ILLINOIS POLLUTION CONTROL

BOARD

November 11, 1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

PCB 71—231

REESE CONSTRUCTION COMPANY

Mauricio Dominguez, Soecial Assistant Attorney General, for the

Agency

William Stiehi, for the Reese Construction Company

Opinion of the Board (by Mr. Kissel):

On August 11, 1971, the Environmental Protection Agency (the

“Agency’~) filed a complaint against the Reese Construction Company

(“Reese~) alleging that Reese had installed an asphalt plant near

Greenville, Illinois without first obtaining a permit from the

Agency as required by the Environmental Protection Act, Section 9(h)

and the Rules and Regulations Governing the Control of Air Pollution,

Rule 3-2.110. A hearing was scheduled and held on October 15, 1971

in Greenville before Gary Coffey, Hearing Offioer~ On the date of

the hearing, the parties read a stipulation into the record, which

stipulation contained the following relevant facts:

1. Reese began construction of its asphalt plant

on or about April 13, 1971;

2. On or about May 4, 1971, Reese wrote to the Agency

for forms to fill out for an installation permit

application, but he received no response, so he

wrote again on May 27, 1971;

3~ On May 25 Reese was visited by an Agency employee

who advised Reese how to fill out the forms;

4. The permit application was submitted on or about

June 3.. 1971, and after an inspection by the

Agency on June 9, 1971, the permit was issued

to Reese on June 21;

5. The plant began operation on July 12, 1971, and

completed operation on August 10, 1971; and

3

—

65

---

6. The operation of the plant with the installed

emission control equipment would not cause a rate

of emission of contaminants into the atmosphere

in excess of the maximum allowable rates set

forth in the applicable regulations.

Testimony in the record showed that the plant involved here

was a rnoveable asphalt plant. The plant had been installed and

was operating at other locations in Illinois. The custom in this

business is to operate the plant near where the asphalt is needed

for roads, etc. The Agency had issued permits for the installation

and operation of this plant at the other locations.

The sole issue in this case is whether Reese violated the

law when it failed to obtain an installation permit before begin-

ning the installation of the plant at Greenville. The applicable

regulations reads as follows:

“A oermit shall be required from the Technical

Secre-

tary

for installation

or construction of new equipment

capable of emitting air contaminants into

the

atmos-

phere and any new equipment intended for eliminating,

reducing or controlling emission of air contaminants.”

Rule 3--2.ilO, Rules

and

Regulations Governing

the

Control of Air Pollution.

“New equioment”

is

defined as “equipment~ the

design of which was

less

than 50 completed on April 15, 1967, It is clear from the

regulation

that if

the asphalt

plant owned by Reese was “new

equioment” as defined that an installation permit was required,

and as admitted

by Reese,not obtained until construction had begun.

We have said before that the permit for installation must be

obtained before construction is started because

the Agency must

evaluate whether the chosen site is one on which

the plant should

he constructed.

If

a person begins installation

before applying

for a

permit, this puts the Agency in an awkward position because

if it denies the permit, the person would have already spent money

and time in a non—productive effort. This, of course, could be

financially harmful to the person

who

would then be required to

tear

down what he had already begun constructing. Thus, the

requirement that the permit be applied for and received prior to

construction begins is really a protection for the person construct-

ing the facility as well as for the State.

3—

66

---

Now the question of whether this is new equipment. While

the record is clear that the asphalt plant was in existence

before April 15, 1967, we still feel that the asphalt plant here

was “new equipment” as contemplated by the regulations. Here

each time the plant is moved it must be “designed” for the new site

and therefore its design was not “50 completed on April 15, 1967”

as required by the regulations. In addition, equipment which has

been used, then not used for a period, should be regarded as new

equipment, if there is an attempt to use it again, for the reason

that the layoff may cause some faults in the equipment itself.

It is good practice for the Agency to have some control over this

type of equipment, and we feel that this was the intent of the

regulations.

We agree that in this particular case Reese did not commit

a serious violation because the Agency admitted that the emissions

from the plant when in operation were within the regulations and

because Reese did not operate the plant until it had received a

permit. But violations of the law cannot go unpunished, and we

therefore will impose only a nominal penalty on Reese for its

failure to apply for an installation permit before beginning the

installation of its plant.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

ORDER

Based upon the stipulations, testimony and exhibits in the

record, the Board hereby orders Reese to pay a penalty to the State

of Illinois in the amount of $100 for the violations cited in the

opinion.

I, Christan Moffett, Acting Clerk of the Illinois Pollution

Control Board, certify that the Board adopted the above Opinion

and Order on this

//

day of November, 1971.

1~ /

Christan

Acting Clerk