ILLINOIS POLLUTION CONTROL BOARD
January
8, 1987
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
)
V.
)
PCB 85—52
)
GROWMARK,
INC.,
a Delaware
)
Corporation,
MR.
JOSEPH
F. MADONIA, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE COMPLAINANT.
MR. DANIEL
3. LEIFEL, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board on
a three—count
Complaint filed
on April
19, 1985 by the Illinois Environmental
Protection Agency (Agency).
In Count
I of the Complaint the
Agency alleges that at no time from September
2,
1982 until April
19,
1985, had Growrnark applied for or received
a construction or
operating permit as required by Section
212.461(d)
for the
emission sources and equipment at its facility
in violation of 35
Ill. Adm. Code 201.143 and Sections 9(a)
and 9(b) of the Illinois
Environmental Protection Act (Act).
In Count
II the Agency
alleges that from September
2,
1982 until April
19,
1985,
particulate
matter
emissions
which
were
caused
or
allowed
during
loading
from
Growmark’s
barge
load—out
spout
at
its
grain
processing facility were not captured by any air pollution
control
equipment
in violation of
35 Ill.
Adin.
Code
2l2.462(d)(3)(A)
and
Section
9(a)
and
9(b)
of
the
Act.
Finally,
in Count
III
the
Agency
alleges
that
from
September
2,
1982 until
April
19, 1985, exhaust gas from the Growmark’s rack dryers at
its facility were not ducted
through air pollution control
equipment which has a
rated
and
actual
particulate
removal
efficiency
of
90
by
weight
prior
to
release
into
the atmosphere
in
violation
of
35
Ill.
Adm.
Code 2l2.462(b)(l)(B)
and Sections
9(a)
and
9(b)
of
the
Act.
Hearing was held on October
29, 1986
at
which
no
members of the public were present
(R.
2)
and at
which
the parties entered
a Stipulation and Proposal for
Settlement which was
filed with the Board on November 24,
1986.
Growmark is a Delaware corporation which
is duly licensed
and authorized
to do business
in the State of Illinois.
At all
pertinent times Growmark has operated
a grain—handling and grain—
drying operation which
is located between the Illinois River and
74-350
—2—
the Illinois and Michigan Canal
in Morris, Grundy County.
Growinark’s
facility,
which is located outside of
a major
population area in
a mixed residential
and industrial area, with
the nearest residences at 1,000 feet to the north of the
Crowmark’s site, includes two major dump pits and
a barge
load—.
out spout.
(Stip.
1).
The Agency issued Growmark an operating permit
(I.D.
No.
063—060—AAS/M—l00—OP)
for the grain processing plant on March
18,
1976 pursuant
to
35 Ill.
Adin. Code 201.144.
The
Agency renewed
Growmark’s operating permit on June 12,
1979,
for one year, and
on June
2, 1980 for
an additional
five years.
Before each permit
was issued the Agency determined that Growmark’s grain handling
and processing facility met the exemption requirements of
35 Ill.
Adm. Code 212.461(c).
(Stip.
2).
The
initial 1976 operating
permit for Growmark’s facility was issued by the Agency based
on
an annual grain through—put
(ACT) of 11,400,000 bushels.
However, on September
2,
1982,
the Agency determined
that
Growmark’s ACT was 17,000,000 bushels,
an
increase of in excess
of 30.
Crowmark’s own records for the applicable time period
reflect
a
3—year average ACT of 15,920,000 bushels, also an
increase
in excess of 30.
(Stip.
2).
Section 212.462(a)
provides that
an increase
in AGT in
excess of 30
of the AGT on which
a facility’s original
construction and/or operating permit was granted shall be
considered
a “modification”
of the facility’s equipment and
emission sources.
Such
a modification causes existing sources
which were previously permitted
under
35 Ill.
Adin. Code 201.144
to become “new emission sources” as defined by 35
Ill.
Adin.
Code
201.102, thereby requiring
the perniittee
to apply for
a new
construction and operating permit pursuant to 35
Ill. Adm.
Code
201.143.
The permittee must apply for such permits within 60
days after
the Agency advises that there
is a certified
investigation on file indicating
that there
is an alleged
violation against that facility’s operation, pursuant
to Section
212.461(d).
The Agency so notified Growrnark on September
27,
1982.
(Stip.
3).
Thus,
Growinark was required
to apply for construction
and operating permits for all sources and equipment at its Morris
site,
and
to include a compliance plan and project completion
schedule for complying with the applicable standards and
limitations delineated in Sections 212.462 and 212.463.
(Stip.
3—4).
Growmark did not contest the Agency’s 30
ACT increase
determination, but contended that its current permit
“grandfathered”
in the application of Section 212.461(d)
until
the time that it expired.
74-351
—3—
The parties have characterized their disagreement as
follows:
Where
a
facility
is
issued
an
original
operating
permit
in
accordance
with
Section
201.144
pursuant
to
Section
212.461(c)
and
thereafter ACT increase
in excess
of
30
upon
which
the
facility’s
original
permit
was
issued
occurs
causing
a
“modification” of the
facility,
(1)
is
the
facility’s
operator
required
to
apply
for
a
Section
201.143
construction/operating
permit
(including
the
submission
of
a
compliance
plan
for
the
requirements
of
Sections
212.462
and/or
212.463)
within
sixty
days
of
Agency
notification of said modification,
all
as
set
forth
in Section 212.461(d),
and regardless of
whether
the modification
occurs
prior
to
the
expiration date of the original permit (Agency
position),
or
(2),
may the facility’s operator
continue
to
operate
the
facility
pursuant
to
its
original
permit
(and
exempted
Section
212.462 or 212.463 or both standards and limi-
tations)
until
such
time
as
the
original
permit
expires,
and
only
thereafter
be
required
to apply for
a Section 201.143 permit
and
compliance
program
(Respondent
position)?
(Stip.
4—5)
S’dthout agreeing on the resolution of this issue, Crowmark
developed
a control system
for
the emissions
from its grain
handling facility.
(Stip.
5).
This control system, which
involves the application of mineral oil
to the grain as
it is
removed from the receiving dump pit, was determined by the Agency
to be
an equivalent control system under 35
Ill. Adm. Code
2l2.462(d)(2).
Based
upon this determination, Growmark was
granted
a permit pursuant
to 35
Ill.
Adin.
Code 201.143 on August
12, 1985.
Therefore,
the dispute between the parties for purposes of
future compliance with the grain regulations
is moot.
However,
for purposes of resolving this enforcement action,
it
is not.
On
the basis of the submitted stipulation, the Board finds that
Growmark has violated
35
Ill.
Adm. Code 212.461(d),
212.462(b)(1)(B)
and 2l2.462(d)(3)(A) and Sections 9(a)
and
(b)
of the Act.
The Board concludes that Growmark’s argument
regarding the grandfathering of the Section 212.461(c)
exemption
during the term of the permit which was
in existence at the time
of the modification
is without merit.
The 60—day limitation
for
application for
a permit pursuant
to Section 212.461(d) would
be
rendered largely meaningless
if Crowmark’s reasoning were
accepted.
Further,
it makes little sense
to delay the
74-352
—4—
application of
a remedial rule for up
to five years simply
because
the modification requiring further pollution control
happens
to take place shortly after
a new permit has been issued.
The Agency has concluded that “no further actions by
Respondent are deemed
necessary in order
to meet the permit and
emission control requirements of the Board’s air pollution
control
rules and
the Illinois Environmental Protection Act”.
(Stip.
6),
and the proposed
settlement agreement simply provides
that Growinark,
Inc. pay a stipulated penalty of $7,500.00.
In evaluating this enforcement action and proposed
settlement agreement, the Board has taken
into consideration all
the facts
and circumstances
in light of the specific criteria
delineated
in Section 33(c) of the Act and finds the settlement
agreement acceptable
under
35
Ill. Adm. Code 103.180.
Accordingly, the Board will order the Respondent
to pay the
stipulated penalty of $7,500.00
into the Illinois
Environmental
Protection Trust Fund as agreed—upon by the parties.
This Opinion constitutes
the Board’s
findings of fact and
conclusions of law in
this matter.
ORDER
It
is the Order of the Illinois Pollution Control Board
that:
1.
Crowmark, Inc.
has violated
35 Ill. Adm. Code
203.143,
2l2.462(b)(l)(B),
2l2.462(d)(3)(A) and Sections 9(a)
and
9(b)
of the Illinois Environmental Protection Act.
2.
Within 30 days of the date of this Order,
the
Respondent,
Growmark,
Inc.,
shall,
by
certified
check
or
money
order
payable
to
the
State
of
Illinois
and
designated
for deposit into the Environmental Protection
Trust
Fund, pay the stipulated penalty of $7,500.00
which is
to be sent
to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
Illinois 62706
3.
The Respondent shall comply with all the terms and
conditions of the Stipulation and Proposal for
Settlement filed on November
24,
1986,
which is attached
and incorporated by reference as
if fully s~tforth
herein.
IT IS SO ORDERED.
74-353
—5—
I, Dorothy M. Cunn,
Clerk of the Illinois Pollution Control
Board,
hereby ce tify that the above Opinion and Order was
adopted on the
_____
day of
~
,
1987, by a vote
of
0
.
Dorothy
M.
Guhn,
Clerk
Illinois Pollution Control Board
74-354
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
GRUNDY COUNTY
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Complainant,
)
)
—ye—
)
PCB 85—52
)
GROWN.ARK,
INC.,
a
Delaware
)
corporation,
)
)
Respondent.
STIPULATION OF PACT AND PROPOSAL FOR SETTLEMENT
Complainant, the Illinois Environmental Protection
Agency, by its attorney, Neil F. Hartigan, Attorney General of
Illinois, and Respondent, Growmark,
Inc., by its attorney, submit
the following Stipulation of Fact and Proposed Settlement to the
Pollution Control Board, pursuant to Procedural Rule 103.180:
Statement
of
Facts
1.
Respondent. Growmark,
Inc.,
(formerly
known
as F.S.
Services,
Inc.)
is a Delaware corporation licensed to do business
in the State of Illinois, and at all times pertinent hereto has
operated an existing grain-handling and grain-drying operation
facility in Morris, Grundy County, Illinois (between the Illinois
River and the Illinois and Michigan Canal).
2.
At all times pertinent hereto Respondent’s facility
has been located outside of a major population area.
The
facility itself is located in a mixed residential/industrial
area, with the nearest residences approximately one thousand
(1000)
feet to the north.
3.
Included at Respondent’s facility are two major dump
pits and a barge load-out spout.
—1—
74-355
4.
On or about March 18, 1976 the Agency issued to
Respondent an operating permit for its facility pursuant to 35
Ill.
Adin.
Code §201.144 of the Illinois Pollution Control Board’s
Air Pollution Control Rules and Regulations (“Air Pollution
Rules”).
5.
In issuing the aforesaid operating permit, the
Agency determined that,
in accordance with 35 Ill. Adm. Code
§212.461(c)
of the Air Pollution Rules, the Respondent’s facility
was exempted from the control requirements of 35 Ill.
Adin. Code
§U12.462 and 212.463.
At that time Respondent’s annual grain
through—put
(AGT) was 11,400,000 bushels.
6.
Respondent’s aforesaid operating permit was
subsequently renewed by the Agency on or about June 12,
1979 for
a one year period.
7.
On or about June 2, 1980 the Agency again renewed
Respondent’s aforesaid operating permit, with an expiration date
of May 28,
1985.
8.
Prior to each renewal of Respondent’s aforesaid
operating permit the Agency determined that the Respondent’s
facility met the exemption requirements of 35 Ill.
Adin. Code
§212.461(c).
9.
The permit for the Respondent’s facility was issued
on the basis of an AGT of 11,400,000 bushels.
On September 2,
1982 the Agency determined the Respondent’s facility ACT to be
17,000,000 bushels, an increase over the permit ACT of in excess
of 30.
Respondent’s records for the applicable period reflect a
3—year average ACT of 15,920,000 bushels, an increase of in
excess of 30
over the permit AGT.
-2—
74-356
10.
35 Ill.
Adm.
Code §212.462(a) provides that an
increase in AGT in excess of 30
of the AGT on which a facility’s
operation’s original construction and/or operating permit was
granted shall be considered a “modification” of the facility’s
equipment and emission sources.
Such modification causes
existing sources previously permitted under Section 201.144 to
become “new emission sources” as defined by 35 Ill. Adm. Code
§201.102, thereby requiring
the
permittee to apply for a new
construction and operating permit pursuant to 35 Ill.
Ad.m. Code
§201.143 and install control equipment or demonstrate equivalent
control.
Moreover, once the Agency advises a permittee
(previously exempted from the applicable control requirements by
virtue of Section 212.461(c)) that there is a certified
investigation on file with the Agency indicating that there is an
alleged violation against the facility’s operation, said
permittee is required to apply for the Section 201.143 permit
within sixty
(60) days
(see 35
Ill. Adm. Code §212.461(d)).
11.
On or about September 27,
1982, the Agency,
in
accordance with Section 212.461(d), notified the Respondent that
a certified investigation was on file with the Agency indicating
that there was an alleged violation against Respondent’s
operation,
i.e., an ACT increase in excess of 30
of the ACT upon
which Respondent’s original permit was based.
12.
In line with its September 27,
1982 notification,
the Agency informed Respondent that the 30
AGT increase
triggered the repermitting provisions of Section 212.461(d), and
that the duration of Respondent’s current permit was not
relevant.
Accordingly, the Agency advised Respondent that the
—3-
74-357
latter was required within sixty
(60) days after its receipt of
said notification and pursuant to Section 212.461(d),
to apply
for a construction and operating permit issued under Section
201.143 for al.
sources and equipment at its facility, and which
included a compliance plan and project completion schedule for
complying with the standards and limitations of Section 212.462
or 212.463 or both.
13.
In correspondence to the Agency dated January 12,
1983, Respondent did not contest the Agency’s 30
ACT increase
determination.
Respondent, however, advised the Agency that it
disagreed with the Agency’s interpretation of the effect of the
30
AGT increase.
Specifically, Respondent took the position
that its current permit “grandfathered” the application of
Section 212.461(d)
until such time as that permit expired,
i.e.,
that the Respondent was not legally required to apply for
a
Section 201.143 construction/operating permit and meet the
control requirements of Sections 212.462 and/or 212.463 until
such time as its current permit expired (May 28,
1985).
14.
The dispute between the Agency and Respondent may
be characterized as presenting a legal issue calling for the
proper interpretation of the above referenced regulations upon a
set of agreed upon facts:
where a facility is issued an original
operating permit in accordance with Section 201.144 pursuant to
Section 212.461(c)
and thereafter an ACT increase in excess of
30
upon which the facility’s original permit was issued occurs
causing a “modification” of the facility,
(1)
is the facility’s
operator required to apply for a Section 201.143
construction/operating permit (including the submission of a
-4—
74-358
compliance plan for the requirements of Sections 212.462 and/or
212.463) within sixty days of Agency notification of said
modification,
all as set forth in Section 212.461(d), and
regardless of whether the modification occurs prior to the
expiration date of the original permit
(Agency position), or
(2),
may the facility’s operator continue to operate the facility
pursuant to its original permit (and exempted Section 212.462 or
212.463 or both standards and limitations) until such time as the
original permit expires,
and only thereafter be required to apply
for a Section 201.143 permit and compliance program (Respondent
position).
15.
Before this dispute was resolved, Respondent
developed a control system for the emissions from its facility
that the Agency agreed met the requirements for grain handling
and drying facilities under the Board’s regulations.
Respondent’s system basically entails the application of mineral
oil to the grain as it is removed from the receiving dump pit.
(A more detailed description of Respondent’s system is attached
hereto as Exhibit A.
IEPA determined such system to be an
equivalent control system under 35 Ill.
Adin. Code §212.462(b) (2).
Based upon that system, on July 11,
1985, Respondent applied for
a permit from the Agency in accordance with 35 Ill. Adm. Code
§201.143, which the Agency issued on August 12,
1985;
a copy of
said permit is attached as Exhibit
B.
Accordingly, the dispute
between the parties, for purposes of future compliance with the
grain regulations,
is moot.
On or about November
1,
1985,
Respondent transferred its interest in this facility to the
Archer Daniels Midland Company.
—5—
74-359
16.
At no time since September 2,
1982,
(the date that
the Agency determined a 30
AGT increase had occurred and hence
the date a Section 201.143 permit was required) to and including
July 11,
1985, did the Respondent apply for, nor did the Agency
issue,
a Section 201.143 construction and operating permit as
required by Sectin 212.461(d)
for the sources and equipment at
Respondent’s facility, nor did the Respondent install air
pollution control equipment on its barge load-out spout in
accordance with 35 Ill. Adm. Code §~212.462(d)(3) (A) and
212.462(b) (1) (B) respectively.
Proposal
for
Settlement
A.
Given that Respondent’s facility is now permitted,
a
proper equivalent control system has been installed (Exhibit B)
and further that the facility has been sold to a third party,
no
further actions by Respondent are deemed necessary in order to
meet the permit and emission control requirements of the Board’s
air pollution control rules and the Illinois Environmental
Protection Act.
B.
The Agency and Respondent agree that a monetary
penalty in the amount of Seven Thousand Five Hundred Dollars
($7500.00)
will aid in enforcement of the Act for the violations
alleged in the Complaint; accordingly, Respondent agrees to and
shall pay a civil penalty of $7500.00.
Said penalty shall be
paid within thirty
(30) days of the order of the Board accepting
this stipulation.
Payment shall be made by certified check or
money order payable to the Environmental Protection Trust Fund
and delivered to:
—6—
74-360
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, illinois
62706
C.
The parties agree that the Statement of Facts set
out above provides sufficient basis for the Board to find
violations exist and to impose
the agreed penalty.
D.
This proposal is submitted to the Board for approval
under Section 103.180 as one integral package, and the parties
respectfully request the Board to enter its final order approving
the entire settlement.
All admissions and statements made herein
are void before any Judicial or Administrative body if the
foregoing settlement agreed to by the parties is not approved by
the Board.
If the Board should reject any portion thereof, the
entire Settlement and Stipulation shall be terminated and be
without legal effect, and the parties shall be restored to their
prior position in this litigation as if no Settlement and
Stipulation had been executed, without prejudice to any parties’
position as to any issue or defense.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DATE:______________________ BY:____________________________
,.Tosep
Svoboda, Manager
E fo
ement Programs
I
INOIS
ATTORNEY GENEPAL
DATE:________________
BY:____________________
Robert V. Shuff,
Jr.
\
First Assistant Attorney General
DATE:
i~4~Ji~
BY
—7—
74-361
