ILLINOIS POLLUTION CONTROL BOARD

June

18,

1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 75—494

PIELET BROS. TRADING,

INC.,

an Illinois Corporation, and

Seymour Pielet,

)

Respondents.

Mr.

M.

Barry Forman, Assistant Attorney General, Attorney for

Complainant

Mr.

A.

J.

Nester, Attorney for Respondent

OPINION AND ORDER OF THE BOARD

(by

Mr.

Young):

This matter comes before the Board on a Complaint filed

December

19,

1975 by the Environmental Protection Agency

(Agency)

charging that the Respondents, Pielet Bros.

Trading,

Inc.

or

Seymour Pielet, owned and operated certain air pollution control

equipment without first obtaining operating permits from the

Agency as required by Rule 103(b) (1)

of the Air Pollution Regu-

lations and in further violation of Section 9(b) of the Environ-

mental Protection Act

(Act)

*

The subject matter of this Complaint is an automobile

shredding facility located at 1200 North First Street, National

City,

St. Clair County, Illinois.

As an integral part of the

aforesaid facility, the Company operates two cyclones to collect

particulate emissions from the facility’s shredding unit and

from certain pickup points over the conveyors.

At

the hearing held on March 9,

1976, the parties

stipulated

to the following facts.

Work for the construction of the

facility

began in April of 1975.

No attempt was made to secure an Agency

construction permit prior to initiating this work,

and in May

an Agency representative informed Respondent of a need for a

construction permit for the installation of the equipment.

Following correspondence between the parties a construction per-

mit was issued on November 5,

1975.

This installation process

was completed on August 22,

1975,

at which time the facility began

operation.

While it is not clear when Respondent first made appli-

cation for an operating permit, such permit was issued by the Agency

on February 19,

1976.

22

—

153

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—2—

The Complaint in this matter concerns only the operating

permit violation from September 9, 1975 until December

19,

1975

and on the basis of the record, there can be no doubt that an

operating permit violation is established.

Respondent offers several matters in mitigation that require

attention.

First, Respondent alleges that the equipment was

especially fabricated for the project and that no test data was

available to be submitted to the Agency.

This argument has abso-

lutely no merit.

In fact, specifications and data were available

for similar equipment, and Respondent used this data in obtaining

the Agency permits.

(R.

17).

Assuming for the moment that speci-

fications were not available,

the Board would still remain unrecep-

tive to this argument.

It is just this type of equipment which

accentuates the value of the construction and operating permit

system.

Because the equipment is unique and no specifications

are available,

all the more necessitates that the operator obtain

the permit prior to operation to assure that environmental harm

will not result from its operation.

Second, Respondent argues that the Agency did not show that

particulate emissions occurred in violation of the regulations.

This argument implies that since the operation of the equipment

did not cause a violation of the regulations

(an after the fact

determination), no penalty should be assessed.

Acceptance of

this argument would greatly diminish the value of the permit

system which has as one of its goals an Agency predetermination

whether the operation of the equipment will cause a violation of

the regulations.

Our cases are replete with operators who have

side-stepped the permit system producing results causing serious

environmental damage.

Thus, while the Board will consider such

evidence

in partial mitigation,

to consider such in complete

mitigation would totally emasculate the permit system.

Third, Respondent argues that it acted

in good faith in

its attempt to comply with the permit requirements after being

contacted by the Agency.

This allegation

is not supported by

the record.

While Respondent did engage in a course of conduct

which eventually led to the issuance of an operating permit, the

Board believes that its actions should have been taken with greater

alacrity.

Respondent was apprised of the operating permit re-

quirement in May of 1975, and began operating the facility on

August

22,

1975.

The Complaint in the instant matter was filed

on December

19,

1975.

Nonetheless it was not until January

16,

1976 that the Agency finally received an application

for the

operating permit,

almost five months after the facility was in

operation.

On the basis

of these facts the Board finds that

Respondent’s actions were not taken in good faith, but rather

were dilatory.

The Supreme Court has upheld the imposition of a

penalty where equipment was installed and operated after Agency

denial of the permit application

(Mvstik Tape

v

PCB,

60

Ill.

2d

330,

(1975).

Since Respondent should not be able to place itself

22—154

---

—3—

in a more advantageous position by merely refusing to applv

for the requisite permit,

the Board

finds that a penalty is

likewise appropriate in this matter because Respondent delayed

almost five months after beginning operation before filing an

operating permit application.

Although the Respondent alleges that the Agency acted un-

reasonably with the construction permit application,

it nonetheless

failed to file a permit denial appeal with the Board.

Although

the Respondent alleges that it was initially unaware of the permit

requirements, even after being informed of the requirements it

chose

to operate without a permit.

If Respondent had filed a

variance petition with the Board in May when informed of the permit

requirements,

the 90 day decision period would have expired by

the time the plant was placed

in operation.

Both the permit denial

appeal and the variance procedure could have provided Respondent

with the relief that it desired and needed.

At hearing Respondent

did not satisfactorily explain why it failed to follow either of

these procedures.

In view of the foregoing the Board finds that Respondent

operated its facility without the requisite operating permits and

the Board will assess $1,000.00 as

a penalty for such violations.

Seymour Pielet was charged in the alternative with the Company

with these violations.

The record does not support such a charge

and the Complaint as regards to this Respondent shall be dismissed.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

Respondent,

Pielet Bros.

Trading,

Inc., has violated

Rule 103(b) (1)

of the Air Rules and Section 9(b) of the Act and

shall pay $1,000

as penalty for such violations.

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 Protection Agency,

2200

Churchill Road,

Springfield, Illinois,

62706.

2.

That portion of the Complaint as it concerns Seymour

Pielet is dismissed.

IT IS SO ORDERED.

22—155

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—4—

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

Control Board, here

certify the above Opinion and Order were

adopted o

the

)

day of

~

,

1976 by a

vote of

..~

Illinois Pollution