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

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