ILLINOIS POLLUTION CONTROL
BOARD
December
4, 1975
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 75—117
SEEBURG CORPORATION,
a Delaware
)
corporation,
)
Respondent.
Ms. Joan C. Wing and Mr. Richard W. Cosby, Assistant
Attorneys General, appeared for the Complainant;
Mr. Jack Grady, Attorney, appeared for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
The Complaint in this matter,
filed by the Environmental
Protection Agency
(Agency)
on March 13,
1975, alleges in two
counts that Respondent Seeburg Corporation
(Seeburg) violated
Section
9(b) of the Environmental Protection Act
(Act)
and.
Rule 103(b)
(2)
of Chapter
2: Air Pollution, of the Pollution
Control Board
(Board)
Rules and Regulations.
Those violations
are alleged to have occurred in Seeburg’s operation of various
painting, plating, and other processes at its Chicago vending
machine and jukebox manufacturing facility.
Hearings were held
in the matter on May 20-21,
1975 in Chicago.
There can be no question, on the record before us, of the
fact that Seeburg did not have the required operating permits
from the Agency, throughout a period coinniencing with the
effective date of the permit requirement,
(June 1, 1973), and
continuing through the day prior to the first hearing held in
this matter,
(May 19,
1975).
That fact is readily established
from Seeburg’s Response to the Agency’s Request for Admission,
Respondent’s testimony throughout the hearings, and even
Respondent’s brief
itself.
Although Seeburg did make some
attempt to present evidence that
it “used reasonable efforts
and exercised due care and diligence to prepare applications
for operating permits,”
(Respondent’s brief p.
10), apparently
in an effort to avoid culpability for its failure to obtain
the permits, Seeburg nonetheless never seriously challenged
the existence of a violation of the permit requirement.
19
-
368
—2—
Instead, to support its argument in mitigation that a
significant penalty
is not warranted here, Seeburg argues the
following matters:
1.
Seeburg did not know until February,
1974, of the permit requirement
in Rule 103(b) (2).
2.
Upon learning of the permit requirement,
Seeburg quickly hired a consulting engineer to
prepare all necessary permit application documents.
3.
Seeburg thereafter relied on its
consultant’s “professional” status and his
representations of continuing effort and the
imminency of the permit application filing.
4.
An operating permit application has
now been filed,
following default of the original
consultant of his obligation to Seeburg, after
preparation by new consulting engineers.
5.
The operations which are the subject
of Seeburg’s permit application do not result
in significant emissions to the atmosphere.
Examining these matters individually, we find first that
Respondent was charged with the responsibility of obtaining the
necessary permits by June
1,
1973; its failure to learn of the
permit requirement until February,
1974,
is not an adequate
excuse for violation prior to that time.
Second, Seeburg’s claim that it immediately hired an
engineer upon learning of the permit requirement still fails
to explain the significant period of time preceding the
commencement of efforts to prepare a permit application.
Further,
it is apparent from the record,
(throughout testimony
by Respondent’s employees), that any good faith evidenced by
expeditious hiring of an engineer
(even though this occurred
months after the permit requirement became effective),
effectively lapsed through Respondent’s failure to either
urge or demand speedy action by the consultant on its permit
application.
Third,
Seeburg’s reliance on its consultant’s “professional”
status
is doubtful, particularly in light of testimony by
Respondent to the effect that the permit application appeared
to be fairly easy to complete.
Séeburg’s reliance on its
consultant provides very little mitigation in any event;
Seeburg cannot delegate its responsibility,
under the Act and
our Regulations, to obtain the required permits.
It was Seeburg’s
responsibility,
and not its consulting engineer’s, to obtain
the necessary operating permits from the Agency.
19
-
369
—3—
Fourth,
the permit application finally filed by Seeburg
was
not submitted to the Agency until after the instant action
was commenced.
Seeburg obtained new engineering consulants
only after this enforcement case had been commenced, and the
permit application was submitted only one day prior to the
May 20,
1975 hearing in this matter
——
nearly two years after
the permit requirement became effective.
Fifth, Seeburg’s allegations as to the lack of significant
emissions from its Chicago plant are founded on weak testimony
and evidence.
Respondent’s Ex.
3, giving the breakdown of paint
used in its Chicago factory, gives only a general description of
the paints, and only general ranges for exempt and non—exempt
solvents in those paints.
Nor, may we add, are the exempt
solvents actually shown to be exempt; this evidence bears very
little weight.
In addition, Respondent’s statements as to
reduced operations at its Chicago plant, and resultant low
emissions, cover only a short period out of 23 months of
violation shown by the Agency.
In light of Seeburg’s admissions here, we need not examine
the factors in Section 33(c) of the Act to determine the
existence of a violation here.
In determining the appropriateness
of a penalty, however, we find the following:
1.
The character and degree of injury
occasioned as a result of this violation is
to be measured in terms of the need for a viable
permit system, to insure that such injury or
interference with the protection of the health,
general welfare and physical property of the
people does not occur.
This Board,
in enacting
the permit requirement, recognized that necessity.
We reaffirm the necessity of such a viable
permit system,
and find Seeburg’s two year
failure to comply with the permit requirement
is unexcusable.
2.
The social and economic value of
Seeburg’s Chicago factory as a source of employ-
ment for area residents
is not questioned here;
we note, however,
that the permit requirement
which Seeburg violated was designed and intended
for the protection of those individuals, and for
the public at large.
19-370
—4—
3.
Nor are the suitability or the unsuit-
ability of Seeburg to its Chicago location,
or its
priority in such location, questioned here; we do
note, however, that where compliance with a require-
ment of the Act and our Regulations is imminently
practical, and that requirement is violated, the
suitability of that factory, and its social and
economic value, are considerably diminished.
4.
Respondent’s own testimony demonstrated
that compliance with the permit requirement was
both technically practical and economically
reasonable.
The sole responsibility for Seeburg’s
failure to comply rests with Seeburg itself.
Weighing these factors, the Board finds that a penalty of
Four Thousand Dollars
($4,000.00)
is appropriate in light of the
period of time involved and Seeburg’s failure to actively attempt
compliance with the applicable portions of the Act and our
Regulations.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in
thi.s matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent Seeburg Corporation
is found
to have violated Section 9(b) of the Environmental
Protection Act and Rule 103(b) (2) of Chapter
2: Air
Pollution, of the Pollution Control Board Rules and
Regulations,
in the operation of
its
Chicago manu-
facturing facility without the required operating
permit from the Environmental Protection Agency.
19
-
371
—5—
2.
For the aforesaid violation, Respondent
Seeburg Corporation shall pay as a penalty, within
30 days of the date of this Order, Four Thousand
Dollars
($4,000.00), payment to be made by certified
check or money order to:
State of Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
3.
Respondent Seeburg Corporation shall
cease and desist all operations of its Chicago
manufacturing facility in violation of the
aforesaid sections of the Environmental Protection
Act and this Board’s Rules and Regulations unless,
within 120 days of the date of this Order,
all
required operating permits have been received from
the Environmental Protection Agency.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted on the
q~’
day of
__________
1975 by a vote of
______
Illinois Pollution
Board
19
-
372