Z96125.PDF

ILLINOIS POLLUTION CONTROL BOARD

July 18, 1996

COLOR COMMUNICATIONS, INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 96-125

(Permit Appeal - Air)

CONCURRING OPINION (by J. Yi):

Although I believe that the Agency’s decision of permit application incompleteness

should be affirmed, I am concurring with the majority today because I disagree with the

majority’s reasoning. On November 2, 1995 the Agency issued its Notice of Incompleteness,

stating that Color Communication Inc.’s (CCI) two facilities must be considered one source for

the purposes of CAAPP permitting. The Agency’s denial letter states that “Section 39.5(5) of

the Act specifically requires an owner or operator of a CAAPP source to submit a single

complete CAAPP application covering all emission units at the source.” The Agency proceeds

to state that the two buildings’ emissions should be considered one source and since CCI

submitted two CAAPP applications it “failed to address source-wide operations in the

necessary single CAAPP application.” Therefore the issue, as framed by the Agency denial

letter, is whether CCI’s two applications are incomplete.

I agree with most of the majority’s reasoning and findings in the discussion portion of

the opinion. I disagree with the majority’s incorporation of the concept of support facility into

the State CAAPP program’s definition of “source” concerning facilities which do not share

the same Standard Industrial Classification (SIC) code.

The majority reasons that, since the

State’s CAAPP program definition of “source” shares identical language and history with the

federal definition, and since the intent of the legislation adopting the State CAAPP program is

to implement the federal program, then the concept of support facility was also adopted by the

Section 39.5(1) of the Act defines "source" to mean “any stationary source (or any group of

stationary sources that are located on one or more contiguous or adjacent properties, and are

under common control of the same person or persons under common control) belonging to a

single major industrial grouping. For the purposes of defining "source," a stationary source or

group of stationary sources shall be considered part of a single industrial grouping if all of the

pollutant emitting activities at such source or group of sources on contiguous or adjacent

property belong to the same Major Group (i.e., all have the same two-digit code) as described

in the Standard Industrial Classification Manual, 1987.” (415 ILCS 5/39.5(1).)

legislature when creating the State CAAPP program. The majority does not state that the plain

language of the Act is ambiguous, but instead argues that the intent of the legislature by

adopting the plain language was to adopt a definition consistent with the federal CAAPP

program and that to conclude otherwise would place a contradictory burden on the Agency and

the regulated community.

The majority concludes therefore that the concept of support

facility, which appears only in a preamble to the federal regulations which adopted the

definition of “source” and not in a preamble to State regulations or the Act, was also adopted

by the State’s legislature when it adopted the language of Section 39.5(1) of the Act.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s

intent. (

Piatak v. Black Hawk College Dist. # 503

, 207 Ill.Dec. 586, 269 Ill.App.3d 1032,

647 N.E.2d 1079 (3rd Dist. 1995).) The initial source for determining legislative intent is the

plain meaning of the language used, and where unambiguous, the plain meaning of the

language controls. (

. at 589.) The courts must take the words found in a statute in their

ordinary usual meaning and give them a sensible meaning consonant in the context in which

they are used. (

. at 589.) Finally, where such a literal reading would defeat the legislature’s

obvious and clearly expressed purposes, the courts need not adhere to the literal reading.

(

Village of Woodridge v. DuPage County

, 144 Ill.App3d 953, 98 Ill.Dec. 935, 494 N.E.2d

1262.)

Here the plain meaning of the language of Section 39.5(1) of the Act would define

“source” to mean a stationary source or group of stationary sources that are located on one or

more contiguous or adjacent properties, and that are under the common control, shall be

considered part of a single industrial grouping if all of the pollutant emitting activities at such

source or group of sources belong to the same SIC code. The literal reading would not defeat

the legislature’s obvious and clearly expressed purposes of defining “source”, however, the

statutory language does not mention the federal CAAPP program’s support facility concept.

Here, unlike the federal CAAPP program (where the United States Environmental Protection

Agency (USEPA) when adopting its definition of “source” included in its preamble to the

regulation a discussion of the support facility concept and its intent to consider two sources one

The State CAAPP program places a burden on the Agency to issue CAAPP permits

consistent with the Clean Air Act (CAA) and the regulations promulgated thereunder and this

Act and the regulations promulgated thereunder. (See 415 ILCS 5/39.5(3)(a).) The federal

CAAPP program has incorporated the concept of support facility, thereby, under the federal

program CCI would be defined to have one source and would be required to submit one

CAAPP application for both of its facilities. If the State CAAPP program does not

incorporate the federal concept of support facility then CCI would have two sources and thus

may submit two CAAPP applications for its two facilities. This would result in the possible

violation of Section 39.(3)(a) of the Act if the Agency issues two CAAPP permits to CCI,

because of the requirement placed on the Agency to issue CAAPP permits consistent with the

CAA and the regulations promulgated thereunder which, as stated above, would require only

one application and one permit. Therefore a contradictory burden would be placed on the

Agency and regulated community.

regardless of SIC codes, if one source is a support facility and which received public

comments) we have no legislative discussion, findings, preamble, or any other clear indication

that the State CAAPP program is also incorporating this concept.

I do not believe we may lawfully incorporate the concept of support facility in the

State’s CAAPP program in the absence of either adopted regulations pursuant to the

Administrative Procedure Act (APA) (5 ILCS 100/1-1) or clear legislative definition of the

support facility concept in Section 39.5 of the Act. I simply cannot agree with the majority

that since the intent of the legislature was to adopt a State program consistent with the federal

CAAPP program that means the program must be administered and interpreted exactly as is

the federal program. I especially cannot agree if it means that in order to fully understand

what is required under the Illinois’ law, one must have the federal law and any rulemaking

adopted on the federal level pursuant to the federal law and the corresponding preambles in

hand to understand the full implication of Illinois’ law. Such an interpretation would set a bad

precedent in the State of Illinois concerning environmental law, as public notice and

participation has been a guiding factor in this State’s environmental regulations and laws to

date. To adopt the concept of support facility as part of the definition of “source” in such a

manner does not allow for the same public participation on the state level that was afforded to

the public on federal level.

However, I would have affirmed the Agency’s decision that the application is

incomplete due to the statutory language requiring the applicant to provide sufficient

information to allow the Agency to determine all applicable requirements pursuant to the

CAA, and regulations promulgated thereunder, have been met. Section 39.5(5)(c) of the Act

states in pertinent part “[t]o be deemed complete, a CAAPP application must provide all

information, as requested by the Agency application forms, sufficient to evaluate the subject

source and its application and to determine all applicable requirements, pursuant to the CAA,

and regulations promulgated thereunder, this Act and regulations promulgated thereunder.”

Affirming the Agency’s decision, yet not including the federal concept of support facility in

the State CAAPP program, would leave the State’s CAAPP program in question in situations

such as these, and would require a legislative amendment to Section 39.5 of the Act or require

the Agency to propose a rulemaking to the Board to include the concept of support facility.

However, I would much rather cause an inconvenience to the State’s CAAPP program than to

adopt what amounts to a rule through the use of statutory interpretation and thereby circumvent

public participation.

While I believe that statutory interpretation is an important authority or tool of this

Board or any adjudicatory body, I feel that including the concept of support facility goes

beyond such authority in this case. Additionally, I believe the result of this interpretation blurs

the separate authority of the State to implement its own State CAAPP program or any other

environmental program which tracks a federal program. Finally, as mentioned above, such

use of the authority circumvents the role of public participation which has been clearly spelled

out in the Act.

For the reasons stated above I respectfully concur.

Joseph Yi

Board member

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above concurring opinion was submitted on the _____ day of ___________, 1996.

___________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board