant
modifications which might obviate the need
~
The Act has been amended since the Board’s issuance of its
interim
opinion
and order
to
include
additional
factors
to be
considered when determining what penalty is appropriate.
However,
the Board has held that those factors will be considered only
in
cases where the hearing was held after the effective date of the
amendments.
(People v.
Sure-Tan, PCB 90-62, April 11, 1991.)
Thus
those factors need not be considered here.
01 35-0k75
4
for pollution control equipment,
etc.; and
information detailing whether respondent is
located in an enterprise zone;
etc.
3.
Respondent shall report back to this Board
and the Agency no later than August
1,
1988
concerning the substance of discussions with
Mr. Pestine and/or others regarding the
above.
4.
The Board shall retain jurisdiction over this
matter.
After being granted an extension of time, respondent filed
its report on November 30,
1988.
The report indicated that there
were several financial assistance programs available which the
respondent was eligible for.
(Res. rep. at 2—3.)
However, the
financial assistance available required the respondent to raise a
portion of the cost of improvements before financial assistance
could be supplied.
(Res. rep.
at 3.)
Respondent was unable to
obtain financing for its share of the cost of improvements.
(Res. rep.
at 4.)
Respondent then investigated the possibly of
working with the University of Illinois to find an economically
feasible method for compliance.
(Res.
rep. at 6.)
The
complainant did not file
a response to the report filed by the
respondent.
DISCUSSION
The Board has previously found the respondent in violation
of Sections 9(a) and
(b) as well as Section 42(a)
of the Act.
In
addition, the Board found that respondent violated 35 Ill.
Adm.
Code 201.141, 201.144, and 212.321 of the Board’s regulations.
The Board’s March 24,
1988 interim opinion and order allowed the
respondent an opportunity to seek financial assistance to achieve
compliance with the Act and the Board’s regulations.
Now,
however, the Board must determine the penalty to be assessed
against the respondent.
Pursuant to the provisions of Section 42
of the Act the Board may impose a maximum fine of $50,000 for
each violation and up to $10,000 for each day that the violation
occurs.
Thus,
the maximum penalty could be millions of dollars
in this case.
The respondent has been in violation since 1972.
As noted
in the Background section above, the Board has ruled on each of
the factors in Section 33(c) of the Act.
Based on the Board’s
rulings on each of the Section 33(c)
factors, and the
longstanding nature of the violations,
the Board directs the
respondent to pay a penalty of $5000 into the Environmental
Protection Trust Fund within 30 days of the date of this opinion
and order.
O135-0L~76
5
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Elizabeth Street Foundry shall pay the sum of five
thousand dollars
($5,000) within 30 days of the date of this
order.
Such payment shall be made by certified check or
money order payable to the Treasurer of the State of
Illinois, designated to the Environmental Protection Trust
Fund, and shall be sent by First Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
Elizabeth Street Foundry shall also write its Federal
Employer Identification Number or Social Security Number on
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.
1989,
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 accrue during the pendency
of an appeal during which payment of the penalty has been
stayed.
IT IS SO ORDERED.
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.
(But see also
35 Ill. Adm. Code 101.246, Motions for
Reconsideration, and Castenada v.
Illinois Human Rights
Commission
(1989),
132 Ill.2d 304, 547 N.E.2d 437).
O135-O~77
6
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby cer~ifythat the abovp opinion and order was
adopted on the
..i
“-~-
day of
~
1992, by
a
vote of
-7—0
.
7
~
Control Board
L~1
Illino,
.91
35-O~.78