Wells Mfg. Co. v. Illinois E.P.A.

• Decision Date: 09 March 1990
• Docket Number: No. 1-87-0956,1-87-0956
• Citation: 195 Ill.App.3d 593,142 Ill.Dec. 333,552 N.E.2d 1074
• Parties: , 142 Ill.Dec. 333 WELLS MANUFACTURING COMPANY, Petitioner-Appellant, v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 1074

552 N.E.2d 1074

195 Ill.App.3d 593, 142 Ill.Dec. 333

WELLS MANUFACTURING COMPANY, Petitioner-Appellant, v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent-Appellee.

No. 1-87-0956.

Appellate Court of Illinois First District, Fifth Division.

March 9, 1990.

Joseph S. Wright, Jr., Martin, Craig, Chester & Sonnenschein, Chicago, for petitioner-appellant.

Jack W. Roadman, General Counsel, Illinois Mfrs.' Ass'n, Cecil A. Partee, State's Atty. of Cook County, Neil F. Hartigan, Atty. Gen., Glenn E. Carr, Deputy State's Atty., Chief, Public Interest Bureau, Roma Jones Stewart, Sol. Gen., Glenn C. Sechen, Supervisor, Environmental/Health Litigation Division, Eric P. Dunham, Asst. State's Atty., and Joseph M. Claps, Chief, Diane Rosenfeld Lopata, Asst. Attys. Gen., Environmental Control Div., Chicago, for respondent-appellee.

Justice MURRAY delivered the opinion of the court:

Wells Manufacturing Company appeals directly to this court from an order of the Illinois Pollution Control Board (Board) affirming the Illinois Environmental Protection Agency's (Agency) denial of Wells' application to renew its air operating permit. Wells operates an iron castings business (foundry) in an area of Skokie zoned for heavy industrial use. The location is approximately one-half mile from a Morton Grove residential area. The foundry was built in 1947, years before residences were constructed in the area.

One of Wells' processes involves a shell molding operation in which a fine sand is mixed with resin and then packed around a pattern that will be duplicated in cast metal. When heated, this mixture results in the release of a distinctive odor, sometimes compared to that which is emitted from burning rubber. These odors have prompted numerous complaints from residential neighbors over the years and were the basis for a previous enforcement action by the Agency. In the previous action, the Agency charged Wells with violating sections 9(a) and 9(b) of the Illinois Environmental Protection Act (Act) in that "it cause[d] or threaten[ed] or allow[ed] the discharge of any contaminant into the environment * * * so as to cause or tend to cause air pollution * * *." (Ill.Rev.Stat.1975, ch. 111 1/2, par. 1009(a), (b).) The Agency had denied construction and operating permits but did not accuse Wells of any specific discharge that violated any of its rules or regulations. The Board agreed with the Agency and Wells appealed.

This court reversed the Board's order (Wells Manufacturing Co. v. Pollution Control Board (1977), 48 Ill.App.3d 337, 6 Ill.Dec. 497, 363 N.E.2d 26) and the supreme court affirmed this court (Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill.2d 226, 22 Ill.Dec. 672, 383 N.E.2d 148). In so doing, the supreme court held that where the Agency alleges that air contamination is unreasonable, the Board must consider certain factors set forth in section 33(c) (Ill.Rev.Stat.1971, ch. 111 1/2, par. 1033(c)) in determining the validity of the allegations. Briefly, these criteria are: (1) the degree of injury; (2) the social and economic value of the source; (3) the suitability and priority of the location; and (4) the technical feasibility and economic reasonableness of reducing emissions. After balancing the above factors, the court found that Wells was not guilty of air pollution and ordered the issuance of an operating permit.

Subsequent to the supreme court's decision, in December 1979, Wells applied for and was granted a construction permit for its shell molding and pouring area and applicable air pollution control device. The application consisted of 65 pages and included detailed plans, specifications, emission data and other relevant information. In May 1981, Wells was granted a five-year operating permit with an expiration date of April 9, 1986. In December 1985, the Agency sent a two-page renewal form to Wells in which Wells was required to certify that its equipment remained unchanged or, if changed, to explain those changes. Wells executed the form by certifying that no changes had been made and returned it to the Agency on December 5. The next communication received by Wells from the Agency was dated February 28, 1986, and was notification that Wells' application to renew its operating permit was denied. In the denial letter, the Agency offered to "reevaluate" the denial if Wells so requested in writing and if it submitted nine categories of information, some of which had been submitted with the original application for a construction permit. At the time of the denial, the Agency had on file approximately 250 verified citizen complaints regarding odors.

Wells did not request a reevaluation but filed an appeal with the Board so that, pursuant to the Act, it could continue its operations pending the appeal pursuant to the Act. Hearings before the Board were held in July and September 1986. Testimony was received from complaining citizens and Agency personnel. Wells called no witnesses other than Agency personnel. The Board affirmed the Agency's denial of the permit renewal application in two separate but concurring opinions (Opinion I and Opinion II).

Opinion I stated that the Agency should have considered section 33(c) of the Act in making its determination, but held the error harmless since the Board considered some of the factors. Opinion I apparently relied on the citizens' complaints and dismissed as insufficient reports from an Agency field inspector that the odors were mild to moderate--some of these tests were conducted on the same days mentioned in the citizens' complaints. Opinion II held that section 33(c) factors need not be considered in the permit renewal process.

On direct appeal to this court, Wells contends that the Agency's and Board's actions were improper pursuant to provisions of the Illinois Environmental Protection Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1001 et seq.) and the Illinois Administrative Procedure Act (Ill.Rev.Stat.1985, ch. 127, par. 1001 et seq.). The Board and Agency are represented by the Illinois Attorney General and the Cook County State's Attorney. Joining in the appeal as amicus curiae is the Illinois Manufacturers' Association, which asserts that the Agency has no rules or regulations governing the evaluation of permit renewal applications, thus denying applicants their due process rights.

The Agency argues that since the Board did balance the section 33(c) factors, its decision is not against the manifest weight of the evidence and we must let it stand rather than reweigh the evidence. It further contends that, unlike the earlier Wells cases, which concerned an enforcement action, this case concerns a permit renewal and therefore Wells had the burden to prove that it would not pollute the air. Moreover, since the earlier Wells cases involved an enforcement action, the section 33(c) factors need not be applied to a permit renewal case.

Before issuing a construction permit, the Agency must be assured that "[t]he emission source or air pollution equipment will not cause a violation of the Act or of this chapter * * *." (35 Ill.Admin.Code sec. 201.155 (1986).) If granted, an applicant must subsequently obtain an operating permit, the application for which must contain the same minimum information as is required for a construction permit and an applicant's certification that the prior information is still accurate. The standard for issuance of an operating permit is essentially the same as that for a construction permit. (35 Ill.Admin.Code sec. 201.160 (1986).) Operating permits are usually for a period of five years. Before expiration of the operating permit, the Agency sends a two-page renewal form requesting certification that previously submitted information is still accurate or, if changes have occurred, a schedule of those changes. Wells argues that since it certified that the information submitted to the Agency for its construction and operating permits was accurate and unchanged at the time of the renewal application, the Agency should have approved the renewal or requested further information before the denial.

Whether Wells is polluting the air in contravention of the Act is not crucial to a determination of this case. All of the arguments asserted by the parties can be resolved by determining whether the Agency followed the proper procedures in denying Wells' renewal application.

The...