BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN, Attorney

General of the State of Illinois

Complainant,

V.

VALLEY

RUN

STONE, a Division of

AVERY GRAVEL CO.,

INC.,

an Illinois

Corporation,

Respondent.

RE CE WED

CLERK’S OFP’(’~

JUL11

2003

STATE

OF

ILLINOIS

Pollution

Control Board

PCB ~

(Enforcement-Air)

TO:

See Attached Service List

NOTICE OF

FILING

PLEASE TAKE NOTICE that on July 11,

2003, we filed with the

Illinois Pollution Control Board a Complaint,

a true and correct copy

of which is attached and hereby served upon you.

Failure to file an answer to this complaint within 60 days may

have severe consequences.

Failure to answer will mean that all

allegations in the complaint will be taken as if admitted for purposes

of this proceeding.

If you have any questions about this procedure,

you should contact the hearing officer assigned to this proceeding,

the Clerk’s Office or an attorney.

Financing to correct the violations alleged may be available

through the Illinois Environmental Facilities Financing Act,

20 ILCS

3515/1,

et

seq.

BY:

Respectfully submitted,

ChristopheryP. Perzan

Assis~~x-t-Attorney

General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago,

Illinois

60601

(312)

814-3532

LISA

MADIGAN

Attorney General

State

---

SERVICE LIST

Avery Gravel Co.,

Inc.

do Frank P. Maggio,

Reg. Agent

100 Park Avenue

Rockford, Illinois 61101

Bill

S. Forcade

Jenner & Block

One IBM Plaza

Chicago, Illinois 60611-7603

---

BEFORE THE ILLINOIS POLLUTION. CONTROL

BOAR~ECEAVED

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

JUl

~

ex rel.

LISA

MADIGAN,

Attorney

)

L

1

2003

General of the State of Illinois,

)

.

STATE

OF ILLINOIS

Complainant,

.

Pollution Control Board

v.

)

PCB

04-Oh

(Enforcement-Air)

VALLEY RUN STONE,

a Division of

AVERY GRAVEL CO.,

INC.,

an

Illinois corporation,

Respondent.

COMPLAINT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN,

Attorney General of the State of Illinois,

complains of Respondent,

VALLEY RUN STONE,

a division of AVERY GRAVEL CO.,

INC.,

as follows:

COUNT

I

FAILURE

TO

OBTAIN

A

CONSTRUCTION

PERMIT

1.

This

Complaint

is

brought

by

the

Attorney

General

on

her

own motion and upon the request of the Illinois Environmental

Protection Agency

(“Illinois EPA”) pursuant to the terms and

provisions

of Section 31 of the Illinois Environmental Protection

Act

(“Act”)

,

415 ILCS 5/31

(2002)

2.

The Illinois EPA is an administrative agency of the

State of Illinois,

created pursuant to Section 4 of the Act, 415

ILCS 5/4

(2002), and charged,

inter alia,

with the duty of

enforcing the Act.

3.

AVERY GRAVEL CO.,

INC.,

is an Illinois corporation in

good standing and headquartered at 10425 Joliet Road,

Lisbon,

Kendall County,

Illinois.

AVERY GRAVEL CO.,

INC. includes a

division known as VALLEY

RUN

STONE.

AVERY GRAVEL CO.,

INC. and its

---

VALLEY RUN STONE division are hereinafter referred to as VRS.

4.

VRS operates a quarry located in Lisbon,

Illinois

(“facility”)

5.

Section

3.315

of

the

Act,

415

ILCS

5/3.315

(2002),

provides

the

following

definition:

“PERSON” is any individual, partnership,

co-partnership,

firm company, limited liability company,

corporation,

association,

joint stock company, trust,

estate,

political subdivision,

state agency, or any other legal

entity,

or their legal representative,

agent or assigns.

6.

VRS is a “person”

as that term is defined in Section

3.315 of the Act,

415 ILCS 5/3.315

(2002).

7.

Some time in late 2000

VRS

constructed a 1,400 kilowatt

natural gas-fired power generation engine at its facility.

VRS

did

not at any time relevant to this complaint have a permit to

construct the natural gas-fired power generation engine.

8.

Some time in March or April 2001 VRS began testing the

natural gas-fired power generation engine.

Thereafter,

VRS began

operation of the natural gas-fired engine. VRS operated the natural

gas-fired engine at least from June 2001 through August 2002.

9.

The

natural gas-fired power generation engine can emit,

among

other

things,

nitrogen

oxides

and

particulate

matter

into the

atmosphere.

10.

Nitrogen oxides and particulate matter when emitted into

the air can have injurious effects on human, plant and animal life.

11.

Section 3.165 of the Act,

415 ILCS 5/3.165

(2002),

provides the following definition:

2

---

“CONTANINANT”

is any solid,

liquid,

or gaseous matter,

any

odor,

or

any

form of energy from whatever source.

13.

Nitrogen oxides and particulate matter are

“contaminants”

as defined in Section 3.165 of the Act,

415 ILCS

5/3.165

(2002)

14.

Section 3.115 of the Act,

415 ILCS 5/3.115

(2002),

contains the following definition:

“Air pollution”

is the presence in the atmosphere of one

or more contaminants insufficient quantities and of

such characteristics and duration as to be injurious to

human, plant, or animal life,

to health, or to property,

or to unreasonably interfere with the enjoyment of life

or property

15.

Section 9(b)

of the Act, 415 ILCS

5/9(b) (2002),

provides

as follows:

No person shall construct,

install or operate

any equipment,

facility, vehicle, vessel, or

aircraft capable of causing or contributing to

air pollution or designed to prevent air

pollution,

of any type designated by Board

regulations,

without a permit granted by the

Agency,

or in violation of any conditions

imposed by such permit.

16.

Section 201.142 of the Illinois Pollution Control Board

Air

Pollution Regulations

(“Board regulations”),

35 Ill. Adm.

Code

201.142, provides as follows:

No person shall cause or allow the construction of any

new emission source or any new air pollution control

equipment,

or cause or allow the modification of any

existing emission source or air pollution control

equipment,

without first obtaining a construction permit

from the Agency,

except as provided in Section 201.146.

17.

Section 201.102 of the Board regulations,

35 Ill.

Adm.

Code 201.102, provides the following pertinent definitions:

3

---

“Air Contaminant”:

any solid, liquid or gaseous matter,

any odor or any form of energy,

that is capable of being

released into the atmosphere

from an emission source.

“Construction”:

commencement

of on-site fabrication,

erection or installation of an emission source or of air

pollution control equipment.

“Emission Source”:

any equipment or facility of a type

capable of emitting specified air contaminants to the

atmosphere.

“New Emission Source”:

any emission source,

the

construction or modification of which is commenced on or

after April

14,

1972.

“Owner or Operator”:

any person who owns,

leases,

controls or supervises an emission source or air

pollution

control

equipment.

“Specified

Air

Contaminant”:

any air contaminant as to

which

this

Subtitle

contains emission standards or other

specific

limitations

and

any

contaminant

regulated

in

Illinois

pursuant

to

Section

9.1

of

the

Act.

18.

Nitrogen

oxides

are

specified

air

contaminants

as

defined

in

35111.

Adm.

Code

201.102.

19.

The natural gas-fired power generation engine was

capable of causing or contributing to air pollution through its

emission of contaminants,, including nitrogen oxides and particulate

matter,

into the atmosphere.

20.

The

natural

gas-fired

power generation engine was an

“emission source” and a “new emission source”

as defined in 35 Ill.

Adm. Code 201.102.

21.

VRS was,

at all times relevant to this Complaint,

an

“owner or operator”

as defined in 35

Ill. Adm.

Code 201.142.

22.

The construction of the emission source without a permit

from the Agency constituted a violation of Section 9(b)

of the Act,

4

---

415

ILCS

5/9(b)

(2002)

and

35 Ill. Adm.

Code 201.142.

WHEREFORE,

Complainant,

PEOPLE

OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order for Complainant

and against Respondent,

VRS, with respect to this Count

I:

1.

Authorizing a hearing in this matter at which time the

Respondent will be required to answer the allegations alleged

herein;

2.

Finding that Respondent violated Section 9(b)of the Act,

415

ILCS

5/9(b)

and

35

Ill.

Adm.

Code

201.142;

3.

Ordering

Respondent

to

cease

and

desist

from

further

violations

of

Section

9(b)

of

the

Act,

415

ILCS

5/9(b)

and

35

Ill.

Adm.

Code 201.142;

4.

Assessing against Respondent a civil penalty of Fifty

Thousand Dollars

($50,000.00)

for each violation of the Act, and

regulations

promulgated

thereunder,

with an additional penalty of

Ten Thousand Dollars

($10,000.00)

for each and every day of

violation;

5.

Ordering

Respondent

to

pay

all

costs

including

attorney,

expert witness and consultant fees expended by the State in pursuit

of this action pursuant to 415 ILCS 5/42 (f) (2002)

;

and

6.

Granting such additional relief as the Board deems

appropriate and just.

COUNT II

FAILURE

TO

COMPLY

WITH

PRECONSTRUCTION

PREVENTION

OF

SIGNIFICANT

DETERIORATION

STANDARDS

1

-

19.

Complainant realleges and incorporates by reference

5

---

herein paragraphs

1 through 14 and 17 through 21 of Count

I of this

Complaint as paragraphs

1 through 19 of this Count

II.

20.

Section 9.1 of the Act,

415 ILCS 5/9.1

(2002), provides

as follows:

a)

The General Assembly finds that the federal Clean

Air Act,

as amended, and regulations adopted

pursuant thereto establish complex and detailed

provisions for State-federal cooperation in the

field of air pollution control, provide for a

Prevention of Significant Deterioration program to

regulate the issuance of preconstruction permits to

insure that economic growth will occur in a manner

consistent with the preservation of existing clean

air resources....

*

*

*

d)

No person shall:

1)

violate any provisions of Sections 111,

112,

165 or 173

of the Clean Air Act,

as now or

hereafter amended,

or federal regulations

adopted pursuant thereto; or

2)

construct,

install, modify or operate any

equipment,

building,

facility,

source or

installation which is subject to regulation

under Sections 111,

112,

165 or 173

of the

Clean Air Act,

as now or hereafter amended,

except in compliance with the requirements of

such Sections and federal regulations adopted

pursuant thereto, and no such action shall be

undertaken without a permit granted by the

Agency or in violation of any conditions

imposed by such permit.

21.

Nitrogen oxides are regulated under Section 9.1 of the

Act, 415 ILCS 5/9.1(2002)

because they are a precursor of ozone,

a

criteria pollutant for which a National Ambient Air Quality

Standard has been adopted under the Clean Air Act.

22.

Section 52.21 of Title 40 of the Code of Federal

6

---

Regulations,

40 C.F.R. 52.21

(2002),

is within that category of

federal regulations enforceable under 415 ILCS 5/9.1(d).

Section

52.21 contains the relevant requirements for the Prevention of

Significant Deterioration

(“PSD”) program.

23.

The PSD program generally requires a party in an

attainment area to acquire a construction permit, to perform PSD

air quality analysis and to meet other analytical and informational

requirements in order to demonstrate that the construction of the

emission source will not cause or contribute to air pollution in

violation of any national ambient air quality standard or to any

applicable maximum allowable increase over the baseline

concentration.

24.

The VRS facility is located within an attainment area

and is subject to PSD requirements.

25.

The natural gas-fired power generation engine has the

potential to emit 251.59 tons of nitrogen oxides per year.

26.

Section 52.21 of Title 40 of the Code of Federal

Regulations,

40 C.F.R.

52.21

(2002),

provides,

in pertinent part,

as follows:

(b)

Definitions.

For the purposes of this section:

(1) (i)

Major stationary source

means:

*

*

*

(b)

Notwithstanding the stationary source size

specified in paragraph

(b) (1(i)

of this

section, any stationary source which emits,

or

has the potential to emit,

250 tons per year

or more of any air pollutant subject to

regulation under the Act;

7

---

*

*

*

(i)

Review of major stationary sources and major

modifications-source applicability and exemptions

(1)

No stationary source or modification to which

the requirements of paragraphs

(j)

through(r)

of this section apply shall begin actual

construction without a permit which states

that the stationary source or modification

would meet those requirements.

The

Administrator has the authority to issue any

such permit.

(2)

The requirements

of paragraphs

(j)

through

(r)

of this section shall apply to any major

stationary source and any major modification

with respect to each pollutant subject to

regulations under the Act that it would emit,

except as this section otherwise provides.

*

*

*

(k)

Source impact analysis

The owner or operator of the proposed source or

modification shall demonstrate that allowable

emission increases from the proposed source or

modification,

in conjunction with all other

applicable emissions increases or reductions

(including secondary emissions), would not cause or

contribute to air pollution in violation of:

(1)

Any national ambient air quality standard in

any air quality control region; or

(2)

any applicable maximum allowable increase over

the baseline concentration in any area.

*

*

*

(m)

Air quality analysis

(1)

Preapplication analysis

(i)

Any application for a permit under this

section shall contain an analysis of

ambient air quality in the area that the

major stationary source or major

modification would affect for each of the

8

---

following pollutants:

(a)

For the source,

each pollutant that

it would have the potential to emit

in a significant amount.

(b)

For the modification, each pollutant

for which it would result in a

significant net emissions increase.

*

*

*

n)

Source information

The owner or operator of a proposed source or

modification shall submit all information necessary

to perform any analysis or make any determination

required under this section.

(1)

With respect to

a source or modification to

which

paragraphs

(j),

(1),

(n) and

(p)

of this

section

apply,

such

information

shall

include:

(i)

A

description

of

the nature,

location,

design

capacity,

and

typical

operating

schedule

of

the source or modification,

including specifications and drawings

showing its design and plant layout;

*

*

*

(r)

Source obligation

(1)

Any owner or operator who constructs or

operates a source or modification not in

accordance with the application submitted

pursuant to this section or with the terms of

any approval to construct,

or any owner or

operator of a source or modification subject

to this section who commences construction

after the effective date of these regulations

without applying for and receiving approval

hereunder,

shall be subject to appropriate

enforcement action.

*

*

*

27.

Upon its construction, the VRS facility constituted a

major stationary source,

as defined in 40 C.F.R.

52.21(b) (1) (1)

(b),

9

---

for the purposes of the PSD program and 40 C.F.R.

52.21(b) (2002),

because

the natural gas-fired power generation engine has the

potential to emit greater than 250 tons per year of nitrogen

oxides.

28.

VRS did not perform or provide the source impact

analysis demonstration required by Section 52.21(k),

40 C.F.R.

52.21(k), prior to construction of the natural gas-fired power

generation engine.

29.

VRS did not perform or provide the air quality analysis

required by Section 52.21(m),

40 C.F.R. 52.21(m), prior to

construction of the natural gas-fired power generation engine.

30.

VRS did not submit all, of the source information

required by Section

52.21(n),

40 C.F.R. 52.21(n), prior to the

construction of the natural gas-fired power generation engine.

31.

By such actions or omissions as alleged above, VRS

violated

Section

9.1(d)

of the Act, 415 ILCS 5/9.1(d), and Sections

52.21(i)

(1),

52.21(k),

52.21(m),

and 52.21(n),

40 C.F.R.

52.21(i),

(1),

(k),

(rn)

and

(n).

WHEREFORE,

Complainant,

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

respectfully

requests

that

the Board enter an order for Complainant

and

against

Respondent,

VRS,

with

respect

to

this

Count

II:

1.

Authorizing

a

hearing

in

this

matter

at

which

time

the

Respondent

will

be

required

to

answer the allegations alleged

herein;

2.

Finding

that

Respondent

violated

Section

9.1(d)of

the

10

---

Act,

415 ILCS 5/9.1(d) (b) (2002),

and Sections 52.21(i) (1),

52.21(k),

52.21(m),

and 52.21(n)

of Title 40 of the Code of Federal

Regulations;

3.

Ordering Respondent to cease and desist from further

violations of Section 9.1(d)

of the Act,

415 ILCS 5/9.1(d), and

Sections 52.21(i) (1),

52.21(k),

52.21(m),

and 52.21(n)

of Title 40

of the Code of Federal Regulations;

4.

Assessing against Respondent a civil penalty of Fifty

Thousand Dollars

($50,000.00)

for each violation of the Act,

and

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars

($10,000.00)

for each and every day of

violation;

5.

Ordering

Respondent to pay all costs including attorney,

expert

witness

and consultant fees expended by the State in pursuit

of this action pursuant to

415

ILCS

5/42

(f)

(2002)

;

and

6.

Granting such additional relief as the Board deems

appropriate and just.

COUNT

III

FAILURE TO OBTAIN AN OPERATING PERMIT.

1.-

20.

Complainant realleges and incorporates by

reference herein paragraphs

1 through 15 and 17 through 21 of Count

I of this Complaint as paragraphs

1 through 20 of this Count III.

21.

Section 201.143 of the Board regulations,

35 Ill. Adm.

Code 201.143, provides as follows:

No person shall cause or allow the operation of any new

11

---

emission source or new air pollution control equipment

of a type for which a construction permit is required by

Section 201.142 without first obtaining an operating

permit from the Agency, except for such testing

operations as may be authorized by the construction

permit. Applications for operating permits shall be made

at such times and contain such information

(in addition

to the information required by Section 201.157)

as shall

be specified in the construction permit.

22.

At no time relevant to this Complaint did VRS have a

permit from the Illinois EPA to operate the natural gas-fired

engine.

23.

The operation of the natural gas-fired power generation

engine without a permit from the Illinois EPA constituted a

violation of Section

9(b)

of the Act,

415 ILCS 5/9(b) (2002) and 35

Ill.

Adm. Code 201.143.

WHEREFORE,

Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order for Complainant

and against Respondent,

VRS,

with respect to this Count III:

1.

Authorizing a hearing in this matter at which time the

Respondent will be required to answer the’ allegations alleged

herein;

2.

Finding that Respondent violated Section 9(b)of the Act,

415 ILCS

5/9(b) and 35 Ill.

Adm. Code 201.143;

3.

Ordering Respondent to cease and desist from further

violations of Section 9(b)

of the Act,

415 ILCS 5/9(b)

and 35 Ill.

Adm. Code 201.143;

‘

‘

4.

Assessing against Respondent

a civil penaltyof Fifty

Thousand Dollars

($50,000.00)

for each violation of the Act, and

12

---

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars

($10,000.00)

for each and every day of

violation;

5.

Ordering Respondent to pay all costs including attorney,

expert witness and consultant fees expended by the State in pursuit

of this action pursuant to 415 ILCS 5/42 (f) (2002)

;

and

6.

Granting such additional relief as the Board deems

appropriate and just.

COUNT IV

FAILURE TO OBTAIN A CLEAN AIR ACT PERMIT

1

-

20.

Complainant realleges and incorporates by reference

herein paragraphs

1 through 14 and 17 through 21 of Count

I and

paragraph 25 of Count II as paragraphs

1 through 20 of Count

IV.

21.

Section 39.5 of the Act, 415 ILCS 5/39.5

(2002),

governing the Clean Air Act Permit Program

(“CAAPP”)

in the State

of

Illinois,

provides,

in pertinent part,

as follows:

1.

Definitions

“Major source” means a source for which emissions of one

or more air pollutants meet the criteria for major

status pursuant to paragraph 2(c)

of this Section.

*

*

*

“Owner or operator” means any person who owns,

leases,

operates,

controls,

or supervises a stationary source’.

*

*

*

“Regulated air pollutant” means the following:

(1)

Nitrogen

Oxides

(NOx)

or any volatile organic

compound.

*

*

*

13

---

“Stationary source” means any building,

structure,

facility, or installation that emits or may emit any

regulated air pollutant or any pollutant listed under

Section 112 (b)

of the Clean Air. Act.

*

*

*

2.

Applicability

a.

Sources subject

to this Section shall include:

i.

Any major source as defined in paragraph

(c)

of this subsection.

c.

For the purposes of this Section the term

“major source” means any source that is:

ii.

A major stationary source of air

pollutants,

as defined in Section 302 of

the Clear Air Act,

that directly emits or

has the potential to emit,

100 tpy or

more of any air pollutant

(including any

major source of fugitive emissions of any

such pollutant,

as determined by rule by

USEPA).

22.

The nitrogen oxides emitted by VRS are regulated air

pollutants under Section 39.5(1)

of the Act, 415 ILCS

5/39.5(1)

(2002)

23.

Because the natural gas-fired engine had the potential

to emit greater than 100 tons per year of nitrogen oxides,

it

constituted a “stationary source” and a “major source” pursuant to

Section 39.5(2)

of the Act,

415 ILCS 5/39.5(2) (2002)

24.

VRS was,

at all times relevant to this Complaint,

the

“owner and operator”

of a major stationary source pursuant to

Section 39.5(2)

of the Act, 415 ILCS 5/39.2

(2002)

25.

As a major source,

the VRS facility constituted a CAAPP

source by operation of 415 ILCS 5/39.5(2) (2002)

26.

Section 39.5(6) (b)

of the Act, 415 ILCS 5/39.5(6) (b)

14

---

provides

as

follows:

After

the

applicable

CAAPP

permit

or

renewal

application

submittal

date,

as

specified

in

subsection

S

of

this

Section,

no

person

shall

operate

a

CAAPP

source

without

a

CAAPP

permit

unless

the

complete

CAAPP

permit

or

renewal

application

for

such

source

has

been

timely

submitted

to

the

Agency.

27.

At

no

time

relevant

to

this

complaint

did

VRS

have

a

CAAPP permit to operate the natural gas-fired power generation

engine.

28.

By operating the natural gas-fired power generation

engine VRS without submitting the CAAPP permit application to the

Illinois EPA or obtaining a CAAPP permit, VRS violated Section

39.5(6)

(b)

of

the

Act,

415

ILCS

5/39.5(6)

(b)

(2002)

WHEREFORE,

Complainant,

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

respectfully

requests

that

the

Board

enter

an

order

for

Complainant

and

against

Respondent,

VRS,

with

respect

to

this

Count

IV:

1.

Authorizing

a

hearing

in

this

matter

at

which

time

the

Respondent

will

be

required

to

answer

the

allegations

alleged

herein;

2.

Finding

that

Respondent

violated

Section

39.5(6)

(b)

of

the

Act,

415

ILCS

5/39.5(6)

(b)

(2002);

3.

Ordering

Respondent

to

cease

and

desist

from

further

violations

of

Section

39.5(6)

(b)

of

the

Act,

415

ILCS

5/39.5(6)

(b)

(2002);

4.

Assessing

against

Respondent

a

civil

penalty

of

Ten

Thousand

Dollars

($10,000.00)

for

each

and

every

day

of

violation;

5.

Ordering

Respondent

to

pay

all

costs

including

attorney,

expert

witness

and

consultant

fees

expended

by

the

State

in

pursuit

15

---

of

this

action

pursuant

to

415

ILCS

5/42

(f)

(2002)

;

and

6.

Granting

such

additional

relief

as the Board deems

appropriate

and

just.

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

LISA

MADIGAN

Attorney

General

State

of

Illinois

MATTHEW

J.

DUNN,

Chief

Environmental

Enforcement/Asbestos

Litigation

Division

By:

Environment

a

Assistant

Attorney

General

OF COUNSEL:

CHRISTOPHER

P.

PERZAN

Assistant

Attorney

General

Environmental

Bureau

188

West

Randolph

Street,

20th

Floor

Chicago,

IL

60601

(312)

814-3532

I

:

\AveryGravel\complaint .wpd

16

---

CERTIFICATE OF SERVICE

I, CHRISTOPHER

P. PERZAN,

an Assistant Attorney General,

certify

that on the 11th day of July,

2003,

I caused to be served by

Registered Certified Mail,- Return Receipt Requested,

or hand delivery

the foregoing Complaint to the parties named on the attached service

list, by depositing same in postage prepaid envelopes with the United

States Postal Service located at 100 West Randolph Street,

Chicago,

Illinois

60601.

I

\AveryGravel\BdCrflpntriolice

wpd