ILLINOIS POLLUTION CONTROL BOARD

ORDER

March 17, 2005

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

WERNER CO., a Pennsylvania corporation,

Respondent.

)

PCB 03-101

(Enforcement - Air)

OPINION AND ORDER OF THE BOARD (by A.S. Moore):

On January 13, 2003, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a three-count complaint against Werner Co. (Werner) alleging air

pollution and permitting violations. The complaint concerns Werner’s extrusion fabrication and

manufacturing facility at 10800 West Belmont Avenue, in Franklin Park, Cook County. At its

Franklin Park facility, Werner fabricates ladders, scaffolding, stages, and planks. The parties

now seek to settle without a public hearing. For the reasons below, the Board accepts the

parties’ stipulation and proposed settlement.

Under the Environmental Protection Act (Act) (415 ILCS 5 (2002)), the Attorney

General and the State’s Attorneys may bring actions before the Board to enforce Illinois’

environmental requirements on behalf of the People.

See

415 ILCS 5/31 (2002); 35 Ill. Adm.

Code 103. In this case, the People allege in count I of the complaint that Werner violated

Section 9(a) of the Act (415 ILCS 5/9(a) (2002)) and the Board’s air pollution control

regulations (35 Ill. Adm. Code 201.141, 218.986) by emitting volatile organic material (VOM) in

violation of applicable control requirements for VOM. Count II alleges that Werner violated

Section 9(b) of the Act (415 ILCS 5/9(b) (2002)) and the Board’s air pollution control

regulations (35 Ill. Adm. Code 201.142) by failing to obtain a construction permit from the

Illinois Environmental Protection Agency (Agency) before constructing new emission sources

and air pollution control equipment. In count III of the complaint, the People allege that Werner

violated Section 9(b) of the Act and the Board’s air pollution control regulations (35 Ill. Adm.

Code 201.143) by failing to obtain an operating permit from the Agency before operating new

emission sources and air pollution control equipment.

On February 4, 2005, the People and Werner filed a stipulation and proposed settlement,

accompanied by a request for relief from the hearing requirement of Section 31(c)(1) of the Act

(415 ILCS 5/31(c)(1) (2002)). This filing is authorized by Section 31(c)(2) of the Act (415 ILCS

5/31(c)(2) (2002)), which requires that the public have an opportunity to request a hearing

whenever the State and a respondent propose settling an enforcement action without a public

hearing.

See

35 Ill. Adm. Code 103.300(a). The Board provided notice of the stipulation,

proposed settlement, and request for relief. The newspaper notice was published in the

Elm

Leaves, Forest Leaves, Franklin Park Herald-Journal, Maywood Herald, Melrose Park Herald,

Northlake Herald-Journal, Oak Leaves, River Grove Messenger, Westchester Herald, and West

Proviso Herald

on February 16, 2005. The Board did not receive any requests for hearing. The

Board grants the parties’ request for relief from the hearing requirement.

See

415 ILCS

5/31(c)(2) (2002); 35 Ill. Adm. Code 103.300(b).

Section 103.302 of the Board’s procedural rules sets forth the required contents of

stipulations and proposed settlements.

See

35 Ill. Adm. Code 103.302. These requirements

include stipulating to facts on the nature, extent, and causes of the alleged violations and the

nature of Werner’s operations. Section 103.302 also requires that the parties stipulate to facts

called for by Section 33(c) of the Act (415 ILCS 5/33(c) (2002)), which bears on the

reasonableness of the circumstances surrounding the alleged violations. The People and Werner

have satisfied Section 103.302.

The stipulation and proposed settlement also address the factors of Section 42(h) of the

Act (415 ILCS 5/42(h) (2002),

as amended by

P.A. 93-575, (eff. Jan. 1, 2004), which may

mitigate or aggravate the civil penalty amount. Werner does not admit the alleged violations but

agrees to pay a civil penalty of $32,000 and to operate and maintain all equipment and systems

relating to a Supplemental Environmental Project (SEP) at its Franklin Park facility. The SEP,

according to the stipulation and proposed settlement, consists of the conversion of an open bath

pultrusion machine to a pre-form resin injection machine. The parties state that Werner began

implementing the SEP in 2001, and the capital cost of the SEP was approximately $139,000.

The parties stipulate that Werner did not accrue an appreciable measure of economic benefit by

operating emission sources without achieving the required control. The proposed settlement

states that the People believe an $85,000 civil penalty would be appropriate based on various

Section 42(h) factors, but that the People have agreed to mitigate that amount by approximately

62% to $32,000 based on the SEP. The Board accepts the stipulation and proposed settlement.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

1. The Board accepts and incorporates by reference the stipulation and proposed

settlement.

2. Werner must pay a civil penalty of $32,000 no later than April 18, 2005, which is

the first business day following the 30th day after the date of this order. Werner

must pay the civil penalty by certified check or money order, payable to the

Illinois Environmental Protection Agency, designated to the Illinois

Environmental Protection trust Fund. The case number, case name, and Werner’s

federal employer identification number must be included on the certified check or

money order.

3. Werner must send the certified check or money order by first class mail to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

Werner must send a copy of the certified check or money order to:

188 West Randolph Street, 20th Floor

Chicago, Illinois 60601

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Act (415 ILCS 5/42(g) (2002)) at the rate set forth in Section 1003(a)

of the Illinois Income Tax Act (35 ILCS 5/1003(a) (2002)).

Werner must cease and desist from future violations of the Act and Board air

pollution control regulations.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2002);

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on March 17, 2005, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board