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June 20, 1994


Petition for Review of an Order of the Pollution Control Board. PCB 91-193

Petition for Leave to Appeal Denied October 6, 1994.

Buckley, O'connor, Jr., Manning

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

This appeal arises out of an action originally brought by theEnvironmental Protection Agency ("Agency") before the Pollution Control Board ("Board") against Park Crematory, Inc. ("Park") alleging several violations of the Illinois Environmental Protection Act ("Act"). After an administrative hearing, the Board determined that Park committed several of the alleged violations and imposed a fine of $9,000. Pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335), Park filed a petition for direct review in the appellate court. Park contends on appeal that the $9,000 fine imposed by the Board is excessive in light of the fact that Park was not alleged to have caused any actual pollution and had corrected all permit violations almost 10 months before the original complaint was filed with the Board.

Park is a crematory facility which engages in the disposal of human remains by cremation. When Park was incorporated by its owner Gerald Sullivan ("Park's owner") in 1979, it had only one incinerator unit. A second incinerator unit was installed in 1982. Both units consist of a primary and a secondary combustion chamber which are connected to a single stack which is located at the rear of the building which houses the Lain Sullivan Funeral Home.

In 1982, prior to the installation of the second incinerator, the Agency conducted its first inspection of the Park facilities. According to the inspection report, Park did not have an operating permit for its one incinerator and had not yet applied for a construction permit for its planned installation of a second incinerator. In the report, however, the Agency inspector wrote that "[Park's owner] indicated that he would be happy to fill out the permit forms" and the inspector recommended that a warning letter be sent with the appropriate forms. On February 17, 1982, the Agency sent Park the necessary application forms and a warning letter outlining the permit violations. On March 1, 1982, Park's owner sent a letter to the Agency in which he stated that he would return the permit forms "back to you as soon as we have gathered the needed information." On July 29, 1982, the Agency sent another warning letter to Park and requested that it submit within 15 days its intention to comply with the operating permit requirements. The Agency subsequently received an operating permit application from Park for one incinerator unit, model number JN-1-GA. Park did not submit a construction permit application for the second unit. On September 23, 1982, the Agency issued an operating permit to Park for the one incinerator. The parties dispute as to which unit the operating permit applied.

The operating permit required that Park keep a maintenance record for each item of air pollution control equipment and that this record be available for inspection at any time during normal workingand or operating hours. The permit further required that "the secondary combustion chamber must be preheated to the incinerator manufacturer's recommended operating temperatures before any waste is loaded into the unit." Park's owner testified that Park followed the manufacturer's loading instructions. He stated, however, that the instructions Park received from the manufacturer did not specify a recommended operating temperature, but rather recommended that the primary chamber not be loaded until the bricks in the secondary chamber were "cherry red." He also testified that he never allowed the incinerators to be operated when they needed maintenance.

Mel Villalobos, an environmental specialist with the Agency, conducted a second routine inspection of the Park facilities in October 1990. He visually inspected the stack emissions and did not notice any smoke or odors. In his report, however, Villalobos noted that one of the two incinerator units was not covered by an operating permit, the units did not have temperature gauges, and no maintenance log was made available to him during his inspection.

Following Villalobos' inspection, on October 22, 1990, the Agency sent Park a letter noting the following apparent violations: (1) failure to install temperature gauges on the incinerator units; (2) failure to keep a maintenance log of the incinerator units; (3) failure to obtain an operating permit for one of the incinerator units; and (4) failure to obtain a construction permit for the second incinerator unit. In the letter, the Agency requested that, within 15 days, Park submit in writing "the reasons for the apparent violations * * * as well as the description of the steps which have been initiated to prevent any further recurrence of the * * * violations."

On October 29, 1990, Park submitted an operating permit application for the second incinerator. On November 7, 1990, Park's owner notified the Agency that temperature gauges would be installed no later than December 1, 1990, that a maintenance log had been established and that all permit applications had been completed. By December, the temperature gauges had been installed and, on December 12, 1990, the Agency issued Park an operating permit for the second incinerator unit.

Notwithstanding the fact that Park had responded to the October 22 compliance inquiry and had corrected the apparent violations, the Agency sent Park an Enforcement Notice Letter (415 ILCS 5/31(d) (West 1992)) on January 2, 1991, setting forth the violations and notifying Park that the matter had been referred to the Illinois Attorney General's Office for enforcement.

On October 9, 1991, the Attorney General, on behalf of the People of the State of Illinois, filed a complaint with the Board alleging the previously stated violations. The Attorney General requested that the Board assess the maximum penalties allowed under the Act. Specifically, the Attorney General prayed that the Board assess a civil penalty against Park of $50,000 for each violation of the Act, an additional civil penalty of $1,000 for each day during which each violation continued prior to July 1, 1990, and an additional civil penalty of $10,000 for each day of each violation after July 1, 1990. 415 ILCS 5/42(a) (West 1992). *fn1

Following the administrative hearing the Board found that Park violated the Act by operating its second incinerator from 1982 through 1991 without an operating permit, by constructing its second incinerator without a construction permit, and by failing to furnish its maintenance records to Villalobos during his inspection. The Board found no violation in Park's failure to install temperature gauges. Noting that the maximum penalty could be "substantial," the Board assessed a penalty against Park of $9,000 which ...

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