BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BEHR ALUMINUM, INC., an Illinois
Corporation,
Respondent.
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PCB No.
(Enforcement - Air)
•
NOTICE OF FILING
(VIA ELECTRONIC FILING)
TO:
See attached service list
PLEASE TAKE NOTICE that today, September 5, 2008, I have electronically
filed with the Office
of the Clerk of the Pollution Control Board a Complaint for Civil
Penalties, a copy
of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney General
of he State of Illinois
BY:
(J\iIylvVli
(/h
r
It
ORREN NICHOLE
CUNNrG:~
Assistant Attorney General
Environmental Bureau
69 W. Washington St., 18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
SERVICE LIST
Mr. Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
Jon
S. Faletto
Hinshaw
&
Culbertson LLP
416 Main Street - 6th Floor
Peoria, IL 61602
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
BEHR ALUMINUM, INC., an Illinois
Corporation,
Respondent.
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)
)
)
)
)
)
)
)
)
)
)
PCB No.
(Enforcement - Air)
COMPLAINT FOR CIVIL PENALTIES
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA
MADIGAN,
Attorney General of the State of Illinois, on her own motion and at the
request of the Illinois Environmental Protection Agency, complains of Respondent,
BEHR ALUMINUM, INC., an Illinois corporation, as follows:
COUNT I
AIR POLLUTION IN VIOLATION OF POLLUTION CONTROL BOARD
EMISSION STANDARDS
1.
This Complaint is brought on behalf of the People of the State of Illinois
ex reI.
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 administrative agency of the State of Illinois,
created pursuant to Section 4 ofthe Act, 415 ILCS 5/4 (2006), and charged,
inter alia,
with the duty of enforcing the Act.
3.
Respondent, BEHR ALUMINUM, INC. ("Behr Aluminum"), is an Illinois
corporation in good standing.
4.
At all times relevant to the Complaint, Behr Aluminum was a secondary
aluminum smelting facility located at 1100 Seminary Drive, Rockford, Illinois 61104
("Facility"). Behr Aluminum manufactured aluminum alloy ingots for use
by various
commercial and industrial die cast manufacturing facilities.
5.
Emission sources and air pollution control equipment operated at the Behr
Aluminum Facility included one aluminum reverberatory furnace with baghouse, one
scrap crushing hammermill ("hammermill"), and an aluminum and steel turnings dryer
("rotary dryer") controlled
by a cyclone, afterburner, spray chamber and baghouse.
6.
The hammermill was a source of particulate matter ("PM"), and the rotary
dryer was a source
of PM, dioxin and furan ("D/F") emissions.
7.
On September 28,2001, the Illinois EPA issued revised Lifetime
Operating Permit Number 72120576 ("September 2001 Permit") to Behr Metals, Inc.,
now known as ("n/k/a") Behr Aluminum. The September 2001 Permit contained
PM
emission limits for the operation ofthe rotary dryer and hammermill with the baghouse in
bypass.
8.
On August 13,2002, the Illinois EPA issued another revision of Lifetime
Operating Permit Number 72120576 ("August 2002 Permit") to Behr Metals, Inc., n/k/a
Behr Aluminum. The August 2002 Permit contained the same
PM emission limits for the
rotary dryer and hammermill as the Sep.tember 2001 Permit.
9.
On September 6,2002, the Illinois EPA inspected the Facility
("September 2002 Inspection"). During the inspection, Respondent operated one rotary
2
dryer with the baghouse in bypass, i.e. without utilizing a baghouse to control PM
emissions.
10.
On September 13,2002, Behr Aluminum informed the Illinois EPA by
electronic mail that the Facility had operated its rotary dryer with the baghouse in bypass
since September 2001.
11.
On September 14-15, 2004, Behr Aluminum conducted stack testing to
determine the quantity of PM emissions generated during operation of the rotary dryer
with the baghouse in bypass ("September 2004 Stack Test"). The September 2004 Stack
Test ,showed that operation
of the rotary dryer without the baghouse resulted in potential
maximum PM emissions
of 89.32 lb/hr.
12.
On August 24, 2007, or on a date better known to Respondent, Behr
Aluminum ceased secondary aluminum production at the Facility and, therefore,ceased
to operate the rotary dryer.
13.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2006), provides the following
definition:
"Person" is any individual, partnership, co-partnership, firm,
company, limited liability company, corporation, associate, joint
stock company, trust, estate, political subdivision, state agency, or
any other legal entity, or their legal representative, agent or
aSSIgns.
14.
Behr Aluminum, a corporation, is a "person," as that term is defined in
Section 3.315
ofthe Act.
15.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2006), contains the following
definition:
"Contaminant" is any solid, liquid, gaseous matter, any odor, or
any form
of energy, from whatever source.
3
16.
PM is a "contaminant" as that tenn is defined in Section 3.165 of the Act.
17.
Section 3.115 of the Act, 415 ILCS
5/3.115
(2006), 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.
18.
Section 9(a) ofthe Act, 415 ILCS
5/9(a)
(2006), provide the following:
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;
19.
Section 201.141 of the Illinois Pollution Control Board's("Board") Air
Pollution Regulations,
35 Ill. Adm. Code 201.141 (2006), 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, 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.
20.
The rotary dryer at the Behr Aluminum Facility causes or threatens the
emission
of PM so as to cause or tend to cause air pollution in Illinois.
21.
Section 212.321
ofthe Board'sAir Pollution Regulations, 35 Ill. Adm.
Code 212.321, provides, in part,
as follows:
4
Process Emission Units For Which Construction or Modification
Commenced On or After April 14, 1972
(a)
Except as further provided in this Part, no person
shall cause
or allow the emission of particulate matter into
the atmosphere in
anyone hour period from any new
process emission unit which, either alone or in combination
with the emission
of particulate matter from all other
similar process emission units for which construction
or
modification commenced on or after April 14, 1972, at a
source
or premises, exceeds the allowable emission rates
specified in subsection (c) of this Section.
(b)
Interpolated and extrapolated values of the data in
subsection (c)
of this Section shall be determined by using
the equation:
E =A(P)B
where
P
=
Process weight rate; and
E
=
Allowable emission rate; and,
(1)
Up to process weight rates of 408 MG/hr
(450 T/hr):
English
P
E
A
B
T/hr
Ibs/hr
2.54
0.534
(2)
For process weight rate greater than
or equal
to 408 Mg/hr (450 T/hr):
English
P
E
A
B
5
T/hr
Ibs/hr
24.8
0.16
(c)
Limits for Process Emission Units For Which
Construction or Modification Commenced On or After
April 14,1972
English
*
*
where:
P
T/hr
4.00
5.00
10.00
*
*
E
lbs/hr
*
5.35
6.00
8.70
*
P
=
Process weight rate in metric or T/hr, and
E
=
Allowable emission rate in kg/hr or lbs/hr.
22.
Based upon the weight
of scrap material charged into the rotary dryer
during the September 2004 Stack Test, the maximum allowable PM emission rate during
operation
of Respondent'srotary dryer is 6.01Ib/hr.
23.
Upon information and belief, based on test data resulting from the
September 2004 Stack Test, Behr Aluminum'soperation
of its rotary dryer without the
baghouse from September 2001
to August 2007 caused PM emissions in excess of the
regulatory limit
of 6.011b/hr prescribed by Section 212.321 ofthe Board'sAir Pollution
Regulations.
24.
By causing or allowing PM emissions into the atmosphere in excess of the
allowable emission rate, Behr Aluminum violated Section 9(a)
of the Act and Sections
201.141 and 212.321
of the Board'sAir Pollution Regulations.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of €omplainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
6
1.
Authorize a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9(a) of the Act and Sections
201.141 and 212.321
ofthe Board'sAir Pollution Regulations;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(a) ofthe Act and Sections 201.141 and 212.321 ofthe Board'sAir Pollution
Regulations;
4.
Assessing civil penalties pursuant to Section 42(a) of the Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as this Board deems appropriate.
COUNT II
DISCHARGE OF CONTAMINANTS IN VIOLATION OF PERMIT
1-16. Complainant realleges and incorporates by reference herein paragraphs 1
through 16
of Count I as paragraphs 1 through 16 of this Count II.
17.
Section 9(b) of the Act, 415 ILCS 5/9(b) (2006), provides the following:
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.
7
18.
Special Condition 2(a) of Respondent's September 2001 Permit provides,
in pertinent part, as follows:
2a.
Emissions and operation
of equipment shall not exceed the
following limits:
Throughput
Emission
Control
PM Emissions
Factor
(T/Hr)
(TNr)
(Lbffon)
(%)
(Lb/Hr)
(TNr)
Equipment
Condition
Rotary Dryer
(Unpainted Scrap)
Bypass
6
21,000
14.5
97
2.61
4.57
***
**
Bypass means that the exhaust can bypass the Main Baghouse
19.
Special Condition 3(a) of Respondent'sAugust 2002 Permit provides as
follows:
3a. .
Emissions and operation
of equipment shall not exceed the
following limits:
Throughput
Emission Factor
Control
PM Emissions
(T/Hr)
(TNr)
(Lbffon)
(%)
(Lb/Hr)
(TNr)
Equipment
Condition
Rotary Dryer
(Unpainted Scrap)
Bypass
6
21,000
14.5
97
2.61
4.57
***
**
Bypass means that the exhaust can bypass the Main Baghouse
20.
During the September 2004 Stack Test at the Facility, potential maximum
PM emissions from the rotary dryer were 89.32 lb/hr when the baghouse was in bypass.
21.
By operating the rotary dryer without utilizing the baghouse from
September 2001 to August 2007, or on dates better known to Respondent, Behr
8
Aluminum operated the rotary dryer in violation of the 2.61 lb/hr limit contained in the
special conditions of its operating permit.
22.
By failing to operate within the conditions imposed by its permit,
Respondent violated Section 9(b) of the Act, Special Permit Condition 2(a) of
Respondent's September 2001 Permit and Special Permit Condition 3(a) of the August
2002 Permit.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent,
BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9(b) of the Act, Special Permit
Condition 2(a)
of Respondent's September 2001 Permit and Special Permit Condition
3(a)
ofthe August 2002 Permit; .
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(b) of the Act, Special Permit Condition 2(a) of Respondent's September 2001
Permit and Special Permit Condition 3(a)
of the August 2002 Permit;
4.
Assessing civil penalties pursuant to Section 42(a)
of the Act, 415 ILCS
5/42(a) (2006), of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
.Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
9
6.
Granting such other relief as the Board deems appropriate.
COUNT III
FAILURE TO TIMELY CONDUCT EMISSIONS TESTING
1-16. Complainant realleges and incorporates by reference herein paragraphs 1
through
16 of Count I as paragraphs 1 through 16 of this Count III.
17.
On November 24, 2000, Behr Aluminum submitted to the Illinois EPA a
permit application to revise Lifetime Operating Permit Number 72120576
to allow Behr
Aluminum to bypass the baghouse when utilizing its rotary dryer and hammermill for
processing clean, unpainted aluminum chips.
18.
On February 28,2001, the Illinois EPA reissued Lifetime Operating
Permit Number 72120576 ("February
2001 Permit") to Behr Aluminum, directing the
Respondent to conduct PM emissions testing within 180 days, to demonstrate that PM
emissions generated during rotary dryer and hammermill operations with the baghouse in
bypass would be in compliance with PM emission limits specified by the permit. The
PM emission testing was
to be done while processing clean, unpainted aluminum scrap.
19.
On September 13,2001, Behr Aluminum requested an additional 90 days
in which
to conduct stack testing.
20.
On September 28,2001, the Illinois EPA issued Behr Aluminum's
September
2001 Permit directing the Respondent to conduct stack testing during
operation
of the rotary dryer and hammermill within 90 days.
21.
On February 27,2002, Behr Aluminum requested an additional 90 days to
conduct stack testing.
22.
On March
1, 2002, the Illinois EPA issued a Violation Notice ("VN") to
10
Behr Aluminum for, among other things, Respondent's failure to conduct the required
stack testing.
23.
On August 13, 2002, the Illinois EPA reissued Behr Aluminum's Lifetime
Operating Permit Number 72120576 ("August 2002 Permit") directing Behr Aluminum
to conduct stack testing within 90 days during operation
of the rotary dryer and
hammermill.
24.
On December 16, 2002, the Illinois EPA issued a second VN to Behr
Aluminum for, among other things, failure to conduct stack testing.
25.
On March 21,2003, Behr Aluminum conducted PM emissions testing at
the Facility ("March 2003 Stack Test").
26.
On July 23, 2003, Respondent submitted to the Illinois EPA data resulting
from the March 2003 Stack Test.
27.
On October
10, 2003, the Illinois EPA determined that the data submitted
from the March 2003 Stack Test did not accurately document the type
of material
processed and the method utilized to perform weight measurement determinations by
Behr Aluminum during testing.
28.
On January 3,2004, the Respondent discovered that one
of the three test
runs from the March 2003 Stack Test was invalid because it did not fall within acceptable
isokinetic variation criteria.
29.
Section 9(b)
of the Act, 415 ILCS 5/9(b) (2006), provide the following:
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
11
Agency, or in violation of any conditions imposed by such permit.
30.
Special Condition number 5(a)
of Respondent's September 2001 Permit
provides as follows:
Within 90 days
of receipt of this permit, the emISSIons of
particulate matter from the afterburner and cyclone shall be
measured during conditions which are representative
of maximum
emissions when processing unpainted or clean aluminum scrap
with the main baghouse in bypass.
31.
Respondent did not measure PM emissions during the 90 days following
the issuance
of the September 2001 Permit.
32.
Special Condition number 6(a)
of Respondent's August 2002 Permit
provides as follows:
Within 90 days
of the issuance date of this permit, the emissions of
particulate matter from the afterburner and cyclone shall be
measured during conditions which are representative
of maximum
emissions when processing unpainted or clean aluminum scrap
with the main baghouse in bypass.
33.
Respondent did not measure PM emissions during the 90 days following
the issuance
of the August 2002 Permit.
34.
By failing
to timely test PM emissions from the rotary dryer and
hammermill, Respondent violated Section 9(b)
of the Act, Special Condition number 5(a)
of its September 2001 Permit and Special Condition number 6(a) of its August 2002
Permit.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
12
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9(b) of the Act, Special
Condition number 5(a)
ofthe September 2001 Permit and Special Condition number 6(a)
of its August 2002 Permit;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(b) of the Act;
4.
Assessing civil penalties pursuant to Section 42(a) of the Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
COUNT IV
FAILURE TO UTILIZE POLLUTION CONTROL EQUIPMENT
1-33. Complainant realleges and incorporates by reference herein paragraphs 1
through
33 of Count III as paragraphs 1 through 33 of this Count IV.
34.
In
Respondent'sFebruary 2001 Permit, September 2001 Permit and
August 2002 Permit, which are all revisions
ofBehr Aluminum's Lifetime Operating
Permit number 72120576, the Illinois EPA allowed operation
of one hammermill and one
rotary dryer without utilizing one baghouse only for the limited purpose
of conducting
stack testing.
35.
Since at least September
2001 to August 2007, on dates better known to
13
Respondent, Behr Aluminum operated the rotary dryer without the baghouse at times
other than for the performance
of stack testing.
36.
Special Condition 2(b) of Respondent's September 2001 Permit provides
as follows:
This permit allows the Permittee to bypass the baghouse while
processing clear or unpainted aluminum scrap in the hammermill and
rotary dryer only for the purpose
of stack testing for a period of 90
days as specified in Special Condition 5(a).
37.
Special Condition 3(b)
of Respondent'sAugust 2002 Permit provides as
follows (emphasis in original):
This permit allows the Permittee to bypass the baghouse while
processing clear or unpainted aluminum scrap in the hammermill and
rotary dryer only for the purpose
of stack testing for a period of 90
days
as specified in Special Condition 6(a).
38.
By operating the hammermill and rotary dryer without the baghouse for
purposes other than stack testing and outside
of the time period allowed by Lifetime
Operating Permit number 72120576, Behr Aluminum violated Section 9(b)
of the Act,
Special Condition 2(b)
of its September 2001 Permit, and Special Condition 3(b) of its
August 2002 Permit.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required
to answer the allegations herein;
2.
Finding that Respondent violated Section 9(b) of the Act, Special
Condition 2(b)
of its September 2001 Permit, and Special Condition 3(b) of its August
14
2002 Pennit;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(b) ofthe Act, Special Condition 2(b) of its September 2001 Pennit, and Special
Condition 3(b)
of its August 2002 Pennit;
4.
Assessing civil penalties pursuant to Section 42(a) ofthe Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
COUNT V
FAILURE TO OBTAIN CONSTRUCTION
PERMIT
1-37. Complainant realleges and incorporates by reference herein paragraphs 1
through 37
of Count IV as paragraphs 1 through 37 of this Count V.
38.
Section 201.102 of the Board'sAir Pollution Regulations, 35 Ill. Adm.
Code 201.102 (2006), provides the following definitions:
"Person":
any individual, corporation, partnership, finn,
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.
"Specified Air Contaminant": any air contaminant
as to which this
Subtitle contains emissions standards or other specific limitations
and any contaminant regulated in Illinois pursuant to Section
9.1 of
the Act.
"Emission Source": any equipment or facility
of a type capable of
15
emitting specified air contaminants to the atmosphere.
"Air Pollution Control Equipment": any equipment or facility
of a
type intended to eliminate, prevent, reduce or control the emission
of specified air contaminants to the atmosphere.
"Modification": any physical change in, or change in the method
of operations of, an emission source or of air pollution control
equipment which increases the amount
of any specified air
contaminant emitted by such source or equipment or which results
in the emission
of any specified air contaminant not previously
emitted.
It
shall be presumed that an increase in the use of raw
materials, the time
of operation or the rate of production will
change the amount
of any specified air contaminant emitted.
Notwithstanding any other provisions
of this definition, for
purposes
of permits issued pursuant to Subpart D, the Illinois
Environmental Protection Agency (Agency) may specify
conditions under which an emission source or air pollution control
equipment may be operated without causing a modification
as
herein defined, and normal cyclical variations, before the date
operating permits are required, shall not be considered
modifications.
39.
BehrAluminum
isa "person," as defined by Section 201.102 of the
Board'sAir Pollution Regulations.
40.
PM is "specified air contaminant,"
as defined by Section 201.102 of the
Board'sAir Pollution Regulations.
41.
The rotary dryer and hammermill at Respondent'sFacility are each an
"emission source," as that term is defined by Section 201.102
of the Board'sAir
Pollution Regulations.
42.
The baghouse located at the Facility is "air pollution control equipment,"
as that term is defined
by Section 201.102 of the Board'sAir Pollution Regulations.
43.
Behr Aluminum's disconnection
of the rotary dryer from the baghouse
was a "modification," as that term is defined in the Board'sAir Pollution Regulations,
16
because it caused a change in the method of operation of emission sources and air
pollution control equipment that increased the amount
of an air contaminant.
44.
Section 201.142
of the Board'sAir Pollution Regulations, 35 Ill. Adm.
Code 201.142 (2006), provides the following:
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.
45.
By failing to obtain a construction permit from the Illinois EPA prior to
modifying its emissions sources
by disconnecting the rotary dryer from the baghouse in
September 2001 and causing PM emissions in excess
ofpermitted PM emission limits,
Behr Aluminum violated Section 9(b)
ofthe Act and Section 201.142 of the Board'sAir
Pollution Regulations.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9(b) ofthe Act and Section
201.142
of the Board'sAir Pollution Regulations;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(b) ofthe Act and Section 201.142 of the Board'sAir Pollution Regulations;
4.
Assessing civil penalties pursuant to Section 42(a) ofthe Act, 415 ILCS
17
5/42(a) (2006), of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) ofthe
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
6.
Granting such other relief as the Board deems appropriate.
COUNT VI
FAILURE TO MAINTAIN RECORDS
1-16. Complainant realleges and incorporates by reference herein paragraphs 1
through
16 of Count I as paragraphs 1 through 16 of this Count VI.
17.
Sections 9(b) of the Act, 415 ILCS 5/9(b) (2006), provide the following:
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.
18.
Special Condition 9 of Respondent's September 2001 Permit provides, in
pertinent part,
as follows:
The Permittee shall maintain the records
of the following items:
(a)
Daily records
of the amount of aluminum scrap in
each individual batch processed in the dryer and
hammermill (tons/day, tons/month and tons/year);
*
*
*
(c)
Daily records ofwhether the baghouse was in
bypass or not in bypass for each individual batch processed
in the dryer and hammermill; [and]
18
*
**
(g)
Calculations of PM emissions (tons/month and
tons/year).
19.
Special Condition 10 of Respondent's August 2002 Pennit provides, in
pertinent part, as follows:
The Pennittee shall maintain the records
of the following items:
(a)
Daily records
of the amount of aluminum scrap in
each individual batch processed in the dryer and
hammennill (tons/day, tons/month and tons/year);
***
(c)
Daily records of whether the baghouse was in
bypass or not in bypass for each individual batch processed
in the dryer and hammennill; [and]
***
(g)
Calculations of PM emissions (tons/month and
tons/year).
20.
Since at least September 2002 to August 2007, or on dates better known to
Respondent, Behr Aluminum failed to keep an accurate record setting forth when the
baghouse was bypassed and calculations
of monthly PM emissions and failed to maintain
accurate daily and monthly records
of the emissions from its hammennill.
21.
By failing to maintain records required by the September 2001 Pennit and
the August 2002 Pennit, Behr Aluminum violated Section 9(b)
of the Act, Special
Conditions 9(a), (c) and (g)
of the September 2001 Pennit, and Special Conditions 10(a),
(c) and (g)
of the August 2002 Pennit.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
19
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9(b) of the Act, Special
Conditions 9(a), (c) and (g)
of the September 2001 Permit, and Special Conditions 10(a),
(c) and (g) of the August 2002 Permit;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9(b) of the Act, Special Conditions 9(a), (c) and (g) of the September 2001
Permit, and Special Conditions lO(a), (c) and (g) of the August 2002 Permit;
4.
Assessing civil penalties pursuant to Section 42(a) of the Act, 415 ILCS
5/42(a) (2006), of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
COUNT VII
FAILURE TO TIMELY DEMONSTRATE COMPLIANCE WITH NESHAP
1-17. Complainant realleges and incorporates by reference herein paragraphs 1
through
13
of Count I and paragraphs 24 through 27 of Count III as paragraphs 1 through
17
of this Count VII.
18.
From at least February 1999 to August 2007, Respondent operated a
secondary aluminum production facility.
20
19.
On March 23,2000, the U.S. EPA promulgated National Emissions
Standards for Hazardous Air Pollutants ("NESHAP") for new and existing sources at
secondary aluminum production facilities, 40 C.F.R. Part 63, Subpart RRR, (hereinafter,
''NESHAPfor secondary aluminum production") requiring that secondary aluminum
production facilities meet emission standards reflecting the application
of maximum
achievable control technology ("MACT").
20.
On June 28, 2004, the Illinois EPA received from Behr Aluminum a site-
specific test plan to facilitate performance testing pursuant to the NESHAP for secondary
aluminum production.
21.
Respondent's September 2004 Stack Test included dioxin/furan testing
pursuant to the NESHAP for secondary aluminum production.
22.
Section
9.1 (d)(1) of the Act, 415 ILCS 5/9.1 (d) (2006), provides as
follows:
(d)
No person shall:
(1)
violate any provisions
of Sections 111, 112, 165 or
173 of the Clean Air Act, as now or hereafter amended, or
federal regulations adopted thereto;
23.
The NESHAP for secondary aluminum production was promulgated
pursuant to Section 112
of the federal Clean Air Act ("CAA"), 42 U.S.C. § 7412,
24.
Section 63.1503
ofthe NESHAP for secondary aluminum production, 40
C.F.R. § 63.1503, provides the following definitions:
Dioxins and furans
means tetra-, penta-, hexa-, and octachlorinated
dibenzo dioxins and furans.
Secondary aluminum production facility
means any establishment
using clean charge, aluminum scrap, or dross from aluminum
production,
as the raw material and performing one or more of the
21
following processes: scrap shredding, scrap drying! delacquering!
decoating, thermal chip drying,
....
Aluminum scrap shredder
means a unit that crushes, grinds, or
breaks aluminum scrap into a more uniform size prior to processing
or charging to a scrap dryer/delacquering kiln/decoating kiln, or
furnace. A bale breaker is not an aluminum scrap shredder.
Thermal chip dryer
means a device that uses heat to evaporate oil or
oiVwater mixtures from unpainted/uncoated aluminum chips. Pre-
heating boxes or other dryers which are used solely
to remove water
from aluminum scrap are not considered to be thermal chip dryers
for purposes
of this subpart.
25.
Section 63.2
of the NESHAP for secondary aluminum production, 40
C.F.R. § 63.2, provides the following definitions:
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 which emits or may emit any air pollutant.
Hazardous air pollutant
means any air pollutant listed
III
or
pursuant
to section 112(b) ofthe Act.
Area source
means any stationary source of hazardous air
pollutants that is not a major source
as defined in this part.
Major source
means any stationary source or group of stationary
sources located within a contiguous area and under common
control that emits or has the potential to emit considering controls,
in the aggregate,
10 tons per year or more of any hazardous air
pollutant or
25 tons per year or more of any combination of
hazardous air pollutants, unless the Administrator establishes a
lesser quantity, or in the case
of radionuclides, different criteria
from those specified in this sentence.
Existing source
means any affected source that is not a new source.
New source
means any affected source the construction or
reconstruction
of which is commenced after the Administrator first
proposes a relevant emission standard under this part establishing
an emission standard applicable to such source.
22
Affected source,
for the purposes of this part, means the collection
of equipment, activities, or both within a single contiguous area
and under common control that is included in a section 112(c)
source category or subcategory for which a section 112(d) standard
or other relevant standard is established pursuant to section 112
of
the Act. ...
26.
Section 63.1500 ofthe NESHAP for secondary aluminum production, 40
C.F.R. § 63.1500, provides, in pertinent part, as follows:
(a)
The requirements of this subpart apply to the owner or
operator of each secondary aluminum production facility as
defined in § 63.1503.
**
*
(c)
The requirements ofthis subpart pertaining to dioxin and
furan (D/F) emissions and associated operating, monitoring,
reporting and recordkeeping requirements apply to the following
affected sources, located at a secondary aluminum production
facility that is an area source
of HAPs as defined in § 63.2:
(1)
Each new and existing thermal chip dryer;
27.
At all times relevant to the Complaint, Behr Aluminum was the "owner or
operator"
of a "secondary aluminum production facility" that utilized a thermal chip
dryer and aluminum scrap shredder.
28.
Respondent's thermal chip dryer and aluminum scrap shredder emitted
dioxins and furans ("D/F").
29.
D/F is a hazardous air pollutant ("HAP").
30.
As a facility emitting less than 10 tons per year
ofD/F, the Facility was an
"area source"
of HAPs.
31.
Because a thermal chip dryer was operated at the Facility, which was a
secondary aluminum production facility that was an area source
of HAPs, it was an
"affected source."
23
32.
Because the Facility was in operation before U.S. EPA promulgated the
NESHAP for secondary aluminum production, Behr Aluminum was an "existing affected
source."
33.
Section 63.1511(a) and (b)
of the NESHAP for secondary aluminum
production, 40 C.F.R. § 63.1511(a) and (b), provides as follows:
(a)
Site-specific test plan. Prior to conducting any performance
test required
by this subpart, the owner or operator must prepare a
site-specific test plan which satisfies all
of the requirements, and
must obtain approval
of the plan pursuant to the procedures, set
forth in
§ 63.7(c).
(b)
Initial performance test. Following approval
of the site-
specific test plan, the owner or operator must demonstrate initial
compliance with each applicable emission, equipment, work
practice, or operational standard for each affected source and
emission unit, and report the results in the notification
of
compliance status report as described in §
63~1515(b).
The owner
or operator
of any existing affected source for which an initial
performance test is required
to demonstrate compliance must
conduct this initial performance test no later than the date for
compliance established by § 63.1501(a). The owner or operator of
any new affected source for which an initial performance test is
required must conduct this initial performance test within 90 days
after the date for compliance established
by § 63.1501(b). Except
for the date
by which the performance test must be conducted, the
owner or operator must conduct each performance test in
accordance with the requirements and procedures set forth in §
63.7(c). Owners or operators
of affected sources located at
facilities which are area sources are subject only to those
performance testing requirements pertaining to D/F. Owners or
operators
of sweat furnaces meeting the specifications of §
63.1505(f)(1) are not required to conduct a performance test.
34.
Section 63.1501(a)
ofthe NESHAP for secondary aluminum production,
40 C.F.R. § 63.1501 (a), provides as follows:
The owner or operator of an existing affected source must comply
with the requirements
of this subpart by March 24, 2003.
24
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
35.
By failing to submit a site-specific test plan to the Illinois EPA and to
conduct initial performance by the deadlines established in Sections 63.1511(a) and (b)
and 63.1501(a)
ofthe NESHAP, Behr Aluminum violated Section 9.1(d)(1) of the Act
and Sections 63.1511(a) and (b) and 63.1501(a)
of the NESHAP for secondary aluminum
production.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 9.1(d)(1) of the Act and Sections
63.1511(a) and (b) and 63.1501(a)
of the NESHAP for secondary aluminum production;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9.1(d)(1)
~fthe
Act and Sections 63.1511(a) and (b) and 63.1501(a) of the
NESHAP for secondary aluminum production;
4.
Assessing civil penalties pursuant to Section 42(a) of the Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10;000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
25
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-014 * * * * *
COUNT VIII
FAILURE TO TIMELY SUBMIT NOTICE OF COMPLIANCE WITH NESHAP
1-30. Complainant realleges and incorporates by reference herein paragraphs 1
through 30
of Count VII as paragraphs 1 through 30 of this Count VIII.
31.
On September 24, 2003, the Illinois EPA received from Behr Aluminum a
compliance status report that was based on the March 2003 Stack Test, which was
invalid, and that failed to contain all information specified in the NESHAP for secondary
aluminum production. .
32.
The Respondent did not submit to the Illinois
EPA a compliance status
report meeting the requirements of the NESHAP for secondary aluminum production.
33.
Section 63.1515(b)
of the NESHAP for secondary aluminum production,
40
c.P.R.
§ 63.1515(b), provides as follows:
(b)
Notification
of compliance status report. Each owner or
operator of an existing affected source must submit a notification
of compliance status report within 60 days after the compliance
date established by § 63.1501(a). Each owner or operator of a new
affected source must submit a notification of compliance status
report within 90 days after conducting the initial performance test
required by § 63.1511(b), or within 90 days after the compliance
date established
by § 63.1501(b) ifno initial performance test is
required. The notification must be signed
by the responsible
official who must certify its accuracy. A complete notification
of
compliance status report must include the information specified in
paragraphs (a)(1) through (10) ofthis section. The required
information may
be submitted in an operating permit application,
in an amendment to an operating permit application, in a separate
submittal, or in any combination. In a State with an approved
operating permit program where delegation of authority under
section 112(1)
of the CAA has not been requested or approved, the
owner
or operator must provide duplicate notification to the.
applicable Regional Administrator. If an owner or operator submits
the information specified in this section at different times
or in
different submittals, later submittals may refer to earlier submittals
instead of duplicating and resubmitting the information previously
26
submitted. A complete notification of compliance status report
must include
....
34.
By failing to timely submit a complete and accurate notification of
compliance status report by May 23,2003, as required by the NESHAP for secondary
aluminum production, Behr Aluminum violated Section 9.I(d)(1)
of the Act and Section
63 .1515(b) of the NESHAP for secondary aluminum production.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent,
BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
. Finding that Respondent violated Section 9.1(d)(1) of the Act and Section
63.1515(b)
of the NESHAP for secondary aluminum production;
3.
Ordering Respondent to cease and desist from any further violations of
Section 9.1(d)(1) of the Act and Section 63.1515(b) of the NESHAP for secondary
aluminum production;
4.
Assessing civil penalties pursuant to Section 42(a)
of the Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
27
COUNT IX
FAILURE TO COMPLY WITH PSD REQUIREMENTS
1-21. Complainant realleges and incorporates by reference herein paragraphs 1
through
21 of Count I as paragraphs 1 through 21 of this Count IX.
22.
Based upon the September 2004 Stack Test, the Facility had a potential to
emit ("PTE") approximately
391 tons per year ("tpy") of PM when the rotary dryer was
operated without the baghouse.
23.
Sections 9.1(d)(1) and (2)
ofthe Act, 415 ILCS 5/9.1(d)(1) and (2) (2006),
provide as follows:
(d)
No person shall:
(1)
violate any provisions
of Sections 111, 112, 165 or
173 of the Clean Air Act, as now or hereafter amended, or
federal regulations adopted thereto; or
(2)
construct, install, modify or operate any equipment,
building, facility, source or installation which is subject to
regulation under Sections 111, 112,
165 or 173 of the Clean
Air Act,
as now or hereafter amended, except in
compliance with the requirements
of such Sections and
federal regulations adopted pursuant thereto, and no such
action shall be undertaken without a permit granted by the
Agency or in violation
of any conditions imposed by such
permit. Any denial
of such a permit or any conditions
imposed in such a permit shall be reviewable by the Board
in accordance with Section 40
of this Act.
24.
Section
165 of the Clean Air Act ("CAA") contains the preconstruction
requirements for sources subject to Part C
of the CAA. Part C ofthe CAA establishes a
scheme for the Prevention
of Significant Deterioration of Air Quality.
25.
Pursuant to Section
161 ofthe CAA, 42 U.S.C.A. § 7471, Part C applies to
sources that are located in areas designated by the Governor
of a State as attainment or
28
unc1assifiable in accordance with Section 107 of the CAA, 42 U.S.C.A. § 7407.
26.
The Governor
of the State of Illinois has designated Winnebago County,
the area in which the Respondent'sFacility was located, as an attainment area for PM.
27.
Sections 165(a)(I) and (4)
of the qean Air Act, 42 U.S.C.S. § 7475(a)(1)
and (4), provide
as follows:
No major emitting facility on which construction is commenced
after August
7, 1977, may be constructed in any area to which this
part applies
unless-
(1)
a permit has been issued for such proposed facility
in accordance with this part setting forth emission
limitations for such facility which conform
to the
requirements
of this part; [and]
*
**
(4) the proposed facility is subject to the best available
control technology for each pollutant subject
to regulation
under this chapter emitted from, or which results from,
such facility;
28.
On June 19, 1978, the Administrator
of the U.S. EPA promulgated
Prevention
of Significant Deterioration ("PSD") regulations pursuant to Part C of the
CAA. These regulations were codified at 40 CFR §52.21 (hereinafter, "PSD
Regulations").
29.
Section 52.21(a)(2)
of the PSD Regulations, 40 C.F.R. § 52.21(a)(2),
provides, in pertinent part, as follows:
(2)
Applicability procedures.
(i)
The requirements
of this section apply to the construction
of any new major stationary source (as defined in paragraph (b)(1)
of this section) or any project at an existing major stationary source
in an area designated as attainment or unc1assifiable under sections
107(d)(1)(A)(ii) or (iii)
of the Act.
29
(ii)
The requirements of paragraphs
(j)
through (r) of this
section apply to the construction
of any new major stationary
source or the major modification
of any existing major stationary
source, except
as this section otherwise provides.
(iii)
No new major stationary source or major modification to
which the requirements
ofparagraphs
(j)
through (r)(5) of this
section apply shall begin actual construction without a permit that
states that the major stationary source or major modification will
meet those requirements. The Administrator has authority to issue
any such permit.
30.
Section 52.21(b)
of the PSD Regulations, 40 C.F.R. § 52.21(b) provides
the following definitions:
(l)(i)
Major Stationary Source
qIeans:
(a)
Any of the following stationary sources of air
pollutants which emits, or has the potential to emit, 100
tons per year or more
of any pollutant subject to regulation
under the Act: ... , secondary metal production plants ... ;
*
*
*
(c)
Any physical change that would occur at a
stationary source not otherwise qualifying under paragraph
(b)(l)
of this section, as a major stationary source, if the
changes would constitute a major stationary source by
itself.
***
(5)
Stationary Source
means any building, structure, facility, or
installation which emits or may emit a regulated NSR pollutant.
*
*
*
(8)
Construction
means any physical change or change in the
method
of operation (including fabrication, erection, installation,
demolition, or modification
of an emissions unit) that would result
in a change in emissions.
***
(11)
Begin actual construction
means, in general, initiation of
physical onsite construction activities on an emissions unit which
/
30
are of a permanent nature. Such activities include, but are not
limited to, installation
of building supports and foundations, laying
underground pipework and construction
of permanent storage
structures. With respect to a change in method
of operations, this
term refers to those on-site activities other than preparatory
activities which mark the initiation
of the change.
(12)
Best Available Control Technology
means an emissions
limitation (including a visible emission standard) based upon the
maximum degree
of reduction for each pollutant subject to
regulation
under. the Act which would be emitted from any
proposed major stationary source or major modification which the
Administrator, on a case-by-case basis, taking into account energy,
environmental, and economic impacts and other costs, determines
is achievable for such.source or modification through application
of production processes or available methods, systems, and
techniques, including fuel cleaning or treatment or innovative fuel
combustion techniques for control
of such pollutant. ...
31.
Section 52.21(j)(1)
&
(2) of the PSD Regulations, 40 C.F.R. §52.21(j)(1)
&
(2), provides:
Control technology review.
(1)
A major stationary source or major modification shall meet
each applicable emissions limitation under the State
Implementation Plan and each applicable standard and standard
of
performance under 40 CFR parts 60 and 61.
(2)
A new major stationary source shall apply best available
control technology for each regulated NSR pollutant that it would
have the potential to emit in significant amounts.
32.
Based on the September 2004 Stack Test results, the Behr Aluminum
Facility was a "major stationary source" with the potential to emit more than 100 tons per
year
of PM.
33.
Behr Aluminum's disconnection
ofthe rotary dryer from the baghouse
was "construction," as that term is defined in Section 52.21 (b)(8)
of the CFR, because it
was a change in the method
of operation of an emission unit that resulted in a change in
31
emISSIOns.
34.
Behr Aluminum removed one baghouse from service that controlled PM
emissions during rotary dryer operations without first conducting a BACT analysis
consisting
of a control technology review, applying for and obtaining from the Illinois
EPA a PSD permit setting forth a BACT emission limit, and installing BACT.
35.
By constructing a major stationary source located within an attainment
area having the PTE to emit PM in excess
of 100 t/yr, failing to perform a BACT review,
failing to apply for and obtain a PSD permit prior to the construction
of one rotary dryer
without a baghouse, and failing to apply BACT
to the rotary dryer, Behr Aluminum
violated Sections 9.1(d)(1)
&
(2) of the Act, Sections 165(a)(1) and (4) ofthe Clean Air
Act, and Sections 52.21(a) and
(j)
of the PSD Regulations.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR
ALU!v1INUM, INC., for the following relief:
1.
Finding that Respondent violated Sections 9.1 (d)(1) and (2) of the Act,
Sections 165(a)(1) and (4)
of the Clean Air Act, and Sections 52.21(a) and
(j)
of the PSD
Regulations;
2.
Ordering Respondent to cease and desist from any further violations of
Sections 9. 1(d)(1) and (2) of the Act, Sections 165(a)(1) and (4) of the Clean Air Act, and
Sections 52.21(a) and
(j)
ofthe PSD Regulations;
3.
Assessing civil penalties pursuant to Section 42(a) ofthe Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
32
4.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
5.
Granting such other relief as the Board deems appropriate.
COUNT X
FAILURE TO OBTAIN CAAPP PERMIT
1-18. Complainant realleges and incorporates by reference herein paragraphs 1
through
18 of Count I as paragraphs 1 through 18 of this Count X.
19.
Section 39.5(6)(b) of the Act, 415 ILCS 5/39.5(6)(b) (2006), provides as
follows:
After the applicable CAAPP permit or renewal application
submittal date, as specified in subsection 5
ofthis Section, no
person shall operate a CAAPP source without a CAAPP permit
unless the complete CAAPP permit or renewal application
of such
source has been timely submitted to the Agency.
20.
Section 39.5
ofthe Act, 415 ILCS 5/39.5 (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.
"CAAPP source" means any source for which the owner or
operator is required to obtain a CAAPP permit pursuant to
subsection 2
of this Section.
"Owner or operator" means any person who owns, leases, operates,
controls, or supervises a stationary source
"Major Source" means a source for which emissions
of one or
more air pollutants meet the criteria for major status pursuant to
paragraph 2(c)
of this Section.
.
33
"Source" means any stationary source (or any group of stationary
sources) that are located on one or more contiguous or adjacent
properties that are under the common control
of the same person
(or persons under common control) and that belongs
to a single
major industrial grouping
....
21.
Section 39.5(2)(a)(i) bfthe Act, 415 ILCS 5/39.5(2)(a)(i) (2006), provides,
in pertinent part, as follows:
(a)
Sources subject to this Section shall include:
***
(i)
Any major source as defined in paragraph (c) of this
subsection.
22.
Section 39.5(2)(c)(ii)
of the Act, 415 ILCS 5/39.5(2)(c)(ii) (2006),
provides
as follows:
(c)
For purposes
ofthis Section the term "major source" means
any source that
is:
(ii) A major stationary source of air pollutants, as defined
in Section 302
ofthe Clean Air Act, that directly emits or
has the potential to emit, 100 tpy or more
of any air
pollutant (including any major source
of fugitive emissions
of any such pollutant, as determined by rule by USEPA)...
23.
Because the Facility had the potential to emit more than 100 tons per year
of PM, it was a "major source" as defined by Section 39.5(2)(c)(ii)ofthe Act.
24.
Behr Aluminum was the "owner or operator"
of a "CAAPP source"
required to obtain a "CAAPP permit,"
as those terms are defined in Section 39.5 of the
Act.
25.
Section 39.5(5)(x)
of the Act, 415 ILCS 5/39.5(5)(x) (2006), provides, in
pertinent part,
as follows:
... The owner or operator of an existing source ... that becomes
34
)
subject to the CAAPP solely due to a change in operation at the
source shall submit its complete CAAPP application consistent
with this subsection at least 180 days before commencing
operation in accordance with the change in operation.
26.
By failing
to submit to the Illinois EPA an application for a CAAPP
permit within 180 days prior to disconnecting the dryer from the baghouse, and thereafter
operating the source, Behr Aluminum operated a CAAPP source without a CAAPP
permit in violation
of Section 39.5(6)(b) ofthe Act.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against
Respondent, BEHR ALUMINUM, INC., for the following relief:
1.
Authorizing a hearing in this matter at which time Respondent will be
required to answer the allegations herein;
2.
Finding that Respondent violated Section 39.5(6)(b) ofthe Act;
3.
Ordering Respondent to cease and desist from any further violations of
Section 39.5(6)(b) of the Act;
4.
Assessing civil penalties pursuant to Section 42(a) of the Act, 415 ILCS
5/42(a) (2006),
of Fifty Thousand Dollars ($50,000.00) against Respondent for each
violation and Ten Thousand Dollars ($10,000.00) for each day
of violation;
5.
Assessing all costs against Respondent pursuant to Section 42(f) of the
Act, 415 ILCS 5/42(f) (2006), including expert witness, consultant and attorney's fees;
and
6.
Granting such other relief as the Board deems appropriate.
35
OfCounsel:
L. NICHOLE CUNNINGHAM
Assistant Attorney General
Environmental Bure,au
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-3532
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
By:JL~A~
Environmental Bureau
Assistant Attorney General
36
CERTIFICATE OF SERVICE
I, Lorren Nichole Cunningham, Assistant Attorney General, do certify that on the
5
th
day of September, 2008, I caused to be served upon Respondent Behr Aluminum, Inc.,
the foregoing Complaint for Civil Penalties and Notice of Filing by depositing the same
at the United States Postal Service facilit located at 100 W. Randolph, Chicago, Illinois.
LO
NNICHOLE C JI"'"''''
Assistant Attorney Gen
Environmental Bureau
69
W. Washington St., 18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
