ILLINOIS POLLUTION CONTROL BOARD
October 16,
1992
OHIO GRAIN COMPANY,
Petitioner,
v.
)
PCB 90—143
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ROY
M.
HARSCH,
OF
GARDNER,
CARTON
&
DOUGLAS,
APPEARED
ON
BEHALF
OF
PETITIONER;
RENEE A.
STADEL,
APPEARED
ON
BEHALF
OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by G.
T.
Girard):
This matter comes before the Board on a petition for review
filed August
1,
1990 by Ohio Grain Company
(Ohio Grain) pursuant
to 35 Ill.
Adin.
Code 105.102(a)
and Section 40(a)
of the Illinois
Environmental Protection Act (Act).
Ohio Grain is seeking review
of the Illinois Environmental Protection Agency’s
(Agency) June
27,
1990 denial of Ohio Grain’s application for an air operating
permit.
Ohio Grain operates grain-handling,
drying, and storage
facilities
in Ohio, Illinois.
A hearing was held on this matter
in Princeton,
Bureau County,
Illinois, on March 25,
1992, which
no members of the public attended.
PROCEDURAL HISTORY
Although the instant case involves a petition for review of
a permit denial filed with the Board on August
1,
1990, there is
a court case involving the parties which has bearing.
(~
Peoile v. Ohio Grain, Circuit Court for the Thirteenth Judicial
Circuit, Bureau County,
Illinois,
No. 87—MR—39, October
3,
1988.)
On November
12,
1987, the State of Illinois filed a complaint
against Ohio Grain in the circuit court of Bureau County alleging
that Ohio Grain had failed to obtain a construction and operating
permit for its grain-handling and grain-drying operations located
in Ohio,
Illinois.
The complaint was dismissed by order of the
court on October 3,
1988,
because the Agency failed to provide
the opportunity to resolve the alleged violations through a pre—
0136- 03i~9
2
enforcement conference as required by Section 31(d)
of the Act.
(Tr.
at 30, Pet. Ex.
5.’)
Following dismissal of the complaint, Ohio Grain met with
the Agency and the Illinois Attorney General
in a 31(d)
conference in an attempt to resolve the alleged
violations.
(Pet. PHB at 2.)
No further enforcement proceedings have been
filed to date.
On March 22,
1990, Ohio Grain applied for an air operating
permit pursuant to 35 Ill.
Adm. Code 201.144 for its grain-
handling and grain-drying operations.
By letter dated June 27,
1990,
the Agency denied Ohio Grain’s request for an operating
permit,
stating that the permit was denied because Section
9 of
the Act and 35
Ill. Adm. Code 201.142,
201.143 and 212.462(b)
might be violated.
On August
1,
1990, Ohio Grain filed a timely
petition for permit appeal.
FACTS
There are no contested facts presented by this permit appeal
according to the petitioner.
(Pet. PHB at 7.)
The issues
presented in this permit appeal involve interpretation of the
grain-handling and grain-drying regulations set forth in 35 Ill.
Adm.
Code 201.146(s),
201.146(u),
212.461 and 212.462(b).
(Pet.
PHB at 7.)
Before proceeding to the issues,
a review of the
facts
is necessary.
A stipulation of facts by both parties was
entered at hearing setting forth certain of the facts below.
(Pet.
Ex.
1.)
Ohio Grain’s operations were originally located within the
village limits of Ohio,
Illinois.
(Tr. at 16.)
In 1972, Ohio
Grain purchased property approximately one mile west of the
village boundaries and began receiving grain at the site in fall,
1972.
(Tr.
at 17.)
The out—of—town site consists of an office,
a scale, truck dump pits,
legs, cleaning screens, load out,
internal transfer,
storage bins,
and three dryers.
The storage
bins at the out-of-town site total 2,833,000 bushels capacity and
the three dryers have a drying capacity of 7,250 bushels/hour.
(Pet.
Ex.
2 at 5.)
Equipment at the original in-town elevator
‘Citations
to
record
documents
will
be
according
to
the
following conventions.
The transcript
is cited as
“Tr.
at”; the
petitioner’s post—hearing brief as “Pet. PHB at”; the respondent’s
post-hearing brief
as
“Res.
PHB at”;
and the petitioner’s reply
brief
as
“Pet.
Reply at”.
Exhibits will
be referenced:
Board
Group Exhibit #1 as “Board Ex.
1”; Petitioner’s Exhibit #1 as “Pet.
Ex.
1”;
Petitioner’s Exhibit #2
as “Pet.
Ex.
2 at”;
Petitioner’s
Exhibit
#3
as
“Pet.
Ex.
3”;
Petitioner’s Exhibit #4 as
“Pet.
Ex.
4”; Petitioner’s Group Exhibit #5 as “Pet. Ex. 5”; and Respondent’s
Exhibit #1 as “Res.
Ex.
1”.
0136-0350
3
has been removed,
so that only three storage bins remain at this
time.
(Pet.
Ex.
2 at 5.)
While not specified in the documents,
the total storage capacity of the three bins in-town is assumed
to be 319,600 bushels2.
Ohio Grain receives grain that is grown by about 70_local
~
z&quirè~.
The majority of the grain received at Ohio Grain is received in
hopper bottom trucks
(Pet.
Ex.
1) and hopper bottom wagons.
(Tr.
at 25.)
Grain is also received from farmers using dump—type
trucks and wagons.
(Pet.
Ex.
1.)
Those trucks and wagons
discharge their grain into one of three truck
dump
pits
(Pet.
Ex.
1) which are enclosed by steel buildings which are not equipped
with quick-closing doors at the ends.
(Pet.
Ex.
1.)
None of the
pits are equipped with aspiration.
(Tr. at 24,
Pet.
Ex.
1.)
Approximately 80
of the corn received at Ohio Grain is dried.
(Pet.
Ex.
1.)
In the last fiscal year, Ohio Grain processed
496,000 bushels of soybeans and 3,030,000 bushels of corn.
(Pet.
Ex.
1.)
The storage elevators are filled and emptied with
permanent equipment as opposed to portable equipment.
(Tr. at
36.)~
REGULATORY
FRAMEWORK
Section
40
of
the
Act
provides
for
Board
review
of
the
Agency’s
denial
of
a
permit
application
or
imposition
of
permit
conditions.
(Ill. Rev.
Stat.
1991,
ch.
ill 1/2,
par.
1040.)
When the Agency denies a permit,
it must issue a statement in
accordance with Section 39(a) of the Act which sets forth the
sections of the Act and regulations that may be violated, the
type of information which the Agency deems the applicant failed
to provide and a statement of the specific reasons why the Act
and regulations might not be met if the permit was granted.
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1039(a).)
It is well established that the information in the denial
statement frames the issues on review.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par.
1039(a); Centralia Environmental Services. Inc.
v.
IEPA, PCB 89-170 at
6
(May 10,
1990); City of Metropolis v.
IEPA,
PCB 90-8 (February 22,
1990).)
Such information is
necessary to satisfy principles of fundamental fairness because
it is the applicant who has the burden of proof before the Board
to demonstrate that the reasons and regulatory and statutory
bases for denial are inadequate to support permit denial.
(Technical Services Co.
v.
IEPA,
PCB 81—105 at 2
(November 5,
1981).)
2This figure was determined by taking the total grain storage
of 3,152,600 bushels and subtracting the 2,833,000 bushel storage
given for the out-of-town facility by Ohio Grain
(Pet.
Ex.
2 at 5,
7)
0136-0351
4
ISSUES
As previously stated, the Agency’s permit denial letter
states that the permit was denied because Section
9 of the Act
(generally prohibiting air pollution),
and 35 Ill.
Adin.
Code
2Q1~i42~(requirinqconstr~cUonpermits)
2Qi, 143~requiring
operating permits), and 212.462(b)
(specifying technical
requirements for pollution control), might be violated if the
permit were issued.3
(Pet.
Ex.
2 at 1—3.)
Ohio Grain argues that the permit should have been issued
because its grain-handling operation is exempt from the permit
requirements and that its grain-drying operations are in
compliance and should be issued a permit.
Ohio Grain presents
three major arguments
in support of its position
(Pet.
PHB at 5):
(1) Ohio Grain is exempt from the control and
permit requirements because its annual grain
through-put is less than 300,000 bushels;
(2) Alternatively Ohio Grain should be issued a
permit because its grain-handling and grain-drying
operations were in existence before June 30,
1975;
and
(3) Ohio Grain is
in compliance with the
applicable grain-handling regulations.
Ohio Grain’s arguments will be considered in the discussion
that follows.
DISCUSSION
Annual Grain Through-Put
Ohio Grain maintains that it is exempt from the grain-
handling air permit control and permit requirements because its
annual grain through-put
is less than 300,000 bushels.
Ohio
Grain bases its contention on Section 201.142 and Section
201.146.
Section 201.142 states:
No person shall cause or allow the construction of
any new emission source or any new air pollution
control equipment, or cause or allow the
modification of any existing emission source or
~ The Board notes that generally denial of an operating permit
because
a
facility needs
an operating
permit
and
is
operating
without one would seem circular.
However,
in this case the issue
is whether
or not Ohio Grain
is exempt from the requirements of
Sections 201.142 and 201.143.
0136-0352
5
air pollution control equipment, without first
obtaining a construction permit from the Agency,
except as provided in Section 201.146.
Section 201.146 specifies that no permit is required for certain
classes of equipment.
Specifically, the petitioner maintains
that the plain language of Séctióñs 2~bf.
146~è)
~añd
~(üT
exem~t~
the
petitioner from the permit requirements for the construction and
operation of Ohio Grain’s facility.
(Pet. PHB at 7.)
Sections
201.146(s)
and
(u)
state:
s)
Grain—handling
operations,
exclusive
of
grain—
drying operations, with an annual grain through-
put not exceeding 300,000 bushels;
U)
Portable grain-handling equipment and one—turn
storage space.
Ohio Grain maintains that its annual grain through—put is
176,247 bushels, which is below the 300,000 bushels threshold
which triggers the permit requirement for grain-handling
requirements.
(Pet. PHB at 8.)
In calculating its annual grain
through-put, Ohio Grain subtracted the amount of grain placed
into one-turn storage.
(Tr.
at 35.)
Ohio Grain maintains that
because one—turn storage is exempt from permit requirements
~
35
Ill. Adm. Code 201.146(u)), the amount of grain in one-turn
storage should be excluded when calculating annual through—put.
Ohio Grain believes that since grain placed in one—turn storage
is exempt,
it should not be considered in the annual grain
through-put calculation.
The Agency disagrees with Ohio Grain’s calculation of annual
grain through-put
(Res.
PHB at
3) and maintains that Ohio Grain’s
annual grain through-put is greater than 300,000 bushels.
(Res.
PHB at 7.)
Therefore, the Agency believes that Sections 201.142
(set forth above)
and Section 201.143
(requiring operating
permits for new air pollution control equipment)
might be
violated if
a permit is issued.
(Pet Exh.
2 at p.
1.)
To understand why Ohio Grain and the Agency arrive at
different values when calculating annual grain through—put, we
need to examine several key definitions in the current grain-
handling and grain-drying regulations.
Section 211.122 specifies
that “Annual Grain Through-Put” is determined “by adding grain
receipts and shipments for the three previous fiscal years and
dividing the total by 6”,
or in some cases “by reasonable three—
year estimate”.
The Board exempted grain—handling facilities
with annual grain through-put of 300,000 bushels or
less.
The
0136-0353
6
Board record in R72-184 established the grain-handling air
pollution control regulations and explains why such facilities
are exempt.
(Amendments to Chapter
2, Air Pollution Regulations
For Grain—Handling and Grain-Drying Operations,
R72-18, June 13,
1975,
17 PCB 355.)
The objectives of the gtaTh-handlThq~egiiIationsare tb~
maintain
satisfactory
air quality and eliminate nuisances caused
by
particulate
emissions
from
grain-handling
and
grain-drying
operations.
Uncontrolled emissions from such sources can
irritate people who live or work nearby and can also settle on
property in amounts which can be unsightly or damaging.
(R72-18
Op. at
3 and R72-18 Tr. at 690-696.)
In explaining the exemption
for operations of 300,000 bushels or less annual grain through-
put the Board opined:
Twenty—three percent of the 1,400 elevators in
Illinois have a grain through-put of less than
300,000 bushels per year.
(Ex.
7.)
These small
grain elevators have generated only
4 percent of
the air pollution complaints received by the
Agency.
(R.
477)
and earn very low economic
returns
(Ex.
7)
so that their ability to finance
pollution control equipment is quite limited.
Approximately 100,000 farmers
in Illinois
(R.
384)
have personal grain-handling facilities,
but
almost all of them have an annual grain through-
put of much less than 300,000 bushels.
Since
these small grain-handling facilities usually do
not create an air pollution problem if they are
properly managed, and the administrative costs of
issuing permits to them would greatly exceed the
benefits
gained, they are exempt from the
operating
permit
requirements.
However,
all
grain—handling
and
grain—drying
facilities,
regardless
of
size,
are
still
subject to sanctions
pursuant
to
a
violation
of
Section 9(a)
of
the
Environmental Protection Act.
(R72—18 Op. at 12.)
Therefore,
the Board clearly intended the regulatory exemption to
exempt most farmers, and those small elevators with an annual
grain
through-put
of
less
than
300,000
bushels
per
year.
While
the
calculation
of
annual grain through-put seems
straightforward,
it is complicated by the definition and
application of Section 201.146(u).
As stated previously, Section
4The Board opinion of June
13,
1975,
docket number
R72-18,
establishing
the
current
grain-handling
and
grain-drying
air
regulation
will
be
cited
as
“R72—18
OP.
at”.
The
hearing
transcript
in R72—18 will be cited as “R72—l8 Tr.
at”.
01 36-035L~
7
201.146(u)
exempts “portable grain-handling equipment and one-
turn storage space” from the grain—handling air permit
requirements at Section 201.142.
“One—turn storage space” is
defined at Section 211.122 as “that space used to store grain
with a total annual through-put not in excess of the total bushel
storage of,that
space”,..
,.
Tie Ag~~yand~Ohio~rain
have
interpreted the scope of the exemption provided to “One-turn
storage space” differently.
(Pet. PHB at 8, and Res. PHB at 3.)
Therefore,
definition and application of “one—turn storage”
becomes the most important issue in this permit denial.
One—Turn Stora~e
Ohio Grain maintains that 35 Ill.
Adm. Code 201.146(u)
exempts one—turn storage space from permit requirements and
therefore,
the amount of grain placed in one—turn storage should
be excluded when calculating annual grain through-put.
(Pet.
PHB
at 8.)
In addition, Ohio Grain maintains that the exemption
provided to “one—turn storage space” is not limited to sites with
portable grain-handling equipment.
(Pet. Reply at 5-8.)
Therefore,
Ohio Grain believes that grain placed in one—turn
storage at its facility, which is equipped with permanent grain—
handling equipment,
is exempt from permit requirements.
Based on
this interpretation,
Ohio Grain has calculated its annual grain
through—put as 176,247 bushels5, which is below the 300,000
bushels threshold which triggers the permit requirement for
grain-handling requirements.
(Pet. PHB at
8.)
Ohio Grain
further argues that the Agency has allowed in the past the
subtraction of the amount of grain placed into one—turn storage
when determining the annual through-put of
a grain-handling
operation.
(Pet.
Ex 3.)
Therefore,
Ohio Grain maintains that its
calculation of annual grain through-put
is consistent with the
regulations and past Agency practice.
(Pet. PHB at 9.)
The Agency maintains that
it has limited the exemption for
one-turn storage to only that grain loaded and unloaded with
portable grain-handling equipment.
(Pet.
Ex.
3,
Tr. at 50.)
The
Agency’s interpretation of Board grain—handling rules are
published at 35
Ill.
Adni.
Code 264
(Res.
Ex.
1) which were filed
with the Secretary of State
in 1977 and codified in 1984.
Section 264.105 entitled “One-Turn Storage” provides that “one-
turn storage is the storage of grain by the use of portable
grain-handling equipment exclusively in a space filled and
emptied only once in any 365 day period.”
At the hearing,
an
Agency official testified that this operational definition is
used by the Agency.
(Tr. at 94-96.)
Petitioner argues that the
Agency has changed the regulation in its interpretation,
thus
requiring
a
rulemaking to incorporate these changes.
(Pet.
PHB
5Annual Grain Through-put
(AGT)
=
1,109,247
(initial
AGT)
-
933,000 (one-turn storage space)
=
176,247
bushels.(Pet.
at
20).
01360355
B
at
10.)
The Agency argues that it is carrying out the language
and intent of the regulations.
Further, the Agency sought to
apprise the public of its clarification by publishing its
interpretations in the Administrative Code.
(Res. PHB at 3.)
The
Agency .arrived-_at its ..interpretation by reading.
the
permit exemptions for “one—turn storage” and “portable handling
equipment” together.
The word “and” ties the two terms together
and, therefore,
one-turn storage and portable handling equipment
must
exist
simultaneously
at
each
site
to
warrant
a
permit
exemption.
Thus,
a subtraction of such space from annual grain
through-put to determine the applicability of permit and control
requirements could only happen if portable grain-handling
equipment were used.
This was the Agency’s understanding of the
intent of the regulations, based on testimony at the grain-
handling regulatory proceeding
(R72-18)
linking one-turn storage
with portable handling equipment.
(R72-18 Tr. at 479-480.)
The Agency argues
(Res.
PHB at 3) that grain-handling
operations receiving and sending out an excess of 300,000 bushels
of grain averaged over a three year period with other than
portable handling equipment at any time,
require a permit, even
if a portion of that storage space associated with the grain-
handling operation is one—turn storage.
Since Ohio Grain does
not use portable handling equipment, the Agency has calculated
Ohio Grain’s annual grain through-put at
2 million bushels per
year.
(Res.
PHB at
6.)
The key to deciding this issue before the Board is the
construction of the definition of “one—turn storage”, and how it
should be used in determining exemptions from the air permit
requirements.
In construing administrative rules the same rules
which apply to statutory construction apply.
(May v. Illinois
Pollution Control Board,
35 Ill.App.3d 930, 342 N.E.2d 784
(1976).)
Further
a
cardinal
rule in construing the meaning of a
statute
is
that
the
intention of the legislature must be
ascertained and given effect.
(People v.
Kerans,
103
Ill.App.
3d
522,
59 Ill.Dec.
225,
431 N.E.2d 726
(1982).)
In this case,
the
Board finds
in the record establishing the regulations that the
purpose of the 300,000 bushels threshold,
as
well
as
the
exemption for portable equipment
and
one-turn
storage
space,
were
for the purpose of exempting farmers and small elevators from the
permit requirements.
The definition of “annual grain through-
put” at Section 211.122 plainly states that annual grain through-
put is calculated by adding grain receipts and shipments for the
previous
3 years and dividing by
6.
There is no statement in the
definition
that
grain
exempt
by
virtue
of
Section
201.146
should
be subtracted from the figure derived above.
Clearly the 300,000
bushel exemption threshold was to be based on the volume of grain
handled by the establishment.
0 136-0356
9
The Board agrees with the Agency that allowing subtraction
of all grain through-put associated with one—turn storage reaches
a ridiculous result.
If all one-turn storage grain could be
subtracted from annual grain through-put, then all grain
elevators in the state could escape grain—handling air permit
r~qu~r~a.ita~y
simply
building~ more
storage
than_its average
yearly intake of grain.
For example, Ohio Grain’s out—of—town
facility has 2,833,0006 bushels of storage.
According to Ohio
Grain’s method of calculating annual grain through-put,
it could
receive 2,800,000 bushels and ship 2,800,000 bushels for each of
three consecutive years and have an annual grain through—put of
2,800,000
bushels.
Since
2,800,000
bushels
is
less
than
their
storage capacity of 2,833,000 bushels
(Pet.
Ex.
2 at 5), under
this scenario, Ohio Grain would not need an air permit.
Furthermore, by adding more storage bins,
it would never need air
permits no matter how many millions of bushels they processed
every year.
Therefore, Ohio Grain’s interpretation of one—turn
storage,
and its application in determining annual grain through-
put, would make the grain-handling air permit requirement
meaningless.
Clearly,
it was not the intent of the grain-handling
regulations to provide a potential loop-hole so that a grain
elevator of any size could be exempt from the air permit
requirements.
Therefore, the Agency interpretation that one—turn
storage was the storage of grain by use of portable grain—
handling equipment is a reasonable application of the intent of
the regulation.
In fact, the Board notes that this is a liberal
interpretation in favor of grain-handlers,
since there is nothing
in the record to suggest that one—turn storage should be
subtracted from annual grain through-put in determining the
300,000 bushels threshold.
In summary, the Board finds that the Agency’s interpretation
of one—turn storage as “the storage of grain by the use of
6The storage capacity of 2,833,000 bushels in the out—of-town
facility was taken from Ohio Grain’s permit request to the Agency,
which was
included
in Petitioner’s Exhibit
#2
at
5,
the Agency
Record on Appeal.
The Board notes that two pages later, Ohio Grain
gives
a total one-turn storage capacity of 3,152,600 bushels
(Pet.
Ex.
2 at 7; corroborated at Tr. at 41).
This is assumed to include
the three in-town storage bins.
The Agency permit denial letter
(Pet.
Ex.
2 at
2)
indicates that the Agency considers the permit
application
and
denial
to
refer
to
the
out-of-town
facility.
Therefore, the Board will use the 2,833,000 bushel storage figure
for illustration.
Readers should note that Ohio Grain does not
clearly
differentiate
grain
storage
activities
at
the
two
facilities.
For example, Ohio Grain’s calculation of annual grain
through-put
(Pet.
Ex.
2 at 23) does not differentiate between the
two sites.
However, this does not affect the outcome of the case.
0136-0357
10
portable grain-handling equipment”, which is codified at Section
264.105,
is the correct interpretation.
Further, such an
interpretation is consistent with the stated intent by the Board
in the grain-handling regulation.
The Board further finds that
the Agency has correctly applied the specific exemptions at
£sction~2~
.1 464s ~and~.
wit
the
efinitionoL~~annuaL~grain
through-put at Section 211.122.
Existing Grain-Handling Facilities
Ohio Grain also argues that it is an existing grain-handling
facility which
is exempt from air pollution control requirements
pursuant to 35 Ill.
Adm. Code 212.461(c).
Existing grain-
handling operations which meet the housekeeping requirements at
Section 212.461(b), and do not have investigations for alleged
violation on file at the Agency (Section 212.461(c) (2)),
shall
receive an operating permit from the Agency pursuant to Section
212.461.
“Existing grain-handling operation” is defined at 35
Ill.
Adm. Code Section 211.122 as “any grain-handling operation
the construction or modification of which commenced prior to June
30,
1975”.
Ohio Grain argues that its grain-handling and grain-drying
operations were in existence before June 30, l~75. The record
indicates that Ohio Grain was operating within the village limits
of Ohio,
Illinois in the early 1970’s (Board Group Ex.
1, Tr. at
16.)
In 1972, property was purchased approximately one mile west
of town and began to receive grain in fall,
1972
(Tr. at
16,
17.)
The Agency argues that Ohio Grain does not qualify as an
existing facility.
The Agency notes that Ohio Grain previously
applied for an operating permit and self—characterized as a new
facility
(Pet.
Ex.
2 at 29.)
The Agency also notes that
petitioner’s most recent permit application tabulates a
construction chronology that does not show continuous operation
at the site.
(Pet.
Ex.
2 at 5—6.)
Ohio Grain’s argument is that in 1972 it bought the out of
town property, which contained four storage bins.
(Pet.
Ex.
2 at
5.)
Dryer #1 was constructed in 1973, used in 1973—74, then
moved to town in 1974.
(Pet.
Ex.
2 at 5.)
Major construction
commenced in 1976,
including a new dryer, dump pits,
and more
storage bins.
Construction continued through 1986.
(Pet.
Ex.
2
at
6.)
Ohio Grain argues that construction of facilities outside of
town commenced in 1972,
in a phased expansion to reduce traffic
in the center of town,
reduce waiting times to a minimum and
expand grain storage facilities.
(Pet. PHB at 11.)
The Board
notes that the record lacks support for Ohio Grain’s position.
In fact the only specific evidence of a plan offered by the
0 36-0358
11
petitioner
is a statement by Ohio Grain manager, Robert Payne, at
the hearing.
When questioned by his counsel, Robert Payne stated
that the plan was to build a facility to handle the farmer’s
needs.
(Tr. at 17-18.)
Mr. Payne also referred to the
construction chronology
(Pet.
Ex.
2 at
6)
as an accurate
cbrcnoiogy.
,
(Tr.
at
18.)
.Tbe...xecc,rd does not include any
written evidence of planning documents which might support Ohio
Grain’s position.
The Board agrees with the Agency that the record fails to
show that Ohio Grain would qualify as an existing grain—handling
facility.
Ohio Grain itself has supplied evidence for this
determination in the construction chronology introduced.
(Pet.
Ex.
2 at 6.)
This chronology shows that Ohio Grain had a dryer
at the rural site and moved it to town in 1974.
Nothing again
happened at the rural site until 1976 when a new dryer along with
a dump pit, storage tanks and bins,
legs,
and office and scales
were constructed.
(Pet.
Ex.
2,
p.
6,
Tr.
45.)
Clearly, no
construction was commenced at the out—of—town site until
1976.
Clearly such construction was after the regulatory definition
deadline of June 30,
1975.
In fact,
the Board specifically took note of plans of
development, such as those presented by Ohio Grain in the instant
case, when
it adopted 35 Ill. Adm. Code 212.462(e).
This section
entitled “Circumvention” states:
It shall be a violation of this regulation for any
person or persons to attempt to circumvent the
requirements of this regulation by establishing a
pattern of ownership or facility development
which, except for such pattern of ownership or
facility development, would otherwise require
application of Section 212.462 or 212.463.
Ohio Grain is now attempting to avoid permits or control measures
by arguing that it planned its development is to include the out-
of-town facility which was purchased in 1972.
While some
activity occurred at the site from 1972 to 1974, there was a
hiatus from 1974 to 1976.
Petitioner did not return to the out-
of-town site until
1976, when the facility was constructed over
the next 10 years without any air pollution control equipment.
Petitioner now attempts to back into the “existing” category to
avoid the controls it should have installed when construction
commenced in 1976 and continued through 1986.
This type of
facility development clearly is the type that the Board had in
mind when it promulgated Section 212.462(e).
In addition, even if the Board were to accept Ohio Grain’s
argument that
it
is an existing facility, the facility was
modified on or after June 30,
1975.
The permit applications and
Robert Payne’s testimony show that numerous equipment items were
0136-0359
12
physically added that could increase particulate emissions after
that date.
These changes meet the definition of “modification”
contained in the regulations at
35 Ill.
Adm. Code 201.102 which
states
in
part:
~.nyphysical change in, or change in method of
~
increases the amount of any specified air
contaminant....It shall be presumed that an
increase in the use of raw materials, the time of
operation or the rate of production will change
the amount of any specified contaminant
emitted....
Ohio Grain also meets the definition of a modified grain-
handling operation in 35 Ill. Adm. Code 212.462(e),
in that its
annual
grain
through-put
increased
by
more
than
30.
If Ohio
Grain is not a new facility,
it certainly meets the definition of
a modified facility.
For instance, Ohio Grain claims annual
grain through-put in 1973-74 of 50,000 bushels/year.
(Tr. 43.)
By Ohio Grain’s current calculations, its 1990 annual grain
through-put was 176,247 bushels
(Pet. PHB at
8) which is a 300
increase.
In 1990,
the Agency estimated Ohio Grain’s annual
grain through-put at 2,000,000 bushels/year which is a 3,900
increase.
(Pet.
Ex.
2,
p.
1.)
So, whether calculated by the
petitioner or by the Agency, petitioner meets the general
definition of modification as well as that provided by the grain-
handling regulations.
For the reasons enunciated above,
the Board finds that Ohio
Grain is “new facility” under the Board’s regulations, because
Ohio Grain constructed or modified the facility after June 30,
1975.
Therefore the Board holds that the Agency’s permit denial
on this point is proper and Ohio Grain is required to obtain a
permit.
Ma-br Dump-Pit Area Regulations
Section 212.462 sets forth the specific air pollution
control measures for major dump pit areas of grain—handling
operations with annual grain through-put more than 300,000
bushels.
Ohio Grain’s truck dump pits are not equipped with
aspiration (Tr. at 25—26)
as required by Section 212.462(b) (1).
However, according to Section 212.462(b) (2) particulate matter
emissions from the dump pits can be controlled by “any equivalent
method.
..“.
Ohio Grain argues that particulate matter emissions from
Ohio Grain’s grain-handling operations are controlled by an
equivalent method because:
(a) the dump pits are enclosed;
(b)
a
substantial amount of grain is received in hopper trucks which
0136-0360
13
are choke unloaded; and
(c) the grain received is usually wet and
virtually dust free.
(Pet. PHB at 14.)
Further, Ohio Grain maintains that its grain-drying
operations,
consisting of three column dryers, are in compliance
with Section 212.463(a)~ The lar,gesteffective circular diameter
of the transverse perforations in the external sheeting of each
dryer is 0.09375 inches, and the grain inlet and outlet of each
dryer is completely enclosed.
No other type of dryers are
present on—site.
Thus,
Ohio Grain maintains that the dryers are
in compliance (Pet. PHB at 14)
and the Agency should therefore
have issued an operating permit.
Ohio Grain maintains that the truck load—out area is in
compliance with Section 212.462(d)
because socks which extend six
(6)
inches below the sides of trucks are used during the loading
process.
No boxcars or watercraft are loaded on—site.
In
addition, the internal transfer areas and truck dump pits are
enclosed as required by Section 212.462(c) (1) to prohibit
particulate matter emissions directly into the atmosphere.
(Pet.
PHB at 14.)
The Agency argues that since Ohio Grain is a new facility
with an annual grain through-put greater than 300,000 bushels,
controls on the dump pit and other areas are required by Section
212.462.
The Agency completely disagrees with Ohio Grain’s
argument that a combination of four factors shows that its
operations are equivalent.
First, Ohio Grain argues that most of
the grain
it receives is wet.
The Agency notes that while most
of the grain could be wet, there is a difference in moisture
content which frequently depends on a particular year’s weather
and growing conditions.
(Rep. PHB at 9.)
In addition, soybeans
arrive at Ohio Grain already dry.
(Tr. at 34.)
Next Ohio Grain claims that most grain is received by
hopper-bottom trucks.
While Ohio Grain may use a majority of
hopper bottom trucks, the Agency has only witnessed dump trucks
and side unloading wagons.
(Tr.
at 73-74.)
Additionally, the
Agency notes that a number of privately—owned vehicles dump grain
at petitioner’s facility and apparently, Ohio Grain does not
prohibit any particular type of vehicle.
(Tr. at 25,
43.)
Third,
Ohio Grain suggests that merely because hopper bottom
trucks are occasionally used,
choke unloading necessarily occurs.
(Pet.
Ex.
2 at 8.)
The Agency argues that even if Ohio Grain
used hopper bottom trucks, the conditions for choke unloading are
not present.
The Agency notes that it has never observed choke
unloading at Ohio Grain during its inspections, nor is it likely
to exist because of the large capacity of the dump pits and the
speed of the conveyors.
(Res. PHB at
10, Tr.
77,
105—107, 111-
112.)
01360361
14
Fourth, Ohio Grain argues that its doors are important in
terms of equivalency.
The Agency notes that the doors are of
little effect since they are not closed to prevent the escape of
particulates during grain unloading.
(Pet.
Ex.
1,
Tr.
76-77.)
The Agency
~~naintains
that-~it.is.. ~t_in....a.-position
.to...dee~
Ohio Grain’s practice equivalent as each of Ohio Grain’s factors
contain uncertainties
(i.e., will it only accept grain over a
certain percent moisture) and the Agency’s records are in
disagreement with reports by Ohio Grain.
(Res. PHB at 10.)
Additionally, the Agency could not determine that Ohio Grain’s
current emissions are no greater than that emitted if Ohio Grain
were to put on the required dump pit aspiration and control or
emit about 5.0 lb/hour rather than the 49.6 lb/hour estimated to
be emitted.
(Tr. at 75-76,
Pet.
Ex.
2,
at 24, Res. PHB at 10.)
The Board notes that Section 212.462(b) (2) provides guidance
for determining what constitutes an equivalent method, technique
or system for complying with the major dump pit regulations.
According to Section 212.462(b) (2), alternate methods may be
considered as equivalent, only if such methods achieve a
particulate emission reduction equal to the reduction which could
be achieved by applying induced draft (aspiration).
In this
regard, the Board notes that the information provided by Ohio
Grain in support of its petition does not indicate whether or not
the current emissions are less than that emitted if the dump pit
is equipped with an aspiration system.
Therefore,
the Board
finds that Ohio Grain has not met the burden of proof for
demonstrating equivalency in meeting the air control requirements
for major dump pit areas prescribed at Section 212.462(b).
Therefore, the Board affirms the Agency’s permit denial on this
point.
CONCLUSION
The Board finds that the Agency properly denied the permit
application of Ohio Grain because issuance of such permit might
lead to violation of Section
9 of the Act as well as 35 Ill. Adm.
Code
212.462.
The record clearly supports the Agency’s findings
that Ohio Grain is anew or modified facility with an annual
through-put
of
over
300,000
bushels.
In
addition,
the
record
does not support the claim by Ohio Grain that the measures used
at its facility are equivalent to control measures required under
35
Ill. Adm. Code 212.462.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
0 136-0362
15
ORDER
The Board affirms the June 27,
1990, denial of an operating
permit by the Illinois Environmental Protection Agency for the
Ohio Grain Company’s facilities in Ohio,
Illinois.
IT
IS
SO
ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat.
1991,
ch.
111
1/2, par.
1041) provides for the
appeal of final orders of the Board within 35 days.
The Rules of
the Supreme Court of Illinois establish filing requirements.
(But see also
35 Ill.
Adm. Code 101.246, Motions for
Reconsideration, and Castenada v. Illinois Human Rights
Commission
(1989),
132 Ill.2d
304,
547 N.E.2d 437.)
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution Control
Board, do hereby certify that the abo e o inion and order was
adopted on the
/~T~Z
day of
_____________,
1992,
by a
vote of
7—o
0136-0363
,
Clerk
,lution
Control
Board
