ILLINOIS POLLUTION CONTROL BOARD

September 15, 1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 75—438

NATIONAL SUPERIOR FUR DRESSING

AND DYEING COMPANY,

)

an Illinois corporation,

Respondent.

James

L.

Dobrovolny, Assistant Attorney General, appeared for the

Complainant;

Harvey M.

Sheldon, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr.

Zeitlin):

The Complaint in this matter was filed by the Environmental

Protection Agency

(hereinafter

“Agency’t)

on November 10,

1975,

and

alleged that Respondent National Superior Fur and Dyeing Company

(hereinafter “National Superior Fur”) owned and operated an existing

emission source located at 4447—61 West Cortland Street,

Chicago,

without the requisite operating permit,

in violation of Section 9(b)

of the Environmental Protection Act

(Act)

and Rule 103(b) (2)

of

Chapter

2: Air Pollution,

of this Board’s Rules and Regulations.

Ill. Rev.

Stat.,

Ch.

111—1/2,

§1009(b)

(1975);

Ill. PC.B.

Regs.,

Ch.

2,

Rule 103(b) (2).

Hearings were held

in Chicago on April 15,

1976 and May 26,

1976.

No public comments have been received

in

the matter.

National Superior Fur,

a family owned and operated business,

processe~(dr~e~) unimal

huides

and

cleans

Cur

coat: s

.

Approximately

60—75 persons

are

employed

at

its

plant,

CR.

74),

which

is

located

in a mixed

commercial—residential

area

(H.

94)

The specific processes at National Superior Fur’s plant, which

were the subject of this matter, were:

1.

The fur cleaning operations, wherein furs

are rotated in a drum with sawdust,

shaken out manually,

placed in a shaker or suction drum,

and then further

hand cleaned;

the alleged emissions involved in this

operation result from the suction or shaker drums,

the

exhaust from which is vented

to the atmosphere through

a simple cyclone,

(e.g.,

R.

29,

36,

93).

23

—

463

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—2—

2.

The operation

of a small heating boiler,

wherein sawdust from the animal skin curing operations

is burned as needed to provide heat;

it was alleged at

hearing that emissions from this boiler are uncontrolled

and,

without control, may possibly cause or contribute

to air pollution.

Although the Record in this matter describes Respondent’s

processes

in detail and at length,

further explanation is not needed

here,

as the above constitute the only major potential sources of

emissions seriously in issue here.

The Agency’s case

(and grounds for our finding of violation)

are made by Respondent’s admissions

(e.g.,

R.

9,

63,

66), that

it

did not possess the requisite permits.

Because Respondent seeks

dismissal on other grounds,

however, we shall dispose of those issues

before considering matters in mitigation or aggravation of the admitted

violation.

a.

At the close of the Agency’s case,

and

again at the close of the Record,

Respondent

moved for dismissal on the grounds that the

Agency had failed to make a prima facie showing

of violation.

We find that Respondent’s contentions are without merit.

Respondent apparently felt that it was the Agency’s burden to prove

culpability with relation to all the sections in Section 33(c)

of the

Act,

Ill.

Rev.

Stat., Ch. 111—1/2, §1033(c)

(1975),

citing Southern

Illinois Asphalt v.

Pollution Control Board,

60 I1l.2d 204,

326

N.E.2d

406

(1975).

Such is not the case.

Respondent bears that burden.

Processing and Books v.

Pollution Control Board, _____Ill.2d____

No.

47682

(Ill., March, 1976.)

With regard to Complainant’s burden under Section 31(c)

of the

Act,

Respondent’s explicit admissions and the testimony of Respondent’s

president show that Respondent did,

in fact,

(1) operate during the

period

in

(jUe:~Lic;n,

dnd

(2) without

u

pern;

t

.

H; ~uficient..

U.

Respondent

also

moves

dismissal

in its

Brief, claiming

(without citation)

that the

Court Reporter’s failure to strike portions of

witnesses’

testimony upon the Hearing Officer’s

orders deprives it of a fair hearing, and

prejudices

it upon Board review of the Record.

That contention

is without merit.

23

—

464

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—3—

c.

Again without citation,

but apparently relyin

upon the Appellate Court’s decision in Commonwealth

Edison

v. Pollution Control Board,

25 Ill.App.3d

271,

323 N.E.2d 84

(1974),

Respondent claims that

the Agency’s denial of

a permit application by

Respondent on August

13,

1975 was improper because

the Appellate Court reversed Board adoption of

certain rules cited in the Agency’s permit denial,

relieving Respondent of culpability for failure

to

have the necessary permit.

Although the Appellate Court’s

1974 Commonwealth Edison decision

was later reviewed by the Supreme Court,

62 Ill.2d 494,

343 N.E.2d

459

(1976)

,

we need not decide this issue.

Respondent failed to

adequately show,

as was its burden upon Complainant’s prima facie

case,

that the Agency’s permit denial was entirely based upon factors

affected by Commonwealth Edison.

In an enforcement case such as

this we presume that the Agency

as a governmental body acted properly

in denying a permit; Respondent presents no showing to the contrary.

Beyond any such presumption, Respondent failed to make an adequate

showing

to support

its defense under this theory, which does

not.

constitute an affirmative defense.

See, Card,

Jones on Evidence,

§~‘

3:29,

3:30,

3:31,

(6th Ed.,

1972); Card,

Illinois Evidence Manual,

§30

(1963)

(“The Rule

is so universal in its application

.

.

.

H)

cases cited in preceding.

In any event,

this theory by Respondent

is rendered particularly

weak by virtue of the dates involved.

Respondent became subject

to

the permit requirement on June

1,

1973, and submitted no permit appli-

cation to the Agency until about July 29,

1975.

No excuse has been

made under this theory for the period from June

1,

1973 until July 29,

1975.

A finding of violation

is mandated.

Turning to matters of mitigation and aggravation,

we have little

competent or relevant evidence before us.

The Agency’s sole witness,

apparently attempting

to show adverse effects from Respondent’s

operations,

qave n~useful

testimony on the

issue.

He observed no

emissions

(H.

39)

,

arid

his estimations were

without:

ade~iuate

foundation

(c.q.

,

H.

32,

29,

39,

4.,

56).

Respondent, on the other hand,

attempted to show that its emissions

were likely within the limitations of Board Regulations.

That attempt,

however, was based on purported “expert” testimony almost totally

without foundation,

(e.g.

,

R.

111,

128,

139)

.

The only useful testi—

mony in this regard was to the effect that Respondent’s operation did

result

in

a barely discernible emission plume with a very slight blue

tinge,

(R.

140)

23

—

465

---

—4-.~

Despite these inadequacies, we feel that a penalty is warranted

by National Superior Fur’s violation.

Respondent’s explanation that

the individual responsible for obtaining the necessary permits suffered

from some vague emotional difficulties does not explain the inordinate

delay

in even requesting a permit.

In the absence of evidence from Respondent, we cannot judge

the social and economic value of Respondent’s operations.

Certainly

without the permit,

such value

is diminished insofar as its pollution

potential cannot be weighed.

We are therefore unable to judge the

relative weight of any social and economic value against the plant’s

pollution potential.

None

of the remaining factors

in §33(c)

of the Act being in

issue

here, we find that

a penalty is necessary for the protection

of the permit system, and to assure that potential environmental

damage which cannot be prevented without that system does not occur.

A civil penalty of $1,000 should serve the purposes of the Act in

this matter.

This Opinion constitutes the findings of fact and conclusions

of law of the Board

in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:

1.

Respondent National Superior Fur Dressing and Dyeing Company

is found to have operated an existing emission source without the

requisite permits from June

1,

1973 until November 10,

1975,

in

violation of Section

9(b)

of the Environmental Protection Act and

Rule 103(b) (2)

of Chapter

2: Air Pollution,

of the Board’s Rules and

Regulations.

2.

Respondent shall pay as a penalty for said violation the

sum of One Thousand Dollars

($1,000)

,

payment to be made within thirty

(30)

days of

Lhc

date

of

this Order by certified check or money

order

to the followinq address:

Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

Illinois

62706

3.

Respondent shall cease and desist the above violations

unless, within sixty

(60)

days of the date of this Order,

the proper

permit applications have been made to the Environmental Protection

Agency, and within ninety

(90)

days thereafter the proper permits

have been obtained.

23

—

466

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—5—

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, her by certify th

above Opinion and Order were

adopted on the

/

‘

day of

_________

1976,

by a vote of

______

Christan

L.

Moffe ~‘J4lerk

Illinois Po1lution~-~trolBoard