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Sangamo Const. Co. v. Pol. Control Bd.

MAY 1, 1975.

SANGAMO CONSTRUCTION COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

This is a petition by Sangamo Construction Company (Sangamo) for review of an order of the Illinois Pollution Control Board (Board). The Board found that Sangamo had caused air pollution in violation of section 9(a) of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a).) The Board further found Sangamo had violated section 3-2.110 of the rules and regulations of the Air Pollution Control Board by failing to secure a permit for its concrete plant. Also, the Board found Sangamo had operated its asphalt plant without a permit. A $5000 fine was imposed for these three violations. Sangamo appeals to this court pursuant to the provisions of the Environmental Protection Act and the Administrative Review Act. Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041; Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.

Three issues are raised for review: (1) Whether Sangamo operated its asphalt plant without a permit; (2) whether the finding that Sangamo had caused air pollution is against the manifest weight of the evidence; and (3) whether the fine imposed is arbitrary and excessive.

In 1969, Sangamo applied for an installation and operation permit for its asphalt plant near Springfield, Illinois. Such a permit was required by the rules and regulations of the Air Pollution Control Board, predecessor agency to the Pollution Control Board, and to the Environmental Protection Agency. The permit was issued by the Air Pollution Control Board early in 1969.

On May 10, 1972, the Environmental Protection Agency filed a complaint with the Board, charging, among other things, that Sangamo had been operating its asphalt plant in violation of its permit. The Board subsequently held that because of Sangamo's actions, the company was operating without an applicable permit.

In the application for a permit, various information was requested in order to determine the environmental impact of the plant. One of the items requested was the process weight rate of the proposed equipment. The process weight rate is the total amount of materials used in the operation over a given period of time. The amount of allowable emissions is calculated as a proportion of this rate.

Sangamo indicated a rate of 200 tons per hour on this form. The application form does not indicate whether the figure to be supplied was to be an average or maximum figure, whether it was to be measured or estimated. After the application form was received, Sangamo was issued a permit.

During the period covered by the complaint, from July 1970 through May 1972, the actual process weight rate at which the plant was operated ranged from a low of 115 tons per hour to a high of 327. The average operating rate was 247 tons per hour.

The Board's opinion states that this was as if two plants had been built by Sangamo instead of one. They found that the permit did not authorize such rates and therefore Sangamo was operating without a permit.

We cannot agree with the Board's decision. First, the application form, supplied to Sangamo by the Air Pollution Control Board, gave the applicant no indication that an estimated average rate was not acceptable. Sangamo contends that the figure supplied was a reasonable anticipated average rate for this new plant. The Environmental Protection Agency does not dispute that, but argued that an actual maximum rate was required to be given. For the Board to retroactively interpret this ambiguous form to find a violation is clearly unfair to Sangamo. In other parts of the form, estimated figures were permissible. If estimated average figures of the process weight rate were not acceptable, it would have been extremely simple to indicate this on the form.

• 1 Even more importantly, the permit does not specifically incorporate the application. The permit which was granted allowed Sangamo to install and operate a certain model asphalt plant with specifically described pollution-control equipment. The permit contains no limitations on the rate of material that could be processed by this equipment.

Sangamo had a permit and it contained no restrictions as to the rate. Therefore, we cannot agree with the Board's findings that the company was operating without a permit for its asphalt plant.

The Board also found that Sangamo had violated section 9(a) of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a).) Section 9(a) reads in part:

"No person shall: (a) Cause or threaten or allow the discharge or emission of any contaminant into the environment * * * so as to cause or tend to cause air pollution in Illinois, either alone or in ...


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