ILLINOIS POLLUTION CONTROL BOARD

March 25, 1976

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

)

v.

)

PCB 75—272

)

McCLURE QUARRIES, INC.,

)

Respondent.

Mr. Steven Watt, Assistant Attorney General, appeared for

complainant.

Mr. Burrel Barash appeared for respondent.

OPINION AND ORDER OF THE BOARD (by Dr. Satchell):

The Environmental Protection Agency (Agency) filed a

complaint on July 16, 1975 against McClure Quarries, Inc.

(Respondent). Respondent owns and operates a limestone

quarry approximately one mile north of Tennessee, in

McDonough County, Illinois. The complaint alleges that

this quarry has been operating without a permit in violation

of Rule 103(b) (2) of the Pollution Control Board’s Air

Pollution Control Regulations and Section 9(b) of the

Illinois Environmental Protection Act, Ill. Rev. Stat.

Ch. 111 1/2 S1009(b) (1973).

At the hearing a Joint Stipulation of Facts was pre-

sented. Respondent also presented testimony concerning

potentially mitigating circumstances and the penalty upon

which the parties could not agree. There was no citizen

comment.

The agreed upon facts are as follows. Respondent owns

and operates a limestone quarry. Equipment used at the

quarry includes 1 primary crusher; 3 conveyor belts; rock

screens; 1 hainmermill and 1 lime screen. Respondent admits

it has operated the quarry on business days since June 1,

1973, up to and including the date of the complaint without

having an operating permit issued for the aforesaid equipment

in violation of Section 9(b) of the Illinois Environmental

Protection Act and Rule 103(b) (2) of the Air Pollution

Control Regulations.

McClure Quarries, Inc. has applied for various operating

permits for its equipment at least four times and all appli-

cations were rejected by the Agency. The first t~ioapplications

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were filed in January and March of 1973. Both applications

were rejected because of inadequate information. A May 5, 1975

application was also rejected because not enough information

was provided. The July 24, 1975 application was rejected on

the basis that Rule 203(b) of the Air Pollution Regulations

might be violated in that the stated emission rate of particulate

matter contained in the application was in excess of that

allowed by Rule 203(b). Respondent claims a fifth application

dated May 20, 1975 was sent to the Agency. The Agency has no

record of this. A copy of the said application was introduced

as exhibit A—9 (R.10, stipulation).

In August 1975 Respondent filed a variance petition. This

petition was denied by the Board on October 30, 1975. On Sep-

ternber 4, 1975 Respondent obtained a construction permit to

install a dust suppression system which, when operational in

mid-November 1975, should result in compliance with Rule 203(b)

of the Air Regulations.

Respondent did have contact with the Johnson-March Corpora-

tion on June 11, 1973 concerning a proposal for controlling

their emissions and received a statement thirteen months later

concerning payment (Stipulation Ex. A-13, A—l4). Mr. Dieke,

General Manager of McClure Quarries, Inc. testified at the

hearing that at that time the company “just couldn’t pay for

it.” (R.23). The testimony at the hearing went into the

financial problems of the Respondent at the time. Respondent

had a $60,000 debt with its bank accrued by buying out a

partner in the company. In approximately May 1972 (R.16,17)

Respondent became aware of a possible impending law suit. One

of Respondents partners had pledged the assets of the quarry

for performance bonds for his own separate construction business.

This was done without Respondent’s knowledge. The partner’s

construction business had gone bankrupt. The action by

Fidelity and Deposit Company of Maryland was not filed until

September 17, 1973 (Stipulation). Alleged damages totalled

$430,639.08. The action was dismissed in December 1974. Mr.

Dieke estimated that in January 1973 that the gross value of

McClure Quarries, Inc. was approximately $250,000 to $275,000

(R.16). Mr Dieke also stated his banker was aware of the

impending lawsuit and that he had no borrowing power (R.16,l7).

The effective date of the regulations in question was

June 1, 1973. Respondent was aware of the effective date

(R.15) and did continue to run the quarry without a permit in

violation of Rule 103(b) (2) for over two years.

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A sixth application for a permit was filed with the

Agency on November 25, 1975 and was pending on January 19,

1976. Pursuant to the settlement agreement Respondent agrees

to discontinue all quarry activities at the site and properly

close the site unless an appropriate operating permit has

been obtained from the Agency within sixty days of a Board

Order in this matter.

The parties were unable to agree on the amount of penalty

if any to be assessed. Respondent feels that there should be

no penalty in light of the financial problems referred to

above. The Agency responds that the dust suppression system

finally put in cost between $5,000 and $6,000 (R.38), and that

the effective date of the regulations was January 1973 while

the lawsuit was not filed until June 1973. At this time the

business was worth approximately $250,000. A variance petition

filed by Respondent in August, 1975 and rejected by the Board

on October 30, 1975 indicated a need for one year to install

the system (R.39). Testimony by Mr. Dieke indicates the system

was running later the same month (R.2l). It is the Agency

position that Respondent was making an ongoing effort to

delay the installation of the system and that a penalty

is in

order.

The Board finds that Respondent in operating its quarry

without a permit was in violation of Rule 103(b) (2) of the

Air Pollution Control Regulations and Section 9(b) of the

Environmental Protection Act. The Board also finds the terms

of the compliance agreement acceptable.

To protect the integrity of the permit program the Board

finds that a penalty is appropriate in this case. Respondent’s

business is not a large quarry. It has a maximum output of

125 tons of crushed rock per hour. The quarry is located in a

rural area at least a mile from all residences (R.14). The

Respondent employs thirteen (13) people (R.14). The possibility

of a $430,000 judgment against the Respondent and an outstanding

debt of $60,000 would have a chilling effect on credit or

borrowing power. However it should be noted that the law suit

against Respondent was dismissed in December 1974. Respondent

continued to delay getting a permit after the most mitigating

circumstance ceased to exist. In Section 2(b) of the Act

it is stated that “It is the purpose of this Act

. . . .

to

assure that adverse effects upon the environment are fully

considered and borne by those who cause them.” Respondent

should not profit from his own delay. For these reasons we

shall order Respondent to pay a penalty of $750 in addition

to complying with the terms of the settlement agreement.

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The Board realizes that the emissions of limestone dust

composed largely of Calcite (CaCO~, specific gravity 2.7)

and Dolomite (CaCO3-MgCO3, specific gravity 2.9) in a rural

area, would likely have little adverse effect on the environ-

ment or on most kinds of crop production. Because of the

high specific gravity of the crushed stone only areas that

are downwind and close to the quarry would be normally

affected.

A limestone quarry in close proximity to its customers

is a decided economic advantage providing a low cost source

for the multiple uses of the products. The feasibility of

compliance is obvious in the fact that Respondent had a

system working in November 1975. Although the value of the

facility to the community is high the apparent costs of

compliance are not so great as to cause hardship. The settle-

ment and penalty are acceptable under the Section 33(c)

criteria.

This opinion constitutes the findings of fact and

conclusions of law of the Board on this matter.

ORDER

It is the order of the Pollution Control Board that:

1. Respondent, McClure Quarries, Inc. has violated

Rule 103 (b) (2) of the Air Pollution Control Board

Regulations and Section 9(b) of the Act.

2. Respondent, McClure Quarries, Inc. shall discontinue

all quarry activities at the site in question or close

such site unless an appropriate operating permit has

been obtained from the Agency in accordance with

Regulations. The permit will be obtained within

sixty (60) days of this order.

3. Respondent McClure Quarries, Inc. shall pay a penalty

of $750 for violation of the Act. Payment shall be

made by certified check or money order within 35 days

of this order to:

State of Illinois

Fiscal Services Division

Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois 62706

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I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, Hereby certify the above Opi ion and Order

were adopted on the

~

day of/~)

,

1976 by a vote

of

4w-p

Christan L. Moffe~f ler~

Illinois Pollutio ntrol Board