ILLINOIS POLLUTION CONTROL BOARD
March 28, 1977
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 74—455
UNITED STATES TOBACCO COMPANY,
)
a New Jersey corporation,
)
Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr. Young):
This matter comes before the Board on the Complaint
filed by the Environmental Protection Agency on December
4,
1974, charging that U.
S. Tobacco Company owned and
operated three coal—fired boilers from May
1,
1973 until
December
4,
1974 without the requisite operating permits
in violation of Rule
103(b) (2) of Chapter
2:
Air Pollution
Control Regulations and in further violation of Section 9(b)
of the Environmental Protection Act.
At the hearing held on November 5,
1975,
Mr. Ottoman
D.
Roeder, Vice—President of manufacturing for U.
S.
Tobacco,
admitted that the boilers were operated during the relevant
time frame without the requisite permits
(R.
20,
21).
Mr.
William R.
Quail, plant manager, stated U.
S. Tobacco made
a conscious decision not to obtain the requisite permits
(R.
153).
Mr. Anton M. Telford,
an Agency engineer, detailed
the Agency’s action with regards to the permit applications
and the reasons
for the denials therefor
(R.
86,
89).
On the
basis of the
foregoing admissions and the accompanying testimony,
the Board concJudes that the
violations
were proven.
Before
deciding what remedy is appropriate, however,
a discussion of
the circumstances presented in this case
is required.
For many years U.
S. Tobacco has owned and operated a
tobacco products manufacturing facility at
4325 West Fifth
Avenue
in Chicago.
In 1971 Respondent’s management decided
to construct a new facility in Franklin Park and to phase out
all operations at the Fifth Avenue plant.
It was Respondent’s
belief that the new facility would be available in June 1973
(R. 172),
and Respondent’s timetables indicate
the
move should
have been completed by December of 1973
(Resp. Exh.
4,
5).
The
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171
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move did not take place as scheduled and
in fact was not
completed
until
March
17,
1975
(R.
142).
Respondent
did
not
offer
any
explanation
for
the
delay.
The
Board
notes
that much of the move was completed sometime prior to March
1975.
An
Agency
memo
indicates
that
by
September
18,
1974,
all processing and manufacturing equipment had been moved
to
the
new
plant
as
well
as
60
of the finishing and packing
departments
(Resp.
Exh.
*IB).
Respondent was required to have operating permits for
its
boiler
on
May
1,
1973.
The
Agency
received
Respondent’s
application
therefor
on
March
30,
1973,
and
subsequently
denied
the
permit
on
April
27,
1973.
Although
the
denial
letter
does not specifically cite the regulation allegedly violated,
a fair reading of the letter indicates that the denial occurred
because of Respondent’s failure to show compliance with the then
applicable particulate emission standard,
that being Rule 3-3.112
of the Air Pollution Control Board, which permits
a maximum
emission of 0.6 pounds of particulate per million BTU imput.
Upon receiving the permit denial letter, Mr. Arthur
I. Jacobson,
Respondent’s
lead chemist, called the Agency and was informed
that the permit was denied because of Respondent’s failure to
prove compliance with the existing particulate emission limita-
tions
(R.
191).
Knowing that either additional data or control
equipment was required, Respondent contacted some firms that
conduct stack
tests and manufacture control equipment
CR.
192).
Installation of
a precipitator was estimated to cost upwards of
$250,000, and the installation itself was expected to require
more than a year’s time
CR.
192).
In late 1974,
18 months
after the permit was required, the Respondent also considered
converting the boilers from being coal fired ?o either gas or
oil fired
CR.
197).
This alternative was rejected because
such a conversion was estimated to cost in excess of $100,000.00
(Resp.
Exh.
#14).
During an inspection of Respondent’s power plant on January
23,
1975,
a low draft dust collector was discovered to be in
existence.
With this type of equipment in p1~ce,Respondent’s
consul
ti
nq
enqineur
calculated
that
par ticul~Le
cmi~sions
would
be
approximateJy
0.3
pounds
per
million
BTU
imput,
well
within
the
limitation
set
by
3—3.112.
Manufacturing
operations
ceased
in
March
1975,
but
Respondent
reapplied
for
a
permit
in
September
1975
so
that
the
boilers
could
be
used
to
generate
heat
to
pre-
vent the facility’s pipes and equipment from freezing in periods
of cold weather.
This permit application was denied by the Agency
on
the
basis
of
Rule
203(g)
(1)
(A)
of
the
Board’s
Air
Rules
and
which had an effective date of May 30, 1975.
Based
upon
the
information
supplied
by
the
Respondent,
the
Agency’s
denial
letter
includes
its
assessment
of
Respondent’s
particulate
emission
rate
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172
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which was calculated to be 0.34 pounds per million BTU imput
(Comp.
Exh.
#5).
Respondent filed an appeal, PCB 75-480,
of this permit denial based upon the application of Rule 203
(g) (1) (C).
This appeal is still pending before the Board
although the Board’s adoption of all of Rule 203(q) (1)
was
vacated by the Supreme Court
in Commonwealth Edison v.
PCB,
62 Ill.
2d 494
(1976).
Finally, subsequent to the hearing
in this matter, Respondent disposed of all its interest in
the Fifth Avenue facility.
Because Respondent no longer owns or operates this facility,
the only determination that remains is how large a monetary
penalty, if any, should be imposed.
Under Section 31(c)
of the
Act it was the Respondent’s obligation at the hearing, upon
proof of the violation by the Agency,
to show that compliance
with the Board’s regulations would impose an arbitrary or
unreasonable hardship.
The Board believes the aforementioned
evidence introduced by Respondent indicates that the alternatives
considered by Respondent to assure compliance with the particulate
regulations would have placed a considerable hardship upon it.
It must be remembered that this matter concerns only a permit
violation, not an emission limitation violation, and there is
no evidence to indicate that compliance with the permit require-
ment would have imposed either an arbitrary or unreasonable
hardshio.
If Respondent believed that achieving compliance
with the emission limitations would have imposed an unreasonable
hardship upon it, Respondent should have filed for
a variance
from such requirements.
Section
35 of the Act authorizes the
Board
to grant variances from regulations whenever a party can
prove that compliance would impose an arbitrary or unreasonable
hardship.
By following this procedure,
it would have been
possible for Respondent to have operated with the requisite
permits during the entire relevant time period.
By following
this procedure,
the Board would have been permitted to consider
all
the
relevant facts and circumstances before, not after,
the
violation occurred.
In numerous opinions the Board has emphasized
that the achievement of the State’s environmental goals rests
largely upon the maintenance of an effective permit system.
If
such
a system is
to become and remain effective,
it is necessary
that the Board encourage full compliance with its provisions
in all cases, and this case is no exception.
In the assessment of a penalty the Board
is required
to
consider the specific factors enumerated in Section 33(c)
of
the Act.
In doing so,
the Board finds that there has been no
showing of environmental harm resulting from the violation.
As
discussed earlier,
the injury that has occurred is that injury
inherent in any violation of the permit system.
Neither the
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173
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social nor economic value of the pollution source were ever
seriously questioned
by
the Agency, and the Fifth Avenue
facility was compatible with the area in which it was located.
Finally,
the Board finds that Respondent would have suffered
considerable hardship if it had chosen to follow any of the
alternatives it considered for emission reduction.
The Board
does not believe, however,
that filing a variance petition would
have placed such a hardship upon Respondent.
The period of the
violation extended much too long to be considered de minimus.
In view of all these considerations, the Board will assess
$500.00 in this matter as an aid to the enforcement of the Act.
This assessment should once again emphasize that the Board will
insist on compliance with the permit requirements and restate
that even strong mitigating circumstances herein do not outweigh
the obligation to obtain
a permit, given the variance provisions
of the Act.
Finally, several motions remain yet to be decided.
Re-
spondent’s Motion to Dismiss filed at the close of Complainant’s
case is hereby denied.
The Board also denies Complainant’s
Motion for Witness Expenses incurred by the Agency in proving
at hearing certain facts of which admissions were requested.
The part of the Motion not ruled on by the Hearing Officer
concerns
a request upon which the Respondent had filed an
objection.
Although it was evidently overlooked by both
parties, Rule 314(c)
requires that a party making a request
for admission must promptly seek a ruling from the Hearing
Officer upon the propriety of the objection,
if such a ruling
is desired.
This procedure allows
the answering party an
opportunity to respond to the request should the Hearing Officer
rule against the objection.
Any other procedure would unfairly
jeopardize any answering party who files an objection.
By
failing to promptly seek
a ruling,
the Complainant did not
preserve its right to request expenses at the hearing;
a hearing
held some five months after the answer was filed.
This Ooinion constitutes the Board’s
findinqs of fact and
conclusions of law in this matter.
ORDER
1.
Respondent,
U.
S. Tobacco,
is found to have operated
its coal-fired boilers without the requisite operating permits
in violation of Rule
103(b) (2) of Chapter 2:
Air Pollution
Control Regulations, and in further violation of Section 9(b)
of the Act and is hereby assessed a penalty of $500.00.
Penalty
payment by certified check or money order payable to the State
of Illinois shall be made within 35 days of the date of this
Order to:
Fiscal Services Division, Illinois Environmental
25
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174
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Protection Agency,
2200 Churchill Road, Springfield, Illinois,
62706.
2.
Respondent’s Motion to Dismiss is hereby denied.
3.
Complainant’s Motion for Witness Expenses
is hereby
denied.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above 9pinion and Order were
adopted on ~he
Q~’
day of
___________________,
1977 by
a vote of
..5—~
.
Christan L. Mofffr~1~Clerk
Illinois Polluti’~’frControlBoard
25
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175