Reichhold Chemicals, Inc. v. Illinois Pollution Control Bd.

• Decision Date: 12 October 1990
• Docket Number: No. 3-89-0393,3-89-0393
• Citation: 149 Ill.Dec. 647,561 N.E.2d 1343,204 Ill.App.3d 674
• Parties: , 149 Ill.Dec. 647 REICHHOLD CHEMICALS, INC., Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondent-Appellees.
• Court: United States Appellate Court of Illinois

Page 1343

561 N.E.2d 1343

204 Ill.App.3d 674, 149 Ill.Dec. 647

REICHHOLD CHEMICALS, INC., Petitioner-Appellant, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental

Protection Agency, Respondent-Appellees.

No. 3-89-0393.

Appellate Court of Illinois,

Third District.

Oct. 12, 1990.

John L. Parker, John L. Parker & Associates, Ltd., Chicago, for Reichhold Chemicals, Inc. Renee Cipriano (argued), Asst. Atty. Gen., Michelle D. Jordan, Chief, Environmental Control Div., Matthew J. Dunn, Deputy Chief, Environmental Control Div., Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago, for Ill. Pollution Control Bd., Illinois EPA.

Justice BARRY delivered the OPINION of the court:

The Illinois Environmental Protection Agency (Agency) denied an operating permit to Reichhold Chemicals, Inc., operator of a polyester resin manufacturing plant in Morris, Illinois. Reichhold appeals from an order of the Illinois Pollution Control Board (Board) dismissing its petition for review of the Agency's permit denial.

The sequence of events leading up to the present appeal is as follows:

October 9, 1987--the Agency issued a construction permit to Reichhold for an addition to its continuous polyester plant which would convert the plant to a batch polyester resin manufacturing plant.

January 20, 1988--Reichhold applied to the Agency for an operating permit for the batch polyester plant.

May 18, 1988--the Agency denied the operating permit because of specified deficiencies in a required stack test on the fume incinerator but offered to re-evaluate the permit application upon Reichhold's request and submission of the necessary information and documentation to correct or clarify the deficiencies.

November 9, 1988--Reichhold experienced an accidental release of "Dowtherm" vapor which allegedly caused air pollution, drifted off the plant site and caused personal injuries.

November 15, 1988--Reichhold had an additional test conducted on the fume incinerator in compliance with Agency requests and regulations, the results of which were submitted to the Agency on January 23, 1989.

December 23, 1988--Agency sent an "Enforcement Notice Letter" to Reichhold advising that the violations of the Illinois Environmental Protection Act (Ill.Rev.Stat., 1987, c. 111 1/2, par. 1001 et seq.) have been referred to the Attorney General for preparation of a formal enforcement complaint. The letter also provided Reichhold with an opportunity to meet with Agency representatives to avoid the filing of a formal complaint.

February through April, 1989--Reichhold provided information, data, and tours for representatives of the Attorney General's Office and the Agency relating to the accident.

April 25, 1989--Agency notified Reichhold that its application for operating permit, received January 25, 1989, was denied "because Section 9 of the Illinois Environmental Protection Act, and 35 Ill.Adm.Code 201.131 might be violated." The denial letter gave as specific reasons for denial the air pollution occurring on Nov. 9, 1988, and failure to provide proof that the operation of the batch polyester resin plant will not cause a violation of the Act. The April 25, 1989, letter concluded with the same language as had been contained in the denial letter dated May 18, 1988, and which was as follows:

"The Agency will be pleased to re-evaluate your permit application on receipt of your written request and the necessary information and documentation to correct or clarify the deficiencies noted above. Two copies of this information must be submitted and should reference the application and I.D. numbers assigned above. The revised application will be considered filed on the date that the Agency receives your written request."

May 11, 1989--Reichhold requested in writing that the Agency reconsider the permit denial based upon the Dowtherm release accident and stated that all available information concerning the Dowtherm system had already been submitted to the Agency and the Attorney General's Office and that all questions had been answered.

May 30, 1989--Reichhold filed with the Illinois Pollution Control Board a petition for review of the operating permit denial, stating in the petition that the Agency had not replied to its letter requesting reconsideration of the denial.

June 8, 1989--Board granted the Agency's motion to dismiss Reichhold's petition on the ground that Reichhold's request for reconsideration was pending with the Agency.

On appeal, Reichhold contends that its letter of May 11, 1989, was not a "revised application" within the terms of the Agency denial letter since no new documentation or information was submitted. At most the letter requested a reconsideration of the April 25, 1989, denial order, and neither the Act nor the rules adopted by the Board give the Agency authority to allow a rehearing or otherwise reconsider an order. Hence, it is argued, the Board erred in finding that the Agency had retained jurisdiction of this permit proceeding by reason of its undertaking to reconsider its denial action.

The Agency, on the other hand, argues that Reichhold's May 11 letter called attention to additional data previously submitted to the Attorney General's Office and the enforcement department of the Agency but never seen by the permit department and that, according to Agency custom and policy, the letter amounted to a reapplication for an operating permit upon which no final action had been taken. The Agency position is predicated upon its view that a request to reconsider accompanied by new information is in reality a reapplication, and when Reichhold chose to seek Agency reconsideration, it had to forego review by the Board until the Agency completed its review and entered a final order.

The Agency admits that there are no formally adopted rules or regulations to govern reconsideration or reapplication procedures but instead that its procedure is based on "policy and longstanding practice."

The Illinois Supreme Court has held that an administrative agency has no inherent authority to amend or change a decision and may undertake a reconsideration of a decision only where authorized by statute. (Pearce Hospital v. Public Aid Comm'n (1958), 15 Ill.2d 301, 154 N.E.2d 691; see also, Caldwell v. Nolan (1st Dist.1988), 167 Ill.App.3d 1057, 118 Ill.Dec. 720, 522 N.E.2d 175.) The Court more recently stated:

"It has consistently been held that an administrative agency may allow a rehearing, or modify and alter its decisions only when authorized to do so by statute. [Citation.] The unlimited scheme of reconsideration of determinations of eligibility set forth by the Department [of Labor], no matter how logical or desirable it may seem, is simply not authorized by the Act and is found nowhere within the clear and common meaning of its language." Weingart v. Department of Labor (1988), 122 Ill.2d 1, 15, 118 Ill.Dec. 436, 442-43, 521 N.E.2d 913, 919-20.

The Environmental Protection Act has been held to authorize the Pollution Control Board to conduct rehearings by virtue of its authority to conduct "such other hearings as may be provided by rule" (Ill.Rev.Stat.1987, c. 111 1/2, par. 1005(d)), as implemented by specific rules providing for motions for rehearing or modification of orders. (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill.App.3d 498, 351 N.E.2d 875.) However, no such authority to...