ILLINOIS POLLUTION CONTROL BOARD

October 19,

1995

PEOPLE OF THE STATE

)

OF ILLINOIS,

)

Complainant,

)

 PCB 96-55

)

 (Enforcement-Air)

LAFAROE

 CORPORATION,

)

a Maryland corporation,

)

Respondent.

OPINION

AND

 ORDER OF THE BOARD:

This matter comes before the Board upon an three—count

complaint filed September 11,

 1995,

 by the Attorney General of

the State of

Illinois,

 on behalf

of the Illinois Environmental

Protection Agency

 (Agency) and the People of the State of

Illinois, against LaFarge Corporation (LaFarge),

 a Maryland

corporation regarding its facility, located at County Road 100 N

and 300 E, Joppa, Massac County,

 Illinois. The complaint alleges

that LaFarge has violated Sections 9(a),

 9(b) and 9.1(d) (1) of

the Illinois Environmental Protection Act

 (Act),

 415 ILCS

5/9(a), 5/9(b),

 5/9.1(d) (1) and 35 Ill. Adm. Code 201.141 by

causing or allowing air pollution including opacity violations

and, by violating several conditions of its operating permits.

Pursuant to 415 ILCS 5/31(a) (2), the parties filed a joint

Motion requesting relief from the Act’s hearing requirement on

September

11,

 1995.

 The Board published

 a notice

 of the waiver

on September 20,

 1995; no objection to granting of the waiver was

received.

 Waiver of hearing is hereby granted.

The parties tiled a Stipulation and Settlement Agreement on

September 11,

 1995.

 The Stipulation sets forth facts relating to

the nature, operations and circumstances surrounding the claimed

violations.

 LaFarge denies the alleged violations and agrees to

pay a civil penalty of one hundred thousand dollars

($100,000.00).

The Board finds the settlement agreement acceptable under 35

Ill.

Adm.

 Code 103.180.

 This settlement agreement in no way

affects respondent’s responsibility to comply with any federal,

state or local regulations,

 including but not limited to the Act

and the Board’s pollution control regulations.

This opinion constitutes the Board’s findings

of

 fact

and

conclusions of law in this matter.

ORDER

1)

 The Board hereby accepts the Stipulation and Settlement

Agreement executed by the People of the State of

Illinois and LaFarge, concerning its facility,

 located

at County Road 100 N and 300

E,

 Joppa, Massac County,

Illinois.

 The Stipulation and Settlement Agreement are

 incorporated by reference as though fully set forth

herein.

2)

 LaFarge, shall pay the sum of one hundred thousand

dollars

 ($100,000.00) within 30 days of the date of

this order.

 Such payment shall be made by certified

check or money order payable to the Treasurer of the

State of Illinois, designated to the Environmental

Protection Trust Fund,

 and shall be sent by First Class

mail to:

Illinoi3 Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

P.O. Box 19276

Springfield,

 IL 62794—9276

The certified check or money order shall clearly

indicate on its face LaFarge’s Federal Employer

Identification Number and that payment is directed to

the Environmental Protection Trust Fund.

A copy of the payment transmittal and check shall be sent

to:

Office of the Attorney General

Environmental Bureau

500 S. Second Street

Springfield,

 Illinois 62706

Any such penalty not paid within the time prescribed

shall incur interest at the rate set forth in

subsection

(a)

 of Section 1003 of the Illinois Income

Tax Act,

 (35 ILCS 5/1003),

 as now or hereafter amended,

from the date payment is due until the date payment is

received.

 Interest shall not accrue during the

pendency of an appeal during which payment of the

penalty has been stayed.

3)

 LaFarge shall cease and desist from the alleged

 violations.

IT IS SO ORDERED.

Board Member J. Theodore Meyer concurred.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41) provides for the appeal of final Board orders within 35

days of the date of service of this order.

 (See also 35 Ill.

AUm. Code 101.246, Motion for Reconsideration.)

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order was

adopted on the

 /~‘

 day of

___________________,

 1995 by a

vote of

7-0

A~.

Dorothy M. ~inn, Clerk

Illinois Pë,Llution Control Board

rrvED-~

BEFORE THE

ILLINOIS

POLLUTION CONTROL

BOAR

SEP

1 1

1995

MASSAC

COUNTY, ILLINOIS

STATE OF ILUN~•IS

POLLUTION

CONTROL BOARD’

PEOPLE

THE

STATE OF ILLINOIS,

)

Complainant,

)

PCBNo.

LAFARGE

CORPORATION,

)

a Maryland corporation,

)

Respondent.

)

STIPULATION AND

PROPOSAL FOR SETTLEMENT

Pursuant to 35

III. Adm.

Code 103.180, the following Stipulation and

Proposal for

Settlement

entered

into between the complainant,

People of the

State of Illinois,

behalf of

the Illinois

Environmental

Protection Agency

(“Agency”),

and the respondent,

Lafarge

Corporation

(“Lafarge”),

is tendered for approval

by the Illinois

Pollution Control

Board

(“Board”).

It is expressly

understood and agreed to, by and

between Lafarge,

James

Ryan, Attorney General of the State of Illinois

(“Attorney General”),

and the

Agency,

that the

agreements, stipulations and

statements herein contained

are

not binding on the parties,

and

shall be deemed

null and void,

in the event such

approval by the

Board

is not obtained,

or in

the

event additional terms

or conditions which are

unacceptable to the parties,

are imposed

by the Board.

This Stipulation

and

Proposal

for Settlement

is made for the

purposes

Settlement only and putting

end to

litigation, and

neither the fact that a party has entered

into

this Stipulation and

Proposal for Settlement, nor any of the facts

stipulated herein, shall

be introduced

into evidence

or construed as

an admission

of fact or law

in any other

proceedings

conducted before

the Board or outside of the jurisdiction

of the board except to

enforce the terms

hereof by

the parties

to this agreement and

as evidence of previously

adjudicated violations for purposes

of subsection 42(h)

of the

Illinois

Environmental

Protection

Act (“the Act”)

(415

ILCS 5/42(h)).

Subject to the foregoing

understanding

and agreement,

is further agreed

follows:

STIPULATION OF FACTS

Respondent,

Lafarge met

with representatives of the Agency and the Attorney

General’s

Office on January 31,

1995.

Lafarge is a Maryland

corporation

qualified

business in

Illinois.

Lafarge owns and operates

a facility located at County

Road

100 N and

300

in Joppa,

Massac

County,

Illinois

C’the facility”).

The facility is engaged in the

manufacture

and production

of cement.

In connection with

its cement production facility,

Lafarge operates two large

kilns and associated

equipment, of which Kiln #2 is subject to

New Source

Performance

Standards (“NSPS”), 40 C.F.R.

Part

60, Subpart

the following dates, the State

alleges

that Lafarge’s

operation

of Kiln #2

resulted in

emissions

exceeding 20

opacity:

Date of Excess Emissions

R~port

(EER)

oflotal

ODeratinc~Time

(with

opacity greater than 20)

41301g3

1st quarter ‘93

5.68

6/30/93

2nd quarter

‘93

3.81

11/12/93

3rd

quarter

‘93

7.08

2/1/94

4th

quarter

‘93

7.22

5/4/94

1st quarter

‘94

7.98

8/2194

2nd quarter ‘94

5,47

The

State alleges that by

operating Kiln #2 in excess of 20

percent opacity

during the period of January 1993

June

1994,

Lafarge

has violated

subsection 9(a)

of the

Act (415

ILCS

519(a)

(West

1992)).

Standard condition

7 of permit

number 77070037

requires

Lafarge to

maintain

all

equipment covered by its

permits in a

rnanrter such that the equipment will not cause a

violation of the Act or regulations.

Standard condition

9 of pemiit

number 77070037

prohibits continued

operation

during

malfunctions,

breakdowns,

or startups

if such

operation would

cause a

violation of an

applicable emission

standard or permit limitation.

The

State alleges that

Lafarge operated Kiln #2 during

malfunctions,

breakdowns,

and startups,

and thereby violated

subsection 9(b)

of the Act (415

ILCS

5/9(b)

(West 1992)),

and standard conditions 7

and 9 of permit number 77070037.

10.

Special

condition

2 of permit

number 77070037 limits opacity to 20 percent.

11.

Special

condition

5 of permit number 77070037 limits operation

of Kiln #2 to

when the electrostatic percipitator (“ESP”)

functioning properly and

opacity

is less

than 20

percent. except during

authorized

malfunctions.

12.

The State

alleges that

Lafarge operated Kiln #2 with

opacity in

excess of 20

percent

during

periods other than

authorized malfunction, and thereby violated subsection

9(b)

of the Act (415

ILCS 5/9(a)

(West 1992))

and special conditions 2 and 5.

13.

C.F.R.

Part

60 provides

standards for performance for new stationary

sources.

14.

The State alleges that,

emitting excess opacity beginning the first

quarter of

1993 through the

second quarter of 1994,

and

failing to maintain

its

Kiln #2 in

a manner

consistent

With

good air pollution control

practices

for minimizing emissions,

Lafarge

has

violated subsection

9.1(d)

of the Act (415

ILCS 5/9.1(d)

(West

1992))

and 40 C.F.R.

§60.11(d).

15.

The State alleges that,

by causing

emissions to

be discharged from

its

Kiln #2

with

greater than 20

percent opacity

beginning the first

quarter of 1993,

through the second

quarter of 1994, Lafarge has violated subsections

9.1(d) of the Act (415

1LCS 5/9.1(d)

(West

1992))

and 40 C.F.R.

§60.62(a).

16.

The State alleges that,

by failing to

operate the continuous opacity

monitor

6.72

percent of the total operating

time in

the fourth quarter of

1993,

Lafarge has

violated

subsection

9.1(d) of the Act (415

ILCS

5/9.1(d) (West

1992))

and 40 C.F.R. ~60.63(b).

17.

Lafarge denies the

State’s

allegations, but for the purposes of settlement and

compromise,

has agreed to

entry of this Stipulation

and

Proposal for Settlement.

II.

IMPACT

ON THE

PUBLIC

RESULTING

FROM

NON-COMPLIANCE

Subsection

33(c) of theAct (415 ILCS 5/33(c))

provides:

making

its orders

and determinations, the

Board

shall take

into consideration

bearing upon the reasonableness of the

emissions, discharges,

or deposits involved including, but not

limited to:

the character and degree of injury

to, or interference with

the protection

of the health,

general

welfare and

physical

property

of the people;

the social and

economic value of the

pollution source;

the suitability or unsuitability of the pollution source to the

area

in which it

located,

including

the question

priority

of location

in the

area involved;

the technical practicability

and

economic reasonableness

or reducing

or eliminating the emissions,

discharges or

deposits

resulting from

such pollution source; and

any subsequent compliance.

response to these factors, the

parties state

as follows:

Lafarge’s above cited violations

of the Act and

regulations,

as alleged

by the

State,

impacted the complainant,

in that the

excess particulate

matter emitted from

Kiln #2 is

a contaminant that contributes to

air pollution in

Illinois,

and the cement dust emissions are

skin and eye irritants

and may

create a health

hazard.

Lafarge’s facility is of economic

and social value to the surrounding

community,

Lafarge’s employees,

and to the customers

of Lafarge.

Lafarge’s facility is suitable to

the area

in which

it is located (based

upon the

presumption

the facility operated

in compliance with the Act).

By refurbishing

the

ESP

and

constructing a new baghouse,

Lafarge has

reduced or eliminated the emissions resulting

from

the pollution source

at issue.

By refurbishing the ESP and

constructing a

new baghouse,

Lafarge has taken

steps to remedy the above-detailed

instances of noncompliance.

Ill.

DETERMINATION OF APPROPRIATE CIVIL PENALTY

Subsection

42(h)

of the Act (415 ILCS 5/42(h))

piovides:

In determining the appropriate civil penalty to be imposed under

subdivisions (a),

(b)(1),

(b)(2)

or (b)(3) of this Section, the Board

is authorized to consider any

matters of record

in mitigation or

aggravation of penalty,

including

but not limited to the following

factors:

the duration and

gravity of the violation;

the presence

or absence

of due diligence on the part of

the violator in attempting

to comply with the requirements

this Act and

regulations thereunder

or to secure

relief

therefrom

as provided

by this Act;

any economic benefits accrued

by the violator because of

delay

in compliance with requirements;

the amount

of monetary

penalty which will

serve

to deter

further

violations

by the violator and

to otherwise

aid in

enhancing

voluntary compliance with this Act by the

violator and any

other persons

similarly

subject to

the

Act;

and

the

number,

proximity in

time,

and gravity

of previously

adjudicated violations of this Act by

the violator.

In response

to these factors,

the

parties

state

as follows:

Lafarge

has upgraded

Kiln #2

come

into

compliance, and has

paved

approximately

of its lot

control fugitive dust.

Lafarge has

refurbished the

ESP

at issue, and

constructed

a new baghouse for

Kiln #2.

The penalty assessed in this case takes

into account any economic

benefit

received by Lafarge in

delaying its

compliance expenditures.

civil penalty of one

hundred

thousand dollars

($100,000)

will deter Lafarge

from further violations

of this type.

Further,

this penalty will aid

the Agency’s enforcement of

the Act

and Board’s

Rules and

Regulations as against

persons

similarly subject to the Act.

There

are

known adjudicated violations of the Act by the violator.

IV.

COMPLIANCE

WITH OTHER LAWS AND

REGULATIONS

This Stipulation

and Proposal for Settlement in no way

affects the responsibility

of the

respondent to

comply with any

other federal,

state

or local regulations,

including, but not

limited to, the Act (415 ILCS

5/1

~ ~g.)

and

the Board’s Rules and

Regulations,

III. Adm.

Code,

Subtitles A through

JUJUSDICTION

The

Board has jurisdiction of the

subject matter herein

and of the parties consenting

hereto

pursuant to the Act.

VI.

APPLICABILITY AND AUTHORIZATION

This

Stipulation and

Proposal for

Settlement shall apply to and

binding upon

the

complainant,

the Agency,

Lafarge,

and the

officers, agents,

employees,

servants,

successors

and assigns thereof.

The respondent

shall

not raise

defense to any action

enforce

this Stipulation and

rroposal for Settlement the failure

of any of the above to take such

action as

shall be

required

comply with the

provisions of this Stipulation and

Proposal for

Settlement.

The undersigned

representatives

for each party

certify that-they are fully

authorized by the party whom they represent

to enter into

the terms

and conditions

of this

Stipulation and Proposal

for Settlement and to legally

bind them to

it.

VII.

COVERED MATTERS

This Stipulation and

Proposal for Settlement covers all claims asserted

in the

complaint filed

herein concerning violations of the Act (415

ILCS 5/1 ~ ~

(West

1992))

and the regulations promulgated thereunder.

Covered matters

do ~gj include:

Criminal liability;

ii)

Claims based on respondent’s failure

to meet the requirements

of this

Stipulation and

Proposal for Settlement;

iii)

Liability for future violation of state,

local, federal,

and common

laws and/or

regulations;

and

iv)

iny tuture iis~iiity

tar natural

resource

aamage

or tar removal,

cleanup, or

remedial

action

a result of a release

of hazardous substances or the liability

of respondent

under subsection

22.2(f)

of the Act (415

ILCS 5/22.2(f)

(West

1992)).

or under the

Comprehensive

Environmental

Response, Compensation

and

Liability Act (42

U.S.C.

§~

9401-9675).

VIII.

NO ADMISSION OF LIABILITY

This is entered into

for the purpose of settling

and compromising disputed claims

without the expense

of contested litigation.

By entering into this

Stipulation

and

Proposal for

Settlement and complying with

its terms,

Lafarge and

any successor or assign do not admit

any fact,

statement,

legal conclusion, or past or present liability or violation of any law or

regulation,

and this Stipulation

and Proposal

for Settlement shall not

be Interpreted

including any such admission.

IX.

PROPOSAL FOR SETTLEMENT

Lafarge shall pay a civil penalty of one-hundred thousand dollars

($100,000.00) within thirty

(30)

days of the

Board’s approval

and

adoption of this Stipulation

and Proposal for Settlement.

The

penalty shall be

made by

certified

check, payable to the

Treasurer of the

State of Illinois,

for deposit in the Environmental

Protection

Trust

Fund

and

submitted to:

Illinois

Environmental

Protection Agency

Fiscal

Services

Section

2200 Churchill

Road,

P.O. Box 19276

Springfield,

Illinois

62794-9276

The name,

case

number, and Lafarge’s

Federal Employer identification

Number

(“FEIN”)

shall

appear on the

certified

check.

For

the purpose

of payment and

collection,

Lafarge may

reached

at the following

address:

4000 Town

Center, Suite 2000

P.O. Box 887

Southfield, Michigan

48037

A copy of the payment transmittal

and check shall be

simultaneously

submitted to:

Office of the Attorney General

Environmental

Bureau

500 South

Second Street

Springfield,

Illinois

62706

Lafarge shall diligently comply with

all applicable requirements,

and shall

cease and desist from

violations of the Act

(415

ILCS 5/1 ~

sea.

(West

1992)),

the

Board’s

rules and

regulations

(35

Ut. Adm. Code Subtitles A through

(1992))

and any and

all

federal

laws

and regulations.

Final approval of this Stipulation and

Proposal for Settlement and compliance

herewith

shall constitute full

acr~nrrJ.satisfaction,

and Settlement

of all

civil

liability of Lafarge

under the Act and

the Board’s

Rules and Regulations, which was the subject matter of the

Complaint filed

herein.

consideration of the payment by Lafarge of a $100,000 penalty

and the

action taken

to date

by Lafarge,

the

State

releases, waives and

discharges

Lafarge from any

violations of the Act

or the state

and federal regulations which were

the subject

matter of the

Complaint

herein.

Respectfully submitted,

PEOPLE

OF THE STATE

ILLINOIS

JAMES

RYAN

ATTORNEY GENERAL

MATTHEW J.

DUNN, Chief

Environmental Enforcement

Division

_______

BY:

Thomas

Davis, Chief

Environmental

Bureau

Assistant Attorney General

DATED:

DATED:______

DATED:

iM~ic

ILLINOIS ENVIRONMENTAL

PROTECTION

AGE:

General Counsel

Division

of Legal Counsel

LAF~~J~RPORATION

Edward

X. Junia

Vice President,

Envi

tal Affairs

FEIN

Rd1o~L