PEOPLE OF THE STATE OF ILLINOIS
DRAW DRAPE CLEANERS, INC.,
an
Illinois corporation,
-
RECE~VED
CLERK’S OFFICE
STATE OF
ILLINOIS
Pollution Control Board
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 August 2, 2004, we filed with the Clerk ofthe Illinois Pollution Control Board, James
R. Thompson Center, 100W. Randolph, Suite 11-500, Chicago, Illinois 60601, AMERICAN
DRAPERY CLEANERS
& FALMEPROOFERS & RICHARD ZELL’S
RESPONSE
TO
SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT,
a copy ofwhich is served
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG
2
Complainant,
V.
Case No.
PCB 03-51
(Enforcement
—
Air)
on you.
CERTIFICATE OF SERVICE
I, Michele Rocawich, certifij that on August 2, 2004, Respondents’ Response to Second
Motion for Partial Summary Judgment was served on: Bradley P. Halloran by hand delivery; and
Joel J. Stemstein and Maureen Wozniak by facsimile and first class mail.
~
~
Michele Rocawich
Ariel Weissberg, Esq.
Michele Rocawich, Esq.
WEISSBERG AND ASSOCIATES, LTD.
401 5. LaSalle St., Suuite 403
Chicago, IL 60605
Attorney No. 03125591
312-663-0004
AMERICAN
DRAPERY CLEANERS &
FLAMEPROOFERS and RICHARD ZELL,
Respondents,
By:
~
/
One oftheir attorneys
CLERK’S OFFICE
AUG -. 22004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PoIlut~on
STATE OF
ControlILLINOISBoard
PEOPLE OF THE STATE OF ILLINOIS
)
)
Complainant,
)
No. PCB 03-51
)
(Enforcement
-
Air)
DRAW DRAPE CLEANERS, NC.,
)
an Illinois corporation, AMERICAN
)
DRAPERY CLEANERS & FLAMEPROOFERS
)
INC., an Illinois Corporation, and
)
RICHARD ZELL, an Illinois resident,
)
)
Respondents.
)
DRAW DRAPE
CLEANERS’ RESPONSE
TO
SECOND
MOTION FOR PARITAL SUMMARY JUDGMENT
Respondents Richard Zell
(“Zell”),
an Illinois resident and American Drapery Cleaners &
Flameproofers (“American Drapery,”) (jointly “Respondents”) by their attorneys, WEISSBERG
AND ASSOCIATES, LTD., respond to Complainant’s Second Motion for Partial Summary Judgment
and in support states:
MITIGATING CIRCUMSTANCES DICTATE FINDING FOR RESPONDENTS
Respondents operate a dry cleaning facility that is unique in that theirprocess
commercially flame proofs drapes in a cost effective mannerthat triples the life ofthe draperies.
Their process provides a unique and useful service that the State ofIllinois has approved for use
by schools and related entities. In fact the State ofIllinois lists Respondents’ operation as a
source on its website. At issue in this Complaint is emissions from Dryer #2 which Respondents
installed in 1996 to use in place ofan identical Dryer (i.e., Dryer #1) which were damaged in a
fire at Respondents’ facility in 1994. The 1994 fire damaged Respondents’ physical plant and
Dryer#1 which were installed in the 1 960s. Pursuant to the Illinois Environmental Protection
Act (“Act”), 415 ILCS 5/31(2002), Dryer #1 were “grandfathered in” and did not require a
permit.
After the fire in 1994, Respondents obtained a permit to rebuildtheir plant. Dryer#1
which were damaged in the fire were a 110 lb. dryer and Respondents needed a dryer ofthat size
for their operations. When the plant were rebuilt, there were no recovery dryer available large
enough for the size ofRespondents operations and Respondents needed a dryer the size ofDryer
#1 to continue their operations. Therefore, Respondents installed Dryer #2 on an interim basis
until it could purchase a recovery dryer in the proper size. Respondents believed that because
Dryer #2 was identical to Dryer #1 which destroyed in the fire, it could operate Dryer #2 without
violating the Act.
Respondents 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 Respondents’ order forthe new recovery dryer in May 2002 and delivered the new
dryer (Dryer #3) in late September 2002. Respondents 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, Respondents have used Dryer #2 mainly to ready drapes forpressing by
“fluffing.” The process of“fluffing” does not emit volatile organic materials (VOM) into the
environment. During the period Respondents operated Dryer #2, it emitted minimal VOMs into
the environment. Respondents operation ofDryer #2 did not violate the FESOP.
Significantly, Respondents have had a Federally Enforceable State Operating Permit
(FESOP) since a permit was required, and Respondents have always operated their plant below
the emissions allowed under their FESOP Permit #95100005. In fact, Respondents would have
to emit an additional 1,000 gallons per year to reach the emissions allowed under their FESOP.
Respondents were severely adversely impacted by the 1994 fire, rebuilt their plant and
resumed operations that provide a unique service to the public including schools in Illinois.
When Respondents resumed their operations, Respondents did not violate the spirit ofthe Act.
In support oftheirmotion for summary judgment, Complainant relies on the answers
Respondents provided to Complainant’s interrogatories. Respondents have consistently
attempted to work with the Illinois Environmental Protection Agency to comply with pollution
control regulations and truthfully responded to the allegations ofthis complaint. Respondents
have not violated the spirit ofthe Act and should not be punished fortheir compliance.
2
ARGUMENT
Complainant’s motion asks the Illinois Pollution Control Board (“Board”) to find that
American Drapery Cleaners & Flameproofers, Inc. and Richard Zell “are as liable as
Respondent Draw Drape for the violations ofthe Environmental Protection Act (‘Act’)” and
summary judgment should be granted on the following counts ofthe complaint: 1) Count IV
alleging that Respondents constructed an emissions source without a permit in violation ofthe
Act; 2) Count V
---
alleging that Respondents operated an emissions source without a permit in
violation ofthe Act; 3) Count VII
---
alleging that Respondents did not install a solvent recovery
dryer with a cartridge filter in violation ofthe Act; and 4) Count VIII
---
alleging Respondents
did not perform the initial emissions test as required by the Act.
As to Count IV which alleges that Respondents constructed an emission source without a
permit, Respondents installed Dryer #1, a 110 lb. dryer, in the 1 960s and operated it in
compliance with Act until the Dryer was damaged along Respondents’ physical plant in 1994.
Forced to rebuild their plant in order to continue their operations, Respondents obtained a permit
to rebuild. To resume operations, Respondents needed a dryer with at least a 100 lb capacity to
replace destroyed Dryer #1. In 1996 when the plant were rebuilt and ready to operate, a recovery
dyer that size (i.e., 100 Ib) was not available. Therefore, Respondents 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 Respondents had obtained a permit to rebuild, Respondents believed they
were operating Dryer #2 in compliance with the Act and that their operating permit covered
Dryer #2. As soon as a recovery dryer became available in the proper size, Respondents ordered
and installed the new recovery dryer.
As to Count V which alleges that Respondents operated an emissions source without a
permit, from the time Respondents installed and began operating Dryer #2, they operated it
mainly to “fluff” draperies. The process of “fluffing” does not emit VOMs into the environment.
During the period Respondents operated Dryer #2, the Dryer has emitted minimal VOMs into the
environment. Richard Zell provided a verification with Respondents answers to complaint
3
attesting to these facts. (copy is attached to Response to Motion to Partial Summary Judgment as
Exhibit 1). Mr. Zell avers that: 1) Respondents have had a Federally Enforceable State
Operating Permit (FESOP) since a permit were required; 2) Respondents have always operated
their plant below the emissions allowed under their FESOP Permit
#95
100005; and 3)
Respondents would have to emit an additional 1,000 gallons per year to reach the emissions
allowedunder their FESOP.
Mr. Zell ‘s verification constitutes “evidentiary facts” and Complainant has provided no
evidentiary facts such as an affidavit to controvert the evidentiary facts submitted by
Respondents. Unswom and unverified statements cannot be considered on a motion for
summary judgment.
Rotzoll v. Overhead Door Corp.,
289 Ill.App.3d 410, 16 1-62, 681 N.E.2d
156
(4th
Dist. 1997);
West v. Deere & Co.,
201 Ill.App.3d 891, 900,
559
N.E.2d 511 (2” Dist.
1990). Unsubstantiated hearsay statements cannot be considered in ruling on a motion for
summary judgment.
Laja v. AT& T,
283 Ill.App.3d 126, 136, 669 N.E.2d
645
(1st
Dist.
1996)(citing
Seefielt v. Milliken National Bank ofDecatur,
154 Ill. Spp.3d 715, 506 N.E.2d 1052
(1987). As such, the Board cannot consider the unsworn and unverified statements of
Complainant’s Counsel contained in theirmotion for partial summary judgment.
As to Count VII which alleges that Respondents 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 at Respondents’ plant was not available in 1996 when
Respondents rebuilt the plant and were ready to operate. When a recovery dryer in the proper
size (i.e., a 100 lb. recovery dryer) became available in May 2002, Respondents immediately
ordered and installed a new recovery dryer. The manufacturer accepted Respondents’ order for
the new recovery dryer in May 2002 and delivered the new dryer (Dryer #3) in late September
2002. Respondents obtained Permit #02030079, and installed and began operating Dryer #3 in
May 2003.
As to Count VIII which alleges Respondents did not perform an initial emissions
test, Respondents did not perform an emissions test when Respondents began operating Dryer #2
as a replacement for Dryer #1 which was destroyed in the 1994 fire because no commercial
emissions test was available at that time. Moreover, Respondents have had a Federally
4
Enforceable State Operating Permit (FESOP) since a permit was required, and Respondents have
always operated their plant below the emissions allowed under their FESOP Permit
#95
100005.
In fact, Respondents would have to emit an additional 1,000 gallons per year to reach the
emissions allowed under their FESOP. As stated above, Respondents verified this fact and
Complainant did not controvert this properly with supported material facts.
Complainant’s unsupported allegations are simply not sufficient to support theirmotion
for partial summary judgment, and Respondents have consistently acted in a manner that
demonstrates their intent to conform with the spirit ofthe Act.
CONCLUSION
For the foregoing reasons, the Illinois Pollution Control Board should deny
Complainant’s second motion forpartial summary judgment.
AMERICAN DRAPERY CLEANERS &
FLAMEPROOFERS and
RICHARD
ZELL,
Respondents,
~
One oftheir attorneys
Ariel Weissberg, Esq.
Michele Mary Rocawich, Esq.
WEISSBERG AND ASSOCIATES, LTD.
401 5. LaSalle St., Suite 403
Chicago, Illinois 60605
312/663-0004
FAX: 312/663-1514
5
