BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OFTHE STATE OF ILLINOIS, .
Complainant,
v.
HIGHLAND BAKING COMPANY, INC., an
Illinois corporation,
Respondent.
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PCB No.
(Enforcement-Air)
NOTICE OF ELECTRONIC FILING
TO:
Joseph R. Podlewski, Jr.
Schwartz Cooper Chartered
180 N. LaSalle St., Suite 2700
Chicago, IL 60601
PLEASE TAKE NOTICE that today, March 12,2008, I have filed with the Office
of the
Clerk of the Illinois Pollution Control Board by electronic filing the following Complaint a true
and correct copy
of which is attached and hereby served upon you.
Pursuant to 35 Ill. Adm. Code 103.204(f), I am required to state that failure to file an
answer to this Complaint within 60 days may
have severe consequences. Failure to answer will
mean that all allegations in the Complaint will be taken as
if admitted for purposes of this
proceeding.
If you have any questions about this procedure, you should contact the hearing
of~cer
assigned to this proceeding, the Clerk'sOffice or an attorney.
Electronic Filing - Received, Clerk's Office, March 12, 2008
* * * * * PCB 2008-051 * * * * *
NOTIFICATION
YOU ARE HEREBY NOTIFIED that financing may be available through the Illinois
Environmental Facilities Financing Act (20 ILCS 3515/1
et seq.)
to correct the alleged pollution.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
BY:
ezt~;£&-Y
Assistant Attorney General
-
Environmental Bureau
69
W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-8567
Date: March 12,2008
Electronic Filing - Received, Clerk's Office, March 12, 2008
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
HIGHLAND BAKING COMPANY, lNG, an
Illinois corporation,
Respondent.
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PCB No.
(Enforcement.Air)
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
of the State of Illinois, complains of Respondent, HIGHLAND BAKING COMPANY,
lNG, an Illinois corporation, as follows:
COUNT I
CONSTRUCTING EMISSION SOURCES
WITHOUT A PERMIT
1.
This count is brought by LISA MADIGAN, Attorney General of the State of
Illinois, on her own motion and at the request of the Illinois Environmental Protection Agency
("Illinois EPA") pursuant to Section
31 of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (2006).
2.
The Illinois EPA is an agency of the State of Illinois created by the Illinois General
Assembly in Section 4
of the Act, 415 ILCS 5/4 (2006), and charged,
inter alia,
with the duty of
enforcing the Act.
3.
At all times relevant to this complaint, Respondent, Highland Baking Company,
Inc., ("HBC") has
been and is an Illinois corporation, duly authorized to do business in the State
of Illinois.
Electronic Filing - Received, Clerk's Office, March 12, 2008
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4. . At all times relevant to this complaint, Respondent, HBC, owned and operated a
bakery located at
3665 West Lunt Avenue, Lincolnwood, Cook County, Illinois ("Facility").
5.
HBC operated 14 emission units at the Facility. The emission units included 11
rack ovens, 2 deck ovens, and 1 tunnel oven ("Emission Units").
6.
From June 1992 through February, 2007, or a date or dates better known to the
Respondent, HBC constructed and operated between
4 and 11 rack ovens at the Facility.
7.
From 2003 through January, 2007, or a date or dates better known to the
Respondent, HBC constructed and operated 2 deck ovens at the Facility.
8.
In February 2004, or a date or dates better known to the Respondent, HBC
constructed and operated a tunnel oven at the Facility.
9.
The action of yeast in the bread making process at the Facility produces ethanol,
which
is a gaseous matter and a volatile organic material ("YOM").
10.
YOM was emitted from each of the 14 Emission Units at the Facility into the
environment.
11.
HBC's operation of the Facility is subject to the Act and the rules and regulations
promulgated
by the Illinois Pollution Control Board ("Board"). The Board's regulations for air
pollution are found in Title
35, Subtitle B, Chapter I of the Illinois Administrative Code ("Board
Air Pollution Regulations").
12.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), provide as follows:
"CONTAMINANT" is any solid, liquid, gaseous matter, any
odor, or any form
of energy, from whatever source.
13.
YOM is "contaminant" as that term is defined in Section 3.165 of the Act, 415
ILCS 5/3.165(2006).
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14.
Section 201.102 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.102, provides the following definitions:
"Construction": commencement of on-site fabrication, erection or
installation of an emission source or of air pollution control equipment.
"Emission Source": any equipment or facility of a type capable of emitting
specified air contaminants
to the atmosphere.
"New Emission Source": any emission source, the construction or
modification of which
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 and any
contaminant regulated in Illinois pursuant to Section
9.1 of the Act.
15.
The Emission Units described herein emit, or are capable of emitting, YOM a
specified air contaminant, to the atmosphere.
16.
The Emission Units are "emission sources" and "new emission sources" as those
terms are defined in Section
201.102 of the Board Air Pollution Regul(\tions, 35 Ill. Adm. Code
201.102.
17.
The installation of 11 rack ovens, 2 deck ovens, and 1 tunnel oven from 1992
through 2004 is "construction" as that term is defined in Section 201.102 of the Board Air
Pollution Regulations,
35 Ill. Adm. Code 201.102.
18.
Section 3.115 of the Act, 415 ILCS 5/3. U5 (2006). provides as follows:
"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 of life or
property.
19.
Because the Emission Units at the Facility emit, or are capable of emitting, YOM',
a contaminant, to the atmosphere, they are capable of causing or contributing
to
air pollution.
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20.
Sections 3.315 of the Act, 415 ILCS 5/3.315 (2006), respectively, provide as
follows:
"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.
21.
HBC
is a "person" as that term is defined in Section 3.315 of the Act, 415 ILCS
5/3.315 (2006).
22.
Section 9(b) of the Act, 415 ILCS 5/9(b) (2006), provides
as follows:
"No person shall:
***
(b) 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;"
23.
Section 201.142 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.142, provides
as follows:
Construction Permit Required
No person shall cause or allow the construction of any new emission
source or any new air pollution control equipment, or cause or allow the
modification of any existing emission source or air pollution control
equipment, without first obtaining a construction permit from the Agency,
except
as provided in Sections 201.146 or Section 201.170(b) of this Part.
24.
Beginning in June 1992 and continuing until February 2004, the exact dates best
known to HBC, HBC constructed
11
rCick ovens, 2 deck ovens and 1 tunnel oven at the Facility
without first obtaining construction permits from the Illinois EPA.
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Electronic Filing - Received, Clerk's Office, March 12, 2008
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Ordering the Respondent to cease and desist from any further violations of
25.
By constructing a new emission sources at the Facility without first obtaining a
construction permit from the Illinois EPA, Respondent, HBC, violated Section 9(b) of the Act,
415 ILCS
5/9(b)(2006), and Section 201.142 of the Board Air Pollution Regulations, 35 Ill.
Adm. Code 201.142.
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter
an Order against the Respondent, HIGHLAND BANKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding
th~lt
Respondent has violated Section 9(b) of the Act, 415 ILCS
5/9(b)(2006), and Section 201.142 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.142;
3.
Section 9(b) of the Act, 415 ILCS 5/9(b)(2006), and Section 201.142 of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 201.142;
4.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000.00)
for each and every violation of the Act and pertinent regulations, with an additional penalty of
ten thousand dollars ($10,000.00)
for each day ofviolation;
5.
Taxing all costs in this action, including, but not limited to, attorney, expert
witness and consultant
fees, against Respondent; and
6. '
Granting such other relief as the Board deems appropriate and just.
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COUNT II
OPERATING NEW EMISSION SOURCES
WITHOUT A PERMIT
1,23. Complainant realleges and incorporates by reference herein paragraphs 1 through
23 of Count I as paragraphs 1 through 23 of this Count II.
24.
Section 201.143 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.143, provides
as follows:
Operating Permits for New Sources
No person shall cause or allow the operation of any new emission source or
new air pollution control equipment
of a 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. Applications for operating permits
shall be made at such times and contain such information (in addition to
the information r.equired
by Section 201.157 as shall be specified in the
construction permit.
25.
From June
1992 through February 2004, or on dates better known to HBC, HBC
operated
11 rack ovens at the Facility without first obtaining an operating permit from the Illinois
EPA.
26.
From
2003
through February 2004, or on dates better known to HBC, HBC
operated 2 deck ovens without first obtaining an operating permit from the Illinois EPA.
27.
In February 2004 or a date better known to HBC, HBC commenced operation
of
one tunnel oven without first obtaining an operating permit from the Illinois EPA.
28.
By operating new emission sources at the Facility without first obtaining an
operating permit from the Illinois EPA, HBC violated Section 9(b)
of the Act, 415 ILCS
5/9(b)(2006), and Section 201.143 of the Board Air Pollution Regulations, 35
Ill. Adm. Code
201.143.
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Electronic Filing - Received, Clerk's Office, March 12, 2008
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WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter
an Order against the Respondent, HIGHLAND BANKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required
to answer the allegations herein;
2.
Finding that Respondent has violated Section 9(b) of the Act, 415 ILCS 5/9(b)
(2006), and Section 201.143 of the Board Air Pollution Regulations, 35
Ill. Adm. Code 201.143;
3.
Ordering the Respondent
to cease and desist from any further violations of
Section 9(b)
of the Act, 415 ILCS 5/9(b) (2006), and Section 201.143 of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 201.143;
4.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000.00)
for each and every violation of the Act and pertinent regulations, with an additional penalty of
ten thousand dollars ($10,000.00)
for each day of violation;
5.
Taxing all costs in this action, including, but not limited to, attorney, expert
witness and consultant fees, against Respondent; and
6.
Granting such other relief as the Board deems appropriate and just.
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Electronic Filing - Received, Clerk's Office, March 12, 2008
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COUNT III
OPERATING A MAJOR STATIONARY SOURCE
WITHOUT A CAAPP PERMIT
1,15. Complainant realleges and incorporates by reference herein paragraphs 1 through
13 and paragraphs 20 and 21 of Count I as paragraphs 1 through 15 of this Count
III.
16.
Section 39.5(1) of the Act, 415 ILCS 5/39.5(1) (2006), provides the following
definition:
"POTENTIAL
TO EMIT" means the maximum capacity of a stationary
source to emit any air pollutant under its physical and operational design.
Any physical or operational limitation
on the capacity of a source to emit
an air pollutant, including air pollution control equipment and restrictions
on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated
as part of its design if the limitation is
enforceable by USEPA. This definition does not alter or affect the use of
this term for any other purposes under the Clean Air Act, or the term
"capacity factor"
as used in Title IY of the Clean Air Act or the regulations
promulgated thereunder.
17.
From June 1992 through February 2004, the Facility had the potential to emit
("PTE")
less than 25 tons per year ("TPY") of YOM.
18.
When HBC installed the tunnel oven in February 2004, the Facility's PTE for
YOM increased to greater than 25 TPY.
19.
On or about November and December 2006, or dates better known to the
Respondent, HBC submitted calculations of the Facility's potential and actual emissions of YOM
for the years 1992 through 2006 to the Illinois EPA. The calculations indicated that from 2004
through 2006, the Facility's PTE for YOM was greater than 25 TPY. Further, the calculations
indicated
that in calendar year 2006, the Facility's actual emissions of YOM were at least 37"
TPY.
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Electronic Filing - Received, Clerk's Office, March 12, 2008
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20.
In
February 2007, the Facility ceased all operations and shut down.
21.
Section 39.5(6)
(b) of the Act, 415 ILCS 5/39.5 (6)(b) (2006), provides as follows:
Prohibition
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 a source has been timely submitted
to the Agency.
22.
Section 39.5(1)
of the Act, 415 ILCS 5/39.5(1) (2006), provides the following
definitions:
"CAAPP" means the Clean Air
Act Permit Program developed pursuant
to Title V
of the Clean Air Act.
"CAAPP PERMIT"... means any permit issued, renewed, amended,
modified, or revised pursuant
to Title V of the Clean Air Act.
"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) and
that belongs to a single major industrial grouping....
"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.
. .. any volatile organic compound.
**
*
23.
The Emission Units described in paragraphs 6 through 8 of Count I emitted
VOM, a regulated air pollutant,
as defined by Section 39.5 (1) of the Act, 415 ILCS
5/39.5(1) (2006).
24.
The Facility was therefore a stationary source, as that term is defined in Section
39.5(1)
of the Act, 415 ILCS 5/39.5(1)(2006).
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Electronic Filing - Received, Clerk's Office, March 12, 2008
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25.
Section 39.5(2) of the Act, 415 ILCS 5/39.5(2) (2006), provides, in pertinent
part,
as follows:
Applicability
a. Sources subject to this Section shall include:
i. 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 0 of Title I
of the Clean Air
Act including:
A. For ozone nonattainment 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 "moderate", 50 tons
or more per year in areas classified
as "serious", 25
tons or more per year in areas classified as "severe",
and
10 tons or more per year in areas classified as
"extreme"; ....
*
*
*
26.
The Facility became a "major stationary source", as that term is defined in Section
39.5(2) of the Act, 415 ILCS 5/39.5(2)(2006), in February 2004 whe,n it installed the tunnel
oven, thereby increasing its PTE for
YOM
to greater than 25 TPY.
27.
Section 39.5 (5)(x)
of the Act, 415 ILCS 5/39.5 (5)(x) , provides as follows:
The owner or operator of a new CAAPP source shall submit its complete
CAAPP application consistent with this subsection within 12 months after
commencing operation
of such source. The owner or operator of an
existing source that has been excluded from the provisions of this Section
under subsection
1.1 or subsection 3(c) of this Section and that becomes
subject to the CAAPP solely due to a change
in operation at the source
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shall submit its complete CAAPP application consistent with this
subsection at least 180 days before commencing operation in accordance
with the change in operation.
28.
HBC was required to submit a
CAAPP permit application to the Illinois EPA no
later than one year prior to the increase in its PTE for YOM to more than 25 TPY, or by
February 2003.
29.
HBC submitted a CAAPP permit application
to the Illinois EPA on September 1;
2006. HBC operated without the requisite CAAPP permit from February 2004 until the Facility
shut down in February 2007.
30.
'By operating a major stationary source without timely applying for and obtaining a
CAAPP permit, Respondent, HBC, violated Sectiqn 39.5(6) (b) of the Act, 415 ILCS
5/39.5(6)
(b) (2006).
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS, respectfully
requests
that the Board enter an Order against the Respondent, HIGHLAND BAKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent has violated Section 39.5 (6)(b) of the Act, 415 ILCS
5/39.5
(6) (b) (2006);
3.
Ordering the Respondent
to cease and desist from any further violations of
Section 39.5 (6) (b) of the Act, 415 ILCS 5/39.5 (6)(b)(2006);
4.
Assessing against Respondent a civil penalty of ten thousand dollars ($10,000.00)
for each day
of violation;
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5.
Taxing all costs in this action, including, but not limited to, attorney, expert
witness and consultant
fees, against Respondent; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT IV
FAILURE
TO COMPLY WITH NEW SOURCE REVIEW REQUIREMENTS
1,27. Complainant realleges and incorporates by reference herein paragraphs 1 through
13, and paragraphs 18 through 21 of Count I, and paragraphs 16 through 20, and paragraphs 22
through 26 of Count
III
as paragraphs 1 through 27 of this Count IY.
28.
Section 9(a) of the Act, 415 ILCS 5/9
(a) (2006), provides as follows:.
No person shall:
(a) 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
violate regulations or standards adopted by the Board under this
Act;
29.
Section 203.201
of the Board Air Pollution Regulations, 35 Ill. Adm. Code
203.201, provides, in
pertinentpart, as follows:
Prohibition
In any nonattainment area, no person shall cause or
allow the construction of a new major stationary
source or major modification that
is major for the
pollutant for which the area is designated a
nonattainment area, except
as in compliance with
this Part
for that pollutant. In areas designated
nonattainment
for ozone, this prohibition shall
apply to new major stationary sources or major
modifications of sources
that emit volatile organic
materials [YOM] or nitrogen oxides
....
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30.
Section 203.127 of the Board Air Pollution Regulations, 35
Ill.
Adm. Code
203.127, provides the following definition:
Nonattainment Area
An area designated by USEPA as nonattainment for a given pollutant
pursuant
to Section 107 of the Clean Air Act
31.
From 1992 through June 2005, Cook County was designated by the USEPA as a
severe nonattainment area
for ozone, as that term is defined in Section 203 .12 7 of the Board Air
Pollution Regulations, 35
Ill.
Adm. Code 203.127.
32.
Sections 201.102,203.116,203.104,203.122
of the Board Air Pollution
Regulations, 35
Ill.
Adm. Code 201.102,203.116,203.104, and 203.122 provide the following
definitions, respectively:
"Person" means any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, agency, political
subdivision
of this State, any other State or political subdivision or agency.
thereof or any legal successor, representative, agent or agency of the
foregoing.
"Construction" means any physical change or change in the method
of
operation, including but not limited to fabrication, erection, installation,
demolition, or modification
of an emissions source unit, which would
result in a change in actual emissions.
"Actual Emissions" means the actual rate
of annual emissions of a
pollutant from
an emissions unit as of a particular date. Actual emissions
are equal to the average rate,
in tons per year, at which the emissions unit
actually emitted the pollutant during the two-year period which
immediately precedes the particular date or such other period which
is
determined by the Illinois Environmental Protection Agency (Agency) to
be representative of normal source operation. Actual emissions shall be
calculated using the unit's actual operating hours, production rates, and
types
of materials processed, stored or combusted during the selected time
period;
....
"Emissions unit" means any part of a stationary source which emits or has
the potential to emit any air pollutant subject to regulation under the
Act
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or this Chapter or by the United States Environmental Protection Agency
under the Clean Air Act.
33.
HBC
is a "person" as that term is defined in Section 201.102 of the Board Air
Pollution Regulations, 35
Ill. Adm. Code 201.102.
34.
The installation of the tunnel oven at the Facility and the resultant increase in
actual emissions in February 2004
is "construction" as that term is defined in Section 203.116 of
the Board Air Pollution Regulations, 35 Ill. Adm. Code 203.116.
35.
The Emission Units at the Facility are "emission units" as that term is defined in
Section 203.122
of the Board Air Pollution Regulations, 35 Ill. Adm. Code 203.122.
36.
Sections 203.206,203.112,203.136,203.128, and 211. 7150
of the Board Air
Pollution Regulations, 35 Ill. Adm. Code 203.206, 203.112, 203.136, 203.128, and 211.7150,
provide the following definitions:
"Major Stationary Source"
(a) For purposes of this Part,'the term "major stationary source"
shall exclusively mean "building, structure and facility,"
as those
terms are defined in Section 203.113
of this Part.
(b) The following constitute a major stationary source:
(1) For an area designated as nonattainment for ozone, a.
major stationary source
is a stationary source which emits
or has the potential to emit volatile organic
material in
an amount equal to or greater than the
following:
*
*
*
(C)'
25 tons per year in an area classified as
severe nonattainment for ozone;
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"Building, Structure and Facility": The terms "building", "structure", and
"facility" include all
of the pollutant-emitting activities which belong to
the same industrial grouping, are located on one or more contiguous or
adjacent properties, and are under the control
of the same person (or
persons under common control). Pollutant-emitting activities shall be
considered as part of the same "Major Group" (i.e., which have the same
two-digit code) as described in the Standard Industrial Classification
Manual, 1972, as amended by the 1977 Supplement (U.S. Government
Printing Office stock numbers 4101-0066 and 003-005-00176-0,
respectively) incorporated by reference in 35 Ill. Adm. Code 720.111.
"Stationary Source" means any building, structure, facility or installation
which emits or may emit any air pollutant subject to regulation under the
Act or this Chapter or by USEPA under the Clean Air Act (42
U.S.c.
7401
et seq.).
"Potential to emit" means the maximum capacity of a stationary source to
emit a pollutant under its physical and operational design. Any physical or
operational limitation
on the capacity of the source to emit a pollutant,
including air pollution control equipment and restrictions
on hours of
operation or
on the type or amount of material combusted, stored, or
processed, shall be treated
as part of its design only if the limitation or the
effect it would have
on emissions is federally enforceable. Secondary
emissions do
not count in determining the potential to emit of a stationary
source.
"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,
that participates in atmospheric photochemical reactions.
3
7.
From February 2004 through February 2007, the Facility emitted over 25 TPY of
YOM and was a "major stationary source" as that term is defined in Section 203.206 of the Board
Air Pollution Regulations, 35
Ill. Adm. Code 203.206.
38.
By constructing a new major stationary source in a severe nonattainment area
without a construction permit issued
by the Illinois EPA, Respondent, HBC, violated Section
203.201 of the Board Air Pollution Regulations, 35 Ill. Adm. Code 203.201.
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39.
Section 203.203(a) of the Board Air Pollution Regulations, 35 Ill. Adm. Code
203.203(a), provides
as follows:
Construction Permit Requirement and Application
a) A construction permit is required prior to actual construction of a
major new source or major modification.
40.
By failing to obtain a construction permit from the Illinois EPA prior to the
construction of a major new source, Respondent, HBC, violated Section 203.203(a) of the Board
Air Pollution Regulations,
35 Ill. Adm. Code 203.203(a).
41.
By violating Sections 203.201 and 203.203 (a) of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 203.201 and 203.203(a), HBC violated Section 9(a) of the Act,
415 ILCS 5/9(a)(2006).
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter
an Order against the Respondent, HIGHLAND BANKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent has violated Section 9(a) of the Act, 415 ILCS
5/9
(a) (2006), and Sections 203.201 and 203.203 (a) of the Board Air Pollution Regulations, 35
Ill. Adm. Code 203.201 and 203.203(a)j
3.
Ordering the Respondent to cease and desist from any further violations of
Section 9(a) of the Act, 415 ILCS 5/9(a)(2006), and Sections 203.201 and 203.203
(a) of the
Board Air Pollution Regulations,
35 Ill. Adm. Code 203.201 and 203.203 (a)j
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4.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000.00)
for each and every violation of the Act and pertinent regulations, with an additional penalty of
ten thousand dollars ($10,000.00) for each day of violation;
5.
Taxing all costs in this action, including, but not limited to, attorney, expert
witness and consultant
fees, against Respondent; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT V
FAILURE TO COMPLY
WITH
EMISSION REDUCTION
MARKET SYSTEM REQUIREMENTS
1,33. Complainant realleges and incorporates by reference herein paragraphs 1 through
11 of Count I, paragraphs 17 through 29 of Count III, and paragraphs 29 through 36 and
paragraph 39 of Count
IV as paragraphs 1 through 33 of this Count V.
34.
Section 9.8(b) of the Act, 415 ILCS 5/9.8 (b)(2006), provides
as follows:
The Agency shall design an emissions market system that will assist the
State in meeting applicable post,1996 provisions under the
CAAA of
1990, provide maximum flexibility for designated sources that reduce
emissions, and that takes into account the findings of the national ozone
transport assessment, existing air quality conditions, and resultant
emission levels necessary
to achieve or maintain attainment.
35.
Section 205.31O(a)
(3) (ERMS Applications) of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 205.31O(a)(3), provides as follows:
a) The owner or operator of each participating source or new participating
source shall submit to the Agency
an ERMS application in accordance
with the following schedule:
3) For any source existing prior
to May 1, 1999, that first becomes
a participating source or new participating source due to a major
modification subject to 35
Ill. Adm. Code 203 based on VOM
emissions, at the time a construction permit application
is
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submitted or due for the source or modification, whichever occurs
first.
36.
Section 205.130 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.130, provides the following definitions:
"CAAPP" means the Clean Air Act Permit Program, pursuant to Section
39.5
of the Act [415 ILCS 5/39.5].
"Participating source" means a source operating prior to May
1, 1999,
located in the Chicago area, that emits or has the potential to emit 25 tons
per year or more ofVOM or is required to obtain a CAAPP permit; and
has baseline emissions
of at least 10 tons, as specified in Section
205.320(a)
of this Part, or seasonal emissions of at least 10 tons in any
. seasonal allotment period beginning in 1999.
"Seasonal allotment period" means the period from May 1 through
September
30 of each year.
"Seasonal emissions" means actual
YOM emissions at a source that occur
during a seasonal allotment period.
37.
In December 2006, or dates better known to the Respondent, HBC submitted
calculations
of the Facility's seasonal emissions of YOM for the 2006 seasonal allotment period to
the Illinois EPA. The calculations indicated that during the 2006 seasonal allotment period, the
Facility's seasonal emissions were at least
15 TPY.
38.
HBC is a "participating source" as that term is defined in Section 205.130 of the
Board Air Pollution Regulations,
35 Ill. Adm. Code 201.130.
39~
Section 203.207 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
203.207, provides, in pertinent part, as follows:
Major Modification
of a Source
a) Except as provided in subsection (c), (d), (e) or
(f)
below, a physical
change, or change in the method
6f operation of a major stationary source
that would result in a significant net emissions increase of any pollutant for
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which the area is designated a nonattainment area, shall constitute a major
modification of a source.
b) Any net emissions increase that is significant for volatile organic
material or nitrogen oxides shall be considered significant for ozone.
*
**
40.
Section 203.209(b) of the Board Air Pollution Regulations, 35 Ill. Adm. Code
203.209(b), provides
as follows:
Significant Emissions Determination
b) For areas classified
as serious or severe nonattainment for ozone, an
increase in emissions of volatile organic material or nitrogen oxides shall
be considered significant if the net emissions increase of such air pollutant
from a stationary source located within such area exceeds
25 tons when
aggregated with all other net increases in emissions from ,the source over
any period of 5 consecutive calendar
,Years which includes the calendar
year in which such increase occurred. This provision shall become
effective beginning November
15, 1992, or such later date that an area is
classified as a serious or severe nonattainment area for ozone.
41.
From February 2004 through 2006, an aggregate
net increase of YOM emissions
which exceeded
25 TPY from the Facility, a stationary source, is a "significant net emission" as
that term is defined in Section 203.209(b) of the Board Air Pollution Regulations, 35 Ill. Adm.
Code 203.209(b).
42.
The installation of the tunnel oven in February 2004 which resulted in a
significant
net emissions increase of YOM is a "major modification" as that term is defined in
Section 203.207 of the Board Air Pollution Regulations, 35 Ill. Adm. Code 203.207.
43.
HBC was required to submit an application in February 2004 when it installed the
tunnel ovens, a major modification to the Facility which existed before May
1, 1999, pursuant to
Section 205.31O(a)
(3) of the Board Air Pollution
Regulations~
35 Ill. Adm. Code 20531O(a) (3).
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44.
HBC did not submit an emissions market system (UERMS") application for the
Facility at anytime from February,2004 through February 2007, when it shut down the Facility, at
which time it emitted more than
25 TPY of YOM from the Facility during the calendar year
2006.
45.
By failing to timely submit an ERMS application as required of a participating
source, the Respondent, HBC, violated Section 205.31O(a)
(3) of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 205.31O(a)(3), and thereby violated Section 9(a) of the Act, 415
ILCS 5/9
(a) (2006).
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an Order against the Respondent, HIGHLAND BANKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required
to answer the allegations herein;
2.
Finding that Respondent has violated Section 9(a) of the Act, 415 ILCS 5/9(a).
(2006), and Section 205.310(a)(3)of the Board Air Pollution Regulations, 35
Ill. Adm. Code
205.31O(a)(3) ;
3.
Ordering the Respondent to cease and desist from any
further violations of
Section 9(a) of the Act, 415 ILCS 5/9(a)(2006), and Section 205.31O(a)(3)of the Board Air
Pollution Regulations, 35
Ill. Adm. Code 205.31O(a)(3);
4.
Assessing against Respondent a civil penalty
of fifty thousand dollars ($50,000.00)
for each and every violation of the Act and pertinent regulations, with an additional penalty of
ten thousand dollars ($10,000.00)
for each day of violation;
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5.
Taxing all costs in this action, including, but not limited to, attorney, expert
witness and consultant fees, against Respondent; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT VI
FAILURE
TO SUBMIT COMPLETE AND ACCURATE
ANNUAL EMISSIONS REPORTS
1-18. Complainant realleges and incorporates by reference herein paragraphs 1 through
15 and paragraphs 20 and 21 of Count I, and paragraph 28 of Count IV as paragraphs 1 through
18 of this Count VI.
19.
Section 201.302 (a) of the Board Air Pollution Regulations, 35 Ill. Adm. Code
20 1.302 (a), provides
as follows:
The owner or operator of any emission unit or air pollution
control equipment, unless specifically exempted in this
Section, shall submit to the Agency
as a minimum, annual
reports detailing the nature, specific emission units and
total annual quantities of all specified air contaminant
emissions; provided, however,
that the Agency may require
more frequent reports where necessary to accomplish the
purposes
of the Act and this Chapter.
20.
Section 254.132
(a) of the Illinois EPA Air Pollution Regulations, 35 Ill. Adm.
Code 254.132 (a), provides
as follows:
Failure to file a complete Annual Emissions Report by the applicable
deadlines prescribed in Section 254.13 7(a) of this Subpart shall be a
violation of this Part and 35
Ill. Adm. Code 201.302(a).
21.
Section 254.13 7(a) of the Illinois EPA Air Pollution Regulations, 35
Ill. Adm.
Code 254.137(a), provides
as follows:
All Annual Emissions Reports are due
by May 1 of the year following the
calendar year in which the emissions took place.
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22.
Section 201.102 of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201.102, provides the following definition:
"OWNER
OR OPERATOR": any person who owns, leases, controls or
supervises an emission source or air pollution control equipment.
23.
Section 211.1950 of the Board Air Pollution Regulations, 35
Ill. Adm. Code
211.1950, provides the following definition:
"EMISSION UNIT" means any part or activity at a stationary source that
emits or has the potential to emit any air pollutant.
24.
The sources described in paragraphs 6 through 8 of Count I of this Complaint are
"emission units,"
as that term is defined in Section 211.1950 of the Board Air Pollution
Regulations,
35 Ill. Adm. Code 211.1950.
25.
HBC
was an "owner or operator" of emission units and emission source required
to timely submit
'a complete Annual Emissions Reports ("AER") for each of the calendar years
1992 through and including 2005
by May 1 of the subsequent year.
26.
HBC failed to submit AERs
for calendar years 1992 through 2005 to the Illinois
EPA until November 6, 2006
..
27.
By failing to timely submit an AER for each of the calendar years from 1992
through and including 2005, HBC violated Section 201.132
(a) of the Board Air Pollution
Regulations,
35 Ill. Adm. Code 201.132(a), and Section 254.137(a) of the Illinois EPA Air
Pollution Regulations, 35
Ill. Adm. Code 254.137(a).
28.
By violating Section 201.132(a) of the Board Air Pollution Regulations, 35 Ill.
Adm. Code 201.132 (a), and Section 254.137 (a) of the Illinois EPA Air Pollution Regulations, 35
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Ill. Adm. Code 254.137(a), HBC thereby also violated Section 9(a) of the Act, 415 ILCS
5/9
(a) (2006).
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF ILLINOIS, respectfully
requests
that the Board enter an Order against the Respondent, HIGHLAND BAKING
COMPANY, INC.:
1.
Authorizing a hearing in this matter at which time the Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent has violated Section 9(a) of the Act, 415 ILCS
5/9(a)(2006), Section 201.132
(a) of the Board Air Pollution Regulations, 35 Ill. Adm. Code
201. 132(a), and Section 254.137(a) of the Illinois EPA Air Pollution Regulations, 35
Ill. Adm.
Code 254.137(a);
. 3.
Ordering the Respondent to cease and desist from any further violations of
Section 9
(a) of the Act, 415 ILCS 5/9 (a) (2006), Section 201.132 (a) of the Board Air Pollution
Regulations, 35
Ill. Adm. Code 201.132 (a), and Section 254.137(a) of the Illinois EPA Air
Pollution Regulations, 35
Ill. Adm. Code 254.13 7(a);
4.
Assessing against Respondent a civil penalty of fifty thousand dollars ($50,000.00)
for each and every violation of the Act and its promulgated regulations, with an additional
penalty of ten thousand dollars ($10,000.00)
for each day of violation;
5.
Taxing all costs in this action, including,
but not limited to, attorney, expert
witness and consultant fees, against Respondent; and
6.
Granting such other relief as the Board deems appropriate and just.
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Of
Counsel:
Nancy J. Tikalsky
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312)
814,8567
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
~
ROSE~U~
~~-----
-
Environmental Bureau
Assistant Attorney General
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CERTIFICATE OF SERVICE
I, Nancy
J.
Tikalsky, an Assistant Attorney General, do certify that a true and correct
copy
of the Complaint and Notice of Filing were sent by certified mail with return receipt
requested to the persons listed on the Notice of Filing on March 12,2008.
Electronic Filing - Received, Clerk's Office, March 12, 2008
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