ILLINOIS POLLUTION CONTROL BOARD
March 27,
1986
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
v.
)
PCB 83-2
CHEMETCO,
INC.,
a Delaware
)
corporation,
Respondent.
MS. GWENDOLYN W. KLINGLER, ASSISTANT ATTORNEY GENERAL, APPEARED
ON BEHALF OF THE COMPLAINANT.
BELL, BOYD
& LLOYD
(MS.
JOHNNINE BROWN HAZARD,
OF COUNSEL) AND
SCHAFLY, GODFREY AND FITZGERALD (MR.
R. EMMETT FITZGERALD, OF
COUNSEL) APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by W.J. Nega):
This matter involves
an interlocutory appeal by Chemetco,
Inc.
(Chemetco) and the Illinois Environmental Protection Agency
(Agency)
to the Fifth District of the Illinois Appellate
Court
from an Order of the Illinois Pollution Control Board
(Board)
entered February 20,
1985 which rejected
a third Amended
Settlement Agreement
submitted by Chemetco and the Agency in the
enforcement action in PCB 83-2.
(See:
Board
Order of
February
20,
1985
in IEPA v.
Chemetco,
Inc.,
PCB 83-2).
In its February 20,
1985 Order rejecting
the proposed
settlement agreement,
the Board certified
the following question
of law for interlocutory appeal:
“Whether the Board correctly determined that
it lacks statutory authority, pursuant
to
Ill.
Rev.
Stat.
ch. 111-1/2, Sections 1032,
1033
and 1042
as they relate
to Board acceptance of
stipulations of fact and proposals for
settlement
in enforcement cases,
to issue
Opinions and Orders
in which any Board
findings of violation are precluded by the
terms of the stipulation and proposal, but
in
which respondent
is ordered to pay a
stipulated penalty and
to timely perform
agreed-upon compliance activities.”
—2-
(See:
page 10 of Board Order of February 20,
1985 in IEPAv.
Chernetco,
Inc., PCB 83-2).
The Illinois Appellate Court granted the parties leave
to
appeal pursuant to Illinois Supreme Court Rule 308
(see:
87
Ill.2d R.
308)
and entered a final judgment on January 14,
1986
(Gen.
No.
5-85-0143)
which vacated the February 20,
1985 decision
of the Illinois Pollution Control Board in PCB 83-2 and remanded
the instant
case back to the Board for further proceedings,
consistent with the court’s views.
In its January
14,
1986 decision, the Fifth District of the
Illinois Appellate Court concluded that “the Board has the
statutory authority to accept settlement
agreements
in
enforcement
cases where findings of violation are precluded by
the terms
of the stipulation and proposal but where the
respondent
is ordered
to pay a stipulated penalty and to timely
perform agreed upon compliance activities”.
Accordingly,
the Board will now accept in its entirety the
third Amended Settlement Agreement filed by the parties on
April 30,
1984.
LEGAL HISTORY OF THIS CASE
This case initially came before the Board on the January
6,
1983 Complaint brought by the Illinois Environmental Protection
Agency (Agency).
Count
I of the Complaint alleged that,
from June
14,
1978 to
January
6,
1983, the Respondent intermittently allowed
contaminants from its facility into the atmosphere
causing air
pollution
in violation of Rule 102 of Chapter
2:
Air Regulations
(now
35
Ill.
Adm.
Code 201.141) and Section
9(a) of the Illinois
Environmental Protection Act (Act).
Count
II alleged
that, from January
1,
1980 until January
6,
1983, the Respondent operated its
plant so
as to cause emissions
of fugitive particulate matter in violation of Rule 102 of
Chapter
2
(now 35 Ill.
Adm. Code 201.141), Rule 203(f)(1)
of
Chapter
2 (now
35
Ill. Adm. Code
212.301), and Section 9(a) of
the Act.
Count III alleged that,
from June
14,
1978 until January
6,
1983,
the Respondent operated each of its three 70-ton furnaces
in such
a manner as
to allow particulate emissions into the
atmosphere which exceeded the allowable emission rates in
violation of Rule
102 of Chapter
2 (now 35
Ill.
Adm.
Code
201.141), Rule 203(a) of Chapter
2
(now 35
Ill.
Adm. Code
212.321), and Section
9(a) of the Act.
—3-
Count
IV alleged that, from June
5,
1978 until December 12,
1978 and from December
8,
1981 to January
6,
1983, the Respondent
operated its three 70-ton furnaces without
an Operating Permit
from the Agency in violation of Rule 102 of Chapter
2
(now 35
Ill.
Adm. Code
201.141), Rule 103(b)(2) of Chapter
2 (now
35
Ill.
Adm. Code 201.144),
and Section
9(b)
of the Act.
The initial hearing on this matter was held on March
4,
1983.
The parties filed
a Settlement Agreement on March
7,
1983.
On April
12,
1983,
the parties filed
a second Settlement
Agreement which was identical
in substance to the first
Settlement Agreement,
but contained some minor language changes
which had been read into the record at the hearing and had been
requested by the Agency.
On October
6,
1983,
the Board entered an Interim Order which
rejected the proposed settlement agreement.
Deficiencies
in the
initially proposed stipulation included the fact that:
(1) Chemetco did not admit
to any violations,
but did agree to
pay a $20,000 penalty and to undertake a compliance program;
(2)
the parties stated that the settlement agreement could
be amended
if they agreed in writing, but did not state that the Board’s
approval would be necessary
(thereby creating
a mechanism by
which they could amend the compliance
plan without first
consulting the Board);
and (3) the possibility of carcinogens
being released into the atmosphere from arsenic-bearing materials
during scrap metal processing operations
(thereby possibly
jeopardizing the health and safety of
individuals who live near
the metal reclamation and smelting facility) was not specifically
addressed by the parties.
On March 28,
1984,
a Joint Motion for Approval
of
an Amended
Settlement Agreement and Exhibits, along with the aforementioned
amended stipulation and exhibits, was filed.
On April
6,
1984,
a hearing was held and the third Amended
Settlement Agreement
(Stip.) and various exhibits were admitted
into evidence
as Parties’ Exhibit No.
1.
(R.
7_20).*
In the third Amended Settlement
Agreement,
the parties
amended the previous stipulation to meet
the Board’s
concerns.
On page
seven, paragraph two of the most recent stipulation,
Chemetco stated that it “neither admits nor denies the alleged
*Citations
to the record
(R.) refer
to the transcript of the
April
6,
1984 hearing.
The parties inadvertently filed the
proposed settlement agreement before
a hearing was held on the
amended agreement.
The Board will therefore consider the
official filing date of the third Amended Settlement Agreement to
be April 30, 1984
(the date that the hearing transcript was filed
with the Board).
—4—
violations”, rather than simply denying the violations.
The
objectionable language on page seven in paragraph four pertaining
to amendment
of the agreement without
prior Board approval has
been deleted in the latest stipulation,
and the parties have
noted that
the compliance program was completed on October
6,
1983.
(R.3).
Additionally, the Agency has indicated that
“having investigated the potential for arsenic emisisons during
operation of Chemetco’s
process,
it has determined that arsenic
is driven off only during the heating stage and is therefore
captured by the scrubbers and not released during charging and
tapping”.
(Joint Motion,
p. 2-4).
On June
14,
1984,
the Board entered an Opinion and Order
granting the parties’ Joint Motion for Approval
of an Amended
Settlement Agreement
and the third Amended Settlement
Agreement.
However, item
#1 of the Board’s June 14, 1984 Order
included
a finding that Chemetco,
Inc. had violated Air Pollution
Rules 102
(now 35
Ill. Adm. Code 201.141),
103(b)(2)
(now 35 Ill.
Adm. Code
201.144),
203(a)
(now
35
Iii.
Adm.
Code
212.321), and
203(f)(1)
(flow 35
Ill. Adm. Code 212.301) of Chapter
2:
Air
Regulations
and Sections
9(a) and
9(b) of the Illinois
Environmental Protection Act
(Act).
Item
#5 of the Board’s June
14,
1984 Order included a Certificate of Acceptance and Agreement
to be bound to all the terms and conditions of the Order to be
signed by both parties.
Subsequently, both parties objected to the inclusion of the
finding of violation and moved the Board to modify its June 14,
1984 Order
by deleting the finding of violation.
Chemetco filed
its Motion for Modification
of the Board’s June 14,
1984 Order on
July 19,
1984.
On August
7,
1984, the Agency filed an Objection
to the same Board Order, and on August 13,
1984, Chemetco filed
a
Response objecting to part
of the Agency’s motion and reasserted
its earlier Motion to Modify the Board’s Order.
On February 20,
1985 the Board issued an Order that denied
the modifications requested by the parties and that rejected the
third Amended Settlement Agreement
in its entirety.
On its own
motion,
the Board vacated its Opinion and Order of June 14, 1984
in
its entirety and ordered the parties
to proceed to an
expeditious
hearing
in
this
matter
within
60
days
of
the
date
of
the
Board’s
February
20,
1985
Order.
Moreover,
the
Board
held
that
its
authority to order payment and/or implementation of a
compliance
plan is premised on
a finding of violation but
concomitantly issued a statement
(also known as
a Certificate of
Importance) to allow for immediate interlocutory appellate review
of the Board’s February 20,
1985 Order pursuant to Illinois
Supreme Court Rule
308.
(See:
Gett
~~ic~j2~v.PCB,
104 Ill.
App.
3d 285 (1st Dist.
1 82
for Board
s authority to
issue
such a statement).
—5—
On March
18,
1985,
the Agency filed
a Motion for Stay of the
hearing ordered by the Board in its February 20,
1985 Order.
On March
22,
1985,
the Board entered an Order that granted
the Agency’s Motion for Stay.
On April
9,
1985,
the Illinois Appellate Court
(Fifth
District) granted both parties’ applications for interlocutory
appeal.
Subsequently, on January 14,
1986,
the Illinois Appellate
Court
(Fifth
District)
entered
a
final
judgment
(Gen.
No.
5-85-0143)
which vacated the February 20,
1985 decision of
the
Board in PCB 83-2 and remanded the case back to the Board for
further appropriate proceedings.
COMPANY OPERATIONS
The Respondent, Chemetco,
Inc.,
is
a Delaware corporation
duly authorized
by the Illinois Secretary of State to transact
business
in Illinois.
Chemetco owns and operates
a metal
reclamation and secondary copper smelting facility (facility)
in
Hartford, Madison County, Illinois which has
a plant site of 108
acres
(located about
10 minutes
by car north of Granite City,
Illinois) which employs
176 people.
Chemetco’s
site is
zoned for
heavy industrial
use and is surrounded
by farmland.
The nearest
houses not occupied by Chemetco personnel
are about
1/4 mile from
the plant site.
An oil refinery,
power plant,
petrochemical
plant, brass mill,
and other
large industrial facilities are all
located within
a 10—mile radius
of the Respondent’s
plant.
(See:
Exhibit
1; R.8).
Chemetco acquires
a broad range of
copper-bearing raw
materials from scrap metal dealers and industry and produces
copper cathodes from these raw materials,
as well
as recovering
other non-ferrous metals
as by-products.
During smelting,
refining and processing operations
at its plant, Chemetco used
three
(now four)* 70-ton rotating furnaces equipped with overhead
hoods which contain
a scrubber system
to capture particulate
emission.
During part
of the operations
at Chemetco’s facility,
each of the furnaces are tilted, allowing the emission of odors,
dust,
and gases
(including
zinc oxides)
to escape beyond the
furnace
hoods and roof
of the plant into the atmosphere.
During Chemetco’s processing operations,
copper-bearing
scrap is
smelted and refined.
The slag
is treated
in three
(now
four) top-blown,
70-ton rotating Kaldo furnaces which are called
*After April
12,
1983,
a fourth rotating rotary furnace
(i.e.,
another “converter”) came into operation at the
Respondent’s
facility.
—6—
“converters”.
(See:
Exhibits
2 and 3).
Some particulate
emissions from these three
(flow four) converters
are captured by
separate hoods and then are ducted to, and cleaned
in, separate
venturi scrubbers.
(Stip.
2-3;
R.8-9).
Exhaust from this
process reaches the atmosphere through three
(flow four) separate
stacks.
However,
some particulate emissions are not captured by
the hoods,
ducts, and scrubbers.
(Stip.
2; R.9).
The three rotating furnaces and associated air pollution
control equipment
(including the three venturi scrubbers) are
existing emission sources which were constructed and in operation
before April
14,
1972.
The Agency issued the requisite operating
permit for the three furnaces on November 16, 1972 and renewed
the permit on June
18,
1974 and April
2,
1976.
However, because
an Agency inspection on June
14, 1978 indicated possible
violations
of Rule 1O3(b)(2) of Chapter
2:
Air Regulations
(now
35
Ill.
Adm. Code 201.144) and Section
9(a) of the Act,
the
Agency denied permit renewal on July 20,
1978.
After corrective
measures were taken by the Respondent,
subsequent permit renewals
occurred on December
12,
1978;
July 20,
1979; and September
8,
1980.
(See:
Exhibit
6).
On February 26,
1981,
the Agency received a petition,
signed
by
52 individuals, which alleged that Chemetco had violated Rule
203(f)(1) of Chapter
2: Air Regulations
(now 35
Ill. Adm. Code
212.301)
by improper emissions into the atmosphere.
(See:
Exhibit
7).
On
March
10,
1981,
the
Agency
notified
the
Respondent
that
its
inspection
indicated
apparent
violations
of
Rule
203(f)(l)
of
Chapter
2:
Air
Regulations
(now
35
Ill.
Adm.
Code
212.301).
On May 13,
1981,
the Respondent
put forth a proposal
to
modify the air pollution control equipment on its three rotating
furnaces and to construct
a fourth furnace.
This proposal was
based on various reports from consulting engineers
(dating as
early as April,
1980) which indicated that
it would be possible
to design air pollution control equipment which could capture
additional particulate emissions from the charging and tapping
operations of Chemetco’s three furnaces and also introduce
a
change in the basic process
(utilizing four, rather than three,
furnaces) to reduce overall particulate emissions from the
Respondent ‘s plant.
While negotiations were pending with the Agency, the
Respondent submitted permit renewal applications for the three
existing furnaces on June
5,
1981.
After notice from the Agency
on July
9,
1981 that it intended to deny Chemetco’s pending
permit renewal applications, the Respondent withdrew the
applications.
On June 16,
1981 and September 10,
1981,
Chemetco
submitted applications
to the Agency for
a construction permit
for the fourth furnace.
However, the Agency deemed these
applications incomplete, and sent notices of
incompleteness
to
—7—
the Respondent on July
8,
1981 and October
6,
1981.
On
December
3,
1981, Chemetco resubmitted its permit renewal
application for the existing three furnaces and its construction
permit application for the fourth furnace, but withdrew these
applications following the Agency’s December
30,
1981 notice of
intention to deny these permits.
On February 10,
1982,
the Respondent again applied for a
construction permit for the fourth furnace.
On March 22,
1982,
the Agency issued Construction Permit
No. 1198O1AAC to Chemetco
which authorized the construction of
a fourth converter and the
concomitant
air pollution control equipment.
On July
2,
1982,
the Respondent applied for a construction permit to retrofit the
three existing furnaces.
On August 16,
1982,
the Agency issued
the requisite construction permit which authorized the Respondent
to modify and install the necessary air pollution control
equipment on Chemetco’s three rotating furnaces.
(See:
Exhibit
6).
During ongoing settlement negotiations,
the parties were
initially in dispute as to whether or not:
(1) Chemetco was
lawfully entitled to renewal of its operating permit after the
expiration date of December
8,
1981;
and (2) the charing and
tapping emissions from the Respondent’s three furnaces were
insufficiently controlled on the dates alleged in the
Complaint.
(R.
13; Stip.
5).
The Respondent has neither denied
nor admitted the allegations in the Complaint,
but has agreed to
improve control of charging and tapping emissions by following an
agreed-upon compliance program and schedule involving
retrofitting
of the three existing furnaces to improve the
snorkel hoods and the charging and tapping controls.
(See:
Exhibits
3 and
5).
Additionally, after the completion
of the
retrofitting program, the Respondent has agreed to conduct the
necessary stack tests
(and to notify the Agency in advance of the
stack sampling so that Agency personnel may witness these tests)
along with simultaneous visual observations of the fugitive
emissions from the melt shop building to determine compliance.
(See:
Exhibits
4 and
5).
THE PROPOSED SETTLEMENT AGREEMENT
Although Chemetco has neither admitted nor denied the
allegations
of the Complaint,
the proposed settlement agreement
provides
that
the
Respondent
agrees
to
promptly
pay
a
stipulated
penalty
of
$20,000
into
the
Environmental
Protection
Trust
Fund.
Since
the
compliance
program
has
already
been
completed,
it appears
that all of the issues between the parties that arose
in this action are now moot.
(R.
3).
In evaluating this enforcement action and proposed third
amended settlement
agreement,
the Board has taken into
consideration all the facts and circumstances in light of the
—8—
specific criteria delineated
in Section 33(c) of the Act and
finds
the amended
settlement agreement acceptable under
35 Ill.
Adm. Code 103.180.
Pursuant to the remand by the Illinois
Appellate Court
(Fifth District),
the proposed settlement
agreement will be accepted
in its entirety.
The Respondent will,
therefore, be ordered
to pay the stipulated penalty of
$20,000
into the Environmental Protection Trust
Fund.
This Opinion constitutes the Board’s findings of fact and
conclusions
of law
in this matter.
ORDER
It
is the Order of
the Illinois Pollution Control
Board
that:
1.
The parties’ Joint Motion for Approval of the
Amended Settlement Agreement
is hereby
granted.
The Board hereby accepts
in its
entirety the third Amended Settlement
Agreement filed on April 30,
1984.
2.
Within 35 days of the date of the Order,
the
Respondent shall, by certified check or money
order payable
to the State of
Illinois and
designated
for deposit
into the Environmental
Protection Trust Fund,
pay the stipulated
penalty of $20,000 which
is
to be sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois
62706
3.
The Respondent
shall comply with all the terms
and conditions of the third Amended Settlement
Agreement filed on April
30,
1984, which
is
incorporated
by reference as
if fully set
forth herein.
IT IS SO ORDERED.
Board Member J.
Theodore Meyer concurred.
—9-
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
~7i~t~
day of
____________________,
1986
by
a
vote
of
7—~2
Dorothy
N.
/unn,
Clerk
Illinois Pollution Control Board