ILLINOIS POLLUTION CONTROL BOARD

March 11,

1976

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 75—290

SCOPE PRODUCTS,

INC., DEXT

)

COMPANY DIVISION, a California

)

corporation,

Respondent.

MR. JAMES L. DOBROVOLNY, Assistant Attorney General, appeared on

behalf of Complainant;

MR. JOHN D.

DONLEVY, appeared on behalf of Respondent.

OPINION AND ORDER OF THE BOARD

(by Nr. Dumelle):

This case comes before the Board on a Complaint filed by the

Environmental Protection Agency

(Agency) on July 25,

1975.

The

Complaint alleges that Respondent has violated Section 9(b)

of

the Environmental Protection Act

(Act)

and Rule 103 (b)

(2)

of

the Board’s Air Pollution Control Regulations.

A hearing was

held on November

20,

1975 at which six stipulations of fact

were entered into

(R.

5), and 33 Exhibits were entered into

evidence

(R.8).

Respondent,

Scope Products, Inc., Dext Company Division,

owns and operates a facility, which processes surplus food

materials into granule material which is used as an ingredient

in animal feed.

The facility consists

in part of a rotary drier,

a cyclone, and an aspirator and is located at 2300 West St. Paul

Avenue, Chicago,

Illinois.

The aforementioned facility

is a

food and kindred products industry operation,

and is capable of

emitting certain solids,

gases,

odor, to the atmosphere.

During its plant operations involving the specified equipment,

from February

1,

1973 until the filing of the complaint on

July 25,

1975, Dext Company had possessed no Environmental Protection

Agency

(Agency)

permits. Stipulations 1—6.

(R.

5,

6)

20—229

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—2—

Respondent has admitted each and every fact necessary

for this Board to find violations of the Act and Rule as alleged.

However, Respondent raises a defense

to such finding:

an alleged

immunity implied from a prior settlement.

This defense was raised

at page

2 of the transcript of the November 20,

1975 hearing,

page

2 of Respondent’s Brief, and page

3 of Respondent’s Reply

to the Agency’s Brief

(which did not discuss the issue).

The basis of the defense raised by Respondent rests

in

a prior enforcement action, PCB 73-326.

The Board Order in

that case,

issued on May 9,

1974,

accepted a settlement entered

into by the Agency and Respondent.

The Board there ordered

Respondent, among other things,

to obtain all necessary State

permits for the operation of Respondent’s plant

(Exhibit 30,

pp.

30—33).

However, Respondent claims that a letter from the Attorney

General during the settlement negotiations

(Exhibit

33,

p.

2)

states an understanding that the money penalty provided for

in

the settlement was

to cover operating permit violations.

The

Respondent characterizes this

as a “prosecutorial commitment”,

and cites a criminal case decided by the Supreme Court.

However, by no stretch of the imagination can Exhibit 33 be

read as

a commitment.

The letter is an express rejection of

Respondent’s proposed settlement of October

26,

1973.

The

pertinent paragraph reads:

“The Agency also feels that a monetary penalty is

appropriate in this matter for violation of Section

9(a) of the Act, as well as the failure of Dext to

obtain permits for the operation of this facility”.

This

statement does not show any commitment as it is no more

than correspondence submitted in the process of negotiating

a settlement.

The letter is not of sufficient weight to

permit the Board to look beyond the four corners of the

final settlement (Exhibit 30, pages

3—8).

Further,

no violation of any permit requirements was either

alleged in the Complaint in that case (Exhibit

30, pages 9-14)

or admitted in the final settlement

(Exhibit 30, pages

3-8).

The absence of permits was not an issue in PCB 73—326 and was

not included as

an element of the settlement except to the extent

that Respondent agreed to, and was ordered

to, obtain

“all necessary

20—230

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—3—

State permits...’~ Therefore,

a finding of violation and the imposition

of

a civil penalty for the period of February,

1973 to July 25,

1975

would not be contrary to the settlement adopted in PCB 73-326.

Respondent next alleges that the approved settlement of

PCB 73-326 implied that Dext was

to have a reasonable time

within which to secure an operating permit.

Rule 103(b) (2)

required Respondent to obtain an operating permit by February 1,

1973.

Thus,

by the time of the issuance of the Order in

PCB 73-326, Respondent had already had over 15 months to

obtain the permits;

which is not an unreasonable time.

The permit

violations were not an issue

in PCB 73-326.

The Board Order there

requiring Respondent to obtain permits cannot be construed as

an excusal of Respondent’s past failure to obtain permits, or

the granting of immunity for as

long as it took to obtain the

permits.

Had the Board wished to grant any immunity from permit

requirements

it would have done so expressly by ordering the permits

to be obtained by a date certain.

No

“grace” period can be implied

from ?CB 73-326.

Even so, Respondent argues that an additional

14

months is not an unreasonable delay in obtaining a permit. Over

29 months elapsed between the time by which Respondent was required

to obtain a permit and the date of the instant Complaint.

Respondent

sees nothing unreasonable about this.

Respondent further argues

(Page

4 of Respondent’s Brief)

that its letter of March 17,

1975

(Exhibit 14)

is a confirmation

of a 30 day grace period granted by the Agency subsequent to

Respondent’s receipt of Official Legal Notice of the Agency’s

intent to prosecute Respondent

(Exhibit 15).

(R.

61)

Respondent

has failed to show that this alleged 30 day period was anything

more than the Agency giving Respondent one last chance to submit

the required information prior to referral of the matter to the

Attorney General for action.

In no way could this action be found

to have been a grant of immunity for the alleged 30 day period.

Respondent states:

“It is significant that the July 30

letter was mailed by Dext only five days after this cause was

filed.”

Frankly, the Board fails

to find any significance

in this fact except in that it is

a firm statement that

Respondent had not complied with the Agency’s requests for

information prior to the filing of this Complaint.

Respondent also argues that 14 months after the Order

in PCB 73-363 was not an unreasonable delay given the complex

nature of the data requested.

Several facts quickly dispose

of that argument.

Mr. Reardanz,

the man who had complete charge

of Respondent’s facility

(R.

10) has had no engineering

training

(R.

54).

However, in spite of the technical nature

of the forms

(R.

55) and the fact that he found the forms

confusing

(R.

26,

28,

33,

40,

55), Mr. Reardanz was the only

one authorized by Dext Company to work on the applications

20—231

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—4—

(R.

33,

34,

49).

Mr. Reardanz did not seek outside engineering

help from a professional engineer

(R.

55).

As the Board finds

that the cost of obtaining outside help qualified to do this

work would not have been prohibitive, the delay simply becomes

unreasonable.

Even if Mr. Reardanz did make an honest effort

to comply, it is clear that Respondent Dext Company did not

provide him with the resources necessary to get the job done.

The Board finds that the reasons for delay given by Mr. Reardanz

are simply not persuasive when weighed against the unreasonable

amount of time involved.

Thus, while the degree of actual environmental damage

is small,

it must be remembered that the permit program is the core

of the environmental program.

As such,

any permit violation poses

a significant interference with the protection of the general welfare

of the people of Illinois.

Respondent has no exceptional social

and economic value and

is not unsuitable to the area in which it is

located.

However,

the Board finds that the ease by which Respondent

could have, with an earnest effort, obtained and submitted the

required information makes the violation and extraordinary delay

unreasonable.

A substantial penalty

is appropriate here to protect the

integrity of the permit program.

It will show both this

Respondent and other potential violators that the permit require-

ment is to be taken seriously.

In this case,

14 months of the

29 month-long period of violation passed subsequent to PCB 73-326

in which the Board ordered Respondent to obtain the permits.

The

information necessary to complete the permit application was not

submitted until after the filing of this Complaint.

Even though

there is evidence that the permit has now been granted this

was in no way caused by any diligent effort on Respondent’s

part.

The Board will therefore direct Respondent to pay a penalty

of $1,500.00.

This Opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

1.

Respondent,

Scope Products,

Inc. Dext Company Division,

is hereby found to have violated Section 9(b)

of the Environmental

Protection Act and Rule 103(b) (2)

of the Board’s Air Pollution

Control Regulations.

20

232

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—5—

2.

Respondent,

Scope Products, Inc., Dext Company Division,

shall pay,

for the above violations the sum of $1,500.00 to the

State of Illinois.

Payment shall be made by certified check

or money order within

35 days of the date of this Order to:

State of Illinois

Fiscal Services Division

Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois

62706

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

Board, hereby certify the above Opinion and Order were adopted on the

‘~~_dayof

March,

1976 by a vote of

~-O

IT IS

SO ORDERED.

Illinois Polluti

Board