ILLINOIS POLLUTION CONTROL BOARD

March 17, 1977

PEOPLE OF THE STATE OF ILLINOIS,

)

cx rel.

WILLIAM

J.

SCOTT, ATTORNEY

GENERAL OF THE STATE OF ILLINOIS,

)

Complainant,

)

v.

)

PCB 76—100

BRIGHTON BUILDING AND MAINTENANCE

)

COMPANY,

a Delaware corporation,

)

WESTERN ASPHALT PAVING COMPANY,

an

Illinois corporation, WESTERN ASPHALT

MANUFACTURING COMPANY, an Illinois

)

corporation, LANGHORNE BOND,

as

)

Secretary of the Illinois Department

)

of Transportation,

Respondents.

~)

Mr. Marvin Medintz, Assistant Attorney General, appeared for the

Complainant;

Messrs. Clifford L. Weaver and Christopher J. Duerksen, Attorneys,

appeared for Respondent Illinois Department of Transportation;

Mr. Warren Fuller, Attorney, appeared for Respondents Brighton

Building and Maintenance Company, Western Asphalt Paving

Company, and Western Asphalt Manufacturing Company.

OPINION AND ORDER OF THE BOARD

(by Mr.

Zeitlin):

This matter is before the Board on an Enforcement Complaint

filed by the Attorney General

on April

13,

1976, alleqinq violation

by

the

variou~

Respondents

of

§9(a)

of the

EnviroiimenLal

Protection

Act

(Act)

and

RuJe

102 of Chapter

2:

Air

Pollution,

of

this Board’s

Rules and Rejulations.

Ill.

Rev. Stat.,

Ch.

111—1/2,

§1009(a)

(1975);

Ill. PCB Regs.,

Ch.

2,

§102(1976).

Those violations were alleged

to have arisen as a result of activities undertaken

in connection

with the resurfacing of Interstate Route 55

(Stevenson Expressway)

near its junction with Halsted Street,

in Chicago,

and to have

involved the emission of “vast quantities of black smoke containing

enormous quantities and concentrations of particulate matter.

.

.

At

a hearing held

in Chicago on December

10,

1976,

no testimony

or evidence was introduced, but the parties submitted a Stipulation

and Proposal for Settlement

(Stipulation), which forms the basis

for this Opinion and Order.

No comments were received from the

public.

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The Stipulation indicates that the alleged emissions occurred

as the result

oLc

bridge deck resurfacing

on the Stevenson Expressway

near Haisted Street.

Under a cont~actawarded by the Illinois

Department of Transportation, the corporate Respondents in this

matter were using

a “heater—planer’t technique

to soften and remove

the top asphalt layer and the middle coal-tar layer from the existing

roadway,

so that new layers of material could be substituted.

A

heater—planer

(gas or oil—fired)

consists of a heating chamber with

burners underneath through which heat and flame are transmitted to

the roadway,

softening the asphalt and coal-tar.

On or about April

12, 1976,

overheating in the heater—planer

operation caused incomplete combustion of the underlying materials.

Although the Stipulation contains no admission of violation,

it is

stated that this overheating did cause black smoke and particulate

matter

to be emitted,

(Stip,,

¶8).

Although Complainant contends

that

a causal relationship exists, the parties did not agree in the

Stipulation that there was any connection between those emissions

and high ambient air quality readings for particulate matter between

April

12, 1976 and April 15,

1976,

(Stip.,

¶9).

On April 14,

1976,

however, the Department of Transportation did notify the private,

corporate Respondents in this matter to use an alternate method for

repairs on the Stevenson Expressway.

Although the parties agreed that no method was known

to the

Department of Transportation prior to that time,

an alternate metho~1

(“the autograder”), costing $68,250.00, was obtained by the corporate

Respondents.

The alternate method involved no combustion, with no

resulting emissions.

In settlement of the matter,

the parties uniformly agree that

the public interest would not be served by further litigation.

AlthougJ

no violation is admitted, the corporate Respondents have agreed that

in order to prevent any possible violation in the future,

the following

actions will be taken:

I

.

IIc’a L ~r—fdaners wi I

E

be

used

I

or

br id;~

(I(’Ck

‘pair

()H

ly

wht~ii

a

I

~tn~it

IV(’

c~qtnj)Iu(’nI

i~

n1

aV~1i

1ihlv.

2.

Heater-planers which are used shall be designed

and operated so as to minimize emissions.

3.

All heater—planer operators will be instructed

in operation methods, and will also be instructed to cease

the use of heater—planers whenever smoke or particulate

matter exceeds

30 per cent opacity for more than one

minute, or for more than four minutes

in the aggregate

in any 60-minute period.

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92

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While the Department of Transportation similarly does not agree

that a violation actually occurred,

it has agreed

to the following

actions

to prevent any possible f~itur~violations:

1.

A specific provision requiring contractor

compliance with the Act and the rules adopted thereunder

will be included in its next revision of Standard Speci-

fications for Road and Bridge Construction.

2.

A similar provision will require that all

equipment utilized in the removal of roadway surfaces or

waterproofing membranes meet, and be operated

so as not

to exceed,

a visual limitation of

30 per cent opacity

(or Ringelmann I),

as described above.

Finally, the parties ask that the Board dismiss this case upon

acceptance

of

the

Stipulation.

The Board has consistently held that it has a special interest

in cases brought before it, and that

it must pass upon any settle-

ment among parties to such action.

See, ~e.g., GAF Corp.

v. EPA,

PCB 71—li,

5 PCB 525

(1972).

However,

“we have consistently afforded

considerable latitude to the adversary parties in achieving

a consent

order that resolves the controversy and provides for adequate future

control

of pollution without further expensive litigation, provided

that the settlement

is not such

as to encourage disregard

for the

law by grossly underpenalizIng past defaults.”

EPA v. City of

Silvis,

PCB 71-157,

5 PCB 205

(1972).

Although there is no penalty provided

by

the settlement

in this case, nor even a finding of violation,

we

find

that

the requirements for settlement adequacy have been met.

It

is clear that the changes of procedure,

by both the private,

corporate Respondents and the State Department of Transportation,

should serve to alleviate any such problems

in the future.

Accept-

ance of the Stipulation, besides preventing future problems with these

Respondents, will encourage compliance by other,

similarly situated,

respondents.

The Department of Transportation’s inclusion

in its

Standard Specifiu~t.ioxisfor Road

and

flr:idtjt? CoiwLiuci ion oL

provisions

requirinq compliance will be of considerable

help

in the enforcement

of

the

Act, and in obtaining

its goals.

We accept the Stipulation and Proposal for Settlement, and our

Order shall read accordingly.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

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ORDEP

IT

IS THE ORDER OF THE POLLUTION CONTROL BOARD that the Stipu-

lation and Proposal for Settlement submitted by the parties to this

matter be accepted; accordingly,

the instant matter

is dismissed,

conditioned upon compliance by all parties to this matter with all

terms and conditions

thereto.

~1r.Jacob Dumelle dissents.

1, Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the

L~’

day of

_________

1977,

by a vote of

~_/

Christan

Clerk

Illinois Pollution Control Board

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