ILLINOIS POLLUTION CONTROL BOARD

September 15, 1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

V..

HARRY L.

MASON

and MELVYN

H.

 MEENTS,

as individuals, d/b/a MASON

 & MEENTS

CONSTRUCTION COMPANY, and other

unknown others,

)

Respondents;

)

 PCB 75-205

PCB 76—75

HARRY L.

MASON

and MELVYN H.

 MEENTS,

)

 (CONSOLIDATED)

d/b/a MASON

 & MEENTS CONSTRUCTION

COMPANY,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Messrs.

 Steven Watts and Russell

 R. Eggert, Assistant Attorneys

General, appeared for the Complainant;

Mr. Larry Lessen, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

 (by Mr.

 Zeitlin):

PCB 75-205,

 an Enforcement action, was commenced on May 16,

 1975,

when the Environmental Protection Agency

 (Agency)

 filed a Complaint

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(Mason & Meents)

 That Complaint alleged,

 in three Counts, that

Mason

 & Meents had operated a continuous-mix asphalt concrete plant

in violation of

the

particulate emission limitations of Rule 203(a)

of Chapter

 2: Air Pollution,

 of the Board’s Rules and Regulations;

had violated Rule 103 (b) (7)

 of Chapter

 2 by failing

 to comply with

certain special conditions relating to stack testing in an operating

permit issued

by

the Agency on April

6,

 1973;

 had operated without

a permit,

 in violation of Rule 103(b) (2)

 of Chapter

2,

 from Feb.

1,

1973 until the date the Complaint was filed; and had during the same

period, violated the permit requirement of Section

9(b)

 of the

Environmental Protection Act,

 Ill. Rev.

 Stat., Ch. 111-1/2, §1009(b)

(1975)

 (The period from April

6,

 1973 until August

6,

1973

was

omitted from the alleged Rule 103(b) (2) violation;

 that period was

covered by an operating permit issued April

6,

 1973, whose special

condition was alleged to have been violated.)

—

435

—2—

PCB 76—75,

 a Permit Appeal, was filed by Mason

 & Meents on

March 17,

 1976.

 The Petition in that case alleged that the Agency

had wrongfully failed to issue Mason

 & Meents an operating permit

for the equipment whose operation was the subject of the Enforcement

matter, PCB 75-205.

Mason

 & Neents filed a Motion for Consolidation of these two

cases on March

17,

 1976.

 On March 25,

 1975,

 the Board entered an

Interim Order consolidating the two cases,

 that consolidation being

conditioned upon receipt of a waiver of the statutory decision time

in PCB

 76-75.

 The required waiver was filed on April

9,

 1976.

A hearing was held on May 26,

 1976,

 in Watseka, Illinois.

At

that time the parties orally indicated their intent to file a signed

Stipulation and Settlement Proposal

 (Stipulation)

 to resolve both

of these cases.

 That Stipulation,

 filed with the Board on July 29,

1976, and a Joint Motion to Amend Stipulation and Settlement Proposal

filed on August 11,

 1976 form the basis for this Opinion and Order.

Mason

 & Meents own and operate an asphalt plant located approxi-

mately five miles east of Cullom,

 Illinois, in Ford County.

 The raw

materials used at the Mason

 & Meents plant consist of stone,

 sand,

mineral filler and asphalt, with resulting particulate emissions

generally described as aggregate dust.

 (PCB 76-75, Pet.,

2.)

 Since

1973 Mason

 & Neents have apparently

 (see Agency permit record,

 filed

April

28,

 1976) conducted several stack sampling procedures which

the Agency found inadequate.

 The crux of the parties’ differences

on this issue seems to have been the number of consecutive days’

sampling to be submitted.

 (See,

 Id.,

 and PCB 76-75, Pet.,

 4.,)

Under the Proposed Settlement in this case, Mason

 & Meents

admits it violated the special condition concerning sampling in

the April

6,

 1973 permit described above.

 Respondent further admits

that, except for the period covered by that permit,

 it has operated

its emission source without an operating permit in violation of

 §9(b)

of the Environmental Protection Act

 (Act)

 and Rule 103(b) (2)

of

Chapter

2.

 Ill.

 Rev.

 Stat.,

 Ch. 111-1/2, §1009(b)

 (1975);

 PCB Regs.,

Ch.

2:

 Rule 103(b) (2)

 (1972).

 By way of settlement, Mason

 & Meents

agrees that it will perform the stack testing requested by the Agency

no later than September 17,

 1976.

If that stack sampling indicates that Mason

 & Neents is operating

in conformance with Rule 203(a)

 of Chapter

 2, Mason

 & Meents further

agrees to submit an appropriate operating permit application,

and

the Agency agrees that the permit will be issued.

 If the agreed

upon sampling does not indicate compliance with Rule 203(a), Mason

&

Meents agrees to apply to the Agency for a construction permit to

install control equipment which will enable compliance with Rule 203(a)

by June

1,

 1977;

 the Agency agrees to issue that permit,

 if necessary.

—

436

—3-.

With regard to Mason

 & Meents’ admitted violations,

 a civil

penalty of $1,250 has been agreed to.

 In addition, Mason

 & Meents

has agreed to dismiss the Permit Appeal, PCB 76-75.

Although no mention is made

 in the Stipulation of the alleged

particulate emission limitations violation of Rule 203(a), we none-

theless find the Stipulation here acceptable.

 It is apparent that

the parties

 feel that stack testing will disclose that Mason

 & Meents’

operations are within the limitations of Rule

 203.

 Even

 if those

operations are not within the Rule 203(a)

 limits,

 the Stipulation

provides

 for compliance within less than one year.

 Since Mason

&

Meents may now be in compliance,

 and since Mason

 & Meents alleged

in the PCB 76-75 Petition

 (p.4)

 that its plant has operated an average

of only

 20 days per year over the last three years,

 it seems unlikely

that there will be any adverse environmental impact from our approval

of this Settlement.

Pursuant to the Stipulation, we shall dismiss PCB 76—75.

As

a result of the parties’

 failure to address the issue,

 we shall

dismiss Count

 I of PCB 75—205

 (alleging violation of Rule 203(a)),

without prejudice.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT

 IS THE ORDER OF THE POLLUTION CONTROL BOARD that:

1.

 Respondents Harry L.

 Mason and Melvyn

 H. Meents, doing

business as Mason

 & Meents Construction Company, are found to have

operated an asphalt plant

 in Ford County,

 Illinois,

 in violation of

Section

 9(b)

 of the Environmental Protection Act and Rules

 103(b) (2)

and 103(b) (7)

 of Chapter

 2: Air Pollution,

 of the Board’s Rules and

Regulations.

2.

 Respondents shall pay as a penalty for the above violations

the sum of One Thousand Two Hundred Fifty Dollars

 ($1,250.00),

 payment

to be made within thirty

 (30)

 days of the date of this Order, by

certified check or money order to the following:

Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

 Illinois

62706

3.

 The Stipulation and Settlement Proposal submitted by the

parties to this matter,

 as amended,

 is hereby approved and incorporated

as part of this Order.

 The parties shall comply with all terms

thereof in a timely manner.

23—437

4.

 Case PCB 76-75 is dismissed without prejudice.

5.

 Count

 I of the Complaint in PCB 75—205,

 alleging violation

of Rule 203(a)

 of Chapter

 2: Air Pollution,

 is dismissed.

I, Christan

 L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certif

th

 above Opinion and Order we

e

adopted

 on the )~~“day of

___________

 1976,

by

 a vote of

-O

Christan

 L. Moffet

 ,~fr~1erk

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—

438