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Standard Scrap Metal Co. v. Poll. Cont. Bd.

OPINION FILED MARCH 31, 1986.

STANDARD SCRAP METAL COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Standard Scrap Metal Company (Standard Scrap) appeals from an administrative decision of the Illinois Pollution Control Board (the Board) entered after hearings on alleged violations by Standard Scrap in the operation of its reclamation facility in Chicago. Direct review is sought pursuant to section 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041). For the following reasons, we affirm the decision of the Board.

Standard Scrap owns and operates a facility at 4004 South Wentworth Avenue in Chicago for the reclamation of scrap metals such as aluminum and copper. The reclaimed scrap metal is sold primarily to steel smelters and refiners. The facility contains a gas-fired boiler, a wire-burning incinerator and two aluminum sweat furnaces, one of which is currently inoperable. The facility is located in an area which is primarily devoted to industry, but also includes residential property and public housing.

On February 23, 1983, the Illinois Environmental Protection Agency (the Agency) filed with the Board a five-count complaint against Standard Scrap, alleging violations of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.) and the Illinois Air Pollution Control Board Rules and Regulations, chapter 2: Air Pollution (Rules). Specifically, in count I the Agency alleges that Standard Scrap operated its emission sources, i.e., the boiler, incinerators and sweat furnaces, without the operating permits required under section 9(b) of the Act and Air Rule 103(b)(2). Count II alleges that Standard Scrap caused or allowed the emission from its plant of smoke or other particulate matter into the atmosphere of an opacity greater than the 30% standard contained in Air Rule 202(b). Count III alleges that Standard Scrap caused or allowed the continued operation of its wire-burning incinerator during the malfunction of the incinerator's afterburner control equipment, in violation of section 9(a) of the Act and Air Rule 105(a). In count IV, it is alleged that Standard Scrap caused or allowed the emission of particulate matter from its wire-burning incinerator and aluminum sweat furnace in amounts exceeding the allowable emission rate under Air Rule 203(a). Finally, count V alleges that Standard Scrap caused or allowed the open burning of wire insulation in violation of section 9(c) of the Act and Air Rule 502(a).

At hearings before the Board on the allegations set forth in the complaint, the parties stipulated to the following facts: that Standard Scrap never had operating permits for the wire-burning incinerator or the two aluminum sweat furnaces; that from February 7, 1974, until April 16, 1983, Standard Scrap did not have an operating permit for its gas-fired boiler; that the boiler was operated on March 30, 1979, December 30, 1980, and January 21, 1983; that Standard Scrap operates one of its sweat furnaces and the incinerator an average of eight hours a day, three days a week and 40 weeks per year.

The parties further stipulated to actual emissions from Standard Scrap's sweat furnace and incinerator greater than the allowable rates. Specifically, it was stipulated that the actual emission rate from Standard Scrap's sweat furnace, as calculated on or about November 16, 1982, was .815 lbs./hr. The allowable rate under Rule 203(a) is .55 lbs./hr. The actual emission rate from the incinerator, as calculated prior to September 1982, was stipulated at 4.85 lbs./hr.; the allowable rate is .68 lbs./hr.

The Agency presented evidence to the Board showing that during a period of three years beginning in March 1980, Standard Scrap failed to cooperate with Agency efforts to bring the facility into compliance. In particular, the evidence showed that on March 17, 1980, Alfred Lesko, an engineer employed by the Agency, sent a letter to Ronald Kanter, secretary-treasurer of Standard Scrap, notifying him of permit and other air pollution violations at the Wentworth facility. Receiving no response, Lesko again sent Kanter a letter on May 19, 1980, requesting a meeting. On June 20, 1980, Kanter met with Lesko to discuss the violations. At that time, Kanter agreed to apply for the necessary operating permits and to submit a proposal for changes to be made at the plant to correct the violations.

On July 17, 1980, the Agency sent Kanter another letter warning him of the violations. Later that month, Kanter replied, stating only that Standard Scrap had repaired the holding coil on the safety shutoff valve of its incinerator. On August 22, 1980, Kanter wrote to the Agency that Standard Scrap had eliminated "the particulate emission rate" of the furnace by buying only clean aluminum scrap and iron aluminum breakage "with nothing that will contaminate." Several days later, Standard Scrap also submitted applications for operating permits for its incinerator and furnace. On October 15, 1980, the Agency asked Standard Scrap to provide information concerning the material to be sweated and incinerated. Standard Scrap failed to respond to this request, and the Agency therefore denied the applications on November 19, 1980. The denial was not appealed.

Standard Scrap took no action until more than a year later, and then only in response to further Agency warnings. On November 20, 1981, Kerry Keller of the Agency inspected the plant in response to a complaint about black smoke coming from a stack at the facility. At that time, Kanter told Keller that the plant did not have an incinerator or a boiler. Keller later discovered, upon reviewing Agency files, that the plant had been cited several times for failing to have operating permits for its incinerator and boiler. Consequently, an Agency attorney sent a letter to Kanter on December 21, 1981, warning of enforcement action. Two days later, Kanter requested more permit application forms, and Keller sent them to him that same day. However, when Keller inspected the plant on March 16, 1982, Kanter stated he had not received the forms. Keller therefore personally delivered permit application forms to Kanter on March 23, 1982, and requested a reply within 10 days.

In December 1982, the hand-delivered permit applications remained unfiled, and the Agency sent another letter to Kanter warning of impending enforcement action and asking for another meeting. A meeting was held on January 18, 1983, at which time Agency representatives again explained to Kanter what Standard Scrap must do to correct its violations. Following that meeting, the Agency sent Kanter a letter summarizing the compliance requirements and emphasizing the need for expeditious action. Kanter, however, did not respond to the letter until March 3, 1983, eight days after the Agency filed the complaint in the instant action. Standard Scrap submitted permit applications for its boiler, incinerator and furnace, which the Agency received on March 7, 1983. On April 16, 1983, the Agency issued an operating permit to Standard Scrap for its boiler, but denied permits for the other two emission sources because the information submitted about the incinerator was insufficient to determine compliance with Air Rule 203(a), and the data submitted about the sweat furnace indicated emissions exceeding those allowable under Air Rule 203(a). No appeal was taken from the Board's decision.

The Agency additionally presented evidence concerning emissions observed from Standard Scrap's facility. First, Agency reports showed that on July 16, 1980, two Agency engineers stopped to inspect the Standard Scrap plant because, while driving on the Dan Ryan Expressway, they observed the emission of heavy, voluminous smoke. The smoke partially obscured their vision. Upon arriving at Standard Scrap, Kanter told the engineers that the smoke was caused because the incinerator's afterburner had malfunctioned. Photographs taken by the engineers and admitted into evidence depicted heavy black smoke being emitted from Standard Scrap's incinerator stack at an opacity greater than the allowable 30%.

Agency documents revealed that on May 14, 1982, another Agency inspector took visible emission readings of the Standard Scrap incinerator stack between 8 and 8:15 a.m. During this time, the opacity ranged between 0% and 100%. Pictures taken by the inspector again depicted heavy smoke and particulates being emitted from the stack. When the inspector visited the facility, Kanter told him that the smoke was caused because the incinerator had not been "preheated for a long enough period."

Erica Karp, a social worker, testified that while driving southbound on the Dan Ryan Expressway on the morning of January 18, 1980, her vision was obstructed by black smoke coming from the west side of the highway. When she cleared the smoke, she observed that it appeared to be coming from a stack next to a building with Standard Scrap's name on it.

Philip Vadeboncoeur, an executive employed by a corporation located across the street from Standard Scrap, testified he has observed smoke being emitted from the Standard Scrap plant many times during the 18 years he has worked in the area. Vadeboncoeur testified that his company's employees have become ill when smoke from Standard Scrap is sucked into his building when the doors are opened for ventilation in the summer.

The Agency asked the Board to take judicial notice of an order it issued on February 7, 1974, concerning violations at the Standard Scrap facility, IEPA v. Kanter (Feb. 7, 1974), 11 PCB 171 (No. PCB-73-200). The order required Standard Scrap to purchase and install an afterburner for its aluminum sweat furnace in order to control emissions from the furnace and achieve compliance with the Act. The order was based on an agreement by Standard Scrap to install the afterburner "subject to the ...


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