ILLINOIS POLLUTION CONTROL BOARD
December 18,
1975
THE SHERWIN—WILLIAMS COMPANY,
)
)
Petitioner,
)
)
v.
)
PCB 75—268
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
MR. CLIFTON A. LAKE AND DIXIE L.
LASWELL, appeared on behalf of
Petitioner;
MS. KATHRYN
S. NESBURG, appeared on behalf of Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Mr.
Duznelle):
On April 21,
1975 Respondent,
Illinois Environmental Protection
Agency
(Agency), denied Petitioner, The Sherwin-Williams Company
(Sherwin-Williams) application for construction and operating
permits for its para-cresol manufacturing facility located at
11541 South Champlain Avenue in Chicago, Illinois.
Petitioner
filed
a “Petition for Review of Permit Denial” with the Illinois
Pollution Control Board
(Board) on July 10, 1975.
A hearing was
held on October 16,
1975, at which the only exhibit received was
a “Stipulation of Facttt (Stipulation)
signed by both Petitioner
and Respondent.
No witnesses testified at the hearing.
Petitioner and Respondent agree that the sole reason
for the Agency’s denial of Petitioner’s permit application is the
Agency’s decision to apply Rule 205(g) (1) (C)
of the Illinois
Air Pollution Control Regulations
(Air Rules)
to Petitioner’s
process.
According to the Stipulation and briefs of both
parties, the only issue in this case is whether Rule 205(g) (1) (C)
is applicable to emissions at Petitioner’s para—cresol manufacturing
facility.
Since it
is stipulated that Petitioner’s emissions do
not conform with the Rule,
(Stipulation
#9)
a finding by this Board
that Rule 205(g) (1) (C)
is applicable, would necessarily result
in an affirmation of the permit denial and a dismissal of this
appeal.
The primary issue
in this case
is whether Petitioner’s
para-cresol manufacturing process is a “petro—chemical
manufacturing process” within the meaning of Rule 205(g) (1) (C).
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478
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This term is not further defined in the Rules,
as the Board
had found it to be self-explanatory.
Petitioner asserts in its brief that Rule 205(g) (1) (C)
is
intended to apply only to processes which occur within a
petroleum refinery
(page
7 of Petitioner’s Brief lines
6-11).
However,
this is inconsistent with the very title of Rule 205(g) (1)
“Petroleum
Refinery and Petrochemical Manufacturing Process Emissions”
(emphasis added).
Had the Board intended Petitioner’s inter-
pretation,
it would not have included “and Petrochemical
Manufacturing Processes”
(emphasis added),
as that addition,
on its face,
is contrary to the interpretation which is suggested
by Petitioner.
Petitioner,
in its interpretation of the term “petrochemical
manufacturing process” relies on the Standard Industrial Classifi-
cation Manual
(SIC Codes).
The Board agrees with the Agency
that SIC Codes were “not meant to be used as a source of
definitions of words used in Chapter
2 of the Illinois Air
Pollution Control Regulations”.
Nowhere does Petitioner
demonstrate any intent by the Board to construct Chapter
2
Rules so as to conform with the definitions of SIC Codes.
Reference
is made to the use of SIC Codes in Chapter
1 of
the Air Rules.
However,
in that instant the distinctions
involved were gross ones,
and were made only to allow the
Agency to have its workload distributed.
The present case
involves specific regulations and the applicability of emission
standards;
not the mere spacing of deadlines for administrative
convenience.
Further, were
it the Board’s intent to apply SIC definitions
to Chapter 2 it would at least have so stated in its discussion of
the Rules
(R71-23),
if not by an adoption of the code definitions
in the Rules themselves.
In Chapter
1 of the Rules the Board
refers specifically to SIC Codes.
Here it makes no reference
whatever to definitions of manufacturing processes to be derived
from interpretation of SIC Codes.
The Board finds that there is
no basis for determining the definition of “Petro-Chemical
Manufacturing Process” by referring to SIC Code definitions.
Petitioner states that reference to SIC Codes “indicates
that the Board intended to include only processes which might
be found within a petroleum refinery”.
That very conclusion
demonstrates the error
in reliance upon such definitions.
The
Board has not been shown any facts which would indicate why a
given facility would be allowed to emit
8 pounds of organic
material per hour or 100 ppm depending solely upon whether
the plant is physically located at a petroleum refinery.
There
19
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479
—3-.
is no basis for such an interpretation.
In further support of this contention, Petitioner cites the
Board’s discussion of Rule 205(g)
as appears
in R71—23 at page
41.
Rule 205(g)
requires that hydrocarbons in
exhaust gases from catalytic cracking units
and other petroleum or petrochemical processes
be reduced to 100 ppm.
These units, like other
refinery facilities covered by Rule 205(a)-(d),
can be major nuisance sources if uncontrolled...
(emphasis supplied by Petitioner)
However, the correct interpretation of that passage hinges
not upon the phrase emphasized by Petitioner,
but rather upon the
subject of the sentence in question, “These units...”
Those
words refer to “catalytic cracking units” in the preceding
sentence, and not to the “other petroleum or petrochemical processes”
with which we are presently concerned.
Petitioner also argues that it is governed by Rule 205(f)
rather than Rule 205(g)(l)(C).
Rule 205(f)
regulates emissions
of “organic material” which is defined in Rule 201 as “Any chemical
compound of carbon.. .used as dissolvers, viscosity reducers or
cleaning agents”.
Further,
it
is clearly shown at page
41 of
R7l-23 that the Board intended this Rule to apply to solvents
or carriers,
as opposed to situations like the present where the
petrochemical is actually the basic feedstock in the manufacturing
process.
On page
2 of Respondent’s brief, the Agency quotes a definition
of “petrochemical process” which it uses as
a guide for its permit
engineers.
On page
2 of its reply brief Petitioner questions the
origins of that definition and its consistency with Petitioner’s
interpretation of Rule 205(g) (1) (C).
However, Petitioner fails
to advance any arguments that prove the definition to be
scientifically inadequate or inaccurate.
Petitioner goes on to state that because the Agency does not
present a definition of the term “petrochemical”,
its product
(para—cresol)
is therefore not a petrochemical.
However, Peti-
tioner does not go on to show that,
in fact, para—cresol is neither
a petrochemical nor a petroleum product.
Rather, Petitioner
appears to advance the hypothesis that if omitted from the
dictionary a rose would no longer be a rose.
The Agency’s definition of petrochemical process clearly
indicates that a petrochemical “is any chemical isolated or
derived from petroleum...”
It must be remembered that this
definition is not a regulation and is not exclusive.
Rather,
19
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480
—4—
it is up to the Petitioner to show that the definitions
used are scientifically inaccurate, unreasonable,
or inadequate
in their application to the present situation.
It has failed
to do so.
On page three of its reply brief Petitioner,
citing paragraph
7 of the Stipulation,
states that para-cresol is not a petrochemical.
However, this conclusion is in conflict with paragraph 1 of the
Stipulation, which states “The basic feed stock for manufacturing
para-cresol is toluene,”,
and paragraph 12, which states that
toluene is derived from petroleum.
Therefore,
the Board must
reject that portion of the Stipulation which states that
Petitioner does not produce petroleum products, as it is in
conflict with other stipulated facts and facts stated in both
Petitioner’s brief and reply brief.
Nowhere does Petitioner
prove its conclusory statements that para—cresol is neither
a petrochemical nor
a petroleum product.
Further, the Board does not agree with Petitioner’s statement
(on page one of its brief)
that the issue for the Board to
consider is solely one of
law.
It is clear that
in this case
there are mixed questions of law and fact.
A determination as to
whether a regulation
is applicable entails issues of fact when
a Stipulation of Fact is self-contradictory, as in the present
case.
Petitioner next applies the construction principle of ejusdem
generis to Rule 205(g)(l).
Petitioner there states that since
subsections
(A)
and
(B)
apply
to processes found within petroleum
refineries,
so must subsection
(C).
Firstly, Petitioner fails
to explain why that particular principle of construction should
apply rather than, for example, the opposite.
Secondly, where the
intent of a regulation is ascertainable from its face or through
reference to other materials, such “last resort” principles of
construction are not appropriate.
Thirdly, the principle of
ejusdem generis would not necessarily result in the Petitioner’s
cntended result,
as
(C)
is well within the context of the
section
(1)
heading of which it, along with
(A)
and
(B), describes
and enumerates.
Petitioner then alleges that “because the Board in its opinion
relies exclusively on testimony from the petroleum refining
industry
(Mr. Mowers of Amoco Oil) for its conclusion that the
100 ppm emission limitation is technologically feasible,
it is
not reasonable to apply that limitation to sources outside of the
petroleum industry”.
Such an allegation, without more,
is
immaterial to this proceeding.
If, as Petitioner states,
the sole
issue is over the applicability of Rule 205(g) (1) (C)
any attack on
the validity of the adoption process of that regulation
is immaterial.
Further, even if it were material, Petitioner not only fails to show
19
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481
—5—
that attainment of the limitation is not feasible, but even fails
to make such an allegation.
Perhaps this is because Petitioner
had already stated in Stipulation paragraph
9 the approximate
cost to the Petitioner
to meet the standards.
Thus,
Petitioner
has in fact already admitted that compliance with the emission
standard of 100 ppm is attainable.
Petitioner also raises
issue as
to the applicability of the
term “waste gas stream”
in Rule 205(g) (1) (C).
The Agency
defines that term “as process air which is emitted into the ambient
air”.
Petitioner states that the term “waste gas stream” is
not used in industry to refer to emissions from para-cresol
manufacturing.
However, Petitioner does not deny that its
emissions constitute a stream of waste gas.
On its face, it is
obvious that Petitioner’s emissions from its para-cresol manu-
facturing process constitute a “waste gas stream” within Rule
205(g) (1) (C).
Petitioner has failed to prove that Rule 205(g) (1) (C)
is
not applicable to emissions from its para—cresol manufacturing
process.
Therefore,
as this is the only issue presented in this
proceeding, the Petition must fail.
The Board finds that the
Agency’s denial of Petitioner’s permit application was proper.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
Mr. Goodman abstains.
ORDER
The Petitioner’s appeal from the denial of its permit is
dismissed.
IT
IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, J~erebycertify the above Opinion and Order were adopted on
the
~
day of December, 1975 by
a vote of
3-~
C&c~/r) ~
Christan
L. Moffe~/1Clerk
Illinois Pollutiofr~ontrolBoard
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482