ILLINOIS POLLUTION CONTROL BOARD
January
3,
1974
ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
vs~
)
PCB 74—216
HEICK DIE CASTING CORPORATION,
REspondent.
Jeffrey
S.
Herden, Assistant
Athorney General
for
the
EPA
Richard
J.
Riordan, Attorney
for Respondent
OPINION
AND ORDER OF THE
BOARD
(by Mr.
Henss):
On June
7,
1974 the Environmental Protection
Agency filed
a
two count Complaint against Respondent Heick
Die
Casting Corpor~
ation.
Respondent operates a
job shop
facility
in
Chicago at
which parts
are made for automobile and lawnmower manufacturers.
In
one count
it
was alleged that Respondent had operated its
plant without operating permits
in violation of Rule 103(b) (2)
of the Air Pollution Control Regulations
and
Section 9(b)
of
the
Environmental Protection Act.
The record reveals that the Heick
Company now has an operating permit.
However, the parties
stipulated that Respondent “from June
1,
1973 until the filing of
the Complaint
herein
has operated various emission sources:
to
wit,
twenty
gas
fired reverberatory furnaces, pot furnaces, die
casting machines,
and a cyclone device
without first having
obtained operating permits from
the
Environmental Protection Agency
as required by Rule
103(b) (2)
of the Illinois Pollution Control
Board Rules and Regulations, Chapter
2:
Air Pollution,”
We
therefore
find Respondent guilty of operating its plant without
operating permits
in violation of Rule 103(b) (2)
as specified
in
the Complaint.
The EPA also alleged that on May 16, 1974 Heick had violated
Section
4(d)
of the Act by refusing to allow Agency employees to
inspect its
job
shop facility.
Respondent denied this allegation.
Testimony was taken at a public hearing and the parties subsequently
filed written arguments.
It
appears from the evidence that employees of the Environmental
Protection Agency inspected Respondent~splant on
January
11, 1974.
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—2—
As usual,
the Agency inspector appeared without advance warning
but on that occasion there was no difficulty
in completing the
inspection.
Mr. William Pondolesic, Vice President and General
Manager of the Heick Corporation was with the Agency Inspector
for approximately
3 hours on January 11, 1974 while the inspection
was completed.
Four days later Respondent received notification of
a possible
permit violation.
The
same day, January 15, 1974, Respondent
wrote
to the Agency requesting the necessary permit application forms.
After a couple of weeks
the permit application forms were received
by the Company but the Company employees were unable to complete
them without assistance.
A Company employee then attended one of
the seminars which
are
regularly conducted by the Agency at its
office
in
Chicago.
When he returned from the seminar he notified
his superiors that they had not received the proper forms and that
the preparation of the forms was beyond the technical competence
of Respondent.
Bids were then received from consulting firms
and.
early in March a consulting engineer was hired to complete
the
application.
The application was in
fact. completed late in
May
and
was filed with the Agency resulting
in
the issuance
of
an operating
permit.
On
May
16, 1974 Agency employee Villalobos who had previou~
inspected the premises paid another visit to Respondent~splant.
He was accompanied by EPA employees Thayil and Miller.
Thayil
had been hired on May
1,.
1974.
He was the only Agency
witness
who testified in the case.
William Pondelicek, the General Manager of Heick,
was
occupied with
a customer at the time the Agency employees arrived
around
2 p.m.
He later testified that the time
was
not convenient
since he could not afford to spend another
3 hours with
the
Agency
while
a customer was sitting there.
Pondelicek testified that his
Company
is “relatively small” and at that time
it was his custom
to handle matters of this kind himself.
Pondelicek further
testified that he asked V.illalobos
“is this inspection necessary?”
and that V:Lllalobos said
“no”
(H.
19).
Boniface Thayil does not
recall that conversation.
Thayil testified that the General
Manager refused to allow the Agency to inspect the plant because
he was busy.
Section
4(d)
of the Environmental Protection Act provides:
“The Agency shall have authority to enter at all
reasonable times upon any private or public property
for the purpose of inspecting and investigating to
ascertain possible violations of the Act or of
Regulations thereunder,
or of permits or
terms or
conditions thereof in accordance with constitutional
limitations.”
15—64
Thayil testified that he and his two companions had several
purposes in going to the plant:
1.
To see if the operation had ~changed since the
January inspection.
2.
To become familiar with
a die casting plant
operation,
apparently for educational purposes.
3.
To become familiar with the operation in order
to provide assistance
in the permit application.
Thayil~stestimony was at times confusing and we have the impression
that he personally was not precisely sure of the nature of the visit
and that it was largely to be instructional from his viewpoint.
At page
48 Thayil testified:
“I must say this,
that
I had joined the Agency the 1st
of May~ We visited on the 16th of May, and I was not
at all familiar with the, you know, process of obtaining
permits and different stages that we were involved in.
So, actually,
I was not at all familiar with what, you
know, what stage this particular firm was at with regard
to permits.
I knew nothing, but
I
knew Mr. Miller was
from the Permit Section, and Mr. Villalobos had mentioned
that he could be of assistance
to the
Company in filling
out their forms.
But whether
it
had in fact been, you
know, what stage of the process it was, where it has
to
go,
I knew nothing about that at that period of time,”
We are not impressed by the Agency action in this
case.
The
right
of
inspection
is extremely important to the pollution control
effort in Illinois.
Perhaps the Agency wished to firmly establish
that right of inspection with a test case.
If so, we believe that
the Agency could have selected a better vehicle.
That right of
inspection
is not available for the purpose of educating new
employees
in the workings of a manufacturing system.
We are not
convinced that the inspection was for the purpose of assisting
Respondent
in the preparation of its permit application.
The
record indicates that the only assistance given by the Agency is
in the conducting of a seminar, a proceedure which had already
been attempted.
If the Agency wished to assist Heick in completing
the forms it should have stated so and undoubtedly the General
Manager would have put the consulting firm in contact with these
employees.
Clearly,
it would be proper for the Agency to inspect any
plant to determine whether there was a possible violation of the
Act or Regulation or of a permit.
This right of inspection exists
even though the plant has recently been inspected.
In this instance,
however, the leader of the inspecting
team
apparently indicated
that the inspection was not necessary.
This would be entirely con-
sistent with the fact that Heick was not in violation of any emission
standard and was not regarded as
a polluter either before
or
after
the
visits or the filing of
an
application for permit.
15
—
65
Under all or the circum~t~.nc~
we cannot 6ind Respondent
guilty of violating Section 4(d1
of
~he Pct.
We stard r~ady
to enforce the right of inspection ~n a uroper case,
For the permit violation
a penalty in tne amount of $500
seems appropriate
We are not gi~enany reason for the failure
to obtain
the
permit orior to Agency inspection
in January J~74,
but the record. does show that Heick pursued the matter with dili-
gence following that Agency inspectior.
This Opinion constitutes the findings of fact and conclusions
of
law of the Illinois Pollution Control Board.
ORDER
It is the Order of the Pollution Control Board that:
Respondent Heick Die Casting Corporation shall pay
to the State of Illinois by February 15,
1975 the
sum of $500 as
a penalty for the permit violation
found in this proceeding.
Penalty payment by certified
check or money order payable to the State of Illinois
shall be made to:
Fiscal Services Division, Illinois
EPA,
2200 Churchill Road,
Springfield,
Illinois 62706.
I,
Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Order wa
adopted
this
~
day ~
1975 by a vote of \~to~
15 —66