BEFORE THE ILLINOIS POLLUTION CONTROL
BOARII~
~‘c
~
PEOPLE OF THE STATE OF ILLINOIS
Case No. PCB 03-51
(Enforcement
—
Air)
STATE OF iLLiNOIS
pollution Control
Boczrd
Respondent.
NOTICE OF FILING
To:
Joel J.
Sternstein, Esq.
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, IL
60601
FAX:
(312)814-2347
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
FAX: (312) 814-3669
Maureen Wozniak,
Esq.
Illinois Environmental Protection
Agency
1021 N. Grand Avenue, East
P.O. Box
19276
Springfield, IL
62702
FAX: (815) 782-9807
On July 18, 2003, we filed with the Clerk ofthe Illinois Pollution Control Board, James
R. Thompson Center,
100 W. Randolph, Suite 11-500, Chicago, Illinois 60601, DRAW DRAPE
CLEANERS’ RESPONSE
TO MOTION FOR
PARTIAL SUMMARY JUDGMENT, a
Complainant,
V.
DRAW DRAPE CLEANERS, INC.,
an
Illinois corporation,
JUL
1
S
2003
copy ofwhich is served on you.
Ariel Weissberg,
Esq.
John H. Redfield, Esq.
Michele Rocawich, Esq.
Weissberg and Associates, Ltd.
401
S. LaSalle St., Suite 403
Chicago, IL
60605
Attorney No.
03125591
312-663-0004
DRAW DRAPE CLEANERS, INC.,
an Illinois
corporation
By:____________
One oftheir attorneys
CERTIFICATE OF SERVICE
I, Michele Rocawich, certify that on July
18, 2003, Respondents’
Response to Motion for
Partial Summary Judgment were served on: BradleyP. Halloran by hand delivery; and Joel J.
Sternstein and Maureen Wozniak by facsimile and first class mail.
Michele Rocawich
BEFORE THE ILLINOIS POLLUTION CONTROL BOAI~
~~ED
JUL
1
8
2003
PEOPLE OF THE STATE OF ILLINOIS
)
)
STATE OF IWNO!S
Complainant,
)
No. PCB 03-51
Pollution Control Board
)
(Enforcement
-
Air)
DRAW DRAPE CLEANERS, INC.,
)
an Illinois
corporation,
)
)
Respondent.
)
DRAW DRAPE CLEANERS’ RESPONSE
TO MOTION FOR PARTIAL SUMMARY JUDGMENT
Respondent Draw Drape Cleaners, Inc., by its
attorneys, Weissberg and Associates, Ltd.,
responds
to Complainant’s Motion forPartial
Summary Judgment and in support states:
MITIGATING
CIRCUMSTANCES DICTATE FINDING FOR DRAW DRAPES
Respondent Draw Drape Cleaners (“Draw Drapes”) operates a dry cleaning facility that is
unique in that its process commercially flame proofs drapes in a cost effective manner that triples
the life ofthe draperies.
Its process provides a unique and useful service that the State ofIllinois
has approved for use by schools and related entities, and lists Draw Drapes operation as a source
on the State’s website.
At issue in this
Complaint is emissions from Dryer #2 which Draw
Drapes installed in 1996 to use in place of an identical Dryer (i.e., Dryer #1) which was damaged
in a fire at Draw Drapes’ facility in 1994.
The
1994 fire damaged Draw Drapes’ physical plant
and Dryer #1
which was installed in the I960s.
Pursuant to the Illinois Environmental Protection
Act (“Act”), 415 ILCS
5/31(2002),
Dryer #1
was “grandfathered in” and did not require a
permit.
After the fire in 1994, Draw Drapes obtained a permit to rebuild its plant.
Dryer #1
which was damaged in the fire was a
110 lb. dryer and Draw Drapes needed a dryer ofthat size
for its operations.
When the plant was rebuilt, there was no recovery dryer available large
enough for the size ofDraw Drapes operations and DrawDrapes needed a dryer the size of
Dryer #1
to continue its operations.
Therefore, Draw Drapes installed Dryer #2 on
an interim
basis until it could purchase a recovery dryer in theproper size.
Draw Drapes believed that
because Dryer #2 was identical to Dryer #1
which destroyed in the fire, it could operate Dryer #2
without violating the Act.
Draw Drapes immediately ordered a new recovery dryer when a recovery dryer in the
proper size (i.e., a 100 lb. recovery dryer) became available in May 2002.
The manufacturer
accepted Draw Drapes’ order for the new recovery dryer in May 2002 and deliveredthe new
dryer (Dryer #3) in late September 2002.
Draw Drapes obtained Permit #02030079,
and
installed and began operating Dryer #3 in May 2003.
Since Dryer #2 replaced
an identical dryer
damaged in the 1994 fire, Draw Drapes has used Dryer #2 mainly to ready drapes forpressing by
“fluffing.”
Theprocess of“fluffing” does not emit volatile organic materials (VOM) into the
environment.
During the period Draw Drapes operated Dryer #2, it has emitted minimal VOMs
into the environment.
Draw Drapes operation ofDryer #2 did not violate the FESOP.
Significantly, Draw Drapes has had a Federally Enforceable State Operating Permit
(FESOP)
since a permit was required, and Draw Drapes has always operated its plant below the
emissions allowedunder its FESOP
Permit
#95
100005.
In fact, Draw Drapes would have to
emit an additional 1,000 gallons per year to reach the emissions allowed under its FESOP.
Draw Drapes was severely adversely impacted by the 1994 fire, rebuilt its plant and
resumed operations that provide a unique serviceto the public including schools in Illinois.
When Draw Drapes resumed its operations, Draw Drapes did not violate the spirit ofthe Act.
In
support ofits motion for summaryjudgment, Complainant relies on the answers Draw Drapes
provided to
Complainant’s interrogatories.
Draw Drapes has consistently attempted to
work
with the Illinois Environmental Protection Agency to comply with pollution control regulations
and truthfully responded to the allegations ofthis complaint.
Draw Drapes has not violated the
spirit ofthe Act and should not be punished forits
compliance.
ARGUMENT
Complainant’s motion asks the Illinois Pollution Control Board (“Board”) to find that
summaryjudgment is appropriate on the following counts ofthe complaint:
1) Count IV
2
alleging that Draw Drapes constructed an
emissions source without a permit in violation ofthe
Act; 2) Count V
---
alleging that Draw Drapes operated an
emissions source without a permit in
violation ofthe Act; 3) Count VII
---
alleging that Draw Drapes did not install
a solvent recovery
dryer with a cartridge filter in violation ofthe Act; and 4) Count VIII
---
alleging Draw Drapes
did not perform the initial emissions test as required by the Act.
As to Count IV which alleges that Draw Drapes constructed an
emission source without a
permit, Draw Drapes Draw Drapes installed Dryer #1, a
110 lb. dryer, in the
1 960s and
operated
it in compliance with Act until itwas damaged
along Draw Drapes’ physical plant in
1994.
Forced to rebuild its plant in order to continue its operations, Draw Drapes obtained a permit to
rebuild.
To resume operations, Draw Drapes needed a dryer with at least a 100 lb capacity to
replace destroyed Dryer #1.
In 1996 when the plant was rebuilt and ready to operate,
a recovery
dyer that size was not available.
Therefore, Draw Drapes purchased and installed Dryer #2
which was identical to Dryer #1.
Because the dryers were identical and Dryer #1
was destroyed
in a fire and Draw Drapes had obtained a permit to rebuild, Draw Drapes believed it was
operating Dryer #2 in compliance with the Act and that its operating permit covered Dryer #2.
As soon as a reëovery dryer became available in the proper size, Draw Drapes ordered and
installed the recovery dryer.
As to
Count V which alleges that Draw Drapes operated an emissions source without a
permit, from the time Draw Drapes installed and began operating Dryer #2, it operated it mainly
to “fluff’ draperies.
The process of “fluffing” does not emit VOMs into the environment.
During the period Draw Drapes operated Dryer #2, ithas emitted minimal VOMs into the
environment.
Richard Zell ofDraw Drapes provided a verification with Draw Drapes answers to
complaint attestingto these facts. (copy is attached as Exhibit
1).
Mr. Zell avers that:
1) Draw
Drapes has had a Federally Enforceable State Operating Permit (FESOP) since a permit was
required; 2) Draw Drapes has always operated its plant below the emissions allowed under its
FESOP Permit
#95
100005; and 3) Draw Drapes would have to
emit an
additional
1,000 gallons
per year to reach the emissions allowed under its FESOP.
Mr. Zell’s verification constitutes “evidentiary facts” and Complainant has proved no
evidentiary facts such as an affidavit to controvert the evidentiary facts submitted by Draw
3
Drapes.
Unsworn and unverified statements cannot be considered on a motion for summary
judgment.
Rotzollv.
Overhead Door Corp.,
289 Ill.App.3d 410, 161-62, 681
N.E.2d
156
(4th
Dist.
1997);
West v. Deere & Co.,
201
Ill.App.3d 891, 900,
559
N.E.2d 511
(2nd
Dist.
1990).
Unsubstantiated hearsay statements cannot be considered in ruling on a motion forsummary
judgment.
Laja
v. AT&
T,
283 Ill.App.3d 126,
136, 669 N.E.2d
645
(1st
Dist.
1996)(citing
Seeflelt v. Milliken Natinal BankolDecatur,
154 Ill. Spp.3d 715,
506
N.E.2d 1052 (1987).
As
such, the Board cannot considerthe unsworn and unverified statements ofComplainant’s
Counsel contained in its motion for summaryjudgment.
As to
Count VII which alleges that Draw Drapes did not install a recovery dryer with a
cartridge filter in violation ofthe Act, a recovery dryer with a cartridge filter ofthe proper size to
replace the Dryer destroyed in the fire atDraw Drapes’ plant was not available in 1996 when
Draw Drapes had rebuilt the plant and was ready to operate.
When a recovery dryer in the
proper size (i.e., a 100 lb. recovery dryer) became available in May 2002, Draw Drapes
immediately ordered a new recovery dryer.
The manufacturer accepted Draw Drapes’ order for
the new recovery dryer in May 2002
and delivered the new dryer (Dryer #3) in late September
2002.
Draw Drapes obtained Permit #0203 0079, and installed and began operating Dryer #3 in
May 2003.
As to
Count VIII which alleges Draw Drapes did not perform an initial emissions
test, Draw Drapes did not perform an emissions test when Draw Drapes began operating Dryer
#2 as a replacement for Dryer#1
which was destroyed in the
1994 firebecause no
commercial
emissions test was available at that time.
Moreover, Draw Drapes has had a Federally
Enforceable State Operating Permit (FESOP)
sincea permit was required, and Draw Drapes has
always operated its plant below the emissions allowed under its FESOP
Permit #95 100005.
In
fact, Draw Drapes would have to emit an additional
1,000 gallons per year to reach the emissions
allowed under its FESOP.
As stated above, Draw Drapes verified this fact and Complainant did
not controvert this properly supported material
fact
4
Complainant’s unsupported allegations are simply not sufficient to
support its motion for
summary judgment, and Draw Drapes has consistently acted in a maimer that demonstrates its
intent to conform with the spirit ofthe Act.
CONCLUSION
For the foregoing reasons, the Illinois Pollution Control Board should deny
Complainant’s motion for summaryjudgment.
DRAW DRAPE CLEANERS,
INC., an
Illinois
corporation
By:____________
One oftheir attorneys
Ariel Weissberg, Esq.
John H. Redfield, Esq.
Michele Mary Rocawich, Esq.
Weissberg and Associates, Ltd.
401
S. LaSalle St., Suite 403
Chicago, IL
60605
312/663-0004
FAX:
312/663-1514
5