Celotex Corp. v. Illinois Pollution Control Bd.

• Citation: 57 Ill.Dec. 543,429 N.E.2d 194,100 Ill.App.3d 520
• Decision Date: 29 September 1981
• Docket Number: No. 81-10,81-10
• Parties: , 57 Ill.Dec. 543, 12 Envtl. L. Rep. 20,671 The CELOTEX CORPORATION, Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Environmental Protection Agency, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 194

429 N.E.2d 194

100 Ill.App.3d 520, 57 Ill.Dec. 543,

12 Envtl. L. Rep. 20,671

The CELOTEX CORPORATION, Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Environmental

Protection Agency, Respondents-Appellees.

No. 81-10.

Appellate Court of Illinois, Third District.

Sept. 29, 1981.

John L. Parker, John L. Parker & Associates, Ltd., Chicago, H. Gerald Reynolds, Tampa, Fla., for petitioner-appellant.

Douglas P. Karp, Asst. Atty. Gen., Tyrone C. Fahner, Atty. Gen., Chicago, for respondents-appellees.

STOUDER, Justice:

This is a petition for direct review, pursuant to section 41 of the Environmental Protection Act (Ill.Rev.Stat.1977, ch. 1111/2, par. 1041), of a decision of the Illinois Pollution Control Board (hereinafter the Board). That decision affirmed the Illinois Environmental Protection Agency's (hereinafter the Agency) denial of an application for renewal of an operating permit submitted by The Celotex Corporation (hereinafter Celotex).

Celotex owns and operates a dry roofing felt plant in Peoria. The plant includes two industrial coal-fired boilers for generating steam for process heating and electricity needed to operate the facility. Flue gases from both boilers pass through dust collectors and discharge through a common stack.

The Celotex operation remains the same as in 1975, when an operating permit was denied on the basis of potential violation of the sulfur dioxide emission standard of Air Pollution Rule 204(c)(1)(A) (Ill. P.C.B. Rules and Reg., ch. 2, rule 204(c)(1)(A)) (hereinafter Rule 204). As the rule had been invalidated, the Agency and Board were ordered to issue an operating permit for 120 days to permit Celotex to file a new petition. (The Celotex Corp. v. Pollution Control Board (1977), 53 Ill.App.3d 662, 11 Ill.Dec. 526, 368 N.E.2d 1134.) Prior to the expiration of that period, Celotex applied for renewal of its permit. The renewal permit application stated that the previously permitted operation had not been modified. The denial of the application is the subject of this proceeding.

The Agency's permit denial was once again based on the invalidated Rule 204. The denial was also based on the particulate emission standards of Air Pollution Rule 203(g)(1)(B) (Ill. P.C.B. Rules and Reg., ch. 2, rule 203(g)(1) (B)) (hereinafter Rule 203), the visual emission standards of Air Pollution Rule 202(b) (Ill. P.C.B., Rules and Reg., ch. 2, rule 202(b)) (hereinafter Rule 202(b)), informational requirements of Air Pollution Rule 103(b)(3) (Ill. P.C.B., Rules and Reg., ch. 2, rule 103(b)(3)) (hereinafter Rule 103(b)(3)). The Board reversed the Agency denial as to the two former rule violations on the basis that the rules had been invalidated; however, the denial was affirmed because of violations of the latter two rules.

On appeal, Celotex presents seven issues for review; however, we shall address only two of these questions. The first is whether the corporation supplied all necessary information under Rule 103(b)(3); the second, whether the Board improperly relied upon Rule 202(b). The Agency presents the additional issue of whether the permit was properly denied on the basis of alleged potential violations of Rules 203 and 204. As Celotex raises no objection on grounds of estoppel or procedure, we shall address the merits of this question as well.

The first of the three issues we today address is whether Celotex supplied all necessary information under Rule 103(b)(3). The rule provides, inter alia:

"(3) Application. An application for an Operating Permit shall contain, as a minimum, the data and information specified in paragraph (a)(2) of this Rule 103. * * * To the extent that the above specified date and information has previously been submitted to the Agency pursuant to this Rule 103, the data and information need not be resubmitted; provided, however, that the applicant must certify that the data and information previously submitted remains true, correct and current."

In response to the Celotex application for renewal of an operating permit, which certified that the data and information previously submitted remained true, correct, and current, the Agency requested various information regarding Celotex's coal, fly ash reinjection units, and waste material disposition. Celotex responded that as the information had been previously submitted in support of an operating permit which was granted, and as the operation had not been modified, its given certification of current accuracy fulfilled the rule's requirements.

Although Celotex ultimately supplied additional information regarding its coal, the Board agreed with the Agency that the failure to supply all of the requested information was fatal to the Celotex petition. While numerous arguments have been advanced in support of this ruling, the essential bases are that the previously submitted information is not current information and that the Rule 202(b) violation indicates the information lacks current accuracy. We shall address the initial argument presently and the latter argument in conjunction with the second issue herein.

We well recognize the Agency's need for data and information which are current and accurate. Without this empirical base, it would be impossible to determine whether a permit applicant has met its burden of proving compliance with statutory and regulatory standards. In order to obviate the necessity of resubmitting this empirical base, the Board has, by rule, provided that this is unnecessary when the information remains true, correct, and current. Celotex has certified that this is the case. The Board and Agency apparently suspect this certification was made in bad faith because resubmitting unchanged data and certifying prior data as current yield the same result. This being the case, the Agency is precluded by Rule 103(b)(3) from denying the permit because Celotex did not acquiesce to its request for current information.

The second issue we shall address is whether the Board improperly relied on Rule 202(b). The rule provides, inter alia:

"Rule 202(b) Visual Emission Standards and Limitations for All Other Emission Sources.

No person shall cause or allow the emission of smoke or other particulate matter from any other emission source into the atmosphere of an opacity greater than 30 percent."

Jewell B. Holleyman, a physical scientist employed by the United States Environmental Protection Agency (hereinafter USEPA), determined that Celotex had thrice violated this visual emission standard. While the corporation questioned this determination, it proferred no contrary evidence; rather, it contended the Board's reliance was improper because Rules 203 and 204 have been invalidated.

In Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill.App.3d 271, 323 N.E.2d 84, aff'd in relevant part, 62 Ill.2d 494, 343 N.E.2d 459 (1976), the court concluded that the above two rules were not promulgated in accordance with law and must be viewed as arbitrary and unreasonable. The court explained:

"From our reading of the record, we are unable to state that the Board took into account the technical feasibility of these rules. * * *

We further hold that there is no evidence that the Board took into account the economic reasonableness of these rules for a substantial number of the generating units in this state. The testimony at the hearings indicated the cost of the sulfur removal systems would be great. Rather than presenting a formula indicating a balance between cost and pollution control or giving some concrete cost projections, the Board in its opinion offered general statements that there must be a 'balancing (of) the benefits of the contemplated rule against its costs' and that greater costs may be needed to be absorbed 'when the need for pollution abatement is greater.' "

(Emphasis added.) Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill.App.3d at 282-283, 323 N.E.2d at 95-96, aff'd in relevant part, 62 Ill.2d 494, 343 N.E.2d 459 (1976).

The importance of the above further holding stems from the unique inter-relationship of Rules 202(b) and 203. While we do not reach the question of whether this remains true, compliance with Rule 203 was at least a defense to noncompliance with Rule 202(b) (see Ill. P.C.B. Rules and Reg., ch. 2, rule 203(c)) before Rule 203 was invalidated. More directly in point is the additional interrelationship noted by the Board when the regulations were promulgated:

"Rule 202: Visual Emission Standards. Standards based upon the visual appearance of an emission are long-standing, familiar, and relatively unsophisticated.

The numerical standard for opacity, 40% in the APCB regulations, has been lowered for most sources to 30% on the basis of Agency evidence (R. 30, 31, 496, 501) that this level will generally be achieved or bettered by facilities complying with the numerical standards for particulate matter in Rule 203. Since we have found compliance with the latter economically reasonable, it follows that the corresponding opacity standard is reasonable too."

(Emphasis added.) In re Emission Standards (1972), 4 P.C.B. 298, 309-10.

We are thus faced with a situation where the economic reasonableness of Rule 202 was apparently never directly considered but rather solely judged on the economic reasonableness of Rule 203. Under these circumstances we are constrained to conclude the enactment of Rule 202 must be similarly held to be void. (Contra, United States Steel Corp. v. Pollution Control Board (1978), 64 Ill.App.3d 34, 20 Ill.Dec. 700, 380 N.E.2d 909.) On remand, the Board may validate the rule in accordance with section 27 of the Environmental Protection Act (Ill.Rev.Stat.1977, ch. 1111/2, par. 1027), prepare a substitute rule (see Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill.App.3d 271, 283, 323 N.E.2d 84, 96, aff'd in relevant part, 62 Ill.2d 494, 343 N.E.2d 459 (1976)), or determine economic...