ILLINOIS POLLUTION CONTROL BOARD
May 7, 1998
W.R. MEADOWS, INC.,
Petitioner,
v.
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-195
(Permit Appeal - Air)
ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board on a motion for summary judgment filed by
petitioner, W.R. Meadows (Meadows). Meadows contends that the Illinois Environmental
Protection Agency (Agency) improperly denied Meadows a construction and operating permit
and that it is entitled to the permit as a matter of law. The major issue involves whether certain of
Meadows’ emissions are properly classified as fugitive emissions (as Meadows contends), or as
non-fugitive emissions (as the Agency stated in its permit denial). For the reasons set forth below,
the Board denies Meadows’ motion for summary judgment and sends the matter to hearing in
part.
Meadows challenges the Agency’s legal basis for the permit denial and contends it is
entitled to summary judgment on the following three grounds: (1) the Agency improperly
characterized the emissions from the curing area as non-fugitive emissions; (2) the Agency
improperly included the curing area emissions in determining that the Meadows’ facility had major
source status; and (3) the Agency improperly based the permit denial on Meadows’ failure to
comply with the coating limitation in 35 Ill. Adm. Code 218.926(b). The Board addresses each
count in turn and concludes that undisputed facts establish the Agency erroneously denied the
permit based on Meadows’ alleged failure to comply with 35 Ill. Adm. Code 218.926(b), as
further specified below. Accordingly, the Board grants the portion of Meadows’ motion
regarding that issue. However, the parties do dispute the facts relating to the Agency’s
classification of the emissions as non-fugitive and the classification of the facility as a major
source. The Board therefore orders that this case be sent to hearing on the remaining disputed
claims.
BACKGROUND
Meadows manufactures asphalt fiberboard expansion joint material for the concrete
construction industry at a facility located in Hampshire, Kane County, Illinois. Kane County is
located in the Chicago ozone nonattainment area. Under 35 Ill. Adm. Code 218, Organic
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Material Emission Standards And Limitations For The Chicago Area, certain stationary sources of
volatile organic emissions (VOM) located in the Chicago ozone nonattainment area are subject to
emission standards and limitations.
Meadows’ Hampshire facility has two sources of VOM emissions: (1) a dip tank saturator
which saturates the fiberboard with an asphalt/mineral spirits blend (saturant), and (2) a two-acre
outdoor area where the fiberboard is stored for approximately four weeks to allow the saturant to
penetrate the fiberboard (curing area). Adm. R. at 26, 29.
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On December 21, 1996, Meadows sought a permit from the Agency to install VOM
emission control equipment on the dip tank saturator unit. Adm. R. at 1. On March 31, 1997, the
Agency denied Meadows’ request for a permit on three grounds:
a.
The Agency does not classify the emissions from curing as fugitive
emissions. In particular, W.R. Meadows did not show that some or
all of these emissions do not or could not reasonably pass through a
chimney, vent, or equivalent opening.
b.
Even if they are classified as fugitive, 35 Ill. Adm. Code 203.206(e)
states that in severe nonattainment areas, fugitive emissions shall be
included in determining whether it is a major stationary source or a
major modification. As a result, the board coating line would be a
major source even if the proposed condenser provided 100% control
of the saturation step. Hampshire is located in a severe
nonattainment area.
c.
The application does not show that 35 Ill. Adm. Code Part 218
Subpart PP would not be violated. Adm. R. at 106-108.
On May 5, 1997, pursuant to Section 40(a)(1) of the Environmental Protection Act (Act),
Meadows filed this permit appeal. On February 23, 1998, Meadows filed the instant motion for
summary judgment (Motion) and a brief in support of the motion for summary judgment (Brief).
On March 9, 1998, the Agency filed a response in opposition to the motion for summary
judgment (Response). On March 16, 1998, Meadows filed a reply to the Agency’s response
(Meadows’ Reply). On March 24, 1998, the Agency filed a reply to Meadows’ Reply (Agency’s
Reply).
On March 24, 1998, the Agency filed a motion to strike Meadows’ Reply and filed the
Agency’s Reply
instanter
. On March 26, 1998, Meadows filed a motion in opposition to the
Agency’s motion to strike Meadows’ Reply and a motion to file the Meadows’ Reply
nunc pro
tunc
. The Board hereby disposes of these motions as follows. The Agency’s motion to strike is
denied. The Agency’s motion to file a reply
instanter
is denied. Meadows’ motion to file
Meadows’ Reply
nunc pro tunc
is granted.
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The administrative record is cited as “Adm. R. at ___”.
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MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate when there are no genuine issues of fact for the trier of
fact to consider and the movant is entitled to judgment as a matter of law. Sherex Chemical v.
IEPA (July 30, 1992), PCB 91-202; Williams Adhesives, Inc. v. IEPA (August 22, 1991), PCB
91-112. For the reasons stated below, the Board finds that genuine issues of fact exists on two of
Meadows’ three grounds for summary judgment.
Fugitive Emissions
Meadows alleges that the emissions from its Hampshire facility’s curing area are fugitive
emissions. Brief at 13. If the emissions are properly characterized as fugitive emissions, the
Meadows’ facility is potentially exempt from the need for a major source permit. See 35 Ill. Adm.
Code 203.211. To support its claim, Meadows asserts: (1) the curing area emissions meet the
legal definition of fugitive emissions; (2) the Agency previously correctly determined that the
curing area emissions are fugitive and is estopped from now adopting a contrary determination;
and (3) the Agency’s failure to specify reasons why the curing area emissions are non-fugitive
emissions violates the Section 39(m) requirement that Agency permit denials be accompanied by a
statement of reasons for the denial. Brief at 9, 15, and 17.
Fugitive Emissions Definition
Fugitive emissions are defined in the Board’s air regulations as “those emissions which
could not reasonably pass through a stack, chimney, vent or other functionally equivalent
opening.” 35 Ill. Adm. Code 203.124. Meadows contends that the emissions from the curing
area meet this definition, and hence are fugitive emissions. Meadows asserts that emissions from
an outside curing area such as the area used at the Hampshire facility cannot be collected, without
great cost, such as to be reasonably passed through a stack, chimney, vent, or other functionally
equivalent opening. Brief at 13-14.
In response, the Agency notes that Meadows failed to show that the emissions released
during the curing process could not be collected from current operations at a different stage of the
curing process. Response at 9. Addressing Meadows’ assertion that enclosing the curing area
would be too expensive, the Agency observes that Meadows only provided a cost estimate for
one type of building design. Response at 10. The design represented enclosing the current
Hampshire facility, and Meadows failed to consider other building designs. Response at 10. The
Agency further comments that there is no showing that Meadows investigated the feasibility of
transporting the saturated fiberboard to an existing covered facility. Response at 10.
The Board finds that an issue of material fact remains regarding whether there exists
reasonable technology or modes of operation that would allow the VOM currently emitted during
the curing process to be managed as non-fugitive emissions. For this reason, Meadows’ motion
for summary judgment related to this issue is denied.
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Agency’s Prior Emissions Determination
Meadows asserts that the Agency erroneously classified the instant emissions as
non-fugitive in the permit at issue here, since, in a prior 1988 permit, the Agency classified the
emissions as fugitive. Brief at 15. Specifically, Meadows argues the Agency’s prior
determination that the emissions were non-fugitive estops the Agency from now reaching a
contrary determination. Brief at 16. Meadows claims the nature of its production operation has
not changed between the 1988 permit’s issuance and the current Agency’s permit denial. Brief at
16.
The doctrine of equitable estoppel may be applied when a party reasonably and
detrimentally relies on the words or conduct of another. See Brown’s Furniture Inc. v. Wagner,
171 Ill. 2d 410, 431, 665 N.E.2d 795, 806 (1996). For Meadows’ estoppel argument to prevail,
Meadows must, among other things, show that the Agency made a misrepresentation, knowing
that the misrepresentation was untrue. White and Brewer Trucking, Inc. v. IEPA, (March 20,
1997), PCB 96-250, slip op. at 25.
Meadows has failed to establish that it is entitled to summary judgment on this claim as a
matter of law. First, Meadows fails to allege or show that the Agency made a misrepresentation
knowing that the misrepresentation was untrue. Meadows claims that the Agency must grant the
instant permit because it granted Meadows a permit in 1988: no misrepresentation is alleged.
Second, Meadows has not shown that it reasonably relied on that fact that the 1988 permit was
granted. Meadows claims that it built and operated the plant based on the Agency’s previous
determination in 1988 that the curing area emissions were fugitive. Brief at 16. But, Meadows
fails to allege this reliance was reasonable. Because Meadows neither alleges nor shows that the
Agency made a knowing misrepresentation, and because Meadows does not allege it reasonably
relied on the Agency granting the 1988 permit, Meadows has failed to establish that it is entitled
to summary judgment on this claim as a matter of law. Summary judgment is denied on this issue.
Section 39(m) Reasons For Permit Denial
Meadows alleges the Agency’s permit denial letter violates statutory requirements of the
Act, namely, 415 ILCS 5/39(m) (1996), because the Agency fails to give a specific reason why
the regulations might be violated if the permit was granted. Brief at 17. Meadows challenges the
Agency’s alleged failure to explain why the curing area emissions do not satisfy the regulatory
definition of “fugitive emissions.” Brief at 17.
Section 39(m), in part, requires that when the Agency denies a permit, it
“shall transmit to the applicant within the time limitations of this subsection
specific, detailed statements as to the reasons the permit application was
denied. Such statements shall include, but not be limited to the following:
(i) the Sections of this Act that may be violated if the permit were
granted;
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(ii) the specific regulations promulgated pursuant to this Act that may
be violated if the permit were granted;
(iii) the specific information, if any, the Agency deems the applicant did
not provide in its application to the Agency; and
(iv) a statement of specific reasons why the Act and the regulations
might be violated if the permit were granted. 415 ILCS
5/39(m)(1996).
The Agency responds that the permit denial letter explains that the Agency does not classify the
emissions as fugitive. Response at 16. The letter further states that Meadows failed to “show
that some or all of the curing area emissions do not or could not reasonably pass through a
chimney, vent or equivalent opening.” Response at 16. Given the explicit statements in the letter,
the Board finds Meadows’ argument that the permit letter violated Section 39(m) to be without
merit and denies summary judgment on this issue.
Fugitive Emissions And Major Source Status
Meadows argues the Agency erroneously included the curing area emissions in
determining Meadows’ major source status. Brief at 18. Noting that the Agency relied on 35 Ill.
Adm. Code Part 203, Section 203.206(e) to make this determination, Meadows contends that
Section 203.206(e) violates both federal and state law. Brief at 28. Because the Board finds
Meadows’ argument fails as a matter of law, summary judgment is denied.
Section 203.206(e) provides, in part, that in areas classified as serious, severe, or extreme
nonattainment, fugitive emissions of a stationary source shall be included in determining whether
the source is a major stationary source. 35 Ill. Adm. Code 203.206(e). Meadows argues Section
203.206(e) is “inconsistent” with federal law. Brief at 19. In support of its claim, Meadows
laboriously explains the rulemaking history of Section 203.206. Meadows suggests that in a 1992
rulemaking for Section 203.206(e), the Agency erroneously believed federal law required that
fugitive emissions be included in a major source determination. Brief at 21. Citing Alabama
Power v. Castle, 636 F.2d 323 (D.C. Cir. 1983), Meadows claims federal law prohibits including
fugitive emissions in major source determinations. As discussed below, Meadows misinterprets
Alabama Power. Despite Meadows’ attempt to show that federal law now prohibits including
fugitive emissions when determining a major source, no federal law prohibits such an inclusion.
The Agency properly noted in its Response that there is nothing in the Clean Air Act’s
provisions addressing non-attainment area new source review program requirements that prohibits
the State from counting fugitive emission in its major source applicability determinations.
Response at 22. Further, Meadows’ reliance on Alabama Power is misplaced. In Alabama
Power, the United States Court of Appeals for the D.C. Circuit found that the United States
Environmental Protection Agency (USEPA) had not followed proper rulemaking procedures
under the federal administrative procedures act when it included fugitive emissions in determining
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whether a source was a major source. Alabama Power v. Castle, 636 F.2d 369-70. Simply
because the USEPA did not follow proper procedures, however, does not preclude the existence
at the state level of a valid rule requiring including fugitive emissions when determining major
source status. Meadows does not dispute that the Board followed proper rulemaking procedures
when it adopted 206.203(e) to include fugitive emissions. Meadows’ contention is that the
Agency proposed and the Board adopted a rule under the USEPA’s erroneous advice as to what
was actually federally required. Brief at 22. Regardless of the conditions under which the rule
was adopted, there is no federal law prohibiting including fugitive emissions when evaluating
major source status.
Meadows further asserts that Section 203.206(e) conflicts with Section 203.211. Brief
at 18. Specifically, Meadows argues that Section 203.211 excludes counting fugitive
emissions from the calculation of a source’s aggregate emissions for purposes of determining
whether the facility is classified as a major source. Brief at 18. The Agency responds that no
conflict exists because Section 203.211 does not apply to exclude fugitive emissions from the
calculation of a source’s aggregate emissions, but rather the source’s potential to emit.
Response at 30. Section 203.211 states as follows:
The provisions of this Part shall not apply to a source or modification that would
be a major stationary source or major modification only if fugitive emissions, to the
extent quantifiable as evidenced by 35 Ill. Adm. Code 201.122, are considered in
calculating the potential to emit of the stationary source or modification and the
source does not belong to any of the categories enumerated in Section 203.206(d).
35 Ill. Adm. Code 203.211
The Board agrees with the Agency that Section 203.206(e) does not conflict with 203.211
because Section 203.211 does not apply to exclude fugitive emissions from the calculation of a
source’s aggregate emissions, but rather the source’s potential to emit. The Board denies
Meadows’ motion for summary judgment on this ground.
VOM Content: Compliance With Part 218, Subpart PP
Meadows’ final ground for summary judgment alleges the Agency improperly based its
denial on Meadows’ failure to comply with the coating limitation in 35 Ill. Adm. Code
218.926(b). Brief at 36. The Agency responds that “[I]n recognition of the Petitioner’s recent
assertions, under oath, of facility compliance with the VOM content requirement of 35 Ill. Adm.
Code Part 218, Subpart PP, the Illinois EPA will neither concede nor challenge the Petitioner’s
argument on this issue.” Response at 32. The Board finds no issue of material fact exists on this
issue and finds as a matter of law that Meadows is entitled to summary on this ground. However,
although the Board grants summary judgment on this issue, the parties do dispute the facts
relating to the Agency’s classification of the emissions as non-fugitive and the classification of the
facility as a major source. The Board therefore orders that this case proceed to hearing on the
remaining disputed claims.
CONCLUSION
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For the reasons set forth herein, Meadows’ motion for summary judgment is denied on the
ground that the Agency improperly characterized the emissions as non-fugitive and on the ground
that the Agency improperly included the curing area emissions in determining the facility had
major source status. However, the Board grants Meadows’ summary judgment on the issue of
its compliance with the VOM content requirements of 35 Ill. Adm. Code 218.926(b).
Accordingly, the Agency’s denial reason on this issue is stricken as improper. This matter shall
proceed to hearing concerning the remaining permit denial reasons.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 7th day of May 1998 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
