ILLINOIS POLLUTION CONTROL BOARD
March 26,
1992
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
Complainant,
)
?CB 91-192
(Enforcement)
v.
)
PRAIRIE MATERIAL SALES,
INC.,
)
Respondent.
ORDER OF THE BOARD
(J. Anderson):
This matter comes before the Board on motions for summary
judgment filed by both parties.
Prairie Material Sales filed its
motion for summary judgment on October
9,
1991.
The People
responded and filed their motion for summary judgment on January
8,
1992.
Prairie Material Sales responded on March 2,
1992.
The
Board granted extensions of time to file and leave to file
instanter on November 7,
1991,
January
9,
1992, and January 23,
1992.
As a preliminary matter, the Board must dispose of
a March
6,
1992 motion to strike filed by the People.
The People request
that the Board strike Prairie Material Sales’ March
2,
1992
“Response to Complainant’s Motion for Summary Judgment and Reply
to Complainant’s Response to Respondent’s Motion for Summary
Judgment.”
The People assert Section 103.140(c)
of our
procedural rules as a basis for striking this filing.
That
provision allows the filing of a reply only with leave of the
Board.
The Prairie Material Sales March 11,
1992 response to
this motion basically contends that the only basis that the
People assert for striking the filing is the caption of the
filing—-i.e., the use of the word “reply”.
Without downplaying the importance of selecting the proper
wording of captions on all filings so the Board can readily
ascertain the nature of the pleading, and without downplaying the
importance of obtaining leave to file a reply brief,
the Board
hereby denies the People’s motion to strike.
This matter has
taken on a unique posture since the People requested summary
judgment on the same issue as did Prairie Material Sales.
First,
Prairie Material Sales filed its motion for summary judgment.
Then the People filed their response, which included a counter—
motion for summary judgment——on one of the very two bases for
summary judgment raised by Prairie Material Sales.
This means
that any responsive filing to the People’s motion would almost
inevitably take on some character of ~areply:
it would
necessarily argue that summary judgment is appropriate, but on
the basis originally asserted, rather than on the basis asserted
by the People.
A ~review of the challenged Prairie Material Sales
131-~5O1
2
“response and reply” further supports this conclusion.
There is
no “bright line” delineating responsive and reply arguments in
this filing.
Rather,
it basiOally posits that summary judgment
is inappropriate in favor of the People because it is appropriate
in favor of Prairie Material Sales.
For these reasons, the Board hereby denies the People’s
motion to strike the March
2,
1992 filing by Prairie Material
Sales.
The Board hereby grants leave to file that document
instanter to the extent is can be considered a reply and not a
response.
The Board will now turn to the more substantive
aspects of the motions for summary judgment.
As stated in Williamson Adhesives,
Inc.
v.
EPA, No. PCB 91-
112
(Aug.
22,
1991),
“Summary judgment is appropriate where there
is no genuine issue of material fact based on the affidavits,
admissions, pleadings,
and other items
in the record.”
Williamson Adhesives at 1-2
(citing Caruthers v. B.C. Christopher
& Co.,
57
Ill.
2d 376,
380,
313 N.E.2d 457,
459
(1974)
and Ill.
Rev. Stat.
1989 ch.
110, par. 1005(d)).
It is necessary
to~
examine the nature of the complaint and the facts presented by
the pleadings in order to dispose of the motions for summary
judgment.
The October
9,
1991 complaint includes two counts.
The
first count alleges that Prairie Material Sales constructed an
emissions source without a permit,
in violation of ‘Ill.
Rev.
Stat.
1989 ch.
111½, par.
1009(a) and
(b)
and 35 Ill. Adm. Code
201.142.
The second count alleges that Prairie material Sales
operated an emissions source without a permit, in ‘violation of
Ill.
Rev.
Stat.
1989 ch. 111½,
par.
1009(a) and
(b) and 35 Ill.
Adm. Code 201.143.
A careful review of the admissions, pleadings,
and other
items
in the record in this matter discloses that some material
issues of fact exist on many of the issues raised.
Therefore,
summary judgment is warranted only in part,
and a denial is
warranted in part.
The Prairie Material Sales facility is located in Batavia,
in Kane County.
Fox Valley Concrete (not a party to this
proceeding)
constructed it around 1979.
Fox Valley Concrete
filed for a construction permit for construction of the plant on
June 27,
1979.
Construction was to begin on about July
1,
1979
and end on about August 1,
1979.
A five—year operating permit
issued on February 11,
1981.
Prairie Material Sales acquired the
plant by purchase from Fox Valley Concrete on about May 17,
1982.
Prairie Material Sales filed for construction and operating
permits for the boiler on about March
8,
1991,
and an operating
permit issued on March 27,
1991.
(Prairie Material Sales
December 9,
1991 Answer at 1-2; Prairie Material Sales December
9,
1991 motion for summary judgment at 3-5
& attached affidavit;
131—502
3
People’s January 8,
1992 motion for summary judgment and response
at
1
&
6
& attached ex.
1,
2
&
4; Prairie Material Sales March
2,
1992 response
3,
5—7
& attached affidavit.)
The controversy of this proceeding involves a single piece
of plant equipment.
The offending equipment is a 4.18 Mbtu/hr
boiler used to heat water and aggregate material.
The June,
1979
permit application filed by Fox Valley Concrete does not mention
the subject boiler.
(Ex.
4 attached to People’s response and
motion of January
8,
1992.)
Prairie Material Sales’ assertions
are incohsistent as to the construction of the boiler.
Prairie
Material Sales initially asserts in its pleadings that the boiler
was “completely constructed and operational” prior to the date it
purchased the plant from Fox Valley Concrete in 1982.
(Prairie
motion of December 9,
1991 at 2-3.)
Prairie Material sales later
asserts that the present boiler is “virtually identical” to the
prior boiler that was in existence when it purchased the plant.
Prairie Material Sales states that it retired the prior boiler
from service
in 1988.
(Affidavit attached to Prairie response of
March
2,
1992.)
The Prairie Material Sales motion essentially requests
summary judgment on two bases.
First,
Prairie Material Sales
contends that since construction of the boiler was complete prior
to its purchase of the plant,
it could not have violated the
requirement for a construction permit.
The People respond that
corporate successor liability might lie, so summary judgment is
inappropriate until after discovery is complete.
Second, Prairie
Material Sales contends that this boiler is exempt pursuant to 35
Ill.
Adm. Code 201.146(c),
the “residential or commercial
establishment” exemption,
from the construction and operating
permit requirements.
The People respond that this exemption does
not apply because the Prairie Material Sales facility is not a
“commercial establishment” as contemplated by that provision.
The People pray for summary judgment on the second count of
the complaint
(operating without a permit).
In support of their
motion, the People contend that the Prairie Material Sales
facility is not a “residential or commercial establishment”
within the meaning of 35
Ill. Adm. Code 201.146(c).
Prairie
Material Sales responds that it is engaged in the business of
selling building materials,
in that it merely sells the
components of concrete, instead of manufacturing concrete.
Prairie Material Sales contends that the concrete is actually
manufactured off-site,
on the transport vehicle after loading of
the component materials by Prairie Material Sales.
Prairie
Material Sales maintains that the boiler is of the type
contemplated by the regulatory “residential or commercial
establishment” exemption.
(Prairie response of March
2,
1992.)
Turning to the resolution of the issues relating to the date
of boiler construction as they impact on the first count
13 1—503
4
(construction without a permit), the Board finds that genuine
issues of material fact exist.
As outlined above, it is unclear
based on Prairie Material Sales’ pleadings and affidavits when
the allegedly offending boiler was constructed.
Prairie Material
Sales acquired the Batavia plant in 1982.
Prairie contends in
one place that the boiler was already constructed at that time.
At another place, Prairie Material Sales states that the original
boiler retired in 1988,
and,
therefore, makes it appear that the
present boiler may have been constructed since Prairie Material
Sales acguired the plant.
Resolution of this factual issue is
essential to disposition of count I.
This divergence in the
facts warrants a denial of summary judgment as to count
I in
favor of Prairie Material Sales of the complaint (construction
without a permit).
In so concluding, the Board does not need to
address the issues relating to corporate successor liability.
On the issue of the “residential or commercial
establishment” exemption of Section 201.146(c), there are no
genuine issues of material fact.
Therefore, partial summary
judgment
is warranted on count II (operating without a permit).
This conclusion and the following supporting analysis also
provides an alternative basis for the denial of summary judgment
as to count
I.
Both parties rely on a single Board decision in
arguing for summary judgment.
The exemptions provisions from the permitting requirements
state in significant part as follows:
No permit is required for the following classes of
equipment:
c)
Fuel burning emission sources for indirect
systems and for heating and reheating furnace
systems used exclusively for residential or
commercial establishments using gas and/or
fuel oil exclusively with a total capacity of
less than 14.6 MW
(50 Nbtu/hr)
input;
d)
Fuel burning emission sources other than
those listed in subsection
(c)
for indirect
heating systems with a total capacity of less
than 293 kW
(1
(Mbtu/hr))
input;
35 Ill.
Adm. Code 201.146.
In National Marine Service.
Inc.
v. EPA, No. PCB 85-108,
66 PCB
293
(Nov.
7,
1985),
the Board had an opportunity to construe the
“residential or commercial establishment” exemption of subsection
13
1—504
5
(c).
In that case, the respondent operated a river barge
cleaning service.
Some sales of barge equipment had occurred
from the facility.
The respondent used the boiler in question to
produce hot water and steam to facilitate barge cleaning.
It had
a firing capacity of about 20 Mbtu/hr
(5.9 MW), and the
respondent fired it with no.
6 fuel oil and other (dirty and
contaminated) hydrocarbons recovered from the barge cleanings.
National Marine Service at
3,
66 PCB at 295.
The, National Marine Service respondent argued that the
“residential or commercial establishment” exemption applied to
this boiler because the intent of the exemption was to “relieve
the permit ‘burden’
from ‘small sources’
.
.
..“
It also argued
that to narrow a construction of “commercial establishment” would
defeat the purpose of the exemption.
~
at
5,
66 PCB at 297.
The Board concluded that the respondent’s facility was “more
in the nature of an industrial service establishment than a
‘commercial establishment’ within the commonly accepted meaning
of the term.”
The Board held that the respondent’s boiler did
not fall within the exemption.
~
at 5-6,
66 PCB at 297—98.
(Another basis for the determination that this exemption did not
apply was that the fuel used was not exclusively fuel oil. or
natural gas.
i~
at 6—8,
66 PCB at 298—300.)
In the course of distinguishing its operations from those
involved in National Marine Service, Prairie Material Sales
asserts that because all concrete mixing occurs in the truck,
“the Batavia site is nothing more than a location that dispenses
building materials.”
It continues as follows:
The Prairie Batavia site produces no concrete, as such.
It is a series of large dispensers,
cooperatively
situated to allow the combination of materials in a
manufacturing device which produces concrete off site.
The concrete
is then transported to a purchaser’s site.
(Prairie response of March
2, 1992 at 7.)
Prairie Material Sales also distinguishes its boiler in that it
is fired exclusively by natural gas, unlike the mixed and
contaminated fuel of National Marine Service.
Whatever the appeal of Prairie Material Sales’ arguments,
the Board cannot conclude that a concrete mixing facility is a
“commercial establishment” within the meaning of 35 Ill. Adm.
Code 201.146(c).
Initially, the Board cannot lose sight of the
“commercial” requirement while focusing on the type of fuel and
small size of the boiler.
This would render a nullity the
subsequent subsection of the exceptions provision.
Subsection
(d), quoted above, exempts from the permit requirements all small
indirect heating systems, without regard to fuel type or
131—505
6
industrial
nature.
The primary limitation is the very small
(1
Mbtu/hr,
or 0.29 MW)
size of the boiler.
Thus,
the “commercial”
nature of the facility is important for the purposes of the
“commercial establishment” exemption.
The language of the “residential or commercial
establishment” exemption has not changed since its initial
adoption as Chapter 2, Rule 102(i) (3)
in 1972.
The purpose of
this exemption is to relieve the burden of issuing permits to
small entities.
In re Emissions Limitations, No. R71—23,
at 7,
4
PCB.298,’304
(Apr.
13,
1972).
Houses and shops are numerous in
Illinois, and those burning fuel oil or natural gas are not the
principal sources of air pollutants in this state.
Requiring
every residence and shop burning natural gas or fuel oil to
acquire a permit would severely burden the permitting system and
confer little environmental benefit.
Industrial facilities are
far less numerous, and they are likely already into the
permitting system as a result of other activities at those
facilities.
Such is the case for the Prairie Material Sales
plant,
for which Fox Valley Concrete had already initially
obtained construction and operating permits for other aspects of
the plant operations.
Therefore, the most consistent reading of
“residential or commercial establishment” would include shops,
stores, private houses, apartment buildings,
schools, office
buildings and other facilities that do not have any industrial
character.
Examining the Prairie Material Sales operations at Batavia,
the Board cannot accept the argument. that the concrete is
manufactured off—site and that Prairie Material Sales merely
sells construction materials.
All ingredients for the concrete
are added in the proper proportions within the Prairie Material
Sales plant.
It is immaterial that the actual mixing is not
completed until
later,
after the truck has left the site.
There
is little difference between this activity and one in which the
full mixing of the ingredients occurred at the plant.
Prairie
Material Sales performs all activities within the boundaries of
its facility that are necessary to assure the final composition
of the concrete—-i.e., Prairie Material Sales manufactures
concrete at its plant.
Thus, this facility is an industrial
facility.
Acceptance of Prairie Material Sales’ argument that the
manufacture of the concrete occurs elsewhere,
so it merely sells
construction materials, could lead to absurd results.
Nearly any
other industrial facility that takes bulk materials and blends
them on-site in packages intended for delivery could claim the
“residential or commercial establishment” exemption.
This is
beyond the character of this exemption as the Board intended it.
It goes beyond the intent of administrative convenience with
regard to those multitudinous sites of minimal environmental
significance and not otherwise in the permitting system that the
131—506
7
Board intended to exempt in 1972.
Rather, there is another
exemption that applies to facilities having this more industrial
character;
it is set forth in subsection
(d).
Prairie Material
Sales does not qualify for the subsection
(d) exemption because
its boiler exceeds the size limitation of that provision.
Another fact adds further support to ‘the Board’s conclusion
that the boiler is not in the same situation as a residential or
commercial boiler used for providing heat.
Prairie Material
Sales a1~ouses its boiler to heat aggregate,
a component of .the
concrete.
This situates the boiler as part of the industrial
process of manufacturing concrete.
Having concluded that the “residential or commercial
establishment” exemption of 35 Ill. Adm. Code 201.146(c)
does not
apply to the Prairie Material Sales boiler-, the Board must deny
the respondent’s prayer for summary.judgement on counts I and II
on this basis.
The Board grants partial judgment in favor of the
People on the narrow issue of the applicability of the permit
requirements to this boiler.
The Board holds that the
construction and operating permit requirements of 35 Ill.
Adm.
Code 201.Subpart C applied to the boiler that Prairie Material
Sales used to heat water for mixing concrete at its plant.
However, the Boarddoes not go so far as stating that this
finding in favor of the People alone establishes a violation on
either count.
First, Prairie Material Sales avers that the
boiler fell within the general site permit.
Second, the Board
must weigh the factors of Ill.
Rev.
Stat.
1989 ch.
111½, par.
1031(c)
in finding a violation.
The present record does not
allow such consideration.
For the foregoing reasons, the Board hereby denies both of
the December
9,
1991 prayers for summary judgement set forth by
Prairie Material Sales.
The Board hereby grants partial summary
judgment in response to the People’s prayers of January 8,
1992:
we hold that the exemption of 35 Ill. Adm. Code 201.146(c)
does
not apply to the Prairie Material Sales boiler.
Therefore,
the
permit requirements of 35 Ill.
Adm. Code 20l.Subpart C applied to
that boiler.
IT IS SO ORDERED.
131—507
8
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby certify that the above Order was adopted on the
~
day of
~-~--~_2”
,
1992, by a vote of
~
‘~
Dorothy M.,,Øunn, Clerk
Illinois ~llution
Control Board
131—508