ILLINOIS POLLUTION CONTROL BOARD

October 1~. 1983

CONTINENTAL

GRAIN

COMPANY,

Petitioner.

V.

)

PCB 79—167

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

MR. GREIC

R.

SIEDOP’,

ASSISTANT

ATTORNEY

GENERAL,

APPEARED ON

BEHALF

OF

THE

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

MR.

ROY

N.

HARSCH,

MARTIN,

CRAIG,

CHESTER

&

SONNENSCREIN,

APPEARED ON

BEHALF

OF

THE

CONTINENTAL

GRAIN

COMPANY.

OPINION

AND

ORDER

OF

THE

BOARD

(by

JD.

Dumelle)’

This

matter

comes

before the Board upon an August 17.

1979

operating permit appeal

filed on behalf of the Continental Grain

Company

(Continental).

On June 5~ 1979. Continental requested

that the Illinois Environmental Protection Agency (Agency)

issue

a permit to operate

a grain elevator located

in

St. Clair County.

The Agency denied that request on July

3.

1979.

It

is that

denial which

is at issue here.

Hearing was held on January 13.

1983,

at which the parties~ hut no members

of

the public, appeared.

Continental presented only one witness~ Richard Kohetz.

and the

Agency presented none.

Continental owns and operates

a grain elevator

located in

the City

of East

St.

Louis for which the operating permit at

issue here was requested.

The Agency denied that permit on the

basis that Continental failed to demonstrate compliance with

Section 9(a)

of the Illinois Environmental Protection Act (Act)

and Rules 203(d)(8)(C)(i)(c).

203(d)(8)(C)(ii)(a)(3)

203(d)(8)(C)(iii)(c) and 203(d)(8)(C)(iv)(c)(2)

of

Chapter 2~Air

Pollution.

Continental

argues, however, that Rule

203(d)(8)(D)

exempts

its East St. Louis facility from those rules

since they

apply only to grain handling facilities

located in Ma~orPopulation

Areas

(MPAs).

According to Rule

201, the following townships located

in

St. Clair county

are

in

an NRA’

Stites,

Canteen. Centreville.

Caseville,

St. Clair, Sugarloaf and Stookey.

Continental contends

that the site is located

in East St. Louis Township and is exempt.

The Board’s decision rests on the

single

legal

issue of whether

Continental’s facility is located within an NRA.

54-227

---

—2—

The Board has previously considered this identical issue in

an associated enforcement case

(PCB 79—26,

35

PCB

319,

September 6,

1979)

and

Continental

has

presented nothing to justify reaching

a contrary result here.

It argues that several rules of statutory

construction

serve to exclude East St. louis Township from

any

MPA

and

that

any

attempt

by

the

Board

to

include

it

absent

a

new

regulatory

proceeding

would

be

a

void

act.

The Board agrees with the Agency, however, that the rules of

construction have

been

developed so as to discern

the

intent

of

the

law-making body.

The Board holds that its intent in Rule 201

was to include East St. Louis Township as part on an MTh.

That

such was the intent is made clear from the discussion in the

original opinion in support of the grain-handling and grain—drying

rules

(R72—18, 17 PCB 335,

June

13, 1975).

There, the Board

discusses the need for stringent grain—handling regulations uin

areas where the air quality is of concern

and

where the population

is most dense.’

The Board also discusses the percentage of the

population in major metropolitan areas

which

are also in tWAs.

Those discussions and the figures presented only make sense if

East St. Louis Township is included in an MPA and was intended

to be so included. Further, East St. Louis is completely sur-

rounded by the listed Nfl townships (except for that side

which

borders the Mississippi River) and, apparently, was inadvertently

omitted from plat books upon

which

the Agency relied in pro-

posing these rules

(see Cont.

Itt.

7).

As stated in the

PCB

79—26

Opinion, ‘it

would

be contrary to the intent of the rule to exclude

a region of high population density

from

the center of the major

population area.’

The

use

of

township

names

to

denote

areas

of

applica-

bility

is

perhaps

not

the

best

technique.

Township

boundaries,

and

even

names,

can

change.

There

are

congressional

or

survey

townships,

political

townships,

and

school

townships

which

are

often

distinct from one another. Despite its shortcomings,

the Board in R72—18 determined that a township listing should

be

used

in

order

to

assist

in

demarcating

the

affected

area.

That

some

difficulty

in

interpretation

has

arisen

is

unfortunate,

but for the reasons stated in the Board’s PCB 79—26 Order as well

as those advanced by the Agency, East St.

Louis Township must be

considered part of the MPA and Continental must, therefore,

show

compliance with the grain-handling rules applicable to MPAs in

order to be issued an operating

permit.

It has not done so, and

the

Agency

properly

denied

such

a

permit.

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclusions of law in this matter.

54-228

---

*3

—

ORDER

The Illinois Environmental Protection Agency’s July

3,

1979

denial of an operating permit applied for by the Continental

Grain Company is hereby affirmed.

IT IS SO ORDERED.

I,

Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby cepify

that the abov~.qpinionand Order

was adopted on the

I~1

day of

~

l983byavoteof

~

Christan L. Moff~t~~i’~rk

Illinois Pollution ~ontrol Board

54-229