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).
    19
    -
    478

    —2—
    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
    -
    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
    -
    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
    -
    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
    19
    -
    482

    Back to top