Celotex Corp. v. Pollution Control Bd.

Decision Date24 October 1977
Docket NumberNo. 76-233,76-233
Citation53 Ill.App.3d 662,368 N.E.2d 1134,11 Ill.Dec. 526
Parties, 11 Ill.Dec. 526 The CELOTEX CORPORATION, a Foreign Corporation, Petitioner, Appellant, v. The POLLUTION CONTROL BOARD of the State of Illinois, and Illinois Environmental Protection Agency, Respondents, Appellees.
CourtUnited States Appellate Court of Illinois

John L. Parker, of John L. Parker & Associates, Chicago, for petitioner-appellant the Celotex Corp.

William J. Scott, Atty. Gen., Patrick J. Chesley, Springfield, for respondents.

ALLOY, Justice.

The Celotex Corporation petitions for direct review of a final order entered by respondent, Pollution Control Board of the State of Illinois (hereinafter called Board), in which order the Board affirmed the denial by the respondent Illinois Environmental Protection Agency (hereinafter called Agency), of the application of Celotex for an operating permit. On review in this Court, petitioner contends (1) that the decision of the Board affirming the Agency's denial of the operating permit was arbitrary and capricious, and (2) that this cause should be remanded to the Board with instructions that the operating permit should issue for the period requested. During the pendency of this case on review, respondents have filed a motion for remandment, conceding that their actions in denying petitioner's application for a permit were erroneous and requesting that this Court remand the cause for reconsideration by respondents.

The record discloses that petitioner Celotex owns and operates a dry roofing felt plant located at Peoria, Illinois. The parties to this review are in agreement that par. 9(b) of the Environmental Protection Act (Ill.Rev.Stat.1975, ch. 111 1/2, par. 1009(b)) requires petitioner to possess a permit issued by the Agency for the operation of the Peoria plant. It appears that petitioner did possess such an operating permit, which permit was issued on November 21, 1974 and expired on August 30, 1975. The petitioner, on May 27, 1975, applied to the Agency for renewal of its operating permit. On July 18, 1975, the Agency denied petitioner's application for renewal on the sole ground that operation of the plant would violate the sulfur dioxide emission standards of Chapter 2, Rule 204(c)(1)(A) of the Pollution Control Board Regulations.

It is noted that at the time the Agency denied petitioner's application, the Illinois Appellate Court for the First District, in a review of the rulemaking proceedings which had culminated in the adoption of Rule 204(c)(1)(A), had reversed the Board's adoption of Rule 204(c)(1)(A), and remanded the cause for further consideration by the Board. (Commonwealth Edison Co. v. Pollution Control Board (1st Dist. 1974), 25 Ill.App.3d 271, 323 N.E.2d 84). On a subsequent appeal, the Illinois Supreme Court in Commonwealth Edison Co. v. Pollution Control Board (opinion filed January 20, 1976), 62 Ill.2d 494, 343 N.E.2d 459, affirmed the Appellate Court's determination with respect to Rule 204(c)(1)(A).

On April 5, 1976, petitioner filed a petition with the Board for review of the Agency's denial of the operating permit. By an order of May 6, 1976, the Board affirmed the Agency's denial of the permit, and ruled that the Agency had been justified in relying on Rule 204(c)(1)(A) on July 18, 1975, the date of the denial of the permit application. Celotex then brought this proceeding for review of the Board's order of May 6, 1976. While review was pending in this Court, the Agency and the Board filed with this Court a motion for remandment, conceding that they erred in denying petitioner's application on the basis of Rule 204(c)(1)(A), and requested that this Court remand the cause for their reconsideration.

Petitioner and respondents apparently agree that the Board's order affirming the Agency's denial of the operating permit must be reversed, and that the sole issue presented for our determination is the scope and nature of the proceedings upon remandment. Par. 275(1)(f) of the Administrative Review Act (Ill.Rev.Stat.1975, ch. 110, par. 275(1)(f)), the provisions of which are made applicable here by Supreme Court Rule 335(h)(2), empowers this Court:

"where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper."

We recognize, as urged by petitioner, that if the cause...

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6 cases
  • Berry v. State
    • United States
    • Arkansas Supreme Court
    • November 3, 1986
  • Celotex Corp. v. Pollution Control Bd.
    • United States
    • Illinois Supreme Court
    • February 4, 1983
    ...in 1975; however, the Agency and the Board were subsequently ordered to issue the permit in Celotex Corp. v. Pollution Control Board (1977), 53 Ill.App.3d 662, 11 Ill.Dec. 526, 368 N.E.2d 1134, because Air Pollution Rule 204(c)(1)(A) (Ill.P.C.B.Rules & Regs., ch. 2, R. 204(c)(1)(A)), a sulf......
  • Celotex Corp. v. Illinois Pollution Control Bd.
    • United States
    • United States Appellate Court of Illinois
    • September 29, 1981
    ...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 rene......
  • Ashland Chemical Co. v. Pollution Control Bd.
    • United States
    • United States Appellate Court of Illinois
    • March 9, 1978
    ...443. A similar situation confronted this court in Celotex Corp. v. Pollution Control Bd. (3d Dist., filed Oct. 20, 1977), 53 Ill.App.3d 662, 11 Ill.Dec. 526, 368 N.E.2d 1134, where Celotex was improperly denied a permit after rule 204(c)(1)(A) was invalidated. However, at the time of the ap......
  • Request a trial to view additional results

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