ILLINOIS POLLUTION CONTROL BOARD

February

 5, 1987

JOLIET SAND AND GRAVEL COMPANY,

Petitioner,

v..

)

 PCB 86—159

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent..

JOHN

L..

 PARKER

 (JOHN

L..

 PARKER &

 ASSOC..) APPEARED ON BEHALF OF

PETITIONER, AND

MICHAEL 3. MAHER,

 ASSISTANT ATTORNEY GENERAL, AND JOSEPH

R..

PODLEWSKI APPEARED ON BEHALF OF RESPONDENT..

OPINION AND ORDER OF THE BOARD

 (by 3.

 Anderson):

This matter

 comes before

 the Board on the September 30,

1986

petition

 filed by Joliet Sand and Gravel

 Co..

 (Joliet)

 seeking

review of

 the denial by the Illinois Environmental Protection

Agency (Agency)

of

 a renewal

 of the facility’s operating

permit..

 Joliet’s sand

 and gravel processing plant

 is located at

2509 Mound Road

 in Joliet,

 Illinois,

 and engages

 in primary and

secondary limestone crushing and related

 activities..

Although hearing was authorized

 by the Board’s Order

of

October

 9, 1986,

 evidentiary hearings did not take place

 until

January 13—14,

 1987.

 Hearings which

 had previously been set for

 November

19

 and 25 and December 10, 1986 were convened but

progressed as on—record, pre—hearing conferences at which

discovery—related matters were discussed..

 The discovery process

in this matter was unusually lengthy and contested,

 resulting

in

truncation of

 the time available

 in which

 to put on evidence at

hearing

 for review by the

 Board..

 These matters are chronicled

in

the Board’s Orders

 in response

 to various “emergency”

 and routine

motions, and will not again

 be set forth

 in detail

 here.

The

Board

 incorporates by reference the following:

 Orders of

November

6

and

20,

 1986; Orders of December

 18 and 23,

 1986;

and

Orders of January 12,

 22 and

26,

 1987..

 Pursuant

 to leave granted

by Order

 of January 26,

 1987,

 the parties simultaneously filed

briefs on February

2,

 1987..

Finally,

the

 Board notes that decision was originally due

on

January

 28, 1987 pursuant

 to the 120 day decision deadline

established

 in Section 40(a)(l)

 of the Environmental Protection

Act

 (Act)..

 Joliet waived this deadline

 until February 5

 at the

75-228

—2—

commencement of the January 14 hearing, confirmed this waiver

in

writing on January 22,

 and then later on the same day extended

the waiver

 through February

 12..

 On January 26, Joliet further

extended the decision deadline through March

5,

 in the context of

a request

for

 additional

 hearings..

 As the hearing request was

denied

 for the reasons set forth in the Board’s January 26 Order,

decision

 is being rendered consistent with the waiver

 through

February 12

 to avoid

 issuance of a permit by operation of

 law..

PRELIMINARY MATTERS

Pending Written Motions

The earliest filed motion still pending

 is the Agency’s

December

 30, 1986 motion

for

 costs and

 a January 7,

1987

supplement

 thereto..

 Joliet

 filed

 responses in opposition

on

January

 5 and

 12..

 The motion seeks award of

 $l54..77

 to the

Agency,

 these being

 the costs

and

 salaries

 of three employees who

appeared

for

 hearing on November 25 pursuant

 to notice served

November

 24..

At

 the pre—hearing

 conference held November

19,

the

Hearing Officer had stated that it was necessary to at least open

the hearing scheduled

 for November

25

 in order

 to comply with

notice

 of hearing requirements..

 The Hearing Officer additionally

noted, however, that

in

 the event discovery was incomplete,

 that

if either party or both parties were unable

 to proceed that the

hearing would

be

 continued..

R..

 11—19—86,

p..

36,

 38_39*..

 At the

November

 25 hearing, counsel

 for Joliet stated that he was not

in

a position

 to state that “we have enough discovery to permit

us

to properly present our case

 at this hearing....,

 and therefore

I

ask that this hearing

be

 continued”..

R..

p..

 63—64..

 This request

was granted and none of the three witnesses were called..

 It is

the Agency’s position that Joliet knew that it would

 not need

to

“put on”

 its case on November

25,

 and that it had “needlessly

caused

 the wasted

and

 futile appearance

 of three Agency personnel

who had rescheduled

 their workload

 to attend the scheduled

hearing”..

 Motion,

 14..

While

the

 Board believes that the imposition of the costs

 requested would

 be appropriate,

 the Board

 finds

 it impossible

to

do

 so..

 The Act specifically provides

 for the shifting

 of costs

from one party to another

 in two

 instances..

 The first is

pursuant

 to Section 42(f), authorizing payment of costs incurred

by the Attorney General

 or State’s Attorney by

 a person found

to

have committed “a willful, knowing,

 or repeated violation of the

The

 transcript of

 the November

 19 hearing

 is numbered pages

1

through

 79..

 The transcript of the November 25 hearing begins

again

 at page

1;

 the transcripts of the December

 8 and January

13—14 continue pagination

 in sequence after

 the November 25

tranScript..

 Reference

 to the November

 19 hearing

 transcript

is

to

 “R..

 11—19—86,

p..

____“

and

to

 all others

 “P..

____

75-229

—3—

Act..”

 The second

 is pursuant

 to Section 31.1,

 authorizing

payment of costs

 incurred by a person who has unsuccessfully

appealed

 the issuance of an administrative citation..

 These

specific grants of authority

 to shift costs militate against

a

finding

 that the Board

 has some general,

 inherent authority to

shift

 these costs

 in cases which are not enforcement actions..

The Agency’s motion

 is therefore denied

 on the basis that

it

seeks relief beyond the Board’s authority

 to grant..

 However, as

this authority issue has not been fully briefed, the Board will

entertain further argument

 in the context of

 a motion for

reconsideration..

The next filed motion

 is the Agency’s January 12,

1987

motion for dismissal with prejudice,

 to which Joliet filed

a

response

 on January

 20..

 The motion asserts that Joliet has

failed

 to comply with Hearing Officer Orders

 to provide both

answers

 to interrogatories and production of documents, that this

conduct was

 intentional

 and wrongful, and that as

 a result

Respondent’s case has been

 so prejudiced that the only

appropriate remedy

 is dismissal of the action with prejudice..

In relation

 to this motion,

 the Agency on January

27

 applied

to the Hearing Officer

for

 an Order finding non—compliance with

an Order

 to answer

 interrogatories..

 Joliet filed

 a response

in

opposition on January

 28..

 The Hearing Officer referred the

matter

to

 the Board

 on February

4..

 The Board

 finds that Joliet

made

 a literal response

 to the interrogatory as drafted..

 While

Joliet could have been more forthcoming,

 the Board cannot find

that it did not comply with the Order..

In additional

 response

 to the motion

 to dismiss,

 the Board

notes

 the described sequence of events may well have impeded the

Agency’s preparation and presentation of its

 case..

 Yet, based

on

the Board’s review of

thc~

hear~nr~

-i--

of

specific al!~

 w~.,.Cfl

tne

Agency’s case was prejudiced,

 the Board does not

 find that the

extreme relief requested is warranted..

 The motion to dismiss

is

denied..

The next filed motion

 is Joliet’s February 2,

 1987 motion

to

correct typographical errors

 in the January 13—14,

 1987 hearing

transcripts..

 A similar motion

 to correct errors

 in the November

25 and December

 8 transcripts was filed on February

4..

 The Board

agrees with Joliet’s characterization of these errors, and grants

 the motion

 to correct..

 The Clerk

 is directed

 to delete the words

“proposed”

 from

 the errata sheets

 included

in

 the motions,

and

to

bind copies thereof

 in the originals of the hearing

transcripts..

 The Board notes that its review of these changes

was greatly facilitated by Joliet’s submittal of copies of the

transcript pages with corrections

 inserted by hand..

75-230

—4—

Finally, on February

4,

 1987,

 Joliet filed

 a reply brief

accompanied by

 a motion for leave

 to file instanter..

 The Agency

filed

 a reply in opposition which asserts that

 a reply brief

is

procedurally improper under

 these circumstances, particularly

since Joliet had

 filed

 no main brief,

 and requests that decision

be made on the basis of the Record

 and its brief..

It

 is clear

that,

 for whatever reason,

 the Agency has not received Joliet’s

brief

 filed with

the

 Board February

2.

 This disturbs some of the

factual premises of the Agency’s opposition..

 Notwithstanding,

the Agency

 is correct that the simultaneous briefing schedule

established

 by the Board does not provide for

 reply briefs..

To

accept

 a reply brief

 filed on the day before decision under

circumstances where

 the Agency could not be given

 a reply

opportunity because

 it had not received Joliet’s brief would

be

unfair..

It

 is additionally onerous

 to the Board to receive

additional briefs

 on the day before

 a scheduled decision..

The

motion

 is denied..

Evidentiary Issues and

 Scope of Review

The

 remaining preliminary matters worthy of the Board’s

attention at this point are various assertions of error

 in regard

to

 the Hearing Officer’s conduct of the hearing..

 While some of

these were reiterated

 in the final briefs, most are reflected

only

in

 the hearing

 transcript.

 The Board will not address all

objections

 in detail, affirming all rulings not otherwise

addressed..

The Board again

 affirms the procedures established

 by the

Hearing Officer

 for presentation of

 testimony and evidence at

the

two—day hearing..

 The Board

 has repeatedly and exhaustively

rejected Joliet’s assertions that its due process

 rights have

been violated, and will not here repeat

 the rationale stated

in

those Orders which have been incorporated herein by reference.

Before address~rg

the

 various evidentiarv issues, the Board

will briefly reiterate the scope of review of permit appeals

~ex~:r~.lv,

 and more specifically as they relate

to

the

 sequence

of events involved

 in the

 instant permit denial..

The Board’s historic approach to permit denial hearings was

best stated

 in Oscar Mayer

and

 Co..

v.

 IEPA, PCB 78—14,

 30 PCB

397,

398

 (1978):

“Under

the

 statute,

all

 the Board

 has authority to

do

in

a

 hearing

 and determination

on

a

 Section

40

petition

is

 to decide after

 a hearing

in

 accordance

with

 Sections

32

and

 33(a)

 whether

or

 not,

 based

upon

the

 facts

of

the

 application,

the

 applicant

has

 provided

 proof

 that

the

 activity

in

 question

will

not

 cause

a

 violation

of

the

Act

or

of

the

regulations..

75-231

—5—

In

a

 hearing

on

a

 Section

40

 petition,

the

applicant must verify

the

 facts of his application

as

 submitted

to

the

 Agency,

 and,

 having

 done

so,

must

 persuade

the

 Board

 that

the

 activity

 will

comply

 with

the

Act

and

 regulations..

At

 hearing,

the

 Agency

may

 attempt

to

 controvert

the

applicant’s

 facts

by

 cross—examination

or

 direct

testimony;

may

 submit

 argument

on

the

 applicable

law

and

 regulations

and

may

 urge

 conclusions

therefrom;

or,

 it may

 choose

to

 do either;

or,

it

may choose

 to present

 nothing.

 The written

 Agency

statement

to

the

 applicant

of

the

 specific,

detailed

 reasons

 that

the

 permit

 application

was

denied

 is not evidence of the truth of

 the material

therein

nor

do

 any Agency

 interpretations

of

the

Act

and

 regulations

 therein

 enjoy

 any presumption

before

the

 Board..”

The Illinois Supreme Court,

 and various appellate courts

have confirmed the validity of this approach,

 e..g.. Waste

Management,

 Inc..

v.

 IEPA, PCB 84—45,61,68, Opinion and Order

of

October

1,

 1984 and

 Supp..

 Opinion and Order of November 26, 1984,

aff’d sub nom.

 IEPA

v..

 IPCB,

 138 Ill.

 App. 3d 550

 (3rd Dist.

1985), aff’d

_____

 Ill.2d

___,

 No..

63062

 (December

19,

 1986)

(Board need

 not apply manifest weight of the evidence standard

in

reviewing Agency permitting

 decisions)..

 In its permit denial

letter, the Agency must specify all

 reasons

for

 its denial

of

a

permit,

and

 is precluded from raising new reasons

 for the first

time before the

 Board..

 IEPA v.

 IPCB,

86

 Ill..2d 390,

 404—405,

427

N,E..2D 162

 (1981)..

 The Board must consider the application as

submitted

to

 the Agency, and may not be persuaded by new material

not before the Agency that the permit should be granted.. IEPA v.

IPCB and Album,

 Inc.,

118

 Ill..

 App..3d 772, 455 N..E.2d 194

(1983).

To

 the extent that the Agency has relied upon

information beyond

 that contained

 in the application, such

information must be

 included

 in the permit record

 filed with the

Board;

if

it

 is not,

 the applicant may properly submit such

information

 to the Board during the course of the Board’s

hearing..

 Additionally,

 if there was information

 in the Agency’s

possession upon which

 it reasonably should have relied, the

applicant may also submit such information to

 the Board

 for the

Board’s consideration. Waste Management, supra,

 Frinks Industrial

Waste,

 Inc..

v..

 IEPA, PCB 83—10, June 30, 1983;

 Sherex Chemical

Co..

 Inc.

v..

 IEPA, PCB 80—66,

 39 PCB 527—528

 (1980),

 aff’d sub

nom..

 IEPA

v..

 Sherex Chemical

 Co. and

 IPCB,

100

 Ill..

 App..3d 735

(1981)..

While

 the permitting

 chronology for

 the Joliet site will

be

discussed

 later

 in more detail,

 for the nonce the salient facts

are as

 follows..

 Joliet’s initial operating permit was issued

on

December 30,

 1980,

 to expire on December

 21, 1985,

 Joliet

applied for renewal

 of this permit on December

16,

 1985..

The

75-232

—6—

Agency denied

the

 renewal on March 7,

 1986.

 Joliet submitted

additional information on June

 16, 1986 and again requested

renewal

 of the permit.

 This renewal application was denied on

August 26,

 1986..

The Agency asserts that the correctness of the Agency’s

first permit denial

 on March

7,

 1986 is not at issue

 here..

The

Agency argues that by failing

 to appeal that denial within 35

days as required by Section 40,

 Joliet

 has waived any right

to

contest error

(P.

 332—335, Agency Brief

 at 7—8).

 The Board

agrees,

 and does not find persuasive Joliet’s arguments that the

first denial was not ripe

 for review until

 after

 the second

denial

(P.

 333—334)..

The

 Board agrees with Joliet that

 there

is

a

 “continuum”

between the information considered by the Agency on March

 7 and

August

 26: Joliet’s June

16

 letter

 in response

 to the March

7

denial

 (Pet.

 Exh..

21,

R..

 Exh.

3)

 clearly indicates that

 it was

intended to

 be supplemental

to

 the December

16,

 1985 application

for renewal

 (Pet..

 Exh..

3).

 The Hearing Officer was correct

in

admitting evidence concerning

 the March

 7 denial

 to the extent

that such evidence could

 be relevant to correctness of the August

26 denial..

The Hearing Officer

 excluded several

 exhibits identified

and

offered by Joliet which consist of documents contained

 in the

Agency’s file relating

 to the original operating and construction

permits issued

 for the Joliet facility.

 These

 are Petitioner’s

Exhibits

5,

6,

8,

9,

10,

11,

12,

13,

 14, as marked

for

identification,

 and submitted

 to the Board by way of offer of

proof..

 The Hearing Officer’s exclusion

 of these exhibits

is

reversed,

 and they are admitted

 as evidence.

 As Joliet argued

(see

 e..g..

 P.288—291),

 the application

 for renewal

 of an operating

permit provides for incorporation of data from prior permits and

 requires certification that previously submitted information

remains true and correct.

 The expiring operating permit

 in turn

references

 the construction permit, which was issued

 on the basis

of the application and information submitted

in

 1980.

 Without

regard

to

 the probative value

 to be assigned

 to this data

concerning

 prior permitting history, Joliet has persuaded the

Board

 that it cannot be excluded on relevancy grounds..

The Hearing Officer

 also excluded from evidence, but

received offers of proof concerning,

 documents marked

as

Petitioners Exhibits 25,

26

 and 27 for

 identification.

 These

documents consist of calculations estimating

 emissions from

Joliet’s facility prepared by Andrew Rathsack, Joliet’s

consulting

 engineer..

 These exhibits were denied admission based

upon the Agency’s objection that the witness had not previously

been made available for deposition concerning

 the calculations

or

other matters..

R.

 590—591.

 While the Board appreciates

 this

75-233

—7—

rationale,

 the Board will admit

 the calculations, which are self—

explanatory.

PERMIT CHRONOLOGY

Witnesses

Seven witnesses were called by the parties.

 They are listed

below with a brief description of their qualifications and

relation

 to the permit

 issues..

Harish

B..

 Desai, IEPA

In 1986,

 unit manager

 in the Agency’s air permit section and

supervisor of Anton Telford,

 who reviewed and initialed the

permit denial

 letters drafted by Telford and signed by Mathur

March

 7 and August

26,

 1986..

 Conducted

 no independent review of

permit

 record..

P.

 543—547..

Bharat Mathur,

 IEPA

Between 1980—1986,

 Manager of the Agency’s Air Permit

Section.

 Signer

 of 1986 permit denial letters drafted by

Telford..

 Conducted

 no independent review of permit

 record..

Named author

and

 signer of memo of October

 9, 1986 prepared by

Telford designating

 items in Agency permit record

 for this

appeal..

 Pet..

 Exh,

2.

 Conducted

 no independent review..

P..

 535—

542..

Andrew Rathsack, Andrews Environmental Engineering,

 Inc..

Involved

 in preparation of Joliet’s permit applications

since

 1980.

R.

 585—609..

Christopher Romaine, IEPA

Manager

of

 the New Source Review (NSR) Unit

in

 the Agency’s

air permit

 section..

As

 it related

 to NSR, reviewed

 and initialed

August

 26 denial letter drafted by Telford..

 Conducted

no

independent

 review of accuracy of calculations.

P.

 619—638..

Anton Telford,

 IEPA

Permit Engineer

 in the Agency’s air permit section.

Analyzed Joliet’s December, 1985

 and June, 1986 permit renewal

applications and drafted denial letters.

 Generated calculations

relied on by other Agency personnel.

 Designated documents

 filed

with the Board

 on October

24,

1986

 as Agency Record.

75-234

—8--

Martin Tippin, IEPA

William Zenisck,

 IEPA

Each is an environmental protection specialist

 in the

Agency’s

 air permit section, and

 a certified smoke

 reader.

 Each

has conducted compliance inspections at the Joliet facility

within the past three years,

 and has made visual opacity

readings..

The Joliet Permits

Joliet Sand and Gravel

 Co..,

 then owned by Rein, Schultz and

Dahi

 of Illinois,

 Inc..,

 filed its application

 to construct and

operate

 a sand and gravel

 processing plant on May

29,

 1980..

 Pet..

Group Exh.

 14..

 The equipment referenced

 in the application was

a

primary jaw—crusher

 identified

 as Pioneer Model

 3042,

 a secondary

roll crusher identified as Pioneer Model 2454,

and

 a Pioneer

Model

526

F

 screen.. Resp.

 Exh.

 l4—L..

 The Agency denied

the

permit on July

 28, 1980 due

 to Joliet’s failure

 to submit

calculations for projected, uncontrolled and controlled

particulate emissions and fugitive emissions..

 Pet..

 Exh.

 12,13..

Joliet submitted

 a revised construction permit application on

September 24,

 1980..

 Pet. Group

 Exh..

 11..

 In reviewing this

application,

 the Agency’s permit analyst, based

 on the use of AP—

42,

 a calculation method published by USEPA

 in 1975, calculated

uncontrolled emissions as 72

 tons per

 year

 (TPY)

 allowable

emissions as 113 TPY,

 and controlled

 (actual) emissions as

7.2

TRY,

 and suggested restrictions

 in the

 facility’s operations.

Pet..

 Exh..

9.

A construction permit was issued on October

24,

 1980,

 which

contained conditions restricting

 operations to 3600 hours per

year,

 controlling process weight rate

 to 400 tons per hour, and

requiring

a

10

 moisture content

 in raw materials “to keep all

emissions small”,

 Pet.

 Exh..

8.

Joliet again applied for

 an operating permit on November

6,

1980..

 Pet.

 Exh.

 6—7..

 The Agency’s permit analyst calculated

uncontrolled emissions as

 72 TPY, allowed emissions as

 112 TPY,

and controlled emissions as

 7.2 TRY..

 Pet..

 Exh.

5..

 The Agency

operating permit was issued on December

30,

 1980, subject

 to the

same conditions as

 in the construction permit..

 The expiration

date

 of the permit was December

21,

 1985.

 Pet..

 Exh.

4..

Five days before expiration of this operating permit, Joliet

filed

a

 two page application

for

 renewal of

 its prior permit

which certified that the operation had not been modified and that

it was

 in compliance with all

 regulations.

 Pet.

 Exh.

3..

Telford’s “Calculation Sheet” analyzing the application noted

that

 5 warning letters had been issued

 since 1982 concerning

alleged excessive particulate emissions and opacity readings

caused

 by operation

 of the “Spokane”

 and “Steadman”

 crushers.

75-235

—9—

Telford recommended denial “because of excess emissions from the

Steadman Crusher on 5—14—85”..

 Pet.

 Exh..

15.

(It

 is nowhere

in

this record explained when,

 or under what authority,

 these

crushers manufactured by Spokane and Steadman replaced or were

added

to

 the permitted crushers manufactured

 by Pioneer..)

On March

 7, 1986,

 the Agency denied

 the renewal permit.

 Pet.

Exh..

 16..

 The denial letter

 specified the following reasons for

denial:

1)

 particulate emissions

 in excess of the 30

 opacity

limitation of 35

 Ill..

 Adm.. Code 212.123 based

 on field

inspections;

 2—3) particulate emissions

 in excess of those

allowed by 35

 Ill..

 Adm.. Code 212.321 for both the Steadman and

Spokane Crushers, based

 on calculated emissions levels since

actual emissions data had not been provided;

 4) violations of

fugitive particulate limitations of

35

 Ill.

 Adm.

 Code 212.301,

based

 on field observations;

 arid

5)

 failure to provide

information of compliance with Special Condition

 3 of the

operating permit, requiring 10

 moisture

 in raw materials..

The

letter noted that the Agency would

 be pleased

 to reevaluate the

application on receipt of written request and additional

documentation.

At hearing, Telford

 testified that the calculations

referenced

 in reasons

2

and

 3 had been made on the basis of the

1975 AP—42;

 this document had been superseded by

 a revised AP—42

issued by USEPA

 in September,

 1985..

 Pet,

 Exh.

 19,20..

In response

 to this denial, on June

16,

 1987,

 Joliet’s

engineer Rathsack submitted

 a letter

 requesting issuance of

a

renewal permit.

The

 letter proposed replacement of the Steadman

and Spokane crushers which together have

 a rated capacity of 575

tons per

 hour

 (TPH)

 with

 a new Spokane crusher with

 a rated

capacity

 of 600 TPH.

 Emissions for the new crusher were

calculated

 by Rathsack pursuant

 to the 1985 AP—42 emission

 factor

to be within the allowable rate..

 Deletion of the 10

 moisture

condition was also requested, on the basis that the raw materials

were classified by AP—42

 as “wet material” by virtue of their

2

moisture content, and

 that supplemental spraying would

 be used.

It was further explained that

 a new well had been drilled to

supply water

to

 the spray bars on the process line

 to control

excess opacity and particulate emissions,

 and that a water

 truck

had been purchased

 to spray site roads to control those fugitive

emissions..

Telford’s calculation

 sheets

 (Pet.

 Exh..

22)

 express concerns

prompting him

 to recommend denial, which concerns were

incorporated

in

 the August

 26 denial

 letter..

 Pet..

 Exh..

 22..

The

permit was denied because of potential violations of 35

 Ill..

 Adm.

Code 201.142,

 201.157,

 212,321,

 203..201 and 203.770.

 The letter

additionally stated that

 in general,

 the application failed

to

contain

 the minimum information required by Board

 rules

 to allow

the Agency

 to determine compliance with the Act and regulations,

75-236

—10—

and more specifically that

1)

 the informational requirements

of

Section 230..770 regarding compliance of the new crusher and any

new conveyors with respective

10

 and 15

 opacity limits were not

met,

2)

 calculations of particulate emissions

 for the primary

 and secondary crushers indicated that particulate emissions

limitations would

 be exceeded, based on

 a calculated 50

effectiveness rate for

 use of water

 in the spray bars

 rather

 than

a surfactant, and

3)

 that construction of the new crusher would

involve

a

major

modification

major

particulate

emission

source

located

in

 a non—attainment area,

 requiring a submission

of various information required

 by 35

 Ill.

 Adm. Code Part

 200..

REASONS FOR DENIAL

the

outset,

the

Board

must

comment

that

dealing

with

this

record poses some difficulty because of the lack of clarity

concerning

 the precise identity of the crushers

 involved..

It

is

clear

 only that on June

16

Joliet

proposed

 operate

 a primary

and secondary crusher of some manufacture on the site

 (Pet,

 Exh..

21 L), and

 that

 a Steadman and Spokane crusher were

 in operation

on that date

 (Pet..

 Exh..

 2lA).

 It appears that one or both of the

originally permitted Pioneer crushers have been replaced

 (R..

 605—

606),

Section 201.157:

 Contents of Application

35

 Ill.

 Adm. Code

 20l..l57 specifies that, as

 a minimum,

the

operating permit

 shall contain the data specified

in

 Section

20l..l52

 “Contents of Application

 For Construction Permit”,

 That

section requires,

 among other things,

 information concerning the

“nature

 of the emission source”, and

 “type, size,

 efficiency,

and

specifications..,of the proposed emission

 source”..

 The Agency

correctly determined

 that an application for

an

 operating permit

is deficient where the

 identity of the equipment proposed

 to be

operated

 is nowhere specified

in

 the application..

 This reason

for denial

 is affirmed..

Section 201.142:

 Required Construction Permit

Section 201.142, which

 is cited

in

 the first

 sentence of the

denial

 letter,

 provides that “no person shall...,cause or allow

the modification of any existing emission

 source... .without first

obtaining

 a construction permit..”

 The evidence is uncontroverted

that no construction permit relating

 to the new 600 TPH Steadman

crusher was ever applied

 for, let alone

 issued.

 This reason

for

denial

is

 affirmed..

Section 203.770:

 Opacity Standards

35

 Ill.

 Adm..

 Code

 203..770 incorporates 40 CFR Part 60 which

is entitled Standards of Performance For New Statutory Sources,

Nonmetallic Mineral Processing Plants.

 Final Rule 40 CFR 60

75-237

—11—

promulgates

standards

performance

for

new

emission

sources..

Because

such

facilities

contribute

significantly

air

pollution,

the

intended

effect

these

standards

require

all new, modified and reconstructed mineral processing plants

to

achieve

emission

levels

that

reflect

the

 best demonstrated

systems of emission reductions,

CFR

Part

60,

Summary,

Vol.

No. 148, Thursday, August

1,

 1985,

Section 60.676

CI

 limits

fugitive

emissions

from

crushers

to

 a maximum of 15 opacity and 60.676

BI

 limits these emissions

from all other

 sources

to

 a maximum of 10

 capacity..

No data was presented

 in the application regarding the

Joliet operations’

 ability,

 using

 the proposed new crusher

and

new conveyors,

 to comply with these limitations,

 Joliet has not

argued

 that these limitations do not apply to its facility.

For

these reasons, this reason

 for denial

 is affirmed.

 In so

holding,

 the Board

 has given

 no weight

 to the facility’s alleged

opacity violations relating

 to operation of ~

crushers,

 as this

 1rrc~l~

(See also Wast.~.

...

_____

~

 supra,

 and Fr~tz

Enterprises,

 Inc..

v..

 IEPA,

 PCB 86—76,

 September

11,

1986

concerning alleged violations and the Agency’s permit

determinations.)

Section 203.201:

 Major Modification of

 a Major Emission Source

35

 Ill, Adm. Code

 203.201 provides

 in pertinent part that:

“No person

 shall cause or allow the construction of

a new majo~stationary source or major modification

in

an

 area designated

as

 nonattainment’ as

 defined

at

 Section

 171(2)

of

the

 Clean

Air

Act

42

USC

7501.21...except

as

in

 compliance

 with

 this

 part

for

 that pollutant.”

It

 is undisputed

 that Troy Township, Will County,

 Illinois,

where Joliet’s facility

 is located

 is designated as

 a non—

attainment area for particulate emissions,

 that is,

 the national

ambient air quality standard

 for this pollutant has not been met,

The dispute

 is whether Joliet is a major source seeking

 to make

a

major modification..

 Such sources located

 in non—attainment areas

are subject

 to more stringent permitting and emission control

requirements known as the “New Source Review”

 rules, than are

such sources located

 in attainment areas,

 since

 the clean

air

goals

 for the

 area have not been achieved.

For purposes of this discussion,

 a major source

 is one which

has

 a “potential

 to emit” 100 tons per year,

 or more,

 of any

pollutant..

 35 Ill.

 Adin.

 Code

 203..206..

 “Potential

 to emit”

is

defined as a source’s maximum capacity

 to emit pollutants under

its physical

 and operational design;

 in determining this design

75-238

—12--

capability

 a source may take into account any enforceable limits

(such as those contained in permit conditions)

 on hours of

operation, amount of materials processed

 or required air

pollution control equipment.

35

 Ill,

 Adm.

 Code 203.128.

This record does not contain calculations specifically

labelled as “potential

 to emit”,

 although it does contain

calculations of “allowable emissions”.

 Section 203.107 defines

“allowable emissions”

 in essence as the maximum emissions capable

of being produced by

 a source taking into account operations

limitations

 imposed by permit conditions.

 The uncontroverted

evidence

 in this record

 is that Joliet’s allowable emissions rate

would be used

 in determining

 the applicability of Part 203.

P.

630.

The Agency’s calculation sheets for the original permits

show an allowable emissions rate of 112

 TPY..

 Pet,

 Exh..

 5,9..

At

hearing,

Joliet’s

 engineer

 Rathsack calculated

 the maximum

a~~abl~

oliet’s

 primary crusher

112

TRY..

Telford

did

 not rely upon these figures at the

 time of

permit denial, but instead upon

 a maximum allowable emissions

limit

 of 156 TPY,

a

 figure which he obtained by consulting

the

Agency’s Total Air System

 (TAS)

 computer

 system..

 No witness

presented

 at hearing was able

 to testify as to

 the derivation of

that number..

 For this reason, Joliet asserts that this reason

for denial should

 be reversed..

While Telford

 relied

 on an unverified allowable emissions

rate over 100 TPY, Joliet has presented

 no evidence

 that

contravenes other

 evidence

 in this record that its allowable

emissions rate is over 100

 TPY..

 Joliet’s references

 to its

projected controlled

 (actual) emissions rate are irrelevant to

its potential

 to emit.

 The Board

 finds that the Agency was

correct in determining

 that Joliet

is

 a major source.

The next issue

 is whether Joliet had proposed

 a major

modification..

 For particulate emissions,

 a major modification

is

one which would result

in

 an increase

 in actual emissions of

25

TPY.

35

 Ill. Adm. Code 203,207,

 203..208,

 203.209.

 As Joliet had

not supplied actual emissions data, calculations were made using

the

1985

 AP—42 emissions

 factor..

 Pet.

 Exh..

22.

AP—42, Table 8,19.2—1,

 sets

forth

 an emission factor of 0.28

pounds per

ton

 for primary or secondary crushing

 of dry material,

and 0,018 pounds

 per ton

 for wet material.

 A factor

 of 1.85 is

assigned

 to tertiary crushing of dry material.

 Wet material

is

that which contains either naturally,

 or after moistening, “1,5

to

 4 weight

“..

 Footnote b notes that typical

 control

efficiencies

 for wet spray systems are 70—90.

75-239

—13—

In his June 16 letter, Rathsack stated

 that the moisture

content of Joliet’s

 rock is

 2.0..

 Consequently,

 he used the

0.018

figure

calculate

the

actual

emissions

from

the

proposed

new shredder

 to be 10,8 lb/hr.

In analyzing the permit request on his calculation sheet,

Telford

had

noted

Joliet’s

maximum

emissions

156

TRY

and

average emissions as

 88 TRY,

 based

 on the data

in

 the TAS

computer.

 In calculating emissions,

 Telford first

 used the 0.28

dry material

 factor and

 the tertiary factor of 1.85;

 at hearing.

Telford

explained

that

had

used

the

dry

material

factor

for

the primary crusher because “there was

spray

bar

the

crusher,

because

there

guarantee

that

the

moisture

will

sufficient

adequately

suppress

dust

that

will

arise

the

crushing

operation

(R..772)..

 arrived at a

 total of 263.14 TRY

of uncontrolled emissions, as compared

 to allowable emissions of

77.33 TRY.

 Telford then calculated uncontrolled

 (actual)

emissions using

the

 same 0,28 factor but giving credit

 for spray

bars using

 surfactant spray (which were not proposed)

 and arrived

at

 a 65,67 TRY increase.

 Telford did

 not give credit for use

of

water sprays as he felt that these are less than 50

 effective..

At hearing, Telford

 testified

 that even

if

 a wet emission

 factor

had been used

 that Joliet’s proposed modification would

 still be

major

one,

although

did

not

provide

his

calculations

(P.775),

 Finally, Telford also made calculations using

 the “old

Permit Manual Method”.

Joliet asserts that the permit manual method of calculation

is improper,

 as that manual

is

 an unpublished, in—house

document.

The

 Board will not address

 this contention,

 as the

Agency has relied upon only the AP—42 calculations

 in defending

the denial.

Joliet further

 asserts that use of the dry factor was clear

error since Joliet’s material

is

 “wet”, having

 a natural moisture

content of

2..

 It argues, that AP—42 gives

 the permit analyst

no

discretion

 to use the significantly higher “dry”

 factor..

 Joliet

calculates

 that, based

 on 4992 hours of production, that its

maximum controlled emissions would be 13.47 TRY Pet.

 Exh..

25,

Based

on

 the production limits

 in its current permit,

 of 2,440

hours,

 it calculates that its maximum emissions would be 18.14

TRY,

 Ret,

 Exh.

26.

It

compares

these

figures

with

calculations

using the new AP—42 factors as applied

 to the equipment permitted

in

 1980, which would

 result in maximum emissions of 14.26 TRY.

Pet.

 Exh..

27.

 Thus,

 Joliet asserts

it

 is not

 a source which even

after

 the proposed modification can be calculated

 to emit

 25 TRY,

let alone one which is seeking

 to make

 a modification resulting

in

 a net emission increase of

 25 TRY.

In its application, Joliet provided the natural 2

 moisture

content of its raw materials,

 information allowing for

calculation of its emissions,

 and some calculations

 using

the

75-240

—14—

1985

AR—42

“wet”

factor.

Joliet

carried

its

preliminary

burden

of proving that its controlled (actual) emissions did not result

in

 a 25 TRY net increase, and

 that it was therefore not proposing

major

modification.

The Board cannot find

 that the Agency has made a valid

use

of the AP—42 “dry rock” calculation factor.

 There is

no

information

in

 this record which substantiates a finding that the

 Agency was correct in determining that Joliet’s proposed

modification was “major”

 in the meaning

 of the new source review

rules,

 and the Agency’s determination is hereby reversed.

Section 212.321:

 Rarticulate Emissions Limitations

The Agency’s calculations of the allowable particulate

emissions

 for both the primary and secondary crushers were made

on the basis

 of the invalid use

 of AP—42

 discussed above.

 This

reason

 for denial was accordingly also improper.

Joliet’s Additional Arguments and Closing Offer

 of Proof

The Board wishes

 to make explicit

 that in reaching

its

determination, the Board

 has considered the offer of proof made

by Joliet at

 the time that the Hearing Officer required Joliet

to

its

case..

P..

611—614..

Joliet

has

made

offer

proof

regarding

the

denial

 reasons which the Board has sustained, which

are

failure

obtain

construction

permit,

failure

specify

exactly what equipment

 it was seeking

 to operate, and

 failure

to

provide

data

concerning

opacity

fugitive

emissions

from

the

proposed new equipment.

 The evidence Joliet placed

in

 the record

was sufficient

 to persuade the Board that calculations derived

from

misapplication

AP—42

were

 invalid.

One

 issue

 not heretofore specifically addressed

 is the

incompleteness of the record

 as filed by the Agency in October,

1986..

true

that

the

record

was

incomplete

indicated

exhibits submitted by petitioner

and

 entered into the record.

One

purpose

the

 hearing before

 the Board

is

 to allow

for

completion of the Agency record, as has been done here.

The

filing

of

an

 incomplete record by the Agency provides

 no grounds

in and of

 itself for reversal

 of the Agency’s permitting

decisions,

particularly

where,

here,

the

omissions

are

not

major

and

there

indicia

any

bad

faith

“cover—up”..

Moreover,

the

Agency’s

filing

omission

most

certainly

pales

comparison to Joliet’s failure

 to file timely

 arid

 complete

applications

 for construction and operating permits.

SUMMARY

In summary, the

 Board finds that the Agency correctly denied

the permit on the basis

 of Joliet’s

 failure

 to provide sufficient

information

 to demonstrate

 that its facility would

 not cause

75-241

—15--

violations

Sections

201.142,

201.157,

and

203.770.

The

Agency

incorrectly denied

 the permit on the basis of Sections 212.321

and

203..20l.

However,

there

were

three

valid

reasons

for

denial of this renewed operating permit, the Agency’s denial

is

affirmed..

FINAL

REMARK

The

Board

must

make

one

final

remark

concerning

the

manner

which

this

appeal

has

been

pursued.

The

Section

decision

deadline

was

enacted

shield

the

regulated

community

from

bureaucratic

delay

decisionmaking;

this

case

has

been

used

petitioner

 as a sword against the

Agency

and

the

Board.

Any

time

problems

experienced

petitioner

the

this

case

have

been

its

own

making

as

 a result of pursuit of objectives largely unrelated

 to the

issues which have been here addressed.

It appears

to

 the Board that discovery

 in this permit appeal

action has been sought

for

use

in

 the pending PCB 86—108

enforcement

 action..

 In any event,

it

 is clear

 that petitioner

has

attempted

put

the

Agency

“on

trial”

this

action,

rather

than

shouldering

its

burden

prove

that

the

permit

information

had

supplied

the

Agency

was

sufficient

show

compliance

with

the

Act

and

Board

regulations.

result,

petitioner’s

discovery

demands

and

 repeated requests for immediate Board

rulings thereon have placed excessive burdens on the scarce

personnel

and

fiscal

resources

the

Agency,

the

Attorney

General,

and

 tlie Board,

 and particularly when viewed

 in light of

the

 irrelevant arguments which much of the information has been

used

 to support.

 The Board cautions against employment of such

procedures

 in any future permit appeal proceeding.

This Opinion constitutes the Board’s findings of

 facts and

conclusions of law in

 this matter..

ORDER

The Agency’s August 26,

 1986 denial

the

June

16,

1986

application by Joliet Sand and Gravel

Co.

for

renewal

its

operating

permit

hereby

affirmed.

ORDERED.

J..

Meyer

dissented..

75-242

—16—

Dorothy

Gum,

Clerk

the

Illinois

Pollution

Control

Board,

 hereby certify that the above Op~nionand Order was

adopted on

the

5~Z

day

___________________________,

1987

by a vote of

_____________________.

~

Dorothy

dunn,

Clerk

Illinois Pollution Control Board

75-243