ILLINOIS POLLUTION CONTROL BOARD
February 27,
1992
PEOPLE OF THE STATE
)
OF ILLINOIS,
Complainant,
PCB 89—158
V.
)
(Enforcement)
GILBERTSON-CLYBOURN,
INC.,
an Illinois Corporation,
)
Respondent.
JOSEPH ANNUNZIO, JACK BAILEY, JOSEPH WILLIAMS AND MICHELLE JORDAN,
ASSISTANT ATTORNEY GENERALS, APPEARED ON BEHALF OF COMPLAINANT~
BERTRAM
A.
STONE,
STONE,
POGROUND,
ROREY
&
SPAGAT,
APPEARED ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board by the Attorney General’s
complaint against Gilbertson-Clybourn,
Inc.
(“Gilbertson”) filed on
October
6,
1989.
Count I of the complaint alleges that Gilbertson
violated Ill. Rev. Stat.
1991, ch. 111 1/2, par 1009(b) and 35 Ill.
Adin. Code 201.143 by operating its electroplating equipment without
the required operating permits.
Count II of the complaint alleges
that Gilbertson violated Ill.
Rev.
Stat. .1989,
ch.
111
1/2,
par
1009(b)
and
35
Ill.
Adin.
Code
201.142
by
constructing
its
electroplating equipment without the required construction permit.
Hearings were held on August
23,
1990 and September
6,
1990.
At
the end of the hearings, the parties waived oral arguments and the
hearing
officer
set
a
schedule
for the
filing
of
briefs.
On
February 11, 1991, the Complainant filed its Post Trial Memorandum.
Respondent did not file a post trial brief.
FACTS
Gilbertson
is
located
at
2240
North
Clybourn
in
Chicago,
Illinois.
As
part
of
its
operations,
Gilbertsori
operates
electroplating
equipment
consisting
of
seven
rinse
tanks,
one
nitric
acid tank,
one hydrochloric
acid tank,
one sulfuric acid
tank,
one copper strike tank,
one cyanide strip tank,
one dragout
tank,
one silver strike tank, one silver plating tank,
one nickel
plating tank, one gold plating tank and one brass plating tank.
In
1986,
Gilbertson
moved
its operation
from
1307
South Wabash
in
Chicago to empty space at Clybourn Metal Finishing (“Clybourn”) Co.
at 2240 North Clybourn in Chicago.
Gilbertson is a subsidiary of
Clybourn.
130—181
2
In November of
1987,
the Illinois Environmental Protection
Agency
(“Agency”)
sent
a
letter to Gilbertson stating that they
were operating without
a
valid
air pollution control operating
permit and enclosed the necessary forms for Gilbertson to apply for
a permit.
(Exhibit A).
Gilbertson informed the Agency in a letter
dated December 28,
1987, that it had moved and was operating under
Clybourn’s permit.
(Exhibit
B).
On October
3,
1988 the Agency
informed Gilbertson
that
it was operating without
a permit
and
should file a permit application.
(Exhibit
C).
On October
10,
1988,
Gilbertson
referencing
its
letter
of
December
28,
1987,
informed’the Agency that it was operating under Clybourn’s permit.
(Exhibit D).
On January
13,
1989 the Agency informed Gilbertson
that
Clybourn’s
permit had
expired
in
May
of
1987,
therefore
Clybourn had been operating without a permit for twenty months and
Gilbertson needed to file
a permit application.
(Exhibit
E).
On
February
22,
1989,
Gilbertson
and
Clybourn
filed
a
joint
application with the Agency.
(Exhibit F).
On April 18,
1989 the
Agency denied the permit application but offered to re-evaluate the
application if additional information was received.
(Exhibit I).
Gilbertson and Clybourn filed amended applications with the Agency
on May
25,
1989.
(Exhibit J).
Clybourn was issued
a permit on
August
25,
1989 that
included the electroplating operations
of
Gilbertson.
(Exhibit K).
On October
3,
1989 Gilbertson made an
inquiry to the Agency as to the status of its permit application.
(Exhibit L).
On January
2,
1990 the Agency issued an operating
permit to Gilbertson.
(Exhibit 0).
DISCUSSION
Section 9(b) of the Act prohibits constructing, installing or
operating any equipment capable of causing or contributing to air
pollution without a permit.
At hearing
Mr.
Harish Desai
of the Agency’s Air Pollution
Control
Division
testified
on
the
type
of
emissions
that
are
commonly
found
in
an
electroplating
process
and
the
permit
requirements
for
the
installation
and
operation
of
an
electroplating system.
Q.
Does
this
Electroplating
process produce
an
air
emissions source?
A.
Yes,
it is.
Q.
What is emitted into the air through the process of
electroplating?
A.
Through
the
process
of
electroplating,
it
can
produce Oxygen, Hydrogen and Cyanide gas, and when
that gas
is being produced,
it can also carry the
liquid droplets to the atmosphere.
130—182
3
(Tr.
at p.
18
~c
19)
Q.
To install electroplating equipment is there any type of
permit that’s needed from the Agency?
A.
Yes,
sir.
Q.
What is it?
A.
Prior to construction, a construction permit; and prior
to operation an operating permit.
(Tr. at p. 26
&
27)
Mr. Romaniuk, Secretary—Treasurer of Clybourn Metal Finishing,
stated
in
his
deposition
taken
June
18,
1990,
and entered
at
hearing
as
exhibit
N,
that
Gilbertson-Clybourn did
not
have,
a
permit prior to January
2,
1990.
Q.
To the best of your knowledge, had Gilbertson, under the
name of Gilbertson—Clybourn, Inc., ever received a permit
for its electroplating equipment prior to 1-2-90?
A.
Let’s see.
Not prior to that,
no.
(Exhibit N at p.
12)
Gilbertson
claims
that
between
1986
and
1990,
they
were
operating under the permit of Clybourn.
Clybourn engages in the
buffing and polishing of metal parts.
This Board fails to see how
Gilbertson
could
believe
that
its
operations
were
covered
by
Clybourn’s permit when Gilbertson engages in a different operation,
requiring
different
equipment
and
procedures.
However,
the
argument is moot since Clybourn did not have a valid permit between
May
of
1987
and
August
of
1990.
People
v.
Clybourn
Metal
Finishing,
PCB
89-157,
(July
11,
1991).
Therefore,
Gilbertson
violated Section 9(b) of the Act as well as Section 201.143 of the
Board’s regulation
by
operating
an
emission
source without
an
operating permit from January 1987 to January 1990.
Section 201.142 requires a construction permit to be oL~tained
from the Agency prior to modifying any existing emission source.
Gilbertson installed the electroplating equipment in the facility
on Clybourn Ave.
in 1986 without obtaining a construction permit.
Mr. Desai testified that a construction permit was needed for this
installation.
Q.
If electroplating equipment is moved from one location to
another,
is
a
construction
permit
mandated
by
your
Agency?
130—183
4
A.
Yes.
(Tr. at p.
28)
According to Mr. Romaniuk’s deposition Gilbertson did not apply for
or receive a construction permit.
(Exhibit N at p.12).
Therefore,
Gilbertson is in violation of Section 9(b)
of the Act as well as
Section 201.142 of the Board’s regulations by failing to obtain
a
construction permit.
DEFENSE
Respondent claims that its failure to obtain the necessary
permits was the direct result of either the confusion of the Agency
or the negligence of its personnel.
Gilbertson contends that the
Agency was negligent in not responding to Gilbertson’s letter of
December
28,
1987
and
the
Agency
was
confused
as
to
the
relationship
between
Gilbertson
and
Clybourn
Metal
Finishing.
Gilbertson claims that this confusion led to the Agency issuing
Clybourn a permit that included the electroplating operations of
Gilbertson when Gilbertson had
a separate application before the
Agency.
Mr.
Desai testified as to why the Agency did not respond to
Gilbertson’s letter of December 28,
1987.
Q.
With that letter (Exhibit B) you tell me how you, as unit
manager, made a determination that no further response
was
necessary
and
that
a
permit
application
was
forthcoming?
A.
It’s very simple.
In letter that we stated on November
25,
1987,
clearly states that you require an operating
permit.
And
this December 28th letter of 1987 did not
have any application for operating permit.
Q.
But when they stated in that letter that they were going
to be operating under Clybourn Metal Finishing Company
permit, did the Agency do anything to say you can’t do
that,
you have to have a separate permit?
A.
This letter does not require any response from the Agency
because we do not really know what it means that they are
operating under the operating permit.
(Tr. at p.
53
& 54)
Mr. Desai also explained why one permit was initially issued.
A.
On document that we received in February’89 which is from
the
Clybourn
Metal
Finishing,
it
is
APC
205,
an
130—184
5
application
form for renewal
of operating permit,
APC
205, which indicates two names, one name as the operator,
Gilbertson—Clybourn, and other name as an owner, Clybourn
Metal Finishing.
The APC 205 indicates that at one place that Gilbertson-
Clybourn Company and other place indicated Clybourn Metal
Finishing.
Not exactly knowing, that’s what’s misleading to us, that
they both are
the same
company,
and that’s
why
both
applications that we received are put
in one folder of
Clybourn Metal Finishing.
By Mr. Stone
Q.
Mr. Desai, was that your determination that that was one
company?
A.
That was my conclusion.
So we do not know what at that time, when we received the
application
in May’89,
we did not know whether that’s
still the two separate company or just the one company.
Q.
Did you bother to inquire?
A.
No, we did not.
Q.
Why?
A.
Every week we receive about eighty applications for our
review,
so we make the best conclusion based upon the
paperwork we have in front of us.
And if you start calling every time somebody sends some
kind of misleading information, then obviously it takes
us a lot more time for us, so we make the conclusion best
we can with the information in front of us.
And that was
the conclusion made at that
time.
And
that matter was
cleared up
later
on when the
company wrote
a
letter
sometime
I believe in September or October of
‘89.
(Tr. at p.
62
—
65)
The Agency’s conclusion that the December 28,
1987 letter did
not warrant a response was a reasonable conclusion.
It is the duty
of the applicant not the Agency, to see that the requirement to have
a
permit
is
satisfied.
While
there
appears to have been
some
confusion at the Agency as to the relationship between Gilbertson
and Clybourn that confusion is partly due to actions on the part of
130—185
6
Gilbertson.
The
initial
permit
application
referred
to
both
Gilbertson and Clybourn and the second set
of applications were
sent to the Agency together.
The Agency
originally contacted Gilbertson
in November
of
1987,
informing them that a permit was required.
In January of
1991, Gilbertson obtained its own operating permit from the Agency.
From the Agency’s
first
letter to the ultimate
issuing
of
the
permit is a period in excess of three years.
While the confusion
and delay extended the time prior to the issuance of the permit it
does
not!
account
for
the
length
of
time
that
Gilbertson
was
operating without
a
permit.
While the Agency did not directly
respond to Gilbertson’s letter of December 1987,
a second letter
was sent to Gilbertson
in October of
1988.
This letter and the
resulting
correspondences
between
the
Agency
and
Gilbertson
resulted in the filing of the joint application on February 22,
1989.
If the Agency had an obligation to respond to the letter,
its failure to respond would have accounted for about
9 months of
the three year period.
However, the letter from Gilbertson did not
require a response from the Agency.
The confusion as to the relationship between Gilbertson and
Clybourn resulted in one permit being issued to Clybourn in August
of 1990.
Since Gilbertson was issued its own permit
in January
1991, this confusion delayed the issuance of Gilbertson’s permit by
about
4 months.
In its complaint the Agency references August 25,
1990
as the date that Gilbertson
came into compliance
with the
operating
permit
requirements.
The
complaint
also
refers
to
Gilbertson as operating without
a permit
since at least January
1987 while the fact is that Gilbertson has not had any permit at
any time prior to January
2, 190.
While
the
confusion may have delayed the
issuance
of
the
permit,
it does not constitute a legal defense to operating without
a permit.
Any delay in issuing the permit will be considered as a
mitigating
factor
in
determining
the
amount
of
penalty
to
be
assessed against Gilbertson.
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
‘We use Section 33(c)
rather than Section 42(h)
here because
hearing was held prior to September
8,
1990,
when Section 42(h)
became
law.
See People
v.
Sure Tan,
Inc..
PCB 90—62
(April
11,
1991)
130—186
7
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
economic benefits
accrued
by
a
noncomplying
pollution source because of its delay in compliance
with pollution control requirement; and
6.
any subsequent compliance.
In relation
to the
instant
case,
factors
(3)
and
(4)
are
inapplicable.
Insofar as factors
(2) and
(5)
are concerned,
the
record is sketchy.
Even so, the Board presumes that a functioning
business entity which employs people and supplies products on the
open market has
a
certain degree
of
social and economic
value.
Based
on
the
record,
it
is
impossible
to
determine with
any
certainty the amount of economic benefits accrued by Gilbertson as
a result of it’s noncompliance with the regulations.
At the very
least,
however,
the company did save any applicable
permitting
fees.
Further, there can be no doubt that Gilbertson eventually came
into compliance by obtaining an operating permit.
As of January 2,
1990,
the
company
has
been
operating
with
the
necessary
air
operating permit.
However, Section 33(c)
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
subseguent
to
the
violation,
except
where
such
action is barred by any applicable State or Federal
statute of
limitation.
In all such matters
the
Board
shall
file
and
publish
a
written
opinion
stating
the
facts
and
reasons
leading
to
its
130—187
8
decision.
(Emphasis added).
In the case
at
bar,
no such statute of limitation applies
and
Gilbertson’s
subsequent
compliance
is
no defense
to
operating
without a permit.
This
leads
us
to
criteria
(1),
‘“interference
with
the
protection of the health, general welfare and physical property of
the people.”
This is the most significant factor in relation to
the instant case.
The permitting process
is the nucleus of the
Agency’s’regulatory scheme.
Mr. Desai testified to the importance
of the permitting process.,
A.
The permitting process is established by the Legislature
of State of Illinois under the Environmental Protection
Act they give the authority to the Agency to control the
emissions from the industry
——
from any emissions source
such that we have improved environment for the people.
(Tr. at p.
16)
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 to be aware of all sources and
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 Chicago, 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.”
In short, we find that Gilbertson has violated Section 9(b) of
the Act.as well
as
Section
201.142 and
201.143
of
the Board’s
regulations.
The record amply demonstrates that Gilbertson 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).
Indeed, the company has
admitted operating without a permit
and has opted to allege an
affirmative defense, which we have today rejected.
In that regard,
the Board notes that Gilbertson is potentially subject to a fine of
$10,000 for each violation of the Act in addition to a daily
130—188
9
penalty on each violation of
$1,000
for each day the violation
continued.
Thus the potential penalty could
conceivably be
in
excess of $1,000,000.
In
light
of
this,
the Board
hereby
assesses
a
penalty
of
$14,000, payable to the Environmental Trust Fund.
This penalty is
necessary to aid in the enforcement of the permit requirements.
The permit program was established in 1972.
This program required
operations
such
as
Gilbertson to
obtain
a
permit.
Gilbertson
obtained’ its first permit in 1990.
The penalty amount is based on
a $3000 fine for each violation
(2 violations
—
$6000
fine)
plus
$8000
in daily fines for operating without a permit from January
1987 until February 22,
1989.
This period was selected based
on
the time period alleged in the complaint, the year that Gilbertson
moved into the facility on Clybourn and the date that the first
permit
application
was
made.
The
date
of
the
first
permit
application was selected to allow for any delays that Gilbertson
experienced in obtaining its permit.
Section 42(f)
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.
Gilbertsori
responded to the Agency’s letters and did obtain a permit.
The testimony of Mr. Romaniuk shows that he was not familiar
with the permitting process.
Q.
Okay.
Who is in charge, or whose responsibility is it,
at Gilbertson-Clybourn, Inc. to make sure that Gilbertson
has met all of its legal permit requirements?
Is that
your responsibility?
A.
Probably mine more so than anyone.
Yes.
Q.
...Would
you
say
that
the
completion
of
a
permit
application is a relatively simple task or would you say
it would be burdensome upon your company?
A.
Well, initially
I thought it was a simple task, but as
I
was
enlightened,
in time
I
could
see
it was
a
very
complicated procedure.
130—189
10
Q.
Okay.
Does specifically the electroplating process cause
any emissions of any kind to go into the atmosphere?
A.
To my knowledge, there’s steam.
We have a blower system
that
-—
you know,
just that there’s steam.
While ignorance of the law is not a defense for not following
the
perncit requirements
it does not support
a
finding that the
violation was wilful, knowing or repeated.
This Opinion constitutes the Board’s findings of
facts and
conclusions of law.
ORDER
1.
The Respondent, Gilbertson-Clybourn,
Inc., has violated
Section 9(b)
of the Illinois Environmental Protection Act and
35
Ill. Adm. Code 201.143 by operating without a permit since at least
January 1987 until obtaining a permit in January 1990.
2.
The Respondent Gilbertson-Clybourn, Inc. violated Section
9(b) of the Illinois Environmental Protection Act and 35 Ill. Adm.
Code 201.142 in 1986 by installing electroplating equipment at its
Clybourn Ave. facility without a construction permit in 1986.
3.
Within 30 days of the date of this Order the Respondent
shall, by certified check or money order, payable to the State of
Illinois, designated to the Environmental Protection Trust
Fund,
pay the penalty of $14,000.00 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
Gilbertson-Clybourn,
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.
1990 Supp.,
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.
4.
Gilbertson—Clybourn, Inc., is hereby ordered to cease and
130—190
11
desist from all violations of the Illinois Environmental Protection
Act and from Board regulations.
5.
This matter is hereby closed.
IT IS SO ORDERED.
Section
41
of the Environmental
Protection Act,
Ill.
Rev.
Stat.
19,89
ch.
111
1/2,
par.
1041,
provides for appeal
of
final
Opinion and Orders of the Board within 35 days.
The Rules of the
Supreme Court of Illinois established filing requirements.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify
that
the above Opinion and Order was adopted
on the
--~‘~-
day of
____________,
1992 by a vote of
/
/
-
~
/~
~-
,(_
/
,
‘
‘
•1
-~
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board
130—19 1
