ILLINOIS POLLUTION CONTROL BOARD
    November
    6,
    1975
    BLAKESLEE—MIDWEST PRESTRESSED
    CONCRETE COMPANY,
    Petitioner,
    v.
    )
    PCB 75—269
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    MR. ROGER E.
    WILLS, JR., appeared on behalf of Petitioner;
    MR. WILLIAM A. ERDMAN, appeared on behalf of Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Dumelle):
    Petitioner filed a request for variance from Rule 203(b)
    of the Air Pollution Control Regulations
    (Air Rules) on July 14,
    1975.
    On August
    9,
    1975 Petitioner filed an amended variance
    petition in response to a More Information Order entered on
    July 17,
    1975.
    On September 25,
    1975 the Environmental Pro-
    tection Agency
    (Agency)
    filed a Recommendation to grant the
    variance.
    Petitioner filed a Response to the Agency’s Recommenda-
    tion on October 16,
    1975.
    On August 28,
    1975, we ordered that a
    hearing be held on the Amended Petition.
    No hearing was held.
    Petitioner filed
    a Motion to Cancel Without a Hearing on October
    16,
    1975.
    We grant this motion.
    Petitioner operates
    a concrete casting plant located within
    the City of Rochelle
    in Ogle County,
    Illinois.
    Petitioner
    manufacturers prestressed concrete items which are utilized in
    highway and commercial building construction.
    Petitioner operates
    a cement silo for approximately two hours per day, five days per
    week.
    Petitioner seeks the variance from the particulate
    standards as they would apply to emissions from the cement silo.
    Petitioner contends that
    it had reason to believe that the
    emissions from its cement silo complied with the Air Rules
    until its application for an operating permit was denied on
    June 4,
    1975.
    Petitioner proposes to install and operate a
    baghouse to control particulate emissions from the cement
    silo.
    Originally Petitioner estimated that this facility would
    be installed no later than January
    1,
    1976.
    In the amended
    variance petition, Petitioner states that it will achieve compliance
    by November
    1,
    1975.
    19—
    246
    —2—
    While recommending that the variance be granted,
    the Agency
    states that it “is inexcusable that Blakeslee applied for its
    operating permit approximately three years late”.
    Based on this
    record, the Board must agree with the Agency.
    The purpose of
    the permit program is to discover environmental problems and
    arrive at a solution to them.
    Had Petitioner timely filed an
    operating permit the emission problem would have been discovered
    three years earlier.
    Petitioner contends that its failure to
    comply with the applicable rules was unfortunately overlooked
    as a result of ownership and management changes which occurred
    in July,
    1972.
    In response to the Board’s More Information Order of July 17,
    1975 requesting information on the ambient air quality in the
    area affected by Petitioner’s emission and reasons for failure
    to comply with the applicable rules before the filing of the
    original petition, Petitioner did not file any specific ambient
    air quality data.
    Rather Petitioner alleged that it would not
    interfere with the attainment or maintenance of ambient air
    quality standards as Petitioner has received no more than two
    deliveries of cement per day and never operates the source of
    emissions for more than two hours per day.
    Petitioner further
    states that the emissions emitted during the two hours does
    not exceed the total allowable particulates assuming an
    eight hour operation at the allowable emission limits.
    The Board finds that it is unable to grant the requested
    variance.
    A denial of a variance does not constitute an order
    to cease and desist from violations but is rather a denial
    of a shield from prosecution.
    The Board finds that any hardship
    in this case
    is self-imposed in that Petitioner should have
    applied for its permit some three years prior.
    Further, the
    Board finds that it is constrained by the Board’s interpretation
    of the decision in Train v. NRDC 43 LW 4467
    (April
    15,
    1975)
    to deny the variance as Petitioner has not met its burden of proving
    that the grant of this variance would fail to interfere with the
    attainment or maintenance of ambient air quality standards.
    Further, Petitioner’s hardship, that if forced to immediately comply
    with the regulations
    it would have to cease operations, is techni—
    cally moot as the date in which Petitioner states it will
    be
    in
    compliance has already passed and no enforcement
    case has been filed against Petitioner.
    When Petitioner has its
    baghouse
    in operat4.on it is then free to reapply for an operating
    permit.
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law.
    19— 247
    —3—
    ORDER
    The request for a variance from Rule 203(b)
    of the Air
    Pollution Control Regulations
    (Air Rules)
    is hereby denied without
    prejudice.
    IT IS SO ORDERED.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify the above Opinion and Order were adopted on the
    ~
    day of November,
    1975 by a vote of
    4/..~
    c4~tanL.Mth?~rk
    Illinois Pollutio
    ntrol Board
    19—248

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