ILLINOIS POLLUTION CONTROL
    BOARD
    May 23,
    1974
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    vs.
    )
    PCB 72—270
    MARBLEHEAD LIME COMPANY,
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Henss)
    Respondent Marblehead Lime Company owns and operates a
    limestone processing plant near Marblehead in Adams County,
    Illinois.
    The Environmental Protection Agency on June
    30,
    1972 filed Complaint alleging that Respondent had caused the
    excessive discharge of particulates in violation of Rule 3-3.111
    of the Rules and Regulations Governing the Control of Air
    Pollution, had caused air pollution in violation of Section 9(a)
    of the Environmental Protection Act, and had failed to submit a
    program for the control of air contaminants in violation of
    Rule 2—2.41 of the Rules.
    The parties and numerous witnesses appeared for public
    hearing on January
    29,. 1973.
    Prior to the conunencement of
    the hearing, attorneys for Complainant and Respondent informed
    the Hearing Officer that an agreement had been reached.
    The
    settlement had not been reduced to writing in a final
    form, but
    the attorneys explained the basic agreement to the hearing
    officer and about 15 members of the public who were present.
    The hearing was adjourned with the understanding that
    a written
    Stipulation of Facts as well as certain exhibits would be
    submitted to the Board.
    Because of a long delay in the submission of the Stipulation
    the Board on January 10,
    1974 ordered that the case be set for
    hearing either on the Stipulation or on the merits absent a
    stipulation.
    Subsequently, Respondent Marblehead Lime Company filed its
    Motion to Dismiss this proceeding.
    Complainant did not respond
    to the Motion to Dismiss.
    Marblehead Lime states that pursuant
    to oral agreement the Company had undertaken a program to improve
    12
    —
    317
    —2—
    its facilities and operations at the limestone processing plant
    in order to reduce the emission of particulate matter.
    It is
    claimed that Respondent completed substantially all the work
    called for in the program and on October
    1, 1973 because of a
    fuel shortage the plant began shutdown.
    Shutdown was completed
    on November 1,
    1973.
    Respondent states that the plant remains
    closed to the date of the filing of the Motion, March 4,
    1974.
    Respondent further states that on December
    10,
    1973
    Respondent f~rwardedto the Complainant a form of written
    Stipulation and Proposal for Settlement.
    It is reported that
    Complainant objected
    to the Stipulation but the specific objection~
    have not been revealed to Respondent~sattorney.
    Marblehead
    Lime
    now requests that we enter an order requiring that the Company
    refrain from causing air pollution at its plant in Marblehead,
    Illinois “if that plant is ever reopened” and dismissing this
    proceeding without penalty and with prejudice.
    The entry of a cease and desist order,
    a finding that
    no
    penalty
    is to be assessed and the termination of this proceeding
    with prejudice
    it seems. to us
    is
    not justified by the
    record.
    The record neither proves nor disproves the allegations
    of
    excessive emissions and air pollution,
    There is no evidence
    whatsoever from which we could determine that the Respondent
    should pay a penalty or should be relieved of that possible
    burden.
    The record
    is
    inadequate
    £or us
    to make a decision
    on
    the
    merits
    of
    the case~
    We believe
    it
    is a fair inference, however, that the
    prosecutor has lost interest in the matter.
    The failure to
    conclude this matter
    by
    stipulation or hearing and the failure
    to even
    respond to Respondent’s current motion constitute a
    failure
    to
    prosecute
    and justify
    the dismissal of this case.
    it
    is Ordered
    that
    the above entitled action be dismissed
    without
    prejudice.
    I,
    Christan
    L.
    Moffett,
    Clerk
    of the Illinois
    Pollution Control
    Board,
    hereby certify
    the above
    Opinion and Order wa
    adopted.
    ~this~
    of
    1974
    by a vote of ______toO.

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