ILLINOIS POLLUTION CONTROL BOARD

ORDER

October 16, 2008

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

BEHR ALUMINUM, INC., an Illinois

corporation,

Respondent.

)

PCB 09-14

(Enforcement - Air)

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

On September 5, 2008, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a ten-count complaint against Behr Aluminum, Inc. (Behr

Aluminum). The complaint concerns Behr Aluminum’s secondary aluminum smelting facility

located at 1100 Seminary Drive in Rockford, Winnebago County. The parties now seek to settle

without a hearing. For the reasons below, the Board accepts the parties’ stipulation and proposed

settlement.

Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), the Attorney

General and the State’s Attorneys may bring actions before the Board on behalf of the People to

enforce Illinois’ environmental requirements.

See

415 ILCS 5/31 (2006); 35 Ill. Adm. Code 103.

In this case, the People allege that Behr Aluminum violated Sections 9(a), 9(b), 9.1(d)(1),

9.1(d)(2), and 39.5(6)(b) of the Act (415 ILCS 5/9(a), 9(b), 9.1(d)(1), (2), 39.5(6)(b) (2006)),

Sections 201.141, 201.142, and 212.321 of the Board’s air pollution regulations (35 Ill. Adm.

Code 201.141, 201.142, 212.321), Sections 63.1501(a), 63.1511(a), 63.1511(b), and 63.1515(b)

of the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for secondary

aluminum production (40 C.F.R. §§ 63.1501(a), 63.1511(a), 63.1511(b), 63.1515(b)),

Sections

165(a)(1) and (4) of the Clean Air Act (42 U.S.C. §§ 7475(a)(1), (4)), Sections 52.21(a) and (j)

of the Prevention of Significant Deterioration (PSD) regulations (40 C.F.R. §§ 52.21(a), (j)),

and specified terms and conditions of Behr Aluminum’s Lifetime Operating Permit.

The NESHAP for secondary aluminum production (40 C.F.R. Part 63, Subpart RRR) was

promulgated by the United States Environmental Protection Agency (USEPA) under Section 112

of the federal Clean Air Act (CAA) (42 U.S.C. § 7412). Section 9.1(d)(1) of the Act prohibits

anyone from violating any federal regulation adopted under Section 112 of the CAA.

Consequently, any violation of the secondary aluminum production NESHAP is also a violation

of Section 9.1(d)(1) of the Act.

See

415 ILCS 5/9.1(d) (2006).

The PSD regulations (40 C.F.R. § 52.21) were promulgated by USEPA under Section 165 of

the CAA (42 U.S.C. § 7475). Section 9.1(d)(1) of the Act prohibits anyone from violating

Section 165 of the CAA or any federal regulation adopted under Section 165. Therefore, any

The People further allege that Behr Aluminum violated these provisions by (1) causing or

allowing particulate matter (PM) emissions into the atmosphere in excess of the allowable

emission rate; (2) failing to operate within conditions imposed by Behr Aluminum’s Lifetime

Operating Permit; (3) failing to timely test PM emissions from the rotary dryer and hammermill;

(4) operating the hammermill and rotary dryer without the baghouse for purposes other than

stack testing and outside of the time period allowed by Behr Aluminum’s Lifetime Operating

Permit; (5) failing to obtain a construction permit from the Illinois Environmental Protection

Agency (Agency) prior to modifying its emissions sources by disconnecting the rotary dryer

from the baghouse and causing PM emissions in excess of permitted PM emission limits; (6)

failing to maintain records required by Behr Aluminum’s Lifetime Operating Permit; (7) failing

to submit a site-specific test plan to the Agency and to conduct initial performance by the

deadlines established in the NESHAP for secondary aluminum production; (8) failing to timely

submit a complete and accurate notification of compliance status report as required by the

NESHAP for secondary aluminum production; (9) constructing a major stationary source located

within an attainment area having the potential to emit (PTE) PM in excess of 100 tons per year,

failing to perform a Best Available Control Technology (BACT) review, failing to apply for and

obtain a PSD permit prior to constructing one rotary dryer without a baghouse, and failing to

apply BACT to the rotary dryer; and (10) failing to submit to the Agency an application for a

Clean Air Act Permit Program (CAAPP) permit within 180 days prior to disconnecting the dryer

from the baghouse, and thereafter operating the source, thereby operating a CAAPP source

without a CAAPP permit.

Also on September 5, 2008, the People and Behr Aluminum filed a stipulation and

proposed settlement, accompanied by a request for relief from the hearing requirement of Section

31(c)(1) of the Act (415 ILCS 5/31(c)(1) (2006)). This filing is authorized by Section 31(c)(2)

of the Act (415 ILCS 5/31(c)(2) (2006)), which requires that the public have an opportunity to

request a hearing whenever the State and a respondent propose settling an enforcement action

without a public hearing.

See

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

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

the

Rockford Register

on September 11, 2008. The Board did not receive any requests for

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

See

415

ILCS 5/31(c)(2) (2006); 35 Ill. Adm. Code 103.300(b).

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

stipulations and proposed settlements.

See

35 Ill. Adm. Code 103.302. These requirements

violation of Section 165 of the CAA or the PSD regulations is also a violation of Section

9.1(d)(1) of the Act.

See

415 ILCS 5/9.1(d)(1) (2006). Section 9.1(d)(2) provides that no person

shall “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.” 415

ILCS 5/9.1(d)(2) (2006).

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

nature of Behr Aluminum’s operations. Section 103.302 also requires that the parties stipulate to

facts called for by Section 33(c) of the Act (415 ILCS 5/33(c) (2006)), which bears on the

reasonableness of the circumstances surrounding the alleged violations. Behr Aluminum does

not admit the alleged violations. The stipulation also addresses the factors of Section 42(h) of

the Act (415 ILCS 5/42(h) (2006)), which may mitigate or aggravate the civil penalty amount.

Behr Aluminum agrees to pay a civil penalty of $140,000. In addition, Behr Aluminum agrees

to fund a Supplemental Environmental Project (SEP) in the amount of $100,000 to be used for

reducing diesel emission pollution in Illinois. The People and Behr Aluminum have satisfied

Section 103.302. The Board accepts the stipulation and proposed settlement.

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

ORDER

The Board accepts and incorporates by reference the stipulation and proposed

settlement.

Behr Aluminum must pay a civil penalty of $140,000 no later than November 17,

2008, which is the first business day following the 30th day after the date of this

order. Behr Aluminum must pay the civil penalty by certified check or money

order payable to the Illinois Environmental Protection Agency for deposit into the

Illinois Environmental Protection Trust Fund. Behr Aluminum must make the

SEP payment of $100,000 no later than November 17, 2008, which is the first

business day following the 30th day after the date of this order. Behr Aluminum

must make the SEP payment by certified check or money order payable to the

Illinois EPA Special State Projects Trust Fund. The case name, case number, and

Behr Aluminum’s federal tax identification number must appear on the face of the

respective certified checks or money orders.

Behr Aluminum must submit the respective payments to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Behr Aluminum must send a copy of the respective certified checks or money

orders and any transmittal letters to:

L. Nichole Cunningham

Environmental Bureau

Illinois Attorney General’s Office

69 West Washington St., Suite 1800

Chicago, Illinois 60602

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2006)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2006)).

IT IS SO ORDERED.

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

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

order. 415 ILCS 5/41(a) (2006);

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

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

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

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

101.520;

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above opinion and order on October 16, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board