ILLINOIS POLLUTION CONTROL BOARD
JUNE
25, 1987
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
v.
)
PCB 86—56
TRILLA STEEL DRUM CORPORATION,
Respondent.
MR.
JOSEPH ANNUNZIO, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
MR. RICHARD COSBY, ATTORNEY AT LA~,APPEARED ON BEHALF OF TRILLA
STEEL DRUM CORPORATION.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before
the Board upon an April 18,
1986,
complaint tiled
on behalf of
the Illinois Environmental
Protection
Agency (Agency) against Tri.la
Steel Drum Corporation
(Trilla).
The complaint contains allegations that Trilla
operated without a permit from December
31,
1984 until the date
of filing of the complaint and violated
the volatile organic
material
(VOM) ~emission standards.*
Hearings were held on July
21
and September 16,
1986 at which the
parties, but no members of
the public appeared.
At hearing the parties entered into a
stipulation of facts which constitutes the bulk of the evidence
in this proceeding.
The Agency’s closing brief was filed on
December
3,
1986
(cited
as Brief at
___).
Trilla responded on
February
26,
1987
(cited as Response at
___),
and the Agency
replied on March 12,
1987
(cited as Reply at
___).
Trilla is
an Illinois corporation engaged
in the manufacture
of
55 gallon steel drums at 2925 West 47th Street
in Chicago.
(Stip.
Par.
3).
As part
of its operation coating
is applied
to
both the interior
and exterior
of the drums,
and VOM are emitted
during the coating operation.
(Stip.
Par.
4).
In Count
I of the complaint the Agency alleges that Trilla
has violated Section
9(b)
of the Illinois Environmental
*
In some quotations set forth
in this opinion the term VOC is
used which stands
for volatile organic compounds.
For purposes
of this opinion VOC and VOM may be considered
interchangable.
78-462
—2—
Protection Act
(Act)
and 35
Ill. Adm. Code 201.141 and 201.144 by
operating without a permit since December
31, 1984.
In Count
II
of the complaint the Agency alleges that Trilla’s interior
coating line has emitted VOM’s
in excess of 4.3 lbs./gal.
in
violation of Section 9(a). of the Act and
35
Ille
Adm. Code
201.141 and 215.204(j).
In the Stipulation Trilla admits that
it has operated
without a permit “from January
1,
1985
to and including April
18,
1986.”
(Stip.
Pars.
13 and 14).
Thus,
the Board finds that
Trilla has violated Section 9(b)
of the Act and 35 Ill.
Adm. Code
201.141 and 215.204(j) during
the relevant time period.
The only
issue remaining regarding Count
I
is the amount of any penalty to
be imposed.
The penalty will
be discussed later.
Trilla also admits that its coating operations are regulated
by Section 215.204(j)
and
that it was required
to comply with the
interior coating limit by December
31,
1983.
(Stip.
Pars.
4 and
5).
It further admits that it did not file a petition for
variance from that rule until January
16,
1986.
(Stip.
Par.
11).
It
does not, however,
admit that
it violated the Section
215.204(j)
standard.
Rather, Trilla contends that “it
is clear
that the Agency has failed
to provide this Board with sufficient
proof
(or proof at
all)
that Trilla Steel Drum’s interior coating
line
is in violation.”
(Response at 12).
Furthermore, Trilla
contends that stack testing and engineering analyses demonstrate
that its interior coating lines are
in compliance.
(Stip. Par.
21).
The Agency asserts that it “has introduced calculations that
show that the control efficiencies of Trilla’s ovens
(3.6
and
30.5)
are not high enough to demonstrate compliance with the
interior coating limits
of Section 215.204
(Stip.
Exhibit 7).”
(Brief at 6).*
Exhibit
7 does show calculations of
a control
efficiency of 30.5
for
interior coatings.
Further,
in the
letter from the Agency
to Mr. Trilla
(which
is also contained
in
Exhibit
7)
the Agency states that “from the material balance
calculations
...
it appears that the control efficiencies which
can be attributed
to the ovens
(3.6
and 30.5)
are not high
enough to meet
the calculated control efficiency required
(37.8
to 45.4)
to demonstrate compliance.”
The Agency, apparently,
would have the Board
find this statement
to be dispositive of the
VOM issue.
The Board cannot, however, reach that conclusion
in
*
~hi1e the record
is not clear, the Board believes that the
3.6
figure applies to exterior coatings and the 30.5
figure
applies
to interior coatings.
**
Again, while
the record
is not clear
it appears that the
parenthetical expressions should read 37.8
and 45.4
with the
45.4
referring
to interior coatings.
78-463
—3—
that the Board
can find no support
in the record of this
proceeding
for the conclusion that a control efficiency of “37.8
to 45.4
is required
for compliance” beyond
the bald assertion in
the letter.**
Unless the Board were to conclude, which it
cannot,
that Trilla has stipulated to the accuracy of the figures
contained
in
that letter,
it cannot find that Exhibit
7 proves a
violation.
The only other bases
for
a finding of violation of Section
215.204 are contained
in the Agency’s Reply at pages 4—S.
The
Agency points out that Trilla has stipulated
to the amount of
paint it uses.
(Stip.
Ex.
3, Pars.
7—9).
It then states that
“since
the Agency disputes Trilla’s destruction efficiency
calculations for
the company’s curing ovens,
it logically
concludes that Trilla emits all of the VOC’s contained in the
coating
it applies.”
(Reply at 5).
Finally, the Agency states
that “the Board
has found
in a variance proceeding that the
Agency properly used this formula to conclude that Trilla’s VOC
emissions from November,
1984 through October,
1985 were over
40
tons in excess of allowable limits.
Trilla Steel Drum
Corporation v.
Illinois Environmental Protection Agency, PCB 86—
9,
(Opinion and Order,
February
5, 1987).
(Reply at 5).
Again,
the Board does not agree.
The burden
is on the
Agency
to prove
a violation,
and
it has not.
Section
215.204(j)(1) prohibits the emission
of VOM to exceed 4.3
lbs./gal. of coating materials delivered
to the coating
applicator.
It does not prohibit the use
of
a coating material
with a VOM content of greater
than 4.3 lbs./gal.
In order
to
bridge
the gap from use to emissions,
the Agency has
in effect
asked the Board
to assume no destruction efficiency on the sole
basis that
it has disputed Trilla’s destruction efficiency
calculations.
Contrary
to the Agency’s assertion,
this does not
follow logically.
Even assuming that the Agency has adequately
disproven Trilla’s computations,
all that logically follows
is
that the Board
can make no
finding regarding the destruction
efficiency.
Given that the burden
is on the Agency
to present
proof of
a violation, absent such finding, no violation can be
found.
Finally, the Board did not find
in PCB 86—9 that Trilla’s
VOC emission’s were
40 tons
in excess of allowable limits.
In
that opinion the Board found that “Trilla has not presented
enough information to show that ovens are effective in destroying
VOC’s.”
(Op. at
6).
Furthermore, the Board went on
to state
that “this determination does not preclude Trilla from conducting
further tests in order
to show that the curing ovens provide
a
control efficiency such that Trilla
is in compliance.”
(Id.)
Simply put,
the conclusion reached in PCB 86—9 was that Trilla
had not proven compliance which is not inconsistent with the
Board’s finding here that the Agency has not proven non-
compliance.
18~464
—4—
The Board
finds that the Agency has not proven that Trilla
has violated Section 2l5.204(j)(l),
and since the alleged
violations of Section 9(a)
of the Environmental Protection Act
and Section 201.141 are premised upon such violation,
no
violation can be found
of those provisions.
The only question remaining is the penalty to be imposed for
the permit violation found
above.
In that regard
the Board must
consider the factors set forth under Section 33(c) of the Act.
The first consideration under
Section 33(c)
is the extent of
interference with the public health, welfare or property.
In
that
regard,
it is stipulated that Trilla’s plant is located
in
Cook County which is designated as nonattaininent for ozone.
(Stip.
Par. 40).
Further, at the closest ozone monitoring
stations there were four days of ozone excursions in 1983, one
day
in
1984 and none in
1985,
and
the Agency has stated that it
is difficult to determine Trilla’s contribution to these
violations.
(Stip.
Par.
41).
Thus,
there have been no
excursions during the period of Trilla’s noncompliance, and the
Board cannot conclude that there has been any significant
interference with the public health, welfare,
or property from
Trilla’s emissions.*
On
the other
hand,
the Agency correctly
points out that the Board
has long held that operation without a
permit
is a serious violation of the Act.
(Reply at
3).
As
stated
in Illinois Environmental Protection Agency
v.
George
E.
Hoffman
& Sons,
Inc., PCB 71—300,
12 PCB 413,
414
(May 29,
1974):
We
have often
stated
that enforcement of the
permit
provisions
...
is
essential
to
the
environmental control system in Illinois.
It
is
rare
indeed
when
a permit violation does
not call for at least some monetary penalty.
The permit system
is the cornerstone of the State’s environmental
program.
Through that system the Agency’s ability to monitor
compliance
is greatly enhanced as,
in turn,
is the protection of
the public.
Any
failure to comply with the permit requirement,
therefore,
interferes with the protection
of the public.
The second consideration under Section 33(c)
is the social
and economic value of the source.
There
is nothing
in the record
of this proceeding regarding this consideration other than the
*
The Board notes that given
the complex set of reactions that
occur
to produce ozone from VOC’s and the transport that occurs
while these reactions take place, the immediate environs of the
source
are probably of less concern than areas farther away where
the ozone will more likly be formed.
Thus,
the lack of
excursions locally is not a compelling demonstration of lack of
harm.
78-465
—5--
fact that Trilla manufactures steel drums, which are presumably
useful to those who purchase them,
and employ’s
50 people.
However,
the social value
of the source
is diminished when
the
source fails to operate
in accordance with the law.
Third
is the suitability of the location of the site.
It
Is
stipulated that Trilla is bounded on three sides by
industrial
facilities and
on one side by a residential neighborhood.
(Stip.
Par.
3).
Thus,
the location of the facility appears to be
generally suitable.
Finally,
the Board must consider the economic reasonableness
and technical feasibility of reducing the pollution.
The record
shows that Trilla has taken several steps to reduce
its
emissions, some of which have been successful.
These include an
ongoing
search for compliance coatings,
a program to increase
the
application efficiency,
process modifications
to recirculate
exhaust air into the firebox of the oven
to reduce VOC’s and the
investigation of add—on equipment.
(Stip.
Pars.
22—39).
Furthermore, the stipulation cites the fact that as of December,
1983 USEPA knew of “no practical means of achieving compliance
with interior coatings,”
and there
is no
indication that there
has been any change in that position.
(Stip. Par.
25).
While these considerations tend
to be mitigating, they are
not dispositive
in determining an appropriate penalty for the
failure
to obtain an operating permit.
These considerations are
more directed toward violations of emission standards than permit
requirements.
For example, where,
as here,
it may be very
expensive
to come
into compliance with the emission standards,
that factor
is not significantly mitigating regarding the failure
to obtain
a permit which is not dependent upon obtaining
compliance.
The appropriate mechanism is to obtain
a variance
from the emission standards and then
to obtain the permit.
Trilla
is now going through that process
in that a variance has
been obtained and a permit application
is pending.
However,
Trilla has been less than diligent in pursuing
that course of
action.
Trilla had
a permit which expired on December
31,
1984,
but did not file for renewal until March 13,
1986, over
15 months
later.
It did not even file for variance until January 16,
1986.
(Stip.
Ex.
3).
No reason whatsoever has been given
for
this delay.
Instead, Trilla argues that no penalty is needed
to
aid
in the enforcement of the Act and that it has made
substantial efforts
to attain compliance.
(Response at 8—9).
Trilla
is correct that the primary purpose of
a penalty
is
to aid
in the enforcement of the Act and not
to punish.
As noted
above,
however, there
is a significant state
interest
in
compliance with the permit requirement which
is distinct from the
interest of compliance with emission standards.
While Trilla’s
efforts
to achieve compliance with the emission standards are
commendable,
its lack of efforts for
15 months to take
the steps
78466
—6—
necessary to obtain a permit show willfulness
or negligence by
Trilla based on the record.
The Board concludes that the permit
requirement
is not sufficient standing alone
to assure compliance
by Trilla and that some further
incentive is necessary.
The
Board concludes that a penalty
in the amount of $10,000 should
provide that incentive.
Furthermore, because of the importance
of compliance with the permit requirement,
the Board will order
Trilla to cease and desist operation without a permit.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
Trilla Steel Drum Corporation is hereby found to be
in
violation
of Section 9(b) of the Illinois Environmental
Protection Act and
35 Ill.
Adm. Code 201.141 and 201.144.
Within
45 days of the date of this Order Trilla shall pay a
penalty
in the amount of $10,000 which
is
to be sent to:
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield,
IL 62706
2.
Trilla Steel
Drum shall cease
and desist
from operating
without a permit.
IT
IS SO ORDERED.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify
th~t
the above 0p
ion and Order was
adopted
o
the
_______________
day of
_____________,
1987 by a vote
of
—0
Dorothy M.
nn,
Cler’k
Illinois Pollution Control Board
78-467