ILLINOIS POLLUTION CONTROL BOARD
    October
    3,
    1972
    ENVIRONMENTAL PROTECTION AGENCY
    )
    #72—126
    v.
    KANKAKEE
    FOUNDRY
    COMPANY
    )
    MR.
    PRESCOTT
    E.
    BLOOM,
    SPECIAL
    ASSISTANT
    ATTORNEY
    GENERAL,
    APPEARED
    ON
    BEHALF
    OF
    COMPLAINANT
    MESSRS.
    EDWIN
    W.
    SALE
    AND
    WILLIAM
    E.
    EAKEN,
    APPEARED
    ON
    BEHALF
    OF RESPONDENT
    OPINION AND ORDER OF THE BOARD
    (BY SAMUEL T.
    LAWTON,
    JR.)
    Complaint was filed against Kankakee Foundry Company, Respondent,
    on March
    29,
    1972, alleging that Respondent’s
    foundry operation be-
    tween July
    1,
    1970 and May 3,
    1972,
    (the date on which Respondent
    received a variance for the operation of its foundry in Case
    #71-366) discharged
    particulates
    and
    other
    contaminants
    into
    the
    atmosphere
    causing
    air
    pollution,
    in
    violation
    of
    Section
    9(a)
    of
    the
    Environmental
    Protection
    Act
    and
    Rule
    2-2.54
    of
    the
    Rules
    and
    Regulations Governing the Control of Air Pollution.
    The variance
    order was granted without prejudice to any penalties which might
    be asserted in the pending enforcement suit.
    The order permitted
    Respondent
    to
    exceed
    the
    limitations
    set
    forth
    in
    the
    Act
    and
    Rules
    until
    September
    1,
    1972,
    in
    contemplation
    of
    the
    operation
    of
    the
    cupola
    then
    in
    existence
    being
    terminated on July
    1,
    1972
    and
    the
    installation of
    a new cupola equipped with emission control devices
    or a coreless induction furnace, either of which would bring Respon-
    dent into compliance by the termination of the variance.
    The present proceeding
    is for violations occurring between
    July 1,
    1970,
    the effective date of the Environmental Protection
    Act and May 3,
    1972 when the variance was granted.
    Hearing was
    held on the complaint on August 21,
    1972.
    On the basis of the record,
    we find that Respondent has violated the Act and Regulations as alleged
    and assess a penalty of
    $3,000.
    The record in the variance case
    has been incorporated into the present proceeding.
    We reject Res-
    pondent’s contention that the mere filing of a varia~icepetition
    before its allowance serves as a shieldagainst the imposition of
    penalties
    relating to the period prior to the actual grant of
    variance.
    Since the Board3s Order is dated May
    3,
    1972,
    emissions
    prior to that date are unprotected notwithstanding the ultimate
    variance grant.
    b71
    The facility subject to this proceeding was a
    #9 Whiting
    Cupola
    approximately
    45 years old employing emission controls
    consisting of a wet cap on the cupola, together with afterburners.
    Estimates made by both the Respondent and the Agency in the
    variance proceeding indicate that emissions from this cupola violated
    the particulate regulations although there was substantial differ-
    ence between the estimates of the parties as to the amount of
    emissions resulting;
    the petitioner estimating particulate emissions
    at a rate of 72 pounds per hour and the Agency estimating emissions
    at the rate of 424 pounds per hour.
    Allowable emissions are 23.4
    pounds per hour
    (R,37).
    Agency evidence in the present case adopts the emission rate
    at 72 pounds per hour
    (R.36).
    Consequently, by any measurement
    it
    is undisputed that during the period involved, Respondent’s
    operations exceeded the allowable limits.
    It is also undisputed
    that Respondent’s awareness of its violations date back to 1969
    (Environmental Protection Agency Ex.
    8)
    and no definitive program
    appears to have been pursued prior to the variance program sought
    in late 1971.
    Robert H.
    St. John appeared as a witness for the Agency
    (R.57)
    and testified that smoke emissions from the foundry since July of
    1970 discolored his home and that the smoke emissions of the foundry
    were personally observed by him.
    While the evidence in the enforcement proceeding was somewhat
    meager, the incorporation in the record of the variance proceeding
    enables us to sustain a finding of violation of both the particulate
    regulations and the air pollution,
    as alleged.
    While we can
    assume
    that Respondent
    is presently in compliance, the long delay in
    achieving it
    dictates the imposition of a penalty which we impose in
    the amount of $3,000.
    In Environmental Protection Agency v. Chicago-
    Dubuq-ue Foundry Corporation,
    #71-331,
    3 PCB 377, January
    6,
    1972
    a penalty was entered against the company for particulate emission
    violations occurring prior to the time a variance was granted.
    We
    follow the same practice in the present case.
    Neither the filing
    for a variance or its ultimate allowance, precludes imposition of
    penalties for the period in which the violation occurred.
    This opinion constitutes
    the
    findings
    of
    fact
    and
    conclusions
    of law of the Board.
    IT IS ThE ORDER of the
    Pollution
    Control
    Board
    that
    penalty
    in the amount of $3,000 is assessed for the violations 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 Environmental Protection Agency,
    —2—
    —
    572
    2200 Churchill Drive, Springfield,
    Illinois 62706.
    I, Christan Moffett, Clerk of the Illinois Pollution Control
    Board, certify that th~above Opinion and Order
    was
    adopted on
    the
    ‘~‘__dayof
    ~
    ,
    1972,
    by a vote of
    ~5
    to
    /7~
    ~
    —3—
    5
    —
    57~~

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