ILLINOIS POLLUTION CONTROL BOARD

June

9,

1971

ENVIRONMENTAL PROTECT ION AGENCY

#7l~31

V.

SOUTHERN ILLINOIS ASPHALT CO., INC.

LARRY P. EATON, SPECIAL ASSISTANT TO ATTORNEY GENERAL,

FOR ENVIRONMENTAL PROTECTION AGENCY

CRAIG & CRAIG, MOUNT VERNON, ILLINOIS,

FOR SOUTHERN ILLINOIS ASPHALT CO., INC.

OPINION OF THE BOARD (BY MR. LAWTON:)

Complaint

was

filed, by the Environmental Protection Agency

against Southern Illinois Asphalt Co., Inc.,

Resnondent,

alleging

that on or about August 20, 1970, Respondent installed an as~Dhalt

plant at McLeansboro, Illinois, without a permit issued

by the

Environmental Protection Agency,

in violation of Section

9(b)

of

the Environmental Protection Act (~Act”) and Rule 3~~2~l10of

the

Rules and Regulations Coverning the Control of Air ?ollution

continued in effect pursuant to Section 49(c) of the~ct, and

that on or about September 14, 1970, Respondent orerated an

asvhal

plant in violation of Section 9 (b) of the Act.

Respondent~s answer denies the allegations of the complaint

and sets up various affirmative defenses as follows:

1. That failure to obtain the permit was not the fault

of Respondent, but rather that of the equipment

supplier.

2. That Respondent lacked intent to violate the. Regulations.

3. That the Act is unconstitutionally vague.

4. That the Act and Regulations promulgated thereunder

constitute an improper delegation of legislative and

judicial authority and are, therefore,unconstitutional.

1

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665

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5

•

That the Act

and Rules

so foreclose one charged

with a misdemeanor of a

jury trial

by a court,

and

are, therefore, unconstitutional.

6. That the

penalty

provisions under the Act

consti-

tute a denial of equal protection of the laws.

7. That fines for violation of the

Act can

only be

sought by the State’ s Attorney or the Attorney

General and the Imposition of a fine by the

Pollution Control

Board

constitutes an unconstitu-

tional usurpation of legislative

and

judicial

authority and is, therefore, unconstitutional.

8

•

That the emissions of the

plant

are

consistent

w~.thapplicable regulations and that Respondent

ceased operating the plant before the filing of the

complaint and that Respondent’s operation does not ad-

versely affect the health, general welfare and

physical

property.

and that Respondent employs or engages local business

people.

10

•

That it

has

installed air pollution

control

equipment

at

a cost of $82,000.00 and that insistence on further

expenditure

would

We find Respondent guilty of violating Section 9(b) of the

Act

and Rule 3-2 .110 of the Rules and Regulations governing the

control of air pollution. We order Respondent to cease and desist all

oper’

tion of its plant at its present location without a

cermit.

We impose a

fine of $5,000.00 on Respondent, for its unexcused failure to

obtain a permit. we find Respondent nctguilty of the charge of

operating an asphalt plant without a permit because no regulations

had been adopted requiring an operation permit as distinguished

from

an installation permit.

All

constitutional arguments raised

by Respondent have been previously disposed of in prior rulings

of this Board, and do

not require extended

discussion.

See Environ-

mental

Protection

Agency v. Cooling, #70-21, dealing with the subject

of

vagueness of the statute.

See Environmental Protection Agency v.

Container Stapler Corporation, #70-18, distinguishing the present

proceeding from a misdemeanor prosecution.

See Environmental Protec-

tion Agency v. Granite

City

Steel Company, 1.70-34, resolving in favor

of the Board

all

contentions relative to delegation of legislative

and

judicial

authority. See Environmental Protection Agency v.

Modern

Plating Corporation, #70-38, with regard to

all aspects of

1— iso

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to do so without the need for trial by

jury, All constitutional

contentions are lacking in merit and do not constitute grounds

for a judgment in favor of the Respondent.

Respondent’s allegations of installation of air pollution

abatement equipment, the need for RespondentTs product, the employ-

ment of local personnel and the purchase of local products may be

considered by way of mitigation if, indeed, evidence exists to

support such allegations, but in no way constitute a defense as

to whether Respondent obtained an installation permit as required

by law, nor does the December application for a permit serve as

a defense for failure to obtain one in September when the installa-

tion was, in fact, completed. Violation of Section 9(b) of the Act

and Rule 3-2.110 are conceded by Respondent’s admission that the

installation of the entire operation was made without a

rermit

(R.l23,l24)

All that remains to be considered is whether there are

any circumstances by way of mitigation; what, if any, impact on

the community resulted from Respondent~s unauthorized installation

and.

what factors should’ be considered in structuring the Order of

the

Board.

Respondent moved the present plant from Missouri to

the

McLeansboro site in July of 1970 and completed installation by

September 14, 1970 (R.l17) (Regendhardt)

Respondent ceased operation in December of 1970,

The plant

is not presently in operation.

The unit installed mixes rocks, sand and petroleum materials

in a rotary kiln under heated conditions to rrotuce asphalt concrete.

The heat source is an oil burner operating 24

hours a day. The

unit

is equipped with a primary cyclone

and

wet scrubber of 98 efficiency

(H. 79)

.

The plant has a production capacity of approximately

200 tons

an hour and emits an estimated maxi:mu:rn of 41 pounds of particulates

per hour though generally, not in excess of

11 pounds per hour.

No charge has been made on the quantity of emissions and the precise

extent of the emissions is not directly in issue.

The asphalt pro-

duced is

used for

road-building,

parking lots and related installations.

The present site was selected because of the availability

of water

and access to the railroad.

While various witnesses characterized

the operation as clean, it is undisputed

that dust,particulates,

steam, smoke and odors emanated from the plant.. Trucks coming to and

from the plant created a substantial degree of noise and dust which

constituted a severe burden on the community.

1

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667

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Respondent employs approximately 50 persons and has ~a weekly

payroll of approximately $l6,O00~00, The oil burner is operated on

a 24—hour basis emitting a discernible and disagreeable odor, Homes

are located

as close as 100 feet from

the

plant and approximately 25

of

them within a block of the

plant, The plant ceased operation in

December, not as a consequence of action by

the Environmental Protec-

tion Agency

but rather, upon the

termination

of its normal operating

period, and

has not been re-opened since.

Respondent’s principal defense is the feeble excuse that they

thought the contractor would obtain the permit (R~l02,l03,l35).

There

is no evidence what follow

up

was made

by

the Respondent

to

determine

if, in fact, such application was made,

Obviously, Respondent’s in”

difference to ascertain the true status of

the permit application

cannot serve as an excuse for

its dereliction, We have previously

held that responsibility to obtain that which is needed and to do that

which is required in

order

to comply with

the

law is that of the

operator and that negligence of materialmen or contractors in no way

absolves the operator~ See Malibu Village Land Trust v. EPA, #70-45,

The present case is illustrative of the consequences of such indifference

and calls for the imposition of a penalty. Nor is the Attorney General’s

letter, Ex, 1, stating that the plant is well-operated any excuse

for the failure to obtain the needed permit or a defense in law to

the violation, Likewise, evidence of cost to be assumed by Respondent

in the event the plant is moved, in no way serves in mitigation.

Section 9(c) of the Act states that no person shall cause, or

threaten or allow the discharge or emission of any contaminant into

the environment in any state so as to cause, or tend to cause, air

pollution~ Air pollution is defined, among other things, as the pre~

sence in the atmosphere of contaminants in sufficient quantities to

unreasonably interfere with the enjoyment of life or property, It is

manifest from the testimony that Respondent’s operation, even if con-

ducted within the emission limits of the regulations, would constitute

a severe nuisance and greatly interfere with the enjoyment of life

and property of the residents in the immediate vicinity. it is our

belief that the present location of the plant is inappropriate for

the operation of

an

asphalt plant and we urge the Environmental

Protection Agency

to

give consideration to this element when action

is taken on the pending permit application. A permit should not be

granted under circumstances where its immediate use would constitute

a violation

of the Act,

The evidence of residents of the area supports this position,

George Reul~•lives within 350 feet of the plant, He testified that

southwesterly winds blew dust, smoke and exhaust from the plant over

~his property, that truck. traffic generated noise and dust, that the

smoke appeared as a dense fog, so thick in the morning that the sun

---

would not be seen, (R.l70)

,

and that

in his

opinion, his real

estate values have decreased.

He testified that the

operation of

the plant precluded the use

of his

yard for outdoor activities

and that approximately 100 homes were affected by the operation.

Ray Smith testified

that he lived 100 feet from the plant and

that when smoke comes down “you have to hold your nose to go cut~-

side,~ Noise, both from the operation of the plant and the truck

traffic

affected his sleep.

Roy Cole testified

that dust and dirt

generated by the trucks covered his porch and that noise from the

trucks prevented sleep and that the use of the outside portion of

his property was foreclosed for recreational

activities.

Paul Irvin

testified

that he lives near the plant and that he has an asthmatic

condition and that the dirt and dust generated by the operation of

the plant and by the trucks had an adverse effect on him,

Riley

Mangus testified that he suffered from emohysema which was worsened

after the plant began operation, (P.171-220)

However, the Environmental Protection Agency did not ciarge

Res~

pondent with the causing of air pollution either unher the Sterute

or Regulations.

Accordingly,

our Order must be frameD eel: in terms

of the failure to obtain a permit for the installation of the

plant.

We direct Respondent to

cease and desist

the ororation of

its plant at its present location without a

oermst

and assess a

penalty in the amount of $5~000,00 for its failure to nttain the

required permit,

This opinion constitutes

the Hoard s finding of fact and con~

clusions of law,

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD:

1. That Respondent cease and desist the operation of an

asphalt plant at its present location without a nero it~

2. That Respondent be assessed a penalty of

$5,000.00

too

its failure to obtain a permit for the p1ant~ as re~..Luire3

by statute and regulation.

I, Regina E. Ryan, Clerk of the Pollution Cbntroi Board. certify

that the Board adopted the above Opinion this tP~day of June, 1971.