REC?p~JED
CLERK’S
~
BEFORE
THE
ILLfNOIS POLLUTION CONTROL BOARD
NOV
2
1
2003
PEOPLE OF THE STATE
OF ILLINOIS,
)
SlATE OF ILLINOIS
BY
LISA MADIGAN,
ATTORNEY GENERAL
)
Pollution
Control Board
OF THE
STATE
OF ILLINOIS,
)
COMPLAINANT,
)
PCBN0.02-186
vs.
)
)
(ENFORCEMENT
-
AIR)
PERFETTI VAN MELLE U.S.A.
INC.,
)
A DELAWARE
CORPORATION,
)
)
RESPONDENT.
)
ANSWER AND AFFIRMATIVE
DEFENSES
TO
COMPLAINT FOR CIVIL PENALTIES
The Respondent,
VAN MELLE U.S.A.
INC.,
now known as
PERFETTI VAN MELLE
U.S.A., INC.
(“Respondent”), by and through its
attorneys, Howard
& Howard Attorneys, P.C.,
Answer the Complaint for Civil Penalties
as follows:
COUNT!
OPERATION OF EMISSIONS
SOURCES WITHOUT A PERMIT
1.
This
Complaint
is
brought
on
behalf of the
People
(“Complainant”)
by
the
Attorney
General
on
his
own
motion
and
upon
the
request
of
the
Illinois
Environmental
Protection
Agency
(“Illinois
EPA”)
pursuant
to
the
terms
and
provisions
of Section
31
of the
Illinois Environmental Protection Act
(“Act”),
415
ILCS
5/31
(2000).
ANSWER:
The allegations ofParagraph
I are conclusions oflaw
to which no
answer
is required nor tendered.
2.
The
Illinois
EPA
is
an
administrative
agency of
the
State
of
Illinois,
created
pursuant to
Section
4
ofthe Act,
415
ILCS
5/4
(2000), and
charged,
inter alia,
with the duty of
THIS
FILING IS SUBMITTED
ON
RECYCLED
PAPER
enforcing the
Act.
This
Complaint
is brought pursuant
to Section
31
of the Act,
415
ILCS
5/31
(2000).
ANSWER:
The allegations ofParagraph
2
are conclusions of law to
which no
answer
is required nor tendered.
3.
At
all
times
relevant
to
this
Complaint,
VAN
MELLE
U.S.A.,
INC.
(“Respondent”)
was
and
is
a
Kentucky
corporation
registered
to
do
business
in
the
State
of
Illinois and
is in good standing.
ANSWER:
The allegations ofParagraph
3
are admitted.
4.
At
all
times
relevant
to
this
Complaint,
the Respondent
has
operated
a
facility
located at 151
North Hastings Lane, Buffalo Grove, Lake County, Illinois, 60604 (“facility”).
ANSWER:
Respondent admits
only that
it
currently operates
a
candy manufacturing
facility
located
at
151
North
Hastings
Lane,
Buffalo
Grove,
Lake
County,
Illinois,
60604
(“facility”), and Respondent denies the remaining allegations contained within Paragraph 4.
5.
Respondent manufactures candy at its facility.
ANSWER:
The allegations ofParagraph
5
are admitted.
6.
The
manufacturing process
involves cooking raw ingredients
and
placing
them
through
an
extruder
that
separates
the
candy.
The
strips
are
then passed
through
a
dip
tank
containing capol to harden the candy.
Then the product is cooled in
a cooling tunnel.
Sugar and
flavoring is added to
the candy in a steaming sander.
The coloring and flavoring additives which
are used contain varying amounts of VOM such as propylene and ethyl alcohol.
VOM contained
in the candy ingredients vaporizes and is not controlled or captured.
ANSWER:
The allegations ofParagraph
6 are denied as untrue.
THIS
FILING IS SUBMITTED ON RECYCLED PAPER
2
7.
Since
at
least November
1999
and
May 2000,
respectively, and
continuing
until
June
29,
2001,
Respondent
has
discharged
or
emitted
VOM
from
the
facility
into
the
environment
from the uncontrolled operation of two (2) capol coating lines
and capol baths
used
during
the cooking, flavoring, coloring and
polishing of the confectionery product
it
produces.
ANSWER:
The allegations ofParagraph 7 are denied as untrue.
8.
Section 9(b) ofthe Act, 415
ILLS 5/9(b)
(2000), provides as follows:
No person shall:
*
*
*
Construct,
install,
or
operate
any
equipment,
facility,
vehicle,
vessel,
or
aircraft
capable
of
causing
or
contributing
to
air
pollution
or
designed
to
prevent
air
pollution
of
any
type
designated
by Board
regulations,
without a permit
granted by
the
Agency, or in violation of any conditions imposed by such permit.
ANSWER:
The provisions ofthe Illinois Environmental Protection Act, 415
ILCS
5/1
et ~g.,
speak for themselves
and
to
the extent that
allegations contained within Paragraph
8
are
not consistent with those
provisions, said allegations are denied as untrue.
9.
Section
3.06
of
the
Act,
415
ILCS
5/3.06
(2000),
contains
the
following
definition:
“CONTAMINANT” is
any solid,
liquid, gaseous matter,
any odor,
or any form ofenergy, from whatever source.
ANSWER:
The provisions of the
Illinois
Environmental Protection Act, 415
ILCS
5/1
et ~q.,
speak for themselves
and to
the extent that
allegations contained within Paragraph 9
are
not consistent with those provisions,
said allegations are denied as untrue.
10.
VOM
is
a
contaminant,
as
that
term
is
defined
in
Section
3.06 of the Act,
415
ILCS
5/3.06
(2000).
THIS FILING IS SUBMITTED
ON
RECYCLED PAPER
3
ANSWER:
Respondent lacks
sufficient information
with which to
affirmatively admit
or deny the allegations contained
in
Paragraph
10
for the reason
that the term “VOM”
included
in Paragraph
10 has not been defined or described.
II.
Section
3.26
of
the
Act,
415
JLCS
5/3.26
(2000),
provides
the
following
definition:
“PERSON”
is
any
individual,
partnership,
co-partnership,
firm,
company, limited
liability company,
corporation, association, joint
stock company,
trust,
estate,
political
subdivision, state agency, or
any
other
legal
entity,
or
their
legal
representative,
agent
or
assigns.
ANSWER:
The
provisions
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1,
et ~q.
speak for themselves
and
to the extent that allegations contained within Paragraph
11
are not consistent with those provisions, said allegations are denied as untrue.
12.
Respondent
is
a “person”
as the term
is
defined
in
Section
3.26
of the
Act,
415
ILCS
5/3.26
(2000).
ANSWER:
The allegations ofParagraph
12
are admitted.
13.
Section
201.102
of the
Air Pollution
Regulations,
35
Ill.
Adm.
Code
201.102,
contains the following definitions:
Definitions
“Emission
Source”: any
equipment or facility of a type capable of
emitting specified air contaminants to the atmosphere.
“Existing Emission Source”: any emission
source, the construction
or modification ofwhich has commenced prior to April 14,
1972.
“New Emission
Source”: any emission source,
the construction or
modification ofwhich is commenced on or after April
14,
1972.
“Specified Air Contaminant”: any air contaminant as to
which this
Subtitle contains emission standards or other specific limitations.
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
4
AiVSWER:
The
provisions
of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained
within
Paragraph
13
are not
consistent with those
provisions, said allegations are denied as untrue.
14.
Section
211.7150
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
211.7150, provides the following definitions:
“Volatile Organic
Material (VOM)” or
“Volatile
Organic
Compound
(VOC)”
means
any
compound
of
carbon, excluding carbon
monoxide, carbon dioxide, carbonic acid,
metallic carbides
or carbonates,
and
ammonium carbonate,
which
participates in atmospheric
photochemical reactivity.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak for themselves
and
to
the
extent
that
allegations contained
within
Paragraph
14 are not consistent with those provisions,
said allegations are denied.
15.
VOM
is
a
“.specified air contaminantt’
as
that
term is
defined in
Section 201.102
of the Board Air Pollution Regulations,
35
III. Adm.
Code 201.102.
ANSWER:
The
allegations
of Paragraph
15
are
conclusions
of
law
to
which
no
answer is required nor tendered.
16.
Because the
two
(2)
capol
coating
lines
and
two
capol
baths
emitted,
or were
capable ofemitting VOM,
a specified air contaminant,
they are emission sources as that
term is
defined in Section 201.102 ofthe Board Air Pollution Regulations
35
Ill. Adm.
Code
201.102.
AiVSWER:
Respondent admits only that a compound known by the commercial name
“capol”
was
used in
the manufacture
of candy
at
the
Buffalo
Grove,
Illinois
facility at certain
times,
and
the remaining allegations and
conclusions of law
contained within Paragraph
16
are
denied as untrue.
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
5
17.
The
emission sources and
control
equipment
located
at
the
Respondent’s
facility
were installed and/or constructed on or after April
14,
1972 and
are all
“new
air pollution control
equipment”
or
a
“new
emission source”
as
those
terms
are
defined
in
Section
201.102
of the
Board Air Pollution Regulations, 35
Ill.
Adm. Code 201.102.
ANSWER:
Respondent
lacks sufficient information with which
to affirmatively admit
or deny the allegations contained
in Paragraph
17
for the reason that
the “emissions
sources and
control equipment” included in Paragraph
17 have not been identified, defined or described.
18.
Section
201.143
of
the
Board
Air Pollution
Regulations,
35
Iii.
Adm.
Code
201.143, provides in pertinent part as follows:
Operating Permit for
New Sources
No person shall
cause or allow the operation of any
new emission
source or new air pollution
control equipment ofa type for which a
construction
permit
is
required
by
Section
201.142
without
first
obtaining
an
operating
permit
from
the Agency,
except
for
such
testing operations as may be authorized by the construction permit.
ANSWER:
The provisions
of the administrative
regulations
set
forth
in
the Illinois
Administrative
Code
speak
for
themselves
and
to
the extent
that
allegations contained
within
Paragraph 18 are not consistent with those provisions, said allegations are
denied.
19.
Respondents
operated
two
(2) capol coating
lines
and
two
(2) capol
baths,
new
emission
sources,
at
the
facility
in
Buffalo
Grove,
Illinois,
or
on
dates
better
known
to
Respondent, without the proper operating permits.
ANSWER:
Respondent admits only that
a compound known
by the commercial name
“capol”
was
used
in
the manufacture
of candy at
the
Buffalo
Grove, Illinois
facility
at
certain
times,
and
the remaining allegations
and
conclusions
of law contained within Paragraph
19
are
denied as untrue.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
6
20.
Since
1999,
the
exact
dates better
known
to
the Respondent,
and
until
June 29,
2001,
the
Respondent
operated
two
(2)
capol
coating
lines
and
baths,
new emission
sources,
without having obtained an
Illinois EPA operating permit.
ANSWER:
Respondent admits only that a compound known
by
the commercial name
“capol”
was
used
in
the manufacture of candy
at
the
Buffalo
Grove,
Illinois
facility
at
certain
times,
and
the remaining allegations
and
conclusions of law
contained within Paragraph
20
are
denied as untrue.
21.
The Respondent,
by its conduct
as alleged herein, violated Section
20 1.143
of the
Board Air Pollution
Regulations,
35
Ill.
Adm.
Code
201.143
and
thereby, also
violated
Section
9(b) ofthe Act, 415
ILCS 5/9(b) (2000).
ANSWER:
The allegations of Paragraph 21
are denied as untrue.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
respectfully
requests
that
the Board
enter a judgment
in
favor of Complainant
and
against
the Respondent,
VAN MELLE, on Count I:~
1.
Authorizing
a
hearing
in
this
matter
at
which
time
the
Respondent
will
be
required to answer the allegations herein;
2.
Finding
that
the Respondent
has
violated
Section
9(b) of the Act
and
35
Ill.
Adm. Code 201.143;
3.
Ordering
the Respondent
to
cease
and
desist
from
further violations of Section
9(b) ofthe Act
and 35
Ill. Adm. Code 201.143;
4.
Assessing
against
the
Respondent
a
civil
penalty
of
Fifty
Thousand
Dollars
(S50,000.00) for each violation ofthe Act and pertinent Board Air Pollution Regulations,
and an
additional civil penalty ofTen Thousand Dollars ($10,000.00) for each day of violation;
THIS FILING IS SUBMITTED ON
RECYCLED PAPER
7
5.
Taxing
all
costs
in
this
action
pursuant
to
Section
42(f)
of the
Act,
including
attorney, expert witness
and consultant fees,
against the Respondent; and
6.
Granting such other relief as the Board deems appropriate and just
COUNT II
FAILURE TO TIMELY SUBMIT CAAPP APPLICATION
1-12.
Complainant realleges and
incorporates
by reference herein paragraphs
I
through
8,
9 through
12,
and
14 of Count I as paragraphs
1
through
12
ofthis Count II.
ANSWER:
The answers
to
Paragraphs
1
8,
9
through
12
and
14
of Count
I of the
Complaint for Civil Penalties are incorporated herein by reference.
13.
Section
39.5(6)(b)
ofthe Act, 415
ILCS
5/39.5(6)(b) (2000), provides as follows:
6.
Prohibition
b.
After the applicable
CAAPP permit
or renewal application
submittal date, as specified
in
Subsection
5
of this
Section,
no person shall operate a CAAPP source without a CAAPP
permit
unless
the
complete
CAAPP
permit
or
renewal
application
for
such
source
has been
timely submitted
to
the Agency.
ANSWER:
The provisions of the Illinois Environmental protection Act,
415
ILCS
5/1
et ~q.,
speak for themselves and to the extent that allegations contained within Paragraph
13
are
not consistent with those provisions, said allegations are denied.
14.
Section
39.5(1) of the
Act,
415
ILCS
5/39.5(1)
(2000), provides
the
following
definitions:
“CAAPP”
means
the
Clean
Air Act
Permit
Program
developed
pursuant
to Title V ofthe Clean Air Act.
“CAAPP
permit”.
.
.means any permit
issued,
renewed,
amended,
modified or revised pursuant to Title V ofthe Clean Air Act.
THIS
FILING IS
SUBMITTED ON RECYCLED PAPER
8
“Source” means
any
stationary
source
(or any
group of stationary
sources)
that
are
located
on
one
or more
contiguous
or
adjacent
properties,
and
are
under
common control of the
same person
(or
persons
under
common
control)
belonging
to
a
single
major
industrial
grouping.
“Owner or operator” means any person who owns,
leases, operates,
controls, or supervises a stationary source.
“Stationary
source”
means
any
building,
structure,
facility,
or
installation that emits
or may emit any regulated air pollutant.
.
“Regulated Air Pollutant” means the following:
1.
Nitrogen
oxides
(NOx)
or
any
volatile
organic
compound....
ANSWER:
The provisions of the Illinois Environmental protection Act, 415
ILCS
5/1
~.t~q.,
speak
for themselves and to
the extent that
allegations contained within Paragraph
14 are
not consistent with those provisions, said allegations are denied.
15.
Section 39.5(2) of the Act, 415
ILCS
5/39.5(2)
(2000), provides in pertinent part,
as follows:
2.
Applicability
a.
Sources subject to this Section shall include:
1.
Any major source
as defined in
paragraph c)
of this subsection.
*
*
*
*
c.
For
purposes
of
this
Section
the
term
“major
source” means any source that is:
*
*
*
*
iii.
A major stationary source
as defined
in part
D of Title I of the Clean AirAct including:
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
9
A.
For
ozone
non-attainment
areas,
sources
with
the
potential
to
emit
100
tons
or more
per
year of volatile
organic
compounds
or
oxides
of
nitrogen
in
areas
classified
as
“marginal”
or
.
.
.
to
emit
25
tons
or
more
per
year in areas classified as severe.
.
.
ANSWER:
The provisions of the Illinois Environmental protection
Act, 415
ILCS
5/1
~
~q.,
speak for themselves
and to the extent that
allegations contained within Paragraph
15
are
not consistent with
those provisions, said allegations are denied.
16.
Section
270.107
of
the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
270.107, provides as follows:
Applicability
This Part applies to the owner or operator ofany source required to
have an operating permit pursuant to Section
39.5
ofthe Act.
ANSWER:
The provisions
of the administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the
extent
that
allegations
contained
within
Paragraph
16 are not consistent with those provisions, said allegations are denied.
17.
Section
270.301(b) of the Board
Air Pollution
Regulations,
35
Ill.
Adm.
Code
270.301(b), provides as follows:
Application Submittal
b.
The
owner
or
operator
of
a
new
CAAPP
source
shall
submit
its
complete
CAAPP
application
consistent
with
Section
39.5(5)
ofthe
Act.
ANSWER:
The
provisions of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the
extent
that
allegations
contained
within
Paragraph
17 are
not consistent with those provisions, said allegations are denied.
THIS
FILING IS SUBMITTED
ON RECYCLED PAPER
10
18.
Section
270.105
of
the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
270.105, provides as follows:
New
CAAPP Source
“New
CAAPP
source”
means
a
CAAPP
source
that
is
not
an
existing CAAPP source.
ANSWER:
The provisions
of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained within
Paragraph 18
are
not consistent with those provisions, said allegations are denied.
19.
Section 4(g) ofthe Act, 415
ILCS
5/4(g) (2000), provides as follows:
g.
The
agency
shall
have
the
duty
to
administer,
in
accord
with title x of this act, such permit and certification systems
as may be established by this
act or by
regulations adopted
thereunder.
The agency may enter into
written
delegation
agreements with
any department, agency, or unit ofstate or
local
government under
which
all
or portions
of this
duty
may
be
delegated
for
public
water
supply
storage
and
transport systems,
sewage collection
and transport systems,
air pollution control sources with uncontrolled emissions of
100
tons
per
year
or
less
and
application
of
algicides
to
waters
of
the
state.
Such
delegation
agreements
will
require that the work
to
be performed thereunder will be in
accordance with
agency criteria,
subject
to
agency review,
and
shall
include
such
financial
and
program
auditing
by
the agency as may be required.
ANSWER:
The provisions of the Illinois Environmental protection Act, 415
ILCS
5/1
et ~q:,
speak
for themselves and to the extent
that allegations contained within Paragraph
13
are
not consistent with those provisions,
said allegations are
denied.
20.
Section
211.7150
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
211.7150, provides
in pertinent part, the following definition
as follows:
Volatile Organic
Material
(VOM) or Volatile Organic
Compound
(VOC)
THIS
FILING IS SUBMITTED
ON RECYCLED PAPER
11
“Volatile organic material
(VOM)”
or “volatile
organic compound
(VOC)” mean
any
compounds of carbon.
.
.
which participates
in
atmospheric photochemical reactions.
ANSWER:
The provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the
extent
that
allegations contained
within
Paragraph 20 are not consistent with those provisions, said
allegations are denied.
21.
Each piece of equipment described herein emits or may emit VOM,
a
“regulated
air pollutant,”
as defined by Section
39.5(1)
ofthe Act, 415
ILCS
5/39.5(1)
(2000).
ANSWER:
Respondent
lacks sufficient information with which to
affirmatively admit
or
deny
the
allegations
contained
in
Paragraph
21
for
the reason
that
the
allegations
do
not
identify
or
define
“each
piece
of
equipment
described
herein”
that
is
the
subject
of
the
allegations contained in Paragraph 21.
22.
The Respondent operates a
facility that
emits
or may
emit
a regulated pollutant.
Therefore, Respondents’
facility is a “stationary source” as that term is defined in
Section 39.5(1)
ofthe Act, 415
ILCS
5/39.5(1)
(2000).
ANSWER:
Respondent
admits
only
that
certain
operations
at
its
Buffalo
Grove,
Illinois
facility
may result
in
the
release
of a
contaminant
to
the
ambient
air,
as
the
term
“contaminant” is defined by the Illinois Environmental Protection Act, 415
ILCS
5/1, et ~
and
the remaining allegations and
conclusions of law contained
within Paragraph
22
are
denied as
untrue.
23.
The Respondent operates a stationary source and
is an “owner or operator”
as that
term is defined in Section 39.5(1) ofthe Act, 415 ILCS
5/39.5(1)
(2000).
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
12
AiVSWER:
Respondent admits
only that
it currently operates
a
candy manufacturing
facility
located
at
151
North
Hastings
Lane,
Buffalo
Grove,
Lake
County,
Illinois,
and
the
remaining
allegations
and
conclusions
of law
contained
within
Paragraph
23
are
denied
as
untrue.
24.
The Respondent’s facility is located
in
a non-attainment area for ozone.
ANSWER:
The allegations ofParagraph 24 are
admitted upon information and belief.
25.
The Respondent’s
facility
is
a
“major stationary
source” as that term
is
defined in
Section
39.5(2)(c)(iii)(A)
of the Act,
415
ILCS
5/39
5(2)(c)(iii)(A)
(2000).
Therefore, the Clean
Air Act Permit Program,
set forth in
Section 39.5 ofthe Act, 415
ILCS
5/39.5
et seq. (2000), the
corresponding
Part
270
Illinois
EPA
Rules,
35
Ill.
Adm.
Code
270
et
seq.,
pursuant
to
the
Section
270.107
of the
Illinois
EPA Rules,
35
Ill.
Adm.
Code
270.107,
are
applicable
to
the
Respondent’s
facility.
ANSWER:
The allegations ofParagraph 25
are denied as untrue.
26.
•The Respondent’s
facility is
of a “new CA~Psource”
as that term is
defined in
Section 270.105
the Illinois EPA Rules,
35 Ill. Adm.
Code 270.105.
ANSWER:
The allegations of Paragraph 26 are denied as untrue.
27.
The
Respondent was
required to
submit
a
CAAPP
Application by
November,
2000.
To
date, Respondent has not submitted a CAAPP
Application.
ANSWER:
The allegations ofParagraph 27
are denied as untrue.
28.
From
1999 and
2000, the
exact dates better known
to Respondent,
until
June 29,
2001,
the
Respondent
operated
two
(2)
capol
coating
lines
and
two
(2)
capol
baths
without
having submitted a CAAPP Application and
receiving a CAAPP permit.
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
13
ANSWER:
The
allegations of Paragraph
28
are
admitted
in
part
and
denied
in
part.
Respondent
admits
only
that
a compound known
by
the commercial
name “capol” was used in
the manufacture of candy at the Buffalo
Grove, Illinois
facility at
certain
times.
The remaining
allegations and conclusions of law contained within Paragraph 28
are denied as untrue.
29.
From
November
1999
and
May
2000
until
June
29,
2001,
the
Respondent
operated
a
CAAPP
source
without
submitting
a
complete
CAAPP
permit
application
and
obtaining
a
CAAPP
permit,
pursuant
to
Section
39.5(6)(b) of the
Act,
415
ILCS
5/39.5(6)(b)
(2000), and Section 270.301(a),
35
Ill. Adm.
Code 270.301(a).
ANSWER:
The allegations of Paragraph
29
are admitted
in
part
and
denied
in
part.
Respondent
admits
only
that
it
currently
operates
and
has
operated
since
December
1999,
a
candy manufacturing facility located at
151
North Hastings Lane, Buffalo
Grove, Lake County,
Illinois.
The remaining allegations
and
conclusions of law
contained within Paragraph
29
are
denied as untrue.
30.
The Respondent,
by
its
conduct as alleged
herein,
violated
Section
39.5(6)(b)
of
the
Act,
415
ILCS
5/39.5(6)(b)
(2000)
,
and
Sections
270.301(b) of the Board
Air Pollution
Regulations,
35111. Adm.
Code 270.301(b).
ANSWER:
The allegations ofParagraph 30 are denied as untrue.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLiNOIS,
respectfully
requests
that
the Board
enter a judgment
in
favor of Complainant
and
against the
Respondent,
VAN MELLE, on Count II:
1.
Authorizing
a
hearing
in
this
matter
at
which
time
the
Respondent
will
be
required to
answer the allegations herein.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
14
2.
Finding
that the Respondent has violated Section
39.5(6)(b)
ofthe Act
and 35
Ill.
Adm.
Code 270.301(b);
3.
Ordering
the Respondent
to
cease and
desist
from
further violations of Section
39.5(6)(b) ofthe
Act and 35
111.
Adm.
Code 270.301(b);
4.
Assessing
against
the
Respondent
a
civil
penalty
of
Fifty
Thousand
Dollars
($50,000.00) for each violation of the Act and
pertinent Board Air Pollution Regulations,
and
an
additional civil penalty ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Taxing all
costs
in
this
action
pursuant
to
Section
42(f)
of
the
Act,
including
attorney, expert witness and consultant fees,
against the Respondent;
and
6.
Granting such other relief as the Board deems appropriate and just
COUNT
III
FAILURE
TO TIMELY SUBMIT ERMS APPLICATION
1-11.
Complainant realleges
and
incorporates by reference herein paragraphs
1
through
7 and 9 through
12 of Count II as paragraphs
1
through
11 ofthis Count III.
ANSWER:
The answers to Paragraphs
1
through 7 and 9 through
12 of Count II ofthe
Complaint for Civil Penalties are incorporated herein by reference.
12.
Section 9.8(b) ofthe Act, 415
ILCS 5/9.8(b)
(2000), provides as follows:
The
Agency
shall
design
an
emissions
market
system
that
will
assist
the
State
in
meeting applicable
post-1996
provisions
under
the
CAA
of
1990,
provide
maximum
flexibility
for
designated
sources
that
reduce
emissions,
and
that
take
into
account
the
findings
of the
national
ozone
transport
assessment,
existing
air
quality
conditions,
and
resultant
emissions
levels
necessary
to
achieve or maintain attainment.
THIS
FILING IS SUBMITTED
ON RECYCLED PAPER
15
ANSWER:
The
provisions
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1,
et ~g.,
speak for themselves and
to the extent that
allegations contained within Paragraph
12
are not consistent
with those provisions, said allegations are denied.
13.
Section
205.310
of
the
Board
Air Pollution
Regulations,
35
Ill.
Adm.
Code
205.3 10, provides in pertinent part as follows:
Section 205.310
ERMS Applications
a)
The owner or operator of each participating source
or new
participating source
shall submit to
the Agency and ERMS
application in accordance with the following schedule:
*
*
*
1)
For a new participating
source
or for a major modification
ofany source
existing prior
to May
1,
1999,
that
is
subject
to
35
Ill.
Adm Code 203
based
on VOM emissions,
at the
time
a construction
permit
application
is
submitted
or due
for the source ormodification,
whichever occurs
first.
ANSWER:
The
provisions of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained within
Paragraph
13
are not consistent with those provisions, said allegations are denied.
14.
Section
39.5
of
the
Act,
415
ILCS
5/39.5
(2000),
provides
the
following
definitions:
“Owner or operator” means any person who owns, leases, operates,
controls, or supervises a stationary source.
ANSWER:
The
provisions
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1,
et
~
speak for themselves and to the extent that allegations contained within Paragraph
14
are not consistent with those provisions,
said allegations are denied.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
16
15.
Section
205.2 10
of
the
Board
Air
Pollution
Regulations,
35
Ill.
Adrn.
Code
205.210, provides as follows:
New
Participating Source
The requirements of this
Part
shall
apply to
any new participating
source,
a source
not
operating prior to
May
1,
1999,
located
in
the
Chicago
ozone
non-attainment
area,
that
is
required
of obtain
a
CAAPP permit
and
has or will have seasonal
emissions of at least
10
tons of VOM.
Each new participating
source shall
hold ATUs,
as
specified in
Section
205.150(d) of this
Part,
upon commencing
operation.
ANSWER:
The provisions
of the
administrative regulations
set
forth
in
the Illinois
Administrative
Code
speak
for themselves
and
to
the extent
that
allegations
contained within
Paragraph 15
are not consistent with those provisions, said allegations are denied.
16.
The Respondent has operated
a new participating
source,
as that
term
is
defined
by
35 Ill. Adm Code 205.210,
since May 2000,
in an ozone non-attainment area and its
seasonal
emissions
exceeded
10
tons
of VOM.
Therefore,
Respondent
has
a
source
subject
to
the
requirement ofSection 205.3 10, 35 Ill.
Adm. Code 205.3 10.
ANSWER:
The allegations ofParagraph 16 are denied as untrue.
17.
The
Respondent was
required
to
submit
its
ERMS
baseline
application
by
the
time
construction of the
facility commenced.
However,
Respondent
did
not
submit
its
ERMS
baseline application.
ANSWER:
The allegations ofParagraph
17 are denied as untrue.
18.
From May 2000 until
June 29,
2001, the Respondent operated
a new participating
source without having submitted
an ERMS Application.
ANSWER:
The allegations of Paragraph
18
are
admitted
in
part
and
denied
in
part.
Respondent
admits
only
that
it
currently
operates
and
has
operated
since December
1999,
a
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
17
candy
manufacturing facility
located
at
151
North
Hastings
Lane, Buffalo
Grove,
Lake County,
Illinois.
The remaining allegations
and
conclusions
of law
contained within
Paragraph
18
are
denied as untrue.
19.
Section
205.300
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
205.300, provides in pertinent part as follows:
Section
205.300
a)
For each year in which
the source is operational, the owner
or
operator
of
each
participating
source
and
new
participating
source
shall
submit,
as
a
component
of its
Annual
Emissions
Report,
seasonal
emissions
information
of the Agency for each seasonal
allotment period after the
effective date of this
Part in
accordance with the following
schedule:
1)
For
each participating
source
or
new participating
source
that
generates
VOM
emissions
from
less
than
10
emissions
units,
by
October
31,
of each
year;
and
2)
For
each participating
source or new
participating
source
that
generates
VOM
emissions
from
10
or
more emission units, by November 30 of each year.
ANSWER:
The
provisions of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak for themselves
and
to
the
extent
that
allegations
contained within
Paragraph 19 are not consistent with those provisions, said allegations are denied.
20.
To
date,
Respondent
has
not
submitted
seasonal
emissions
information
to
the
Illinois EPA.
ANSWER:
The allegations ofParagraph 20
are denied as untrue.
21.
Section
205.150
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
205.150, provides, in pertinent part, as follows:
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
18
Section
205.150
c)
At
the
end of each
reconciliation
period,
on
and
after
the
dates
specified
in
Section
205.200
of
this
Part,
each
participating source shall:
1)
Hold
ATUs
in
an
amount
not
less
that
its
VOM
emissions
during
the
preceding
seasonal
allotment
period,
except
as
provided
in
Sections
205.220,
205.225,
205.3
15,
205.320(e)(3)
or
(0
and
205.750
of this Part; or
2)
Holds ATUs in an amount not
less than
1.3
times its
seasonal
emissions
attributable
to
a
major
modification
during
the
preceding
seasonal
allotment
period,
if
a
participating
source
commences
operation
of
major
modification
pursuant to 35 Ill. Adm.
Code
203
on or after May
1,
1999.
Additionally, such source must hold ATUs
in
accordance with subsecton
(c)(1)
of this
section
for
VOM
emissions
not
a1tributable
to
this
major
modification
during
the
preceding
seasonal
allotment period.
d)
At
the
end
of each
reconciliation period,
on
and
after the
date
on
which
the
source
commences
operation,
as
specified
in
Section
205.210
of
this
Part,
each
new
participating source shall:
1)
If
the
new
participating
source
is
a
new
major
source
pursuant
to
35
Ill.
Adm.
Code
203,
hold
ATUs in
an amount not less than
1.3 times
its VOM
emissions
during
the preceding
seasonal
allotment
period; or
2)
If the new participating
source
is
not
a
new major
source
pursuant
to
35
Ill.
Adm.
Code
203,
hold
ATUs
in
an
amount
not
less
than
its
VOM
emissions
during
the preceding
seasonal
allotment
period,
except
as
provided
in
Sections
205.220,
205.225 and 205.750 ofthis
Part.
e)
Any
participating
source
that
commences
operation
of
a
major
modification
on
or after
May
1,
1999,
or
any
new
participating
source
that
is
a
new major
source,
which,
at
the
end
of each
reconciliation
period,
holds
ATUs
in
an
amount
not
less
that
1.3
times
the VOM
emissions
during
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
19
the preceding seasonal allotment
period,
in accordance with
subsection
(c)
(2) or (d)
(I)
of this
Section,
as applicable,
shall be deemed to
have satisfied the offset requirements of
35
Ill. Adm.
Code 203.302(a), 203,602 and 203.701.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained
within
Paragraph 21
are not consistent with
those provisions, said
allegations are denied.
22.
Respondent,
VAN
MELLE,
has
been
subject
to
ERIMS
requirements
since
calendar year 2000.
Respondent has failed to timely submit an ERMS baseline application to the
Illinois EPA.
Van Melle has also
failed to
submit seasonal emission information.
Van Melle did
not hold the required Allotment Trading Units (ATUs) during the reconciliation period
in 2000.
ANSWER:
The
allegations
contained within Paragraph
22
are
admitted
in
part
and
denied in part.
It
is admitted that Respondent did not submit “an ERIMS
baseline application”
to
the Illinois EPA.
It is
denied that Respondent is subject to ERMS requirements, was required to
submit
“an
ERMS
baseline
application,”
did
not
submit
emissions
information
and
that
Allotment Trading Units
were “required” to be held by Respondent.
23.
Respondent, by its
conduct
as alleged herein, violated Section
9.8(b)
of the
Act
and
Sections
205.310(a),
205.300(a)
and
205.150(c),
(d)
and
(e)
of the
Board
Air
Pollution
Regulations,
35 Ill. Adm.
Code 205.3 10(a),
205.300
(a) and 205.150(c),
(d) and (e).
ANSWER:
The allegations ofParagraph 23 are denied as untrue.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
respectfully
requests
that
the Board
enter a judgment
in
favor of Complainant
and
against the Respondent,
VAN MELLE, on Count III:
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
20
1.
Authorizing
a
hearing
in
this
matter
at
which
time
the
Respondent
will
be
required to answer the allegations herein;
2.
Finding
that
the Respondent
has
violated
Section
9.8(b) of the
Act
and Sections
205.3 10(a),
205.300(a) and
205.150(c),
(d) and (e) of 35 III.
Adm.
Code;
3.
Ordering
the Respondent
to
cease
and
desist
from
further
violations
of Section
9.8(b) ofthe Act and Sections 205.3 10(a),
205.300(a)
and 205.150(c),
(d) and (e) of35
Ill. Adm.
Code;
4.
Assessing
against
the
Respondent
a
civil
penalty
of
Fifty
Thousand
Dollars
($50,000.00)
for each violation ofthe Act and pertinent Board Air Pollution Regulations,
and an
additional civil penalty ofTen Thousand Dollars ($10,000.00) for each day of violation;
5.
Taxing
all
costs
in
this
action
pursuant
to
Section
42(f)
of the
Act,
including
attorney, expert witness and consultant fees,
against the Respondent;
and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT IV
NEW SOURCE REVIEW
1-1 1.
Complainant realleges and
incorporates by reference herein paragraphs
1
through
7 and 9 through 12 ofCount I as paragraphs
1
through
11 ofthis Count IV.
ANSWER:
The answers to Paragraphs
1
through 7 and
9 through
12 ofCount I of the
Complaint for Civil Penalties
are incorporated hereinby reference.
12.
Section
9(a) ofthe Act, 415
ILCS
5/9(a) (2000)
,
provides as follows:
No person shall:
Cause
or
threaten
or
allow
the
discharge
or
emission
of
any
contaminant
into the
environment
in
any
State
so
as
to
cause
or
tend
to
cause
air
pollution
in
Illinois,
either
alone
or
in
combination
with
contaminants
from
other
sources,
or
so
as
to
THIS FILING IS SUBMITTED ON RECYCLED PAPER
violate regulations
or
standards
adopted by
the
Board
under
this
Act.
ANSWER:
The
provisions
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1, et ~g.,
speak
for themselves and to the extent that allegations contained within Paragraph
12
are not consistent
with those provisions,
said allegations are denied.
13.
Section
201.141
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
20 1.141, provides as follows:
Prohibition ofAir
Pollution
No
person
shall
cause
or
threaten
or
allow
the
discharge
or
emission of any
contaminant
into the environment
in
any State
so
as,
either
alone or in
combination
with
contaminants
from
other
sources, to
cause or tend
to
cause air pollution
in
Illinois,
or so
as
to
violate
the provisions of this
Chapter,
or so
as to
prevent the
attainment
or maintenance of any
applicable
ambient
air quality
standard.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained
within
Paragraph
13
are not consistent with those provisions,
said allegations are denied.
14.
Section
3.02
of
the
Act,
415
ILCS
5/3.02
(2000),
provides
the
following
definition:
“AIR POLLUTION”
is
the presence
in
the
atmosphere of one
or
more
contaminants
in
sufficient
quantities
and
of
such
characteristics
and
duration as
to
be
injurious
to human,
plant,
or
animal
life,
to
health,
or to
property,
or to
unreasonably interfere
with the enjoyment oflife or property.
ANSWER:
The
provisions
of the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1, et
~
speak for themselves
and to the extent that allegations contained within Paragraph
14
are not consistent with those provisions,
said allegations are denied.
THIS
FILING IS
SUBMITTED ON RECYCLED PAPER
22
15.
Section
203.201
of the
Board
Air
Pollution
Regulations,
35
111.
Adm.
Code
203.201, provides as follows:
In
any
non-attainment
area,
no
person
shall
cause or
allow
the
construction of a new
major
source
or major modification
that
is
major
for
the
pollutant
for which
the
area
is
designated
a
non-
attainment
area,
except
as
in
compliance
with
this
Part
for
that
pollutant.
In
areas
designated
non-attainment
for
ozone,
this
prohibition
shall apply
to
new
major
stationary
sources
or
major
modifications
of sources
that
emit
volatile
organic
materials
or
nitrogen oxides.
Revisions
to
this
Part
which
were
adopted
to
implement the Clean Air Act Amendments of 1990
shall not
apply
to
any
new
major
stationary
source
or
major
modifications
for
which
a
permit
application
was
submitted
by
June
30,
1992,
for
PM-lU,
May
15,
1992
for
S02,
or by
November
15,
1992,
for
nitrogen oxides
and
volatile organic emissions
for sources
located
in all ozone non-attainment areas.
ANSWER:
The provisions
of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for
themselves
and
to
the
extent
that
allegations
contained within
Paragraph
15
are not consistent with those provisions, said
allegations are denied.
16.
By
releasing
VOM
emissions
into
the
atmosphere
without
demonstrating
compliance
with
Section
203.201
of the
Board
Air Pollution
Regulations, Respondent
caused,
threatened
or
allowed
air
pollution
in
violation
of
Section
9(a)
of
the
Act,
415
ILCS
5/9(a)(2000),
and Section 201.141
of35 Ill.
Adm. Code 201.141.
ANSWER:
The allegations ofParagraph 16 are denied as untrue.
WHEREFORE,
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
respectfully
requests that the Board enter an
order in favor of Complainant
and against the Respondent, VAN
MELLE, as to
Count III:
1.
Authorizing
a
hearing
in
this
matter
at
which
time
the
Respondent
will
be
required to answer the allegations herein;
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2.
Finding
that
the Respondent
has
violated
Section
9(a)
of the
Act
and
Sections
201.141
and 203.201
of35 Ill.
Adm.
Code;
3.
Ordering
Respondent
to
cease
and
desist
from
any
further violations of Section
9(a) of the Act and Sections 201.141
and 203.201
of 35 Ill.
Adm.
Code;
4.
Assessing a civil penalty of Fifty Thousand Dollars
($50,000.00) for the violation
of Section
9(a)
of the Act
and
Regulations
promulgated
thereunder,
with
an
additional
civil
penalty ofTen
Thousand Dollars
($10,000.00) for each day of violation;
5.
Ordering
Respondent
to
pay
all
costs
pursuant
to
Section
42(f)
of the
Act,
including
attorney,
expert witness and consultant fees
expended by the State in its
pursuit of this
action; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT V
FAILURE TO
REDUCE UNCONTROLLED VOM EMISSIONS
1-14.
Complainant realleges and incorporates by reference herein paragraphs
1
through
14 ofCount
IV as paragraphs
1
through
14 ofthis
Count V.
ANSWER:
The answers to
paragraphs
1
through
14 of Count IV of the Complaint for
Civil Penalties are incorporated herein by reference.
15.
Section
211.123
of
the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
211.123, provides as follows:
Coating Line
“Coating
line”
means,
for purposes of 35 Ill.
Adm.
Code
215,
an
operation
where
a
surface
coating
is
applied
to
a
material
and
subsequently
the
coating
is
dried
andlor
cured.
“Coating
line”
means,
for
purposes
of
35
Ill.
Adm.
Code
218
and
219,
an
operation
consisting ofa series of one or more coating
applicators
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and
any associated
flash-off areas,
drying areas,
and ovens wherein
a coating
is applied,
dried, and/or cured.
A coating line
ends at the
point
where
the
coating
is
dried
or
cured,
or
prior
to
any
subsequent
application of a
different
coating.
It
is
not
necessary
for an
operation
to
have
an
oven
or a
flash-off area
in
order
to
be
included in
this definition.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the
extent
that
allegations
contained
within
Paragraph 15
are not consistent with those provisions,
said
allegations are denied.
16.
Section
211.1950
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
211.1950, provides as follows:
Emission Unit
“Emission
unit”
means any
part
or activity
at
a
stationary
source
that emits or has the potential to emit
any air pollutant.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the
extent
that
allegations
contained
within
Paragraph 16 are not
consistent with those provisions, said allegations are denied.
17.
Section
211.6370
of the
Board
Air Pollution
Regulations,
35
Ill.
Adm.
Code
211.6370, provides as follows:
Stationary Source
“Stationary
source”
means
any
building,
structure,
facility,
or
installation that emits or may emit
any air pollutant.
ANSWER:
The
provisions
of the
administrative regulations
set
forth
in
the
Illinois
Administrative
Code
speak for themselves
and
to
the
extent
that
allegations
contained within
Paragraph 17
are not consistent with those provisions, said allegations are denied.
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18.
Respondent’s facility is
a
stationary source
that emits air pollutants
as that
term
is
defined
in
Section
211.6370
of
the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
211.6370.
ANSWER:
The allegations of Paragraph
18
are
admitted
in
part
and
denied
in
part.
Respondent admits
only that certain operations at its Buffalo
Grove, Illinois facility may result
in
the release
of a
contaminant
to
the
ambient
air,
as
the term
“contaminant”
is
defined by
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/1
~
~q.
The
remaining
allegations
and
conclusions oflaw contained within Paragraph
18
are denied as untrue.
19.
Respondent’s
coating
lines
are emission units
as that
term
is
defined by Section
211.1950 ofthe Board Air Pollution Regulations,
35 Ill. Adm. Code 211.1950.
ANSWER:
The allegations ofParagraph 19 are denied as untrue.
20.
Section
218.986
of the
Board
Air
Pollution
Regulations,
35
Ill.
Adm.
Code
218.986, provides as follows:
Control Requirements
Every owner or operator ofan
emission unit subject to
this Subpart
shall comply with
the requirements of subsection
(a),
(b), (c),
(d)
or (e) below.
(a)
Emission capture and
control equipment which achieves an
overall
reduction
in
uncontrolled
VOM emissions
of at
least
81
percent from each emission unit, or (Board- Note: For the purpose
ofthis
provision, an
emission unit is any part or activity at a source
of a type
that
by
itself
is
subject to
control requirements
in
other
Subparts
of this
Part
or 40
CFR
60,
incorporated by
reference
in
Section
2 18.112, e.g., a coating line,
a printing line, a process unit,
a wastewater system, or other
equipment, or is
otherwise any part
or activity
at a source.
(b)
For coating
lines, the daily-weighted average VOM content
shall
not
exceed
0.42
kg
VOM/1
(3.5
lbs
VOM/gal) of coating
(minus water and
any compounds which are specifically
exempted
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from
the definition
of VOM)
as applied during
any
day.
Owners
and
operators
complying
with
this
Section
are
not
required
to
comply with Section 218.301 ofthis Part, or
3.
An
equivalent
alternative
control
plan
which
has
been
approved
by
the Agency
and
the USEPA
in
federally enforceable
permit or as a SIP revision.
ANSWER:
The
provisions
of the
administrative
regulations
set
forth
in
the
Illinois
Administrative
Code
speak
for themselves
and
to
the extent
that
allegations contained
within
Paragraph 20 are not
consistent with those provisions, said allegations are denied.
21.
Since at least 1999
and
2000,
the exact
dates being better known to
Respondent,
and
continuing
until
June
29,
2001,
Respondents
operated
two
(2)
coating
lines
that
emitted
uncontrolled
VOM
emissions.
Respondents’
emission capture
and
control equipment
did
not
achieve
an
overall
reduction
in
uncontrolled
VOM emissions of at least
81
percent
from
each
emission unit.
ANSWER:
The allegations ofParagraph 21
are denied as untrue.
22.
Since
at least 1999
and
2000,
the exact
dates being better known
to
Respondent,
and
continuing
until
June
29,
2001,
Respondent
failed
to
achieve
an
overall
reduction
of
uncontrolled VOM emissions ofat least 81
from its two (2) capol baths
and therefore, violated
Section 9(a) ofthe Act, 415
ILCS 5/9(a)
(2000), and Sections 201.141
arid 218.986
ofthe Board
Air Pollution Regulations,
35
Ill.
Adm. Code 201.141
and 2 18.986.
ANSWER:
The
allegations
of Paragraph 22
are
admitted
in
part
and
denied
in
part.
Respondent admits
only
that
a compound known by
the commercial name
“capol” was used in
the manufacture of candy at the Buffalo Grove, Illinois facility at certain times.
The remaining
allegations and
conclusions of law contained within Paragraph 22
are denied as untrue.
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23.
Since
at least
1999
and 2000,
the
exact
dates being better known
to
Respondent,
and
continuing
through
June 29,
2001,
the
Respondent
failed
to
utilize
compliant
coatings
in
each of its
lines,
and
therefore
violated
Section
201.141
and
9(a)
of the
Act,
415
ILCS
5/9(a)
(2000), and Section 218.986 of the Board Air Pollution Regulations,
35
Ill. Adm.
Code 218.986.
ANSWER:
The allegations of Paragraph 23 are denied as untrue.
AFFIR1VIATIVE DEFENSES
The
following
defense
constitutes
a
complete
defense
to
the
Complaint
for
Civil
Penalties.
1.
Respondent alleges that Complainants’ claims are barred by the equitable doctrine
of laches.
PARTIAL AFFIRMATIVE DEFENSES
One
or the
other
of the
following
partial
defenses
constitute
a
partial
defense
to
the
claims and causes ofaction
asserted in the Complaint for Civil Penalties.
1.
For a
first defense,
Respondent alleges that
one or more of Complainants’
claims
or causes ofaction are barred by the equitable doctrine oflaches.
2.
For
a
second
defense,
Respondent
alleges
if
there
were
actions
or
conditions
giving rise
to
one or more of the Complainant’s claims
or causes of action,
those
actions were
taken or conditions created by the negligence or intentional
conduct of some third person, firm or
corporation,
their agents, servants
or employees over whom
Respondent had no
control and
for
whose negligence or intentional conduct Respondent
is not and was not
responsible.
3.
For a third defense,
Respondent
alleges that the Illinois Environmental Protection
Agency,
acting
as an
administrative agency of the
State
of Illinois,
failed
to
comply
with
the
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requirements of the Illinois Environmental Protection Act, 415
ILCS
5/1, et ~g.,
in
that on
three
separate
occasions, specifically May
7,
2002,
October
13,
2000
and
June
30,
2000,
the
Illinois
Environmental
Protection
Agency
improperly
and
unlawfully
denied
permit
applications
submitted
by Respondent for its
Buffalo
Grove,
Illinois facility.
The Agency’s failure
to contact
Respondent prior
to
denying the permit
applications effected a violation of the Petitioner’s
due
process
rights.
Board
and
Illinois
Court
decisions
on
this
issue
are
clear
that
the
Agency
is
obligated
to
issue
a
“Wells
Letter”
under
the
circumstances
that
existed.
See
Wells
Manufacturing vs.
IEPA,
195
Ill. App.3d
593,
552
N.E.2d
1074
(1st
Dist.
1990);
West Suburban
Recycling
and
Energy Center.
LP,
(October
17,
1996) PCB
95-119
and
95-125.
The permit
application denials were made
in violation ofthe obligation imposed by Section 39(a) ofthe Act
to
identify
each
section of the Act
or regulations
that would
be
violated if the permit
were
to
issue
with
sufficient
information
for
the
Petitioner
to
determine
the
bases
for the
Agency’s
determination.
See
Grigoleit
vs.
IEPA,
(November
29,
1990)
PCB
89-184.
The
permit
applications contained
all of the information required by
35
Iii.
Adm.
Code
§201.152,
§201.157
and
the
applicable
provisions of the
Act
and
therefore
it was a
violation of the
Act
and
the
implementing regulations
for the agency to
deny the
Respondent’s permit applications.
It was a
violation
of the
Act
and
the
implementing
regulations
for the
agency
to
consider
“historical
application
data” or some other unidentified facts
in its decisions
to deny the permit applications
submitted
by
Respondent
particularly
when
the
agency
failed
to
ask
for
any
additional
information
or
questions
concerning
the
facts
which
were
outside
the
scope
of the
permit
application under review.
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29
WHEREFORE,
the
Respondent
prays
that
this
Court
dismiss
the
claims
of
the
Complainant or find
in favor of the Respondent as against the Complainant and that
Respondent
recover from Complainant
its costs
and fees incurred in defense of same.
Respectfully submitted,
HOWARD & HOWARD ATTORNEYS, P.C.
By:
~
Dated: November
2t~ ,2003
Jon S. Faletto
Howard & Howard Attorneys, P.C.
One Technology Plaza, Suite 600
211
Fulton Street
Peoria, IL
61602-1350
(309) 672-1483
(309) 672-1568 Fax
jen;g:\t-v\van melle\caa
(2)\pld\.answer_&..aff_defj I-I
8-03.doc
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