ILLINOIS POLLUTION CONTROL BOARD
August 21, 2003
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ECONOMY PLATING, INC., an Illinois
corporation,
Respondent.
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PCB 97-69
(Enforcement - Air)
ORDER OF THE BOARD (by N.J. Melas):
On June 30, 2003, the Office of the Attorney General, on behalf of the People of the State
of Illinois (People), filed a motion for summary judgment against Economy Plating, Inc.
(Economy Plating) on all counts of the second amended complaint filed in this matter. In a
Board hearing officer order dated July 17, 2003, Board Hearing Officer Brad Halloran granted
Economy Plating an extension of time until July 25, 2003, to file a response to the motion for
summary judgment. To date, Economy Plating has not responded to the motion. Pursuant to
Section 101.500(d) of the Board’s procedural rules, if a party does not respond within 14 days or
as provided by the hearing officer, the party waives objection to the Board granting the motion.
35 Ill. Adm. Code 101.500(d). For the reasons set forth below, the Board grants the People’s
motion.
BACKGROUND
On October 10, 1996, the People filed a three-count complaint against Economy Plating,
Inc. (Economy).
See
415 ILCS 5/31(c)(1) (2002), amended by P.A. 93-152, eff. July 10, 2003.
The People allege that Economy Plating violated Sections 9(a) and (b) of the Environmental
Protection Act (Act) and Sections 201.142, 201.143, 201.302, 201.144, 254.102(c), and 254.402
of the Board’s air pollution regulations. 415 ILCS 5/9(a) and (b); 35 Ill. Adm. Code 201.142,
201.143, 201.302, 201.144, 254.102(c), and 254.402. The People further alleged that Economy
Plating violated these provisions by operating equipment without a permit, constructing a tank
and a fume scrubber without a permit, and failing to file annual reports.
The People filed an amended complaint on August 12, 2002, containing a total of five
counts and alleging additional violations of Sections 9(b) and 9.1(d)(1) of the Act based on
Economy violating federal regulations and certain conditions of its special operating permit. 415
ILCS 5/9(b) and 9.1(d)(1) (2002). Both the complaint and the amended complaint concern
Economy’s electroplating facility located at 2350 N. Elston Avenue, Chicago, Cook County.
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The Board did not accept the People’s amended complaint for hearing due to several
errors. On November 14, 2002, the People filed a second amended complaint alleging the same
violations and correcting all errors.
On November 21, 2003, the Board accepted the People’s amended complaint for hearing.
See
35 Ill. Adm. Code 103.212(c). The Board noted that Economy Plating must answer the
complaint within 60 days after receiving the complaint, and directed the hearing officer to
proceed to hearing. The People filed a motion to deem the facts alleged in the second amended
complaint admitted on May 22, 2003. Economy did not respond to the People’s motion to deem
facts admitted, but did file a motion for leave to file an answer, attaching an answer, on June 3,
2003. On June 19, 2003, the Board granted the People’s motion and denied Economy Plating’s
motion for leave. No hearing has been held in this matter.
BOARD RULES
Section 101.516(b) of the Board’s procedural rules for enforcement actions provides:
If the record, including pleadings, depositions and admissions on file,
together with any affidavits, shows that there is no genuine issue of
material fact, and that the moving party is entitled to judgment as a matter
of law, the Board will enter summary judgment. 35 Ill. Adm. Code
101.516(b).
Under Section 201.142 of the Board rules, any person constructing a new emissions
source or new air pollution control equipment, or modifying any existing emission source must
first obtain a construction permit from the Agency. 35 Ill. Adm. Code 201.142. Section 201.143
of the Board rules prohibits the operation of any new emission source or new air pollution
control equipment that would require a construction permit, without an operating permit from the
Agency. 35 Ill. Adm. Code 201.143. Section 201.144 of the Board rules prohibits the operation
of any existing emission source or existing air pollution control equipment without an operating
permit from the Agency. 35 Ill. Adm. Code 201.144.
Section 201.302 requires owners or operators of any emission unit or air pollution control
equipment to file annual air emissions reports. 35 Ill. Adm. Code 201.302. Section 254.102(c)
clarifies that reporting requirements apply to owners and operators of small sources. Section
254.402, repealed at 25 Ill. Reg. 9856, effective July 17, 2001, established the reporting schedule
for annual emissions report. 35 Ill. Adm. Code 254.402. The first annual emissions report was
required for the calendar year of 1992, the deadline being October 1, 1993. 35 Ill. Adm. Code
254.402(a). Thereafter, annual emissions reports were due by May 1 of the subsequent year. 35
Ill. Adm. Code 254.402(b).
STATUTORY BACKGROUND
Section 9(a) of the Act is a prohibition against air pollution. 415 ILCS 5/9(a) (2002).
Section 9(b) prohibits the construction or operation of equipment that may contribute to air
pollution or equipment that is designed to prevent air pollution, without a permit from the
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Agency. 415 ILCS 5/9(b) (2002). Section 9.1(d)(1) of the Act makes any violation of Sections
111, 112, 165, or 173 of the Clean Air Act a violation of the Act. 415 ILCS 5/9.1(d)(1) (2002).
After the Board finds a violation, the Board considers all facts and circumstances
involved in the enforcement order including, but not limited to, the factors set forth in Section
33(c) of the Act to devise an appropriate remedy for the violation.
See
415 ILCS 5/33(c) (2002),
amended by
P.A. 93-152, eff. July 10, 2003. Section 33(c) of the Act provides in part:
In making its orders and determinations, the Board shall take into consideration:
(i)
the character and degree of injury to, or interference with the protection of the
health, general welfare and physical property of the people;
(ii)
the social and economic value of the pollution source;
(iii)
the suitability or unsuitability of the pollution source to the area in which it is
located, including the question of priority of location in the area involved;
(iv)
the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such pollution
source; and
(v)
any subsequent compliance. 415 ILCS 5/33(c) (2002),
amended by
P.A. 93-152,
eff. July 10, 2003.
The maximum civil penalties the Board may assess are established by Section 42(a) of
the Act, which provides in part:
[A]ny person that violates any provision of this Act or any regulation adopted by the
Board . . . shall be liable to a civil penalty not to exceed $50,000 for the violation and an
additional civil penalty of not to exceed $10,000 for each day during which the violation
continues . . . . 415 ILCS 5/42(a) (2002),
amended by
P.A. 93-152, eff. July 10, 2003.
In determining the appropriate civil penalty, the Board may consider any mitigating and
aggravating factors of record including those set forth in Section 42(h) of the Act:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on the part of the violator in attempting
to comply with requirements of the Act and regulations thereunder or to secure
relief therefrom as provided by this Act;
3.
any economic benefits accrued by the violator because of delay in compliance
with requirements;
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4.
the amount of monetary penalty which will serve to deter further violations by the
violator and other persons similarly subject to the Act; and
5.
the number, proximity in time, and gravity of previously adjudicated violations of
this Act by the violator. 415 ILCS 5/42(h) (2002),
amended by
P.A. 93-152, eff.
July 10, 2003.
MOTION FOR SUMMARY JUDGMENT
Standard of Review
Summary judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary judgment,
the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment is a drastic means of disposing of litigation, and therefore it should
only be granted when the movant’s right to the relief is clear and free from doubt.” Dowd, 181,
Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489. N.E.2d 867,
871 (1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis, which would arguably entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
The People’s Arguments
The People contend that because the Board deemed all the material allegations of the
People’s complaint against Economy Plating admitted, there remains no general issue of material
fact for review. Mot. at 2. The People contend that, accordingly, the Board should grant the
People’s motion for summary judgment on all five counts of the amended complaint. The
People further ask the Board to order Economy Plating to cease and desist from further
violations of the Act and Board regulations.
Id
. The People seek a civil penalty of $50,000 for
each violation of the Act and Board regulations, and an additional civil penalty of $10,000 per
day for each day the violation continues.
Id
.
DISCUSSION
The Board finds that the allegations deemed admitted pursuant to 35 Ill. Adm. Code
103.204(d) are sufficient to prove that the People are entitled to a judgment as a matter of law
under 35 Ill. Adm. Code 101.516(b). Below the Board discusses how the admitted facts support
each of the five counts of the complaint in turn.
Count I – Operating Equipment Without a Permit
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In count I, the People contend that Economy Plating violated Section 9(b) of the Act (415
ILCS 5/9(b) (2002)) and Section 201.144 of the Board rules (35 Ill. Adm. Code 201.144) by
operating six hard chrome electroplating tanks, six polishing lathe and a gas-fired boiler without
the required operating permit from the Agency between March 7, 1983 and November 30, 1995.
The People state Economy Plating violated these same provisions for operating a glass bead
blasting operation with baghouse for the seventh scrubber between May or June of 1973 through
November 30, 1995. Am. Pet. at 6. The People also contend in count I that Economy Plating
violated Section 9(b) of the Act and Section 201.143 of the Board rules (35 Ill. Adm. Code
201.143) by operating a seventh hard chrome electroplating tank with a seventh fume scrubber
without the required new source operating permit from the Agency between May or June of 1973
through November 30, 1995.
Id
.
Count II – Constructing a Tank and Fume Scrubber Without a Permit
The People contend in count II that Economy Plating violated Section 9(b) of the Act
(415 ILCS 5/9(b) (2002)) and Section 201.142 (35 Ill. Adm. Code 201.142) of the Board rules by
constructing a hard chrome electroplating tank with one fume scrubber without the required
construction permit from the Agency. Am. Pet. at 9. The Board deemed these facts admitted on
June 19, 2003.
Count III – Failing to File Annual Reports
The People state in count III that Economy Plating violated Section 9(a) of the Act (415
ILCS 5/9(a)) and Section 201.302 of the Board regulations (35 Ill. Adm. Code 201.302) by
failing to timely file annual emission reports for the years of 1992 and 1994. Am. Pet. at 12.
Economy Plating filed the 1992 annual emissions report to the Agency on October 4, 1993, and
the 1994 annual emissions report on February 29, 1996. The respective deadlines were
October 1, 1993 and May 1, 1995.
Count IV – Violating Federal Regulations and Certain Conditions of its Special Operating
Permit
The People contend that Economy Plating violated federal Clean Air Act regulation 40
C.F.R. 63.342 (c)(1)(ii) and conditions 1(b) and 1(c) of operating permit #73031926 for failing to
maintain compliance with the chromium emission limit during a special permit compliance test
on November 25, 1997. The People state Economy Plating failed to establish required testing
parameters in violation of federal Clean Air Act regulation 40 C.F.R. 63.343(c)(1)(ii) during a
compliance test performed on February 16, 2001. Finally, the People contend in count IV that
Economy Plating violated 40 C.F.R. 63.346(b)(1) and (8) and special operating permit condition
4(b) for failing to maintain complete records of inspection, maintenance and repairs for the add-
on air pollution control equipment. Am. Pet. at 19. Economy Plating contends that by violating
special operating permit conditions, Economy Plating violated Section 9(b) of the Act. Economy
Plating further contends that by violating federal regulations, Economy Plating violated Section
9.1(d)(1) of the Act.
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Count V – Certification Violation
The People contend in count V that Economy Plating conducted an initial performance
test on February 16, 2001. The People state the test results showed Economy Plating failed to
comply with the performance test requirements as set out Economy Plating’s operating permit in
violation of Section 9(b) of the Act and special operating permit condition 5(a through i).
Additionally, the People contend Economy Plating violated 40 C.F.R. 63.343(b)(1) by failing to
comply with the parameters for the February 16, 2001 performance test, consequently also
violating Section 9.1(d)(1) of the Act. Am. Pet. at 23.
Board Analysis
In a June 19, 2003 order, the Board deemed all of the facts contained in the People’s
second amended complaint admitted. Accordingly, the Board finds that Economy Plating
violated Sections 9(a), (b), and 9.1(d)(1) of the Act and Sections 201.142, 201.143, 201.302,
201.144, 254.102(c), and 254.402 of the Board’s air pollution regulations as alleged in the
People’s five-count amended complaint. 415 ILCS 5/9(a), (b), and 9.1(d)(1) (2002); 35 Ill. Adm.
Code 201.142, 201.143, 201.302, 201.144, 254.102(c), and 254.402. The Board grants the
People’s motion for summary judgment on all five counts.
REMEDY
The parties have not yet analyzed the 33(c) or 42(h) factors regarding an appropriate
remedy, including civil penalty, if any, in this proceeding. If a complainant proves an alleged
violation, the Board considers the factors set forth in Sections 33(c) and 42(h) of the Act to
fashion an appropriate remedy for the violation.
See
415 ILCS 5/33(c), 42(h) (2002),
amended
by
P.A. 93-152, eff. July 10, 2003. Specifically, the Board considers the Section 33(c) factors in
determining, first, what to order the respondent to do to correct an on-going violation, if any,
and, second, whether to order the respondent to pay a civil penalty. The factors provided in
Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as
the character and degree of any resulting interference with protecting public health, the technical
practicability and economic reasonableness of compliance, and whether the respondent has
subsequently eliminated the violation.
If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
on the respondent, only then does the Board consider the Act's Section 42(h) factors in
determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may
mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,
whether the respondent showed due diligence in attempting to comply, any economic benefit that
the respondent accrued from delaying compliance, and the need to deter further violations by the
respondent and others similarly situated.
Accordingly, the Board further directs the hearing officer to advise the parties that at
hearing or in briefs, each party should: (1) discuss whether to impose a remedy, if any, including
a civil penalty, for the violations and support its position with facts and arguments that address
any or all of the Section 33(c) factors; and (2) propose a civil penalty, if any, including a specific
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dollar amount, and support its position with facts and arguments that address any or all of the
Section 42(h) factors.
CONCLUSION
Accordingly, the Board grants the People’s motion for summary judgment on all five
counts of its amended complaint. The Board further directs the parties to hearing on the issue of
remedy.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on August 21, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
