BEFORE THE

ILLINOIS

POLLUTION CONTROL

BOARD

PEOPLE

OF THE

STATE

OF ILLINOIS,

)

)

Complainant,

)

)

vs.

)

No. PCB 04-16

)

(Enforcement

— Air)

PACKAGiNG

PERSONIFIED,

INC., an Illinois

)

corporation,

)

)

Respondent.

)

NOTICE OF ELECTRONIC

FILING

PLEASE

TAKE NOTICE that

on the

25

th

day

of September,

2009,

Complainant

filed its

Closing

Argument

and Post-Hearing Brief

with the Clerk of the

Illinois

Pollution

Control

Board

by

electronic filing,

a

true

and correct

copy

of which

is

attached

and herewith served

upon you.

PEOPLE

OF THE

STATE OF ILLINOIS,

LISA MADIGAN,

Attorney

General

of the State of Illinois

By:

PAULA BECKER WHEELER

Assistant

Attorney General

L.

Nichole Cunningham,

AAG

Paula

Becker

Wheeler,

AAG

Christopher

Grant, AAG

Environmental

Bureau

69 W. Washington,

Suite 1800

Chicago, Illinois 60602

(312)

814-3532

(312)

814-1511

---

CERTIFICATE

OF

SER VICE

I,

PAULA

BECKER WHEELER,

an attorney,

do

certify

that

I

caused

to

be

served

this 25th

day of September,

2009, the

foregoing

Closing

Argument and

Post-Hearing Brief

and Notice of

Electronic Filing

upon the persons

listed

below,

by hand delivery,

and by placing

same

in an

envelope

bearing sufficient

postage with the

United

States

Postal

Service

located

at 100

W.

Randolph,

Chicago, Illinois.

PA ULA BECKER

WHEELER

Mr. Bradley

P.

Halloran

Hearing Officer

Illinois Pollution Control

Board

100 W.

Randolph

Chicago,

IL 60601

Mr. Roy M. Harsch

Ms.

Yesenia Villasenor-Rodriguez

Drinker Biddle

&

Reath

LLP

191

North Wacker

Drive,

Suite 3700

Chicago, IL

60606

2

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

)

)

Complainant,

)

)

)

v.

)

PCBO4-016

)

(Enforcement

-

Air)

)

PACKAGING

PERSONIFIED,

INC., an

)

Illinois

corporation,

)

)

Respondent.

)

COMPLAINANT’S

CLOSING

ARGUMENT

AND

POST-HEARING

BRIEF

NOW

COMES

Complainant,

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

by

LISA

MADIGAN,

Attorney

General

of the

State

of

Illinois,

and

hereby

presents

its

Closing

Argument

and

Post-Hearing

Brief.

I.

INTRODUCTION

On

June

29

th

and

2009,

a

hearing

was

held

to

determine

liability

and

to

set

a

civil

penalty

for

the

violations

alleged

by

the

State

in the

People’s

First

Amended

Complaint

filed

on

July

5,

2005,

and

accepted

as

filed

by

the

Hearing

Officer

on

August

18,

2005,

in

the

above-captioned

matter,

(hereinafter,

“Amended

Complaint”).

The

Amended

Complaint

incorporated

all

of

the

violations

alleged

in

the

original

complaint

filed

on

December

9,

2002,

and

added

several

alleged

permit

violations.

The

People’s

Amended

Complaint

alleges air

pollution

violations

at

Respondent’s

facility

located

at

246

Kehoe

Boulevard,

Carol

Stream,

DuPage

County

(“Facility”).

The

violations

include

the

failure

to

obtain

required

permits,

operating

without

a

permit,

failure

to

comply

with

recordkeeping

and

reporting

requirements,

failure

to

comply

with

Illinois

Pollution

I

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

Control

Board’s

(“Board”)

flexographic

printing

regulations,

and

violations

of the

New

Source

Review

and

Emissions

Reduction

Market

System programs.

The

evidence

presented

to

the Board

at

the

hearing

shows

clearly

that

the

Respondent violated

the

Illinois

Environmental

Protection

Act

(“Act”)’

as alleged

by

the

People.

The

facts

further

showed

that

the

duration

and

gravity

of the

violations

were

significant

and

that

the

Respondent

obtained

a

significant

economic

benefit,

warranting

a substantial

civil

penalty.

II.

SUMMARY

OF

THE

RELIEF

SOUGHT

BY

COMPLAINANT

Complainant

seeks

a finding

of

liability

on Counts

I through

X

and

Count

XII

of

the

Amended

Complaint;

an

order

requiring

Respondent

to

cease

and

desist

from

future

violations

of the

Act

and

Board

Regulations;

and

an

assessment

of

a civil

penalty

in

the

amount

of

at

least

$861,274.00.

III.

THEEVIDENCE

ESTABLISHES

THE

VIOLATIONS

ALLEGED

IN

THE

PEOPLE’S

AMENDED

COMPLAINT

A.

Packaging

Constructed

Emissions

Sources

Without

a

Permit

(Count

1)

The

Act

and

the

Board

Air

Pollution

Regulations

prohibit

any

person

from

constructing

any

source

that

causes

or is

capable

of

causing

air

pollution

in the

State

of

Illinois

without

a

permit

granted

by

the

Illinois

Environmental

Protection

Agency

(“Illinois

EPA”).

2

Since

at

least

1989,

Packaging

Personified,

Inc.

(“Packaging”)

has

been

constructing

sources

that

release

volatile

organic

material

(“VOM”)

into

the

atmosphere

— the

emissions

sources

include

two

extruders

constructed

prior

to

1992,

one

extruder

and

two

flexographic

printing

presses

constructed

in

1992,

one

extruder

and

two

‘415

ILCS

5/1

etseq.

2415

ILCS

5/9(b)

(2008)

and

35

Iii.

Adm.

Code

201142.

2

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

flexographic

printing

presses

constructed

in

1995,

and

one flexographic printing

press

constructed

in

2003. Packaging

admits

that

all

four

extruders,

and

four of

the

five

printing

presses,

were

constructed

without

a

permit

from the

Illinois

EPA.

4

Although

extruders

are

currently

exempted

from the

permit

requirement

pursuant

to

Section

201.146(cc)

of

the

Board’s

Air

Pollution

Regulations,

this

exemption

did

not

exist

at

the

time

the extruders

at

the

Facility

were

constructed.

5

Based

on

the

evidence,

Packaging

failed

to

obtain construction

permits

as

required,

and

thereby

violated

415

ILCS

5/9(b)

and

35

Iii.

Adm.

Code

201.142.

B.

Packaging

Operated

Emissions

Sources

Without

a

Permit

(Count

II)

The

Act

and

the

Board

Air

Pollution

Regulations

also

prohibit

any person

from

operating

a

source

that

causes

or

is

capable

of

causing

or

contributing

to

air

pollution

without

a

permit granted

by

the

Illinois

EPA.

6

Each

of

the

units

constructed

without

a

permit,

four

extruders

and four

of

the

five

printing

presses,

were

thereafter

operated

without

permits

from

Illinois

EPA

after

their

construction.

7

These

emissions

sources

were

operated

from

seven

to

more

than

ten

years

withoutany

application

for

coverage

under

an

Illinois

EPA operating

permit.

8

Respondent

admits

that

in

July

2002

it

submitted

its

first

application

for

an

operating

permit

to

the

Agency

for

the

unpermitted

extruders

and

printing

presses.

9

Based

on

the

evidence,

Packaging

failed

to

timely

obtain

operating

permits

as

required,

and

thereby violated

415

1LCS

5/9(b) and

35

III.

Adm.

Code 201.143.

Answer

to

Amended

Complaint,

Count

I,

par.

6,

and

Complainant’s

Exhibit

5,

Admitted

Fact

Nos.

I

-

14.

Complainant’s

Exhibit

5,

Admitted

Fact

Nos.

2,4,

6,

8,

10,

12

and

14.

35

Ill.

Adm.

Code

201.146.

6415

ILCS

5/9(b)

(2008)

and

35

111.

Adm.

Code

201.143.

to

Amended

Complaint,

Count

II,

par.

18,

and

Complainant’s

Exhibit

5,

Admitted

Fact

8

22.

Answer

to

Amended

Complaint,

Count

II,

par.

18

(stating

“Packaging

admits

that

on

or

around

from

1989

to

July

2,

2002,

it

operated

four

presses

and

four

extruders

without

obtaining

an

operating

permit”).

Complainant’s

Exhibit

5,

Admitted

Fact

No.

18.

3

---

C.

Packaging

Failed

to

Timely

Submit

Annual

Emissions

Reports

(Count

III)

The

Board

Air

Pollution Regulations

also

require

that

any

person

owning

or

operating

any

emissions

source

or

air

pollution

control

unit

within

the

State

of Illinois

submit

an

annual

report

detailing

the

nature

and

quantity

of

the

air

emissions

from

those

sources.’

0

Packaging

is subject

to

the

regulation

as

an

owner

and

operator

of

a

stationary

source

that

emits

the

air

pollutant

VOM.

Packaging

admits

that

it

did

not

submit

Annual

Emission

Reports

(“AERs”)

to

the

Illinois

EPA

for

the

years

1992,

1993,

1994,

1995,

1996,

1997,

1998,

1999,

2000

and

2001

until

August

8, 2002.”

Based

on

the

evidence,

Packaging

failed

to

timely

submit

AERs

as

required,

and

thereby

violated

415

ILCS

5/9(a)

(2008)

and

35

III. Adm.

Code

201.302(a).

D.

Packaging

Operated

a

Major

Stationary

Source

Without

a

CAAPP

Permit

(Count

IV)

The

Illinois

EPA

has

been

delegated

the authority

to

implement

the

federal

permitting

requirements

developed

pursuant

to Title

V

of

the

Clean

Air

Act

and

incorporated

into

Illinois

law

as the

Clean

Air

Act

Permit

Program

(“CAAPP”)

through

Section

39.5

of

the

Act.’

2

Under

the

CAAPP,

no

person

may

operate

a

major

source

of

air

pollutants

without

a CAAPP

permit.

For

a

source

emitting

VOM,

a major

source

is

defined as

any

source

with

the potential

to

emit

(“PTE”)

100

tons

or

more

per

year

of

VOM

in

areas

classified

as

marginal

or

moderate,

50 tons

or

more

per year

in

areas

classified

as

serious,

and

25

tons

or

more

per

year

of

VOM

in an

area

designated

severe

1035

Iii.

Adm.

Code

201.302(a).

12

Answer

to

Amended

Complaint,

Count

III,

par.

12,

and

Complainant’s

Exhibit

5,

Admitted

Fact

No.

22.

415

ILCS

5/39.5

(2008),

4

---

nonattainment

for

ozone)

3

DuPage

County,

where

the

Facility

is

located, was

designated

as

severe nonattainment

for

ozone

during

the

period

when

the

violations

occurred.’

4

In

1992, Packaging

added

one

extruder

and

Presses

I

and

4

to

the

two

extruders

already

in

operation

at

the

Facility.’

5

Thereafter,

Packaging

operated

three

extruders

and

two

printing

lines)

6

The

PTE

of the

press

designated

“Press

4”

was

52

tons

per

year

of

VOM.’

7

From

the

date

of

the

installation

of

Press

4

in

1992,

Packaging’s

Facility

had

the

potential

to

emit

more

than

25

tons

per

year

or

more

of

VOM

and

qualified

as

a

major

source.

As

a

major

source,

it

was

required

to

apply

for

a CAAPP

permit

no

later

than

September

7,

1996.

Packaging

admits that

it

did

not

apply

for

a CAAPP

permit

until

July

2,

2002,

and

that

it

continues

to

operate

without

the

requisite

permit.’

Based

on

the

evidence,

Packaging

operated

a major source

of

VOM

in

a

severe

nonattainment

area

for

ozone without

a

CAAPP

permit

in

violation

of

Section

39.5(6)(b)

of

the

Act.

E.

Packaging

Violated

New

Source

Review

Requirements

(Count

V)

The

State

of

Illinois

has

delegation

authority

to

enforce

the

federal

New

Source

Review

requirements.

Pursuant

to

this

authority,

the

Board

promulgated

standards

applicable

to

the

construction

and

modification

of

major

stationary

sources

of

regulated

air

pollutants

(“Major

Stationary

Source

Regulations”).’

9

The

Board’s

Major

Stationary

Source Regulations

prohibit

any

person

from

constructing

a major

modification

or

constructing

a new

major

stationary

source

without

complying

with

lowest

achievable

‘

415

ILCS

5/39.5(2)(a)

and

(c)

(2008).

‘

Hearing

Transcript,

June

29,

2009,

at

p.

42.

Answer

to

Amended

Complaint,

Count

I,

par.

6.

16

Id.

at

Count

II,

par.

18.

17

Id.

at

Count

V,

par.

19.

Complainant’s

Exhibit

5,

Admitted

Facts

No.

17

and

18.

35

Iii.

Adm.

Code,

Part

203.

5

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

emission rate

(“LAER”)

requirements.

2

°

A

new

major

stationary source,

for

an area

classified

as

severe

ozone

nonattainment,

is

defined

as

any building,

structure,

facility

or

installation

that emits

25

tons

or more

per

year

of

VOM.

21

A major

modification

is

defined

as

any

change

that

would

result

in a significant

net

emissions

increase

of

a

pollutant

for

which

the

area is

in nonattainment.

22

In

an

area

designated

severe

nonattainment

for ozone,

a

significant

net emissions

increase

occurs

when

the

net

VOM

emissions

increase

is

25 tons

or

more

in actual

emissions

when

aggregated

over

a 5

year

period.

23

The

provision

became

effective

November

15,

1992.24

Between

1992

and 1995,

Packaging

installed

two

extruders

and

four

printing

presses.

25

On

July

2, 2002,

Packaging

submitted

a CAAPP

application

to

the

Illinois

EPA

containing

emissions

information

on

the

equipment

at the

Facility;

the

application

was

certified

to

be

“b-ue,

accurate

and

complete”

by

Dominic

Imburgia,

President

of

Packaging

Personified.

26

The

permit

application

requires

a

facility

to

identify

both

maximum

and

typical

emissions

from

a

facility.

Based

on

Packaging’s

CAPP

permit

application, the

typical

emissions

of

the

units

at the

Facility

were

as

follows:

1.08

tons

per

year

(“tpy”)

of VOM

for Presses

1

and

2;

18.9 tpy

VOM

for

Press

4;

and

44.2

py

VOM

for Press

527

Additionally,

on page

1.1-5

of

CAAPP

Form

200,

Packaging

represented

that

actual

emissions

of the

source

were

not

below

the

applicability

levels

for

a CAAPP

permit

and

the

source

would

not

be requesting

a federally

enforceable

state

2035

Iii.

Adm.

Code 203.601.

2!

415 ILCS

5/39.5(1)

and (2)(c)(iii)(A).

22

Adm.

Code

203.207.

23

IlL Adm.

Code

203.209.

24

Id.

25

Answer

to

Amended

Complaint,

Count

I, par.

6.

26

Complainant’s

Exhibit

9,

Application

for

CAAPP

Permit,

page

1.1-5.

27

Id. atpages

2.1-Il,

3.1-11

and4.1-ll.

6

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

operating permit.

28

Based

on

the

calculations

submitted

and

certified

by

Respondent,

the

actual aggregated

VOM

emissions

of Packaging’s

printing

equipment

exceeded

the

25

tons

per year

threshold

once

all

four

presses

were

operating

at

the

Facility. By

1995

the

source

qualified

as

a new

major

source.

As

such,

Respondent

was

required

to

submit

a

construction

permit

application

demonstrating

LAER

prior

to the

construction

of Presses

2

and

5

in

1995.

Packaging

admitted

that

it

did not

evaluate

LAER

for Presses

2

and 5;

did

not

make

a LAER

demonstration

to

the Illinois

EPA

prior

to constructing

Presses

2

and

5;

and did

not

achieve

LAER

on Presses

2

and

29

By

failing

to

take

these

required

actions,

Respondent

violated

the

Act

and

the

Board’s

Major

Stationary

Source

Regulations,

as

well

as federal

New

Source

Review

requirements.

F.

Packaging

Failed

to

Participate

in

Illinois’

Emissions

Reduction

Market

System

(Count

VI)

In

1997,

the

Board

adopted

the

Emissions

Reduction

Market

System

(“ERMS”),

a

cap-and-trade

system

for

VOM

emissions

units

in

the

Chicago

ozone

nonattainment

area,

which

includes

DuPage

County.

3

°

The

ERMS

program

required

all

existing

sources

of

VOM

emissions

in the

Chicago

ozone

nonattainment

area

meeting

the

applicability

requirements

to register

to

participate

in

the

ERMS

program

by

March

1, l998.’

Each

participating

source

is

required

to submit

seasonal

emissions

reports

(“SERs”)

as part

of

their

annual

reporting

to

the

Illinois

EPA

and

to

hold

allotment

trading

units

(“ATUs”)

in

an

amount

not less

than

the

source’s

actual

VOM

emissions

during

each

seasonal

allotment period.

Sources

that

emit

more

VOM

than

they

hold

ATUs

for

are

required

to

28

ldatpage

1.1-5.

29

Complainant’s

Exhibit

5, Admitted

Facts

No.

26 —

28.

°

35

III.

Adm.

Code

205.130

(defining

“Chicago

ozone

nonattainment

area”).

‘

35

Iii.

Adm.

Code

205.3

10.

7

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

purchase ATUs

from

the

market

or

the

Illinois

EPA’s Alternative

Compliance

Market

Account

(“ACMA”).

32

At

the

time

the

Packaging

Facility

was

inspected

in

October 2001,

the

source

had

not

taken

any

steps to participate

in

the

ERMS

program.

Packaging

was

required

to

participate

based on

its

location

in DuPage

County

and

its

emissions

of

VOM

in

excess

of

10

tons

during the

seasonal

allotment

period

each

year.

33

Packaging

did

not

submit

an

ERMS

baseline application

by

March

1,

1998,

and

did

not

submit

seasonal

emissions

reports

for

2000,

2001

and

2002

until June

12,

2003.

After

the

submission

of

its

SERs

in

2003,

Packaging

did

not

purchase

any

ATUs

to cover

its

VOM

emissions

for

any

previous

or

subsequent

years.

35

By

failing

to

timely

enroll

in

Illinois’

ERMS

program

and

maintain

ATUs

as required

by

the

program,

Respondent

violated

Section

9(a)

of the

Act

and

35

Ill.

Adm.

Code

205.3

10.

G.

Packaging

Violated

the

Flexographic

Printing

Rules

by

Failing

to

Demonstrate

Compliance

Pursuant

to

218.401(Count

VII)

On

January

6,

1994,

the

Board

adopted

amendments

to

Part

218

of

the

Board

Air

Pollution

Regulations,

as

required

by

Section

1 82(b)(2)

of

the

federal

Clean

Air

Act;

compliance

with

these

amended

regulations

was

required

by

no

later

than

March

15,

1995.36

The

Part

218

amendments

established

VOM

emission

standards

and

limitations

for

printing

facilities

located

in the

Chicago

ozone

nonattainment

area

and

having

a

potential

to

emit

25

tons

or

more

of

VOM

per

year

(“Flexographic

Printing

Rules”).

37

Section

2

18.401

specifically

applies

to

flexographic

and

rotogravure

printing

facilities.

It

32

Adm.

Code

205.150.

u

Answer

to

Amended

Complaint,

Count

VI,

par.

17.

Id.

at

Count

VI,

par.

21

and

Complainant’s

Exbibit

5,

Admitted

Fact

No.

33.

Complainant’s

Exhibit

5,

Admitted

Fact

No.

36

36.

R

93-14,

Opinion

and

Order

of

the

Board

(January

6,

1994).

3735

Ill.

Adm.

Code

218.402.

8

---

requires the

subject

source to utilize

inks

and

coatings that

meet

a

standard

of

40%

VOM

by

volume

of

the

inks/coatings

or

25%

VOM by

volume

of

the

volatile

content.

38

In

addition

to

meeting

the

standard,

the

source

must

also

make

a

demonstration

of

compliance

to

the

Illinois

EPA

using

the

test

methods,

recordkeeping

and

reporting

requirements

identified

within

the

regulation.

39

If a

source

cannot

meet

the

VOM

content

limits

in

its

inks

and

coatings,

Section

2

18.401

provides

that

a company

may

select

one

of

two

alternative

means

of

compliance.

The

first

alternative

allows

a company

to meet the

VOM

standards

as

a

daily

weighted

average

of

all

of

its

inks

and

coatings,

even

if

each

individual

ink

or

coating

does

not

conform

to

the

standard.

4

°

If

a

source

cannot

demonstrate

compliance

by

the

two

options,

it

must

install

a control

device

that

meets

the

required

control

efficiencies.

41

It

must

then

demonstrate

this

control

to

Illinois

EPA.

As

a

flexographic

printing

operation

within

DuPage

County,

having

a potential

to

emit

to

more

than

25

tons

of VOM per

year,

Packaging

was

required

to

comply

with

the

Part

218

regulations

by

the

March

15,

1995

deadline.

42

In

1995,

Packaging

had

four

printing

lines

in

operation

— Presses

1,

2, 4

and

543

As

noted,

Section

218.401

requires

that

all

inks

and

coatings

utilized

at a

subject

source

meet

VOM

content

requirements

and

that

the

source

demonstrate

its

compliance

with

the

standards.

38

Adni.

Code

2

18.401(a).

35111.

Adni.

Code

2

18.401(a),

(b)

and

(c)(6).

4035

Iii.

Adni.

Code

218.401(b).

‘

35

III.

Adm.

Code

2

18.401(c).

42

Answer

to

Amended

Complaint,

Count

1,

par.

4—

5.

Id.

at

Count

I,

par.

6.

9

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

Packaging

admits

that

Presses

4

and

5

did

not

utilize

compliant

inks

and

could

not

have

complied with

Part 218.401

by

switching

to

compliant

inks.

44

Packaging

also

admits

that

Press

4 operated

from

the

date

it

was

installed

in 1992

until

it was

decommissioned

in December

2002

without

any

control

device.

45

As

such,

Press

4

was

not

in

compliance

with

Section

218.401

at anytime

it

was

operated.

Press

5

operated

with

a

recirculating

drying

oven

that allegedly

provided

some

control

of

VOM

emissions

prior

to the

connection

of Press

5

to

a regenerative

thermal

oxidizer

(“RTO”)

in

2003.

However,

the

control

efficiency

of

the recirculating drying

oven

was

never

demonstrated

to the

Illinois

EPA.

Section

218.401

of

the Board’s

regulations

requires,

not

only

that

a

company limit

its

VOM

emissions

by

complying

with

one

of

the methods

provided,

but

also

that the

company

make

a

demonstration

of that

compliance

to the

Illinois

EPA

using

the

test

methods

provided

for

in

the

regulation.

Packaging’s

only

assessment

of

the

drying

oven

was

an

“informal

emissions

46

test.”

Because

Press

5

was not

controlled

with

a demonstrated

control

device,

it was

not

in compliance

with

the

requirements

of

218.401

until

it

was

connected

to the

RTO.

Packaging

has

contended

that

all

of the

inks

used

on Presses

1

and

2

at the

Facility

are and

have

been

compliant

with the

Section

218.401(a)

limits.

47

However,

there

is

no

record

of the

ink

usage

for

the period

from

1995

to

2001.48

Section

218.401

of

the Flexographic

Printing

Rules

not

only

requires

that

a company

limit

its

VOM

‘

Complainant’s

Exhibit

5,

Admitted

Facts

No. 41

and

42;

Hearing

Transcript,

June

30,

2009,

at

p.

13,

1.

6

—

p.

15,

1. 12

(Trzupek

explaining

why

converting

to

compliant

inks

was

not a viable

option

for

Presses

4

and

5).

‘

Complainant’s

Exhibit

5, Admitted

Fact

No.

50.

Transcript,

June

29,

2009,

at

p.

46;

Complainant’s

Exhibit

8, 2003

Letter

Re

Informal

Emissions

Testing.

Answer

to

Amended

Complaint,

Count

VII,

par.

22.

See

Respondent’s

Exhibit

51

(records

provided

electtonically

to the

Complainant

dating

back

to

2001),

and Hearing

Transcript,

June

29,

2009,

at

p.

244,

1.

4

—p.

245,

1. 10.

(Tim

Piper

testifying

that

every

record

of

historical

ink

usage

was

provided

to

the

Complainant).

10

---

emissions

by one

of

the

methods provided,

but

also

that

the

company

make

a

demonstration

of that

compliance

to

the

Illinois

EPA

using

the

test

methods

provided

for

in

the

regulations.

49

Therefore,

Packaging

cannot

claim

compliance

for

a

period

for

which

no

records exist.

50

Additionally,

the

demonstration

of

compliance

for

the

period

from 2001

to

March

2009

was

not

provided

in a

timely

manner.

On

May

2,

2003,

Packaging

first

provided

to

the

Complainant

a

sample

of

its

records

of

the

ink

usage

on

Presses

I

and

2 on

May

2, 2003. Packaging

did

not

provide

the

Illinois

EPA

with

all of

the

documentation

available

for the

inks

utilized

on those

two

presses

until

April

24,

2009.52

By

failing

to

timely

demonstrate

compliance

to

the

Illinois

EPA,

Packaging

violated

Section

9(a)

of

the

Act

and

35

Iii.

Adm.

Code

218.401.

H.

Packaging

Violated

Flexographic

Printing

Rules

by

Failure

to

Maintain

Records

(Counts

VIII

and

XII)

Section

218.401

operates

in coordination

with

Section

2

18.404,

the

recordkeeping

provision

in

the

Flexographic

Printing

Rules.

Section

2

18.401

indicates

that

compliance

with

the

VOM

limitations

specified

therein

must

be

demonstrated

through,

among

other

actions,

the

recordkeeping

requirements

identified

in

Section

218.404.

A

facility’s

obligations

under

Section

218.404

vary

based

upon

which

alternative

for

compliance

the

source

has

chosen

to utilize.

For

all

emissions

sources

using

compliant

inks,

the

owner

or

4935

Adm.

Code

218.401(a)

(stating

“Compliance

with

this

Section

must

be

demonstrated

through

the

applicable

coating

or

ink

analysis

test

methods

and

procedures

siecified

in

Section

218.105(a)

of

this

Part

and

the

recordkeeping

and

reporting

requirements

specified

in

Section

218.404(c)

of

this

Part.”)

°

Packaging

claims

it

kept

MSDS

sheets

prior

to

2001,

but

no

records

of

what

was

used

on

Presses

1

and

2

prior

to

2001

were

ever

provided

to

the

Illinois

EPA.

‘Complainant’s

Exhibit

13,

May

2003

Letter

Re

Demonstration

of

52

Compliance.

Respondent’s

Exhibit

51,

CD-ROM

of

Environmental

Records.

35

Ill.

Adm.

Code

218.401(a)

(stating,

“Compliance

with

this

Section

must

be

demonstrated

through...

the

recordkeeping

and

reporting

requirements

specified

in

Section

218.404(c)

of

this

Part”);

35

Iii.

Adm.

Code

2

18.401(b)

(stating,

“Compliance

with

this

subsection

must

be

demonstrated

through..

.

the

recordkeeping

and

reporting

requirements

specified

in

Section

218.404(d)

of

this

Part”);

and

35

Ill.

Adm.

Code

218.40

l(c)(6)

(stating,

“The

owner

or

operator

shall

demonstrate

compliance

with

this

subsection.

.

by

complying

with

the

recordkeeping

and

reporting

requirements

specified

in

Section

218.404(e)

of

this

Part”).

11

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

operator

must

maintain

daily

records

identifying

every

ink

and

coating

utilized

on

each

printing

line

and

the

VOM

content

of

54

each.

If

the source

is

achieving

compliance

based

on

daily-weighted

averaging,

then

the

owner

or

operator

must

maintain

a

record

of

the

daily-weighted

average

VOM

content

of

the inks

and

coatings, in addition

to

daily

records

of

all

inks

and

coatings

used

and

the

VOM

content

of

each.

55

A

source

that

chooses

to

install

an

add-on

control

device

must

maintain

daily

records

of

emissions

monitoring

data;

operating

times

of

the

printing

lines,

control

device,

capture

system

and

monitoring

equipment;

all

routine

and non-routine

maintenance;

and

any

outages

resulting

from

maintenance

or

repair.

56

The

source

must

also

record

and

submit

test

results

and

calculations

showing

that

the

unit

meets

the

VOM

efficiency

requirements

of

Section

218.401.

As

of August

13, 2003,

Packaging

was also

obligated

to

maintain

these

records

based

on

the terms

of a

construction

permit

issued

specifically

for

Packaging’s

Carol

Stream

Facility

(“Construction

Permit”).

58

Respondent

ultimately

achieved

compliance

in

two

ways

- compliant

inks,

as

provided

for

in

section

218.401(a),

and

a

control

device,

as

provided

for in

section

2

18.401(c).

59

The

recorcikeeping

associated

with

these

two

compliance

methods

has

not

been

adequately

maintained.

Packaging

admits

that

it has

not maintained

daily

records

of inks

used

and

the

VOM

content

of those

inks,

as

well

as

a

maintenance

log

for

the

capture

system,

control

device

and

monitoring

system,

at all

times

since

at least

the

date

it received

the

Construction

Permit.

6

°

Packaging

admits

that

it has

not

maintained

‘

35

Ill. Adm.

Code

218.404(c).

35

Iii.

Adm.

Code

2 18.404(d).

35

III.

Adm.

Code

2

18.404(e).

57

1d.

58

Complainant’s

Exhibit

3,

2003

Construction

Permit,

Conditions

No. 15

and

16.

Complainant’s

Exhibit

5, Admitted

Facts

No.

40 and

43.

60

1d.,

Admitted

Fact

No.

56.

12

---

monthly records

of

the

names

and

amounts

of

solvents

used

for

ink

dilution

and

clean-up,

the

VOM

content

of

those

solvents, and

the

VOM

and

Hazardous

Air

Pollutant

(“HAP”)

emissions

for

the

preceding

12

months,

at

all

times

since

at

least

the

date

it

received

the

Construction

Permit.

61

At

the

inspections

in

March

and

May

of

2004,

conducted

by the

Illinois

EPA

to

assess

Packaging’s

compliance

with

the

terms

of the

Construction

Permit,

Packaging

was

not

able

to

produce required

records

for

Illinois

EPA

personneL

62

By

failing

to

regularly

maintain

all

required

records,

Packaging

violated

35

Iii.

Adm.

Code

2

18.404

and

Condition

16 of

its

Construction

Permit,

and

thereby

Sections

9(a)

and

(b)

of

the

Act.

63

I.

Packaging

Violated

its

Construction

Permit

by

Exceeding

VOM

Usage

Limits

(Count

IX)

The

Act

provides

that

compliance

with

Illinois’

environmental

laws

includes

full

compliance

with

the

terms

and

conditions

of

any

permit

issued

by

the

Illinois

EPA

to

a

source.

64

On

August

13,

2003,

the

Illinois

EPA

issued

a Construction

Permit

to

Packaging.

65

The

Construction

Permit

was

directed

to

the

attention

of

Dominic

Imburgia,

President

of

Packaging,

and

contained

compliance

obligations

specific

to

Packaging’s

Carol

Stream Facility.

66

Condition

5

of

the

Construction

Permit

specified

that

the

total

VOM

emissions

resulting

from

all

printing

at

Packaging’s

Facility

should

not

exceed

the

following

limits:

67

Id.,

Admitted

Fact

No.

57.

62

Id.,

Admitted

Facts

No.

60

and

62.

415

ILCS

5/9(a)

and

(b)

(2008)

415

ILCS

5/9(a)

(2008).

65

See

Complainant’s

Exhibit

3,

2003

Construction

66

Permit.

Id.

67

1d.

at

Condition

5.

13

---

Emission

Unit

VOM

Usage

VOM

Usage

VOM

Emissions

VOM

Emissions

(Lb/Mo)

(Ton/Yr)

(Lb/Mo)

(Ton/Yr)

#1

and

#2

524

2.62

524

2.62

Presses

Comexi

and

#5

24,960

124.80

3,396

16.98

Presses

Cleanup

and

980

4.90

980

4.90

Other

Solvents

Based

on

these usage

limits,

Respondent’s

VOM

usage

was

not

to

exceed

26,464

lbs/month

following

the

installation

of

the

RTO. Packaging

admits

that

its

VOM

usage

from

August

2003

to

July

2004 was

as

follows:

68

Month/Year

VOM

Total

Usage

(Lb/Mo)

August/2003

31,880

September/2003

40,823

October/2003

38,587

December/2003

24,354

AprilI2004

18,193

May/2004

24,253

June/2004

32,082

July/2004

21,971

Packaging

exceeded

the

monthly

VOM

usage

limits

four

times

from

August

2003

to

July

2004.

By

repeatedly

exceeding

the

VOM

usage

limits,

Packaging

violated

Condition

5

of

its

Construction

Permit,

and

thereby

Section

9(a)

of

the

Act.

69

Complainant’s

ExhibitS,

Admitted

Fact

No.

55.

69415

ILCS

9(a)

(2008).

14

---

J.

Violation

of

Construction

Permit

by

Failing

to

Demonstrate

Compliance

(Count

X)

Condition

4(c)

of

the

Constmction

Permit

requires

Packaging

to

ensure

that

Presses

1 and

2 met

the

VOM

content

standards

of Section

218.401(a)

of

the

Flexographic

Printing

Rules.

7

°

As

stated

in

Section

218.401(a),

“[c]ompliance

with

this

Section [218.401

(a)j

must

be

demonstrated

through..

.

the

recordkeeping

and

reporting

requirements

specified

in

Section

218.404(c)

of this

Part.”

7

’

When

Illinois

EPA

inspected

the

Facility

on

April

22,

2004,

and

on

May

14,

2004,

to determine

Packaging’s

compliance

with

the

terms

of

the

Construction

Permit,

Packaging

was

unable

to

demonstrate

to

the

Illinois EPA

that

it

was

using

only

compliant

inks

on

Presses

1

and

2.72

By

failing

to

make

a

demonstration

to the

Illinois

EPA

that

Presses

1 and

2

were

utilizing

only

compliant

inks,

Respondent

violated

Condition 4(c)

of

its Construction

Permit,

and

thereby

Section

9(b)

of the

Act.

73

K.

Packaging

Violated

its

Construction

Permit

by

Failing

to

Conduct

Required

Testing

(Count

XI)

Complainant

voluntarily

dismisses

Count

XI

of

the

People’s

Amended

Complaint.

L.

Packaging

Violated

its

Construction

Permit

by

Failing

to

Maintain

Records

(Count

XII)

Conditions

15

and

16

of the

Construction

Permit

contain

Packaging’s

daily

and

monthly

recordkeeping

requirements

for

the

Facility.

Specifically,

Condition

15

requires,

in part,

daily

records

of

ink

usage

on

each

press,

and

the

VOM

content

of

those

inks,

and

a

maintenance

log

for

all

routine

and

non-routine

maintenance,

including

any

°

Complainant’s

Exhibit

3,

2003

Construction

Permit,

Condition

71

4(c).

Adm.

Code

2

18.401(a).

72

Complainant’s

Exhibit

5,

Admitted

Fact

Nos.

56,

57

and

59

through

62.

415

ILCS

5/9(b)

(2008).

Complainant’s

Exhibit

3,

2003

Construction

Permit,

Conditions

No.

15

and

16.

15

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

outages

resulting from

maintenance.

Permit

Condition

16

requires

monthly

records

of

ink

usage

by

press,

and

the

VOM

content

of the

inks;

solvent usage

for

ink

dilution

and

for

clean-up, and

the

VOM

content

of the

solvent;

VOM

and

HAP

for

the

preceding

month

and

preceding

12

months.

When

Illinois

EPA

inspected

the

Facility

on

April

22,

2004,

and

again

on

May

14,

2004,

to determine Packaging’s

compliance

with

the

terms

of

the

Construction

Permit,

Packaging

was

unable

to

produce

these

required

daily

and

monthly

records

for

the Illinois

EPA

inspector.

75

By

failing

to

demonstrate compliance

with

its

recordkeeping

obligations,

Respondent

violated

Conditions

15

and

16 of

its

Construction

Permit,

thereby

Section

9(b)

of

the

Act.

76

IV.

ANALYSIS

OF

THE

33(c)

FACTORS

DEMONSTRATES

THAT

THE

BOARD

SHOULD

ASSESS

A

SIGNIFICANT

CIVIL

PENALTY

AGAINST

RESPONDENT

In making its

orders,

the Board

is

directed

to

consider

matters

of

record

concerning

the

reasonableness

of

the

alleged

pollution,

including

those

factors

identified

in

Section

33(c)

of

the Act.

77

Section

3

3(c)

of the

Act

provides

as

follows:

In

making

its

orders

and

determinations,

the

Board

shall

take

into

consideration

all

the

facts

and

circumstances

bearing

upon

the

reasonableness

of the

emissions,

discharges

or deposits

involved

including,

but

not

limited

to:

(i)

the

character

and

degree

of

injury

to,

or interference

with

the

protection

of

the

health,

general

welfare

and

physical

property

of

the

people;

(ii)

the

social

and

economic

value

of

the

pollution

source;

“

Complainant’s

Exhibit

5, Admitted

Facts

60

and

62.

415

JLCS

5/9(b)

(2008).

415

ILCS

5/33(c)

(2008).

16

---

(iii)

the

suitability

or

unsuitability

of

the

pollution

source

to

the

area

in

which

it

is

located,

including

the

question

of

priority

of

location

in

the

area

involved;

(iv)

the

technical

practicability

and

economic

reasonableness

of

reducing

or

eliminating

the

emissions,

discharges

or

deposits

resulting

from

such

pollution

source;

and

(v)

any

subsequent

compliance.

A.

Packaging’s

excess

VOM

emissions

interfered

with

protection

of

the

health

and

general

welfare

of

the

people

During

the

documented

period

of

noncompliance,

Packaging

failed

to

regulate

VOM

from

its

emission

sources

and

violated

the

Board’s

emission

standards

for

major

VOM sources,

i.e.

sources

that

have

the

potential

to

emit

25

tons

or

more

of

VOM

per

year.

VOM

is

an

air

contaminant

that

results

in

ground-level

ozone

formation;

its

release

into

the

environment

poses

a

threat

to

human

health.

78

The

Board’s

standards

for

Major

VOM

sources

were

adopted

because

Section

110

of

the

CAA required

states

to

develop

regulations

and

control

strategies

to

address

air

pollution

within

their

jurisdictions.

79

The

standards

are

designed

so

that

the

National

Ambient

Air

Quality

Standards

(“NAAQS”)

are

not

adversely

impacted

through

industrial

development

and

growth.

8

°

The

Board

has

specifically

adopted

regulations

to

improve

ozone air

quality

in

northeast

Illinois

through

establishing

VOM emissions

standards

and

limitations

for

major

sources

in

the

Chicago

ozone

nonattainment

area.

81

These limitations

required

Packaging

to

either

utilize

inks

in

its

printing

facilities

that

78

Breathing

ozone

can

trigger

a

variety

of

health

problems

including

chest

pain,

coughing,

throat

irritation,

and

congestion,

It

can

worsen

bronchitis,

emphysema,

and

asthma.

Ground-level

ozone

also

can

reduce

lung

function

and

inflame

the

linings

of

the

lungs.

Repeated

exposure

may

permanently

scar

lung

tissue.

Ground

Level

Ozone,

Health

and

Environment,

http://www.epa.gov/air/ozonepollution/healthhtml

(Last

u?dated

on

May

9th,

2008).

42

U.S.C.

7410

(2008).

°

35

Ill.

Adm.

Code

205.110.

8!

Adm.

Code,

Part

218.

17

---

meet

a

standard of

40% VOM

by

volume

of

the

inks/coatings

or

25%

VOM

by

volume

of

the

volatile content;

to

meet

the

VOM

standards

as

a

daily weighted

average

of all

of

its

inks and

coatings;

or

to

install

a

control

device

that

meets

the

standards.

82

As

discussed

previously,

Packaging

failed

to

comply

with

these

requirements,

which

increased

the

Facility’s

net

emissions

of

VOM.

By

operating

a

printing

facility

that

was

located

in

an

ozone

nonattainment

area

that

was

classified

as

“severe”

and

failing

to

regulate

VOM

from

its

emissions

sources,

Packaging’s

emissions

adversely

affected

the

ozone

nonattainment

area

and

air

quality

in

DuPage

County. The

greater

the

increase

in

excess

emissions

to

the

atmosphere

in

this

area,

the

greater

potential

threat

is

posed to

the

NAAQS.

Packaging’s

increased

VOM

emissions

must

be

considered

in

conjunction

with

the

cumulative

effects

of

increased

emissions

elsewhere

in

the

nonattainment

area.

The

cumulative

impacts

on

air

quality

could

be

severe

if

each

source

in

the

nonattainment

area

violated

these

Board

emission

standards

for

VOM.

Packaging’s

noncompliance

for

at

least

eight

years

impeded

the

Illinois

EPA’s

efforts

to

reduce

the

sources

of

VOM

levels,

and

thereby

seriously

interfered

with

the

“protection

of

the

health, general

welfare

and

physical

property

of

the

people.”

83

B.

Packaging’s

facility

had

a

diminished

social

andlor

economic

value

while

it

operated

in

violation

of

the

Act

The

Complainant

does

not

dispute

that

any

business

entity

which

employs

people

and

supplies

products

to

the

open

market

has

a

degree

of

social

and

economic

value.

While

Packaging’s

printing

and

extruding

facility

serves

these

roles,

a

facility

that

operates

in

violation

of

the

Act

and

Board

regulations

is

a

social

and

economic

detriment.

8235

Iii.

Adm.

Code

2

18.401.

‘

415

1LCS

5/33(c)(i)

(2008).

18

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

The

Board

has

previously found

that

a

pollution

source

typically possesses

a

social

and

economic

value

that

is

to

be

weighed

against

its

actual

or

potential

environmental

impact.

84

Packaging’s

failure

to

reduce

its

VOM

emissions in

an

area

of

severe

nonattainment

for

ozone

for

an

extended

period

of time

was

a detriment

to

the

site

and

surrounding

area,

which

therefore

diminished

the social

and

economic

value

of

the

source.

C.

Respondent’s

facility

is

suitable

for

the

area

in

which

it

is

located

provided

it

operates

in

compliance

with

the

Act

Operation

of Packaging’s

Facility

is

suitable

for

the

site

and

surrounding

area

provided

it

is

operated

in

compliance

with

the Act

and

Board

Air

Pollution

Regulations.

However,

as

shown

herein,

Packaging

failed

to

comply

with

almost

all of

the

applicable

requirements

of the

Act

and

the

Board’s

Air

Pollution

Regulations.

Packaging

established

a major

source

of

air

emissions

without

demonstrating

or

achieving

LAER

at

the

Facility.

It did

not

install

a

control

device

meeting

the

required

efficiency

standards

until

2003.85

By failing

to

comply

with

requirements

that

reduce

VOM

emissions,

Respondent’s

Facility

contributed

excess

VOM

to an

area

that

was

not

in

compliance

with

the NAAQS for

ozone.

Thus,

during

the

time

Respondent

was

out

of

compliance,

its Facility

was

not

suitable

to

the

area

in which

it

was

operating.

D.

Compliance

wa

technically

practicable

and

economically

reasonable

The

evidence

shows

that

it

was

technically

practical

and

economically

reasonable

for

Packaging

to comply

with

the

Act

and Board

Air

Pollution

Regulations.

Applying

for

and

obtaining

constmction

and

operating

permits,

including

a

CAAPP

permit,

from

the

415

ILCS

5/33(c);

See generally,

People

v.

Waste

Hauling

Landfill,

Inc.,

and

Waste

Hauling,

Inc.,

PCB

No.

95-91

(May

21,

1998,

slip

op.

at

27).

‘

Complainant’s

Exhibit

5, Admitted

Fact

Nos.

37,

44

and 46

(verifring

RTO

was

installed

in 2003,

began

operating on

November

11, 2003,

and

was

stack

tested

to

verify

efficiency

on

February

26,

2004).

19

---

Illinois EPA

is

a

simple,

low-cost measure

that

is

not

unduly burdensome

for

subject

sources.

Similarly,

enrolling

in

Illinois’

ERMS program,

monitoring

seasonal

emissions

each

year

and

purchasing

ATUs

does

not

impose

an

unreasonable

cost

or

time investment

on

a

company

like

Packaging.

Packaging

itself

asserts

that

the

company’s

failure

to

comply

with

applicable

environmental

regulations

was the

result

of

its

ignorance

of

the

law;

it

does

not

assert

that

it was

not

able

to comply

with

the

regulations.

86

As

evidence

of

the

feasibility

of

compliance,

Packaging

did

take

actions

required

for

compliance

following

the

Illinois

EPA

site

inspection

in

October

2001.87

Additionally,

after

Illinois

EPA’s

outreach

to

the

entire

regulated

community,

only

three

companies

ultimately

sought adjusted

standards

to

obtain

an

extension

on

the

compliance

deadline,

and

even

those companies

have

since installed

control

devices

meeting the

VOM

standards.

88

Thus,

the

evidence

shows

that

it

was

both

technically

feasible

and

economically

reasonable

to

require

Packaging

to participate

in

reporting

and

permitting

programs

and

to

limit

its

VOM

emissions

in

one

of

the

means

provided

for

in

Section

218.401

of

the

Flexographic

Printing

Rules.

E.

After

years

of

continuing

violation,

Packaging

came

into

compliance

The

Complainant

acknowledges

that

Packaging

took

steps

to

achieve

compliance

with

its

regulatory

obligations

after

the

Illinois

EPA

inspected

the

facility

in

2001.

However,

Packaging

achieved

compliance

only

after

continuously

violating

the

Act

for

at

least

ten

years,

from

1992

to

2002.89

86

See

Answer

to

Amended

Complaint,

Count

I,

par.

18,

Count

II,

par.

18,

Count

III,

par.

21,

Count

IV,

par.

23,

Count

V,

par.

31

and

Count

VI,

par.

21.

Id.

88

Hearing

Transcript,

June

29,

2009,

atp.

50,1.

2—6

and

10—

17.

89

See

Sections

III.A

to

1II.L

herein,

outlining

the

nature

and

duration

of

each

violation,

e.g.,

Respondent’s

operation

without

a

permit

for

more

than

10

years,

as

admitted

by

Respondent

and

noted

in

footnote

8.

20

---

V.

AYE

ER

CONSIDERATION

OF

THE

42(h)

FACTORS,

THE

BOARD

SHOULD

ASSESS

A

CIVIL

PENALTY

OF

AT

LEAST

$861,274.00

A.

Statutory

Civil

Penalties

The

evidence at

hearing

demonstrates

that

the

Respondent

has

violated

the

Act

and

Board

Air

Pollution

Regulations.

Section

42(a)

of

the

Act

permits the

Board

to

impose penalties

against

those

who

violate

any

provision

of

the

Act

or

regulation

adopted

by

the

Board.

9

°

The

Board

may

impose

a maximum

penalty

of

$50,000.00

for

each

violation

of

the

Act,

and

an

additional

$10,000.00

penalty

for

each

day

the

violation

continues.

9

’

Additionally,

Section

42(h)

of

the

Act

requires

that

the

Board

ensure

“that

the penalty

is

at

least

as

great

as

the

economic

benefits, if

any,

accrued

by

the

respondent.”

92

In

its

case,

the

State

has

proven

eleven

violations

of

the

Act

over

a period

of

more

than

a

decade.

93

The

evidence

presented

at

hearing

showed

that

the

Respondent

received

an

economic

benefit

of

$711,274.00

resulting

from

the

delayed

installation

of

a

pollution

control

device

and

avoided

annual

costs.

94

Based

on

the

extensive

period

of

noncompliance,

the

number

of

violations

and

the

economic

benefit

received

by

Packaging,

Complainant

requests

that

the

Board

impose

a

civil

penalty

of no

less

than

$861,274.00

on

Respondent

for

the

violations.

90415

ILCS

5/42(a)

(2008).

‘

Id.

92415

ILCS

5/42(h)

(2008).

See

Sections

lILA

to

III.L

herein,

outlining

the

nature

and

duration

of

each

violation.

Hearing

Transcript,

June

29,

2009,

at

p.

125,

1.

14

-18.

21

---

B.

Section

42(h)

Aggravating

and

Mitigating

Factors

Section

42(h)

of the

Act,

authorizes

the Board

to consider

the impact

of any

matter

of

record

in

determining

an

appropriate

civil

penalty.

95

Specifically,

Section

42(h)

provides

as

follows:

In

determining

the

appropriate

civil

penalty

to be

imposed

under

subdivision

(a) ..

of

this

Section,

the

Board

is authorized

to

consider

any

matters

of record

in

mitigation

or

aggravation

of penalty,

including

but not

limited

to the

following

factors:

(1)

the

duration

and gravity

of

the violation;

(2)

the

presence

or

absence

of due

diligence

on

the

part

of

the

respondent

in attempting

to comply

with

requirements

of

this

Act

and

regulations

thereunder

or

to secure

relief

therefrom

as

provided

by

this

Act;

(3)

any

economic

benefits

accrued

by

the

respondent

because

of

delay

in compliance

with

requirements,

(4)

the

amount

of monetary

penalty

which

will

serve

to

deter

further

violations

by

the

respondent

and

to otherwise

aid in

enhancing

voluntary

compliance

with

this

Act

by the

respondent

and other

persons

similarly

subject

to the

Act;

(5)

the

number,

proximity

in

time,

and

gravity

of

previously

adjudicated

violations

of this

Act

by

the respondent;

(6)

whether

the

respondent

voluntarily

self-disclosed,

in

accordance

with

subsection

(i)

of this

Section,

the

non-compliance

to

the

Agency;

and

(7)

whether

the

respondent

has agreed

to undertake

a “supplemental

environmental

project,”...

1.

Duration

and

Gravity

The

evidence

before

the

Board

in

this

matter

demonstrates

that

the duration

and

gravity

of

Packaging’s

violations

were

significant

and

warrant

a

substantial

civil

penalty.

415

ILCS

5/42(h)

(2008).

22

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

Complainant requests

that

the

portion

of

the

civil

penalty

that

is

attributable

to

factors

other

than

economic

benefit

be

no

less

than

$150,000.00.

As

outlined

above,

the

Respondent

violated

permitting

requirements,

reporting

requirements,

and

many

of

the

programs

designed

to

reduce

VOM

emissions

from

the

Facility —

the

ERMS

program,

New

Source

Review,

the

Flexographic

Printing

Rules

and

its

Construction

Permit.

The

violation

of

these

legal

obligations

resulted

in actual

excess

emissions

of

VOM

to

the

atmosphere.

The

Act

“authorizes

the

Board

to

assess

civil

penalties for

violations

regardless

of

whether

these

violations

resulted

in actual

pollution.”

96

Here,

however,

the

violations

did

result

in

actual

pollution.

Press

4,

which

has

a

PTE

of

52

tpy,

was

operated

without

any

controls

from

1992

to

2002.

This

press

should

have

been

controlled

by

the

Respondent

as

of the

effective

date

of

Part

218,

March

15,

1995

.

A

control

device

achieving

the

required

capture

and

control

efficiency

would

have

dramatically

reduced the

VOM

emissions

from

Press

4.

The

gravity

of the

excess

VOM

emissions

from

Packaging’s

Carol

Stream

Facility

is

aggravated

by

its

location

in

an

area

designated

as

severe

nonattainment

for

ozone

during

the

relevant

period.

As

Mr.

Bloomberg

testified,

from

1993

to

2003,

the

Chicago area,

including

DuPage

County,

was

a

severe

ozone

nonattainment

area.

99

VOM

is

the

greatest

threat

during

the

ozone

formation

season

from

May

to

September

each

year.

Packaging

reports

that

its

seasonal

emissions

in

2000,

2001,

and

2002

ranged

from

13.75

to

20.14

tons

during

those

months.

10

°

Ground-level

ozone is

a

threat

to

human

96

ESG

Watts,

282

111.

App.

3d

at

51.

Respondent’s

Answer

to

Amended

Complaint,

Count

V,

par.

19;

and

Complainant’s

Exhibit

5,

Admitted

Facts

No.

11

and

50,

R

93-14,

Opinion

and

Order

of

the

Board

(January

6,

1994).

99

Hearing

Transcript,

June

29,

2009,

at

p.

42,

1.

‘°°

9-12,

Respondent’s

Exhibit

50,

May

2009

Revised

SERS.

23

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

health

and

can

cause,

among

other

problems, reduced

lung

functioning

and

inflammation

of

the

lining

of

the

lungs.’°’

In addition

to

causing

excess

VOM

emissions,

Packaging

failed

to

comply

with

its

permitting

and

reporting

requirements,

which

are

of

programmatic

significance

to

the

Agency

and,

therefore,

to

the

People

of

the

State

of

Illinois.

As

testified

to

by

Mr.

Bloomberg,

permits

are

significant

because

they

“ensure that

the

State

knows

what

equipment

is

at

sources,

how

it’s

being

controlled,

what’s

being

emitted

and

whether

or

not

those

emissions

units

are

complying

with

environmental

regulations.”°

2

Annual

emissions

reports

allow

the

Agency

to

know

the

amount

and

location

of

air

pollutants

entering

the

atmosphere)°

3

All

of

these

inform

the

Agency

in

its

essential

functions,

including

the

development

of new

regulations

and

compliance

with

federal

requirements,

such

as

the

NAAQS.’°

4

Given

Packaging’s

industry,

there

is

no

excuse

for

its

failure

to

have

been

aware

of

and

complying

with

the

requirements.

The

flexographic

printing

industry

is

highly

competitive.’

05

To

run

its

business,

Packaging

watches

trends

in the

industry

and

the

behavior

of

its

competitors,

and

competitors

are

watching

Packaging,

as

shown

by

other

companies’

awareness

of

Respondent’s

noncompliance

during

the

time

they

were

petitioning

for

adjusted

standards.’

06

Dominic

Imburgia’s

testimony

that

he

was

not

aware

of

the

existence

of

the

Clean

Air

Act

is

not

credible.’°

7

The

Company

was

101

See

supra,

ftnt

76,

Ground

Level

Ozone,

Health

and

Environment,

http://www.epa.gov/air/ozonepollution/health.htrnl.

102

Hearing

Transcript,

June

29,

2009,

at

p.

52,

1.

6-10.

‘°

3

1d.

atp.

52,1.

18—p.

53,1.3.

104

Id.

at

p.

52,

1.

2

—p.

54,

1.

5.

‘°

5

Id.

atp.

187,1.21-23.

‘°

6

1d.

at

p.

51,

1.

6—

19

(Bloomberg

testifying

that

Illinois

EPA

learned

of

Packaging’s

noncompliance

from

a

competitor

who

found

the

noncompliance

“unfair”).

107

1d.

atp.

186

,

1

.

22

—p.

187,1.

1.

24

---

complying

with

its

hazardous

material regulations

during

the

1 990s.’°

8

The

Agency

was

conducting

outreach

to

the

flexographic

industry.’

09

Packaging

even

has

an

industry

publication,

Paper,

Film

&

Foil

Converter,

available

in

its lobby.”

0

Although

Packaging

claims

that

it was

not

aware

of

any

of its

regulatory

obligations,

it

had

ample

opportunity

and

resources

to

become

fully

educated and

informed

regarding

its

environmental

obligations.

The

Board

should

also

consider

the

length

of

time

these

violations

persisted.

Since

at least

1992,

Respondent

has

been

operating

sources

that

required

a

permit

from

the Agency.’

1

’

Packaging

did

not

submit

its first

permit

application

to the

TEPA

until

July

2002.112

Packaging

was

in

violation

of

the

Part

218

regulations

from

the

effective

date

of

the

regulation

in

1995

until

the

installation

of

the

RTO

in 2003.

The

extended

period

of violation

should

weigh

heavily

against

Packaging.”

3

Based

on

the

evidence

before

the

Board,

as

highlighted

here,

gravity

and

duration

should

weigh

as

an

aggravating

factor

against

Packaging

in the

Board’s

assessment

of

an

appropriate

civil

penalty.

2.

The

Evidence

Shows

a Lack

of

Due

Diligence

by

Packaging

The

evidence

shows

that

Packaging

demonstrated

an

absence

of

due

diligence

in

complying

with

the

Act,

the

Board’s

Air

Pollution

Regulations

and

its

Construction

Permit.

As

noted

above,

Packaging

alleges

that

it

was

unaware

of

its

environmental

108

Id.

at

p.

258,

1. 11

—

p.

259,

1. 6.

109

Id.

at

p.

47,

1.

9—p.

49,

1.

15 (Bloomberg

testifying

that

Illinois

EPA

sent letters

to

all sources,

including

Packaging,

and

formed

a working

group).

110

Complainant’s

Exhibit

5,

Admitted

Fact

Nos.

63

—64.

112

Answer

to Amended

Complaint,

Count

I, par.

6

and

Count

II,

par:

18.

Complainant’s

Exhibit

5, Admitted

Fact

Nos.

17—

18.

See,

People

of

the

State

of

Illinois

v.

Panhandle

Eastern

Pipe

Line

Company,

PCB

99-191

(November

15,

2001,

slip

op.

at 29)

(long

period

of

violations

was

an

aggravating

factor

for

purpose

of

penalty);

United

States

v.

Marine

Shale

Processors,

81

F3d

1329

(

5

th

Cir.

1996)

($2,500,000

penalty

for

twenty-nine

unpermitted

minor

sources

occurred

over

approximately

eleven-year

period).

25

---

obligations until

the

Illinois

EPA

conducted

a

site

inspection

in

October

2001.

Packaging

failed

to

show

due

diligence

prior

to

2001

by

failing

to

proactively

seek

out

information

about

its

environmental

obligations

when

an

abundance

of

resources were

available

that

served

to

provide

notice

of,

and

assistance

in,

ascertaining

its

legal

obligations.

Following

the

2001

site

inspection, Packaging

began

to

take

concrete

steps

to

achieve

compliance

with

the

Act

and

Board Air

Pollution

Regulations.

However,

Packaging

by

no

means

took

all

available

steps

to

achieve

immediate

compliance.

Respondent

waited

fourteen

months

before

decommissioning

Press

4

and

determined

not

to

expend

the

time

and

cost

to

make

a demonstration

of

compliance

for

Press

5

until

February

2004.114

Moreover,

Rich

Trzupek,

Respondent’s

environmental

consultant,

acknowledges

in

his

testimony

that

he

understood

that

a formal

test

would

be

required

and

that

he

explained

this

to

Packaging

when

he

was

first

retained.”

5

Packaging

was

also

not

diligent

in

ensuring

compliance

with

its

Construction

Permit

after

its

issuance.

At

the

time

the

Construction

Permit

was

issued

in

June

2003,

Respondent

had

been

aware

of

its status

as a

regulated

entity

since

at least

October

2001.”

6

The

company

was

already

aware

that

its

obligations

included

control

of

its

VOM

emissions

and

the

maintenance

of

records,

as

these

requirements

were

identified

in

the

Violation

Notice

sent

to

the

Respondent

on

January

25,

2002.’

‘

When

Illinois

EPA

conducted

a

site

inspection

in

2004,

however,

Respondent

was

unable

to

produce

required

records

for

the

Agency

to

review

even

though

the

Construction

Permit

clearly

“4

See

Respondent’s

Exhibit

4,

Expert

Report

of

Chris

McClure,

p.

4

(Press

4

decommissioned

in

December

2002);

and

Complainant’s

Exhibit

5,

Admitted

Facts

No.

37

and

38

(establishing

stack

test

occurred

on

February

26,

2004

and

2004

stack

test

was

first

approved

compliance

test).

“

Hearing

Transcript,

June

29,

2009,

atp.

26.,

1.

116

13-18.

See

Complainant’s

Exhibit

3,

2003

Construction

Permit;

and

Respondent’s

Exhibit

9,

Illinois

EPA

Inspection

Report

(showing

date

of

first

inspection

was

October

5,

2001).

“

Respondent’s

Exhibit

10,

Notice

of

Violation

dated

January

25,

2002.

26

Electronic Filing - Received, Clerk's Office, September 24, 2009

---

states the

records

must

be

available.’

18

Additionally,

the

VOM usage

at the

Facility

was

repeatedly

above

the

permit limit

in

the

period

from August

2003

to

July

2004.’

‘

These

failures

show an

absence

of

due

diligence

on

the

part

of

Packaging

and

should

be

weighed

against

Respondent

as

an

aggravating

factor

in

assessing

a

penalty.

3.

Economic

Benefit

a.

An

Appropriate

Civil

Penalty

Must

Include

Recovery

of

All

Economic

Benefit

from

Packaging’s

Violation

of

35

Ill.

Adm.

Code

218.401

The

Act

requires

that,

absent

the

narrowest

of

circumstances,

a

civil

penalty

must

recover

all

economic

benefit

accruing

to a

respondent

as

a

result

of

the

violation.

Specifically,

Section

42(h)

of

the

Act,

415

ILCS

5/42(h)

(2008)

provides,

in

pertinent

part:

In

determining

the

appropriate

civil

penalty

to

be

imposed...

the

Board

shall

ensure,

in

all

cases, that

the

penalty

is

at

least

as

great

as

the

economic

benefits,

if

any,

accrued

by

the

respondent

as

a result

of

the

violation,

unless

the

Board

finds

that

imposition

of

such

penalty

would

result

in

an

arbitrary

or

unreasonable

financial

hardship.

Although

Packaging

started

as

a

small

family

business,

it

is

now

a

nationally

competitive

company

with

facilities

in

multiple

states.

120

In

the

Carol

Stream

Facility

alone,

there

are

approximately

100

employees.’

2

’

As

such,

it

is

neither

arbitrary

nor

H

Complainant’s

Exhibit

3,

2003

Construction

Permit,

par.

17

(“All

records

and

logs

required

by

this

permit

shall

be

retained

at

a

readily

accessible

location

at

the

source

for

at

least

three

years

from

the

date

of

entry

and

shall

be

made

available

for

inspection

and

copying

by

the

Illinois

EPA

or

USEPA

upon

request.

Any

records

retained

in

an

electronic

format

(e.g.,

computer)

shall

be

capable

of

being

retrieved

and

printed

on

paper

during

normal

source

office

hours

so

as

to

be

able

to

respond

to

an

Illinois

EPA

or

USEPA

request

for

records

during

the

course

of

a

source

inspection.”)

Section

111.1

herein,

establishing

VOM

usage

exceedances;

and

Complainant’s

Exhibit

3,

Admitted

Fact

No.

55.

120

Hearing

Transcript,

June

29,

2009,

at

p.

187,

1.

21

—

p.

188,

1.

2

(Packaging

competes

nationally)

and

p.

220,

1.

20-23

(Packaging

acquired

a

facility

in

Sparta,

MI

in

late

121

2002).

Id.

atp.

188,1.

12—15.

27

---

unreasonable

to

recover

all

of

the

economic

benefit

accruing

to

Packaging

for

delaying

and

avoiding

capital

expenditures

needed

to control

VOM

for

a period

of

seven

years.

b.

The

Economic

Benefit

Derived

from

the

Violations