ILLIIN (AS
I?ULLUIIUIN
LUINIKUL
JIUARJ)
March 21,
1996
JOHN C. JUSTICE,
d/bfa
MICROCOSM
)
)
Petitioner,
)
)
v.
)
PCB95-112
)
(Permit Appeal
-
Air)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
JOHN JUSTICE APPEARED
PRO SE,
AND
RACHEL DOCTORS
AND ROBB LAYMAN
APPEARED ON BEHALF OF THE
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by C.A.
Manning):
This matter comes before
the Board on a petition for review brought pursuant to
Section 40(a) of the Environmental Protection Act (Act)
(415
ILCS
5/40(a))
ofa permit denial
by the Illinois Environmental Protection Agency (Agency) to petitioner, John C.
Justice, d/b/a
Microcosm (Microcosm).
The petition for review was filed with the Board on March 28,
1995,
seeking reversal of the Agency’s February 21,
1995
decision which denied the
Microcosm facility an operating permit for two drying
ovens located in Cicero, Cook County,
Illinois.
The Agency denied the permit because Mr. Justice failed to
submit an approvable
compliance plan detailing information ofthe
chosen methods ofcompliance.
The Agency
further denied the permit due to the lack of evidence
showing compliance with the Act or
Board regulations.
The Board’s responsibility
in this matter arises
from Section 40 ofthe Act.
The Board
is charged, by the Act,
with a broad range of adjudicatory duties.
Among these is adjudication
ofcontested decisions made pursuant to the permit process.
More generally, the Board’s
functions are based on a series of checks and balances integral to Illinois’ environmental
system:
the Board
has
responsibility for rulemaking
and
principal adjudicatory functions,
while the
Agency is responsible for carrying out the principal administrative duties,
inspections,
and permitting.
The Agency filed a motion to dismiss
on April 20,
1995 arguing
that
petitioner failed
to
satisfy the Board’s information requirements of
35
Ill.
Adm.
Code
105.102 (1994).
Mr.
Justice argued that the Agency neglected to
submit the record on appeal as ordered by the
Board in its April 6,
1995 order.
By
order ofJune
15,
1995 the Board denied the Agency’s
motion to dismiss.
2
On
January
5,
1996, a public hearing
was held before Hearing OfficerJune Edvenson
atthe Board’s Chicago office located at the James R. Thompson Center in Chicago, Illinois.
John Justice appeared
pro se
andpresented his case-in-chief; Robb Layman presented the
Agency’s case-in-chief.
John Justice testified on his own
behalf; Ray Pilapil, an
environmental engineer forthe Agency, testified on behalfof the respondent.
At hearing, the
hearing officer admitted various exhibits offered by petitioner including sixphotographs of the
equipment at the Microcosm site (See Pet. Exh.
1-6).
1
Petitioner’s Exhibit 7 (Pet.
Exh. 7)
included a stapled photocopy of Microcosm’s manufacturing plant layout with additions
labeled G, an in-line centrifugal fan, and labeled H, the duct work, as photographed in
Petitioner’s Exhibit 6 (Pet. Exh. 6).
The hearing officer also admitted two exhibits offered by
respondent.
Respondent’s Exhibit
1
(Resp. Exh.
1) is acopy of petitioner’s permit application
including three new pages, pages 2, 4, and 8, which were previously omitted in error from the
record filed with the Clerk of the Pollution Control Board.
Respondent’s Exhibit 2 (Resp. Ex.
2) is a copyof the Board’s Subtitle B regulations pertaining to Procedure T: Criteria for and
Verification ofa Permanent or Temporary Total Enclosure.
As stated in more detail below, Mr. Justice applied for apermit on October 4, 1994
after agreeing to several conditions in a consent order entered between Mr. Justice, the Illinois
Attorney General and the Agency on August26,
1994.
(Rec. at 21-32.)
The Agency issued a
noticc of incomplctcness to Mr. Justice on October
18,
1994 (Rec. at 11) requesting
supplementary information to the permit application.
In response, on December
1,
1994, Mr.
Justice submitted furtherinformation (Rec.
13-20) which was subsequently reviewed by the
Agency.
As a result, the Agency denied Mr. Justice’s permit application on February 21,
1995.
For reasons more fully explained in the opinion below, the Board hereby affirms the
Agency’s denial of petitioner’s application for an air permit anddenies all relief requested by
the petitioner.
BACKGROUND
Microcosm is an adhesives
manufacturing
and paper coating or laminating facility
located in Cicero, CookCounty, Illinois.
Mr. Justice is the present operator ofMicrocosm
andhas operated Microcosm since at least 1976.
(Rec. at22.)
2
Mr. Justice has been in the
1
Petitioner’s Exhibits
1-6 include the following: Exhibit
1
(Exh. I) is a photograph entitled
“turbine generator
“;
Exhibit 2 (Exh. 2) is a photograph entitled
“beta plate”; Exhibit 3
(Exh.
3) is aphotograph entitled
“switch gear panel
“;
Exhibit 4 (Exh. 4) is aphotograph entitled
“enclosure under roof”; Exhibit
5
(Exh.
5)
is aphotograph entitled
“exhaust and enclosure
“;
Exhibit 6
(Exh. 6) is a photograph entitled
“muffler
and air fuel intake.”
2The Agency’sAdministrative Record filed on June27,
1995 will hereinafter be cited to as
(Rec. at
.).
The record ofthetranscript at the hearing held on
January
5,
1996 will
3
business of adhesive coating and laminating for a number
of industrial companies since 1964.
(Tr. at 24.)
Microcosm is a small business which primarily
uses outside supplied adhesives,
some of which are supplied by customers, and
then applied to paper, film, foil or cloth
products.
(Tr. at 22; Pet. Br. at 1.)
The facility has Iwo coadng lines which apply coatings
onto a film or paper, dries the applications in an oven and thenlaminates onto another
material.
The coating is applied by a mechanical applicatorand a laminator pulls the raw
material through the applicator and the
drying
oven.
(Tr. at 3 1-32.)
At the hearing, Mr.
Justice stated that the coating applicator and the
drying
oven abut each other to seal the space
betweenthe coating head and oven in order to eliminate vapor escape.
(Tr. at
35.)
On August 26,
1994 Mr. Justice, the Attorney General, and the Agency entered into a
final consent order in an enforcement ease styled
People ofthe State of Illinois
ex.rel.
Roland
W. Burns, Attorney General of the State of Illinois. v. John C. Justice, dlb/a Microcosm
,No.
93 Ch 4290, Circuit Court of Cook County.
(Ree. at 21-32.)
The complaint in this
enforcementcase alleged various violations of the Act including Section 9(a) and (b) and 35
Ill. Adm. Code 201.144, 21 5.204(c) and 218.211(c) of the Board’s air pollution regulations.
(Ag. Br. at 3-4.)
The terms ofthe consent order included Mr. Justice’s agreementto submit
permits for the air emission sources at the Microcosm facility and to implement certain
compliance measures atthe Microcosm facility.
~
In response to the consent order requirements, Mr. Justice submitted an operating
permit application to the Agency fortwo drying ovens on October
4, 1994.
(Ag. Br. at 1;
Resp.
Exh.
1
at 1-13.)
Petitioner included a complianceplan explaininghis intentions to
utilize a cogeneration process to control the Volatile Organic Compounds (VOC) in the coating
operations (Ag. Br. at 2; Resp. Exh.
1 at
13.)
In the compliance plan, Mr. Justice indicated
that a capture and control
system would be used as the method of compliance as required by
hereinafter be cited to as (Tr. at
.).
Petitioner’s Post-Hearing Comments will hereinafter
be cited to as (Pet. Br. at
.).
The Agency’s Post-Hearing Comments will hereinafter be
cited to as (Ag. Br. at
.).
The
1994 Consent Order will hereinafter be cited to as (Consent
Order at.).
~This agreement required, among other things:
(1) petitioner’s submittal of a complete and
proper operating permit application for all emission sources and air pollution control
equipment at the facility as specifiedin 35
Ill. Adm. Code 20 1.157; (2) acompliance plan,
subject to state approval,
setting forth the facility’s chosen method
of compliance as required
under
35 Ill. Adm. Code Part 218; (3) submittal to the Agency, within
30 days, a complete
and proper construction permit application forthe installation ofany emissioncontrol
equipment that is a
part
ofthe compliance plan; (4)
submittal to the Agency of an operating
permit application for any approved control equipment withina time specified by the
construction permit; (5) cessation of the operation of all emission sources if the necessary
construction or operating permit is not obtained within
120 days of the date of submittal ofthe
permit application.
(Ag. Br. at
3-4; Rec. at 26-27, citing Consent Order at 6-7.)
3~
Ill. Acim. Code
21
&20/
since
his operation
did
not
utilize
compiiant coatings.
Mr. justice
further stated his belief that the cogenerator was not regulated under the Board’srules and
regulations.
At hearing before the Board, Mr. Justice testified that he believed the steps taken atthe
facility to rectify the problems are adequate.
Mr. Justice argues that the capture and control
system consists of permanent total enclosures, which surrounds all possible emission sources,
andany Volatile Organic Material (VOM) emissions are ducted to centrifugal fans which then
supplies the VOM as fuel to an internal combustion engine having less than 1500 horsepower.
(Pet. Br. at 2.)
Mr. Justice
further
states that the fans pull
warm air through the
oven in
the
direction opposite to the movement ofcoated material; therefore, the solvent latent air is
pulled in by the fan which collects and moves it to the turbine which burns the VOM.
(Tr. at
33-34.)
Mr. Justice also argues that the emission capture system captures all
emissions
from
the coating applicator at the beginning of the process.
(
Id.)
Mr. Justice admitted that no
testing in accordance with Board regulations was done to evaluate the efficiency of the VOM
capture and control system.
(Tr. at 3
7-39.)
However, Mr. Justicecontends that pursuant to
35
Ill. Adm. Code 210.146(i), no permit is needed for the operation ofthe internal combustion
engine, which is the control device.
The Agency’s solewitness, Mr. Pilapil, testified on the inadequacy
of the petitioner’s
permit application for the Microcosm
site.
~ Mr.
Pilapil testified that the permit application did
not contain enough information to determine compliance with Part 218
(35
Ill. Adm. Code
Part 218).
(Tr. at 64.)
Mr. Pilapil furthertestified,
“there wasn’t detailed information on the
materials used in
the coating plant.
There was lack ofinformation on the VOC contents ofthe
materials used.
. .
the application did not include any information on the capture system or
any detailed information on the control device.
“
(Tr. at
64-65.)
Mr. Pilapil stated that
missing information, such as the emissions prior to going into the capture system and control
device, was necessary for him to establish permit limitations and to
determineuncontrolled
emissions.
(Tr. at 69.)
Overall, Mr. Pilapil stated the information submitted on the
application was not sufficiently complete in order for him to determine compliance.
On October 18,
1994, theAgency issued a notice of incompleteness to Mr. Justice
explaining that the permit application failed to contain information as required by
35 Ill. Adm.
Code 201.157.
(Ag. Br. at 2, Rec. at 11-12.)
~ Mr. Justice responded to thenotice of
Mr. Pilapil is responsible for reviewing air pollution permit applications
at the Agency.
Specifically, he reviews the applications to insure that each applicant’s emissions and air
pollution control equipment is in compliance with all state and federal regulations.
He is
assignedto oversee the permit applications relatingto volatile organic material emissions in
the Chicago area such as coating plants and printing plants.
(Tr. at 58.)
~The notice of incompleteness listed informationmissing from the permit application
including, but not limited to, the following:
(1) the name and identification number of each
coating as applied on each laminating line; (2) the weight of VOM (Volatile Organic Material)
5
incompleteness on December
1,
1994 and submitted various information, answers, and
diagrams in an attempt to supplement the incomplete permit application previously submitted
on october 4,
1994.
Mr. Pilapil testified about Mr. Justice’s supplementaryinformation
during the Agency’s case-in-chief stating,
“the application gave complete information in tenus
ofmaterial usage for the cleanup solvent, for the coatings used, but it indicated that there was
some other VOM containing material (sic) used without indicating what those other VOM
containing materials (sic) were.
“
(Tr. at 66-67.)
Mr. Pilapil continued his testimony stating
that the information submitted by Mr. Justice was very vague and incomplete.
Regarding
information on uncontrolled emissions, Mr. Pilapil stated that Mr. Justice either did not
respond to the question or he misunderstood the question concerning the uncontrolled
emissions which requested VOM emissions based on material usage and VOC content prior to
going into the control equipment and capture system.
(Tr. at 67.)
Further, Mr.
Pilapil stated
that the information submitted by Mr. Justice did not contain any
“clear-cut estimation of
capture efficiency and control device efficiency..
.
in order to determine compliancewith the
Boardregulations.”
(Tr. at 70-71.)
Mr. Justice also submitted a list of VOM indicating the
VOM content for coatings in response to the first three questions in the letter of
incompleteness and he testified that all
ofthe coatings used at theMicrocosm facility contained
VOM in excess of 2.9 pounds per gallon which is the maximum amount of VOM for coatings
allowedunder
35 Ill. AdniL Code 218.204.
(Tr. at 29.)
Regarding the process flow diagram submitted by
Mr. Justice in response to the notice
of incompleteness, Mr. Pilapil testified that he needed further information in order to allow the
issuance ofthe air permit.
Mr. Justice made reference to a 90 percent efficiencyrate ofthe
capture system and control device which indicated to Mr. Pilapil some type of overall
reduction efficiency; however, for a proper permitissuance,
Mr. Pilapil testified he needed
information which indicated a capture efficiency and the control device efficiency in order to
determine compliance
with Board regulations.
(Tr. at 70-71.)
Pilapil stated:
“~tjhis process
flow diagram is very incomplete.
It clearly does not show any hooding in terms ofthe capture
system.
It doesn’t show any dimensions forthe hoods.
There is no indication of any length of
duct work or fan flow rate.
There’s no indication of any flow rates.
The process flow
diagram should clearly show all the material usage going in.
“
(Tr. at 71-72)
Additionally, Mr. Pilapil stated that he could not ascertain whether the emissions from
the laminators’ emissions or the VOM emissions at the facility were being captured from the
capture system.
(Tr. at 72.)
Mr. Pilapil also testified that the roll coaters, which is the actual
applicator where both the coatings and cleanup solvents are applied, as testified to and first
per volume ofeach coating;
(3) the VOM content of each coating as applied on each
laminating line; (4) the uncontrolled VOM emissions from all VOM containingmaterials used
on the laminating lines with detailed supportive calculations;
(5)
a process flow diagram
depicting the laminators,
dryers
and the cogenerationprocess; (6)controlled VOM emissions
from all VOM containing materials used on the laminating lines with detailed supportive
calculations including an estimation ofcapture efficiency, a capture system
andjustification for
the control device efficiency.
($
Notice ofIncompleteness,
October
4, 1994, Rec. at 11-12.)
6
mentioned by Mr. Justice at the hearing, were not indicated on the process flow diagram.
(Tr.
at 73.)
Regarding the cogenerator, Mr. Pilapil testified that, after six years ofworking on
coating permits, he had never seen any company use a cogenerator for control of a coating
line.
(Tr. at 74.)
Because Pilapil concluded the cogenerator was not a typical method for
coating plants, he needed more information about the cogenerator to insure compliance with
Board regulations.
(Tr. at
75.)
Overall,the Agency denied Mr. Justice’spermit application due to lack of sufficient
information.
Mr. Pilapil was asked what type of specific informationwas necessary to allow
for thorough review of Mr. Justice’s permit application.
(Tr. at78-79.)
He stated that the
Agency needs detailed information on the capture system which shows the type ofhooding,
physicaldimensions of the hoods, ducting, actual flow rates of the fan and flow rates of the
eogenerator.
Additionally, Mr. Pilapil testified that the Agency needed clarification of the
methods in whichpetitioner’s VOM is used.
(Tr. at79.)
The Agency required further
detailed information on the controlled device and the efficiency of the controlled device.
Finally, the Agency requested an embellished procession ofthe flow diagram which clearly
shows the hoods and any duet work, roll coaters going into the oven, androll coaters going
into the laminators.
(Id.)
The Agency issued a permit denial letter on February 21,
1995.
The letter stated that
the compliance plan did not satisfy the Board’s compliance plan requirements as set forth in 35
Ill. Adm. Code 201.241 and 201.243.
As potential violations, the letter also referenced
Section 9
of
the Act and the Board’s compliance planregulations.
(Ag.
Br. at 3; Rec. at 34.)
The Agency’s assigned counsel, Robb Layman, also issued a letter to Mr. Justice on February
21,
1995 providing additional comments regarding the facility’s compliance obligations under
the consent order.
(Ag. Br. at3, citing Consent Order at 1-12; Rec. at
35.)
This letter
addressed deficiencies in Mr. Justice’s compliance plan and further addressed materials needed
to cure the deficiencies.
The Agency attorney also informed Mr. Justice that the cogenerator
required an Agency permit consistent with the consent order and Board regulations.
(
j~,)As
aresult of the Agency’s denial, Mr~
Justice filed a petition forhearing with the Board.
ARGUMENT
Mr. Justice argues that the Microcosm facility emits no pollution which requires a
permit.
He states that his facilityincludes an excellent system to control any pollution if any
pollution is emitted at all.
(Pet. Br. at 8.)
Mr. Justice argues that his coating lines are
enclosedwithin permanent total enclosure which capture the VOM emissions.
The petitioner
further claims that because his internal combustion engine is exempt from any regulations, he
cannot
be required to seek any permit from the Agency.
Mr. Justice claims he applied for the
permit
“following the Agency’s wishes, “but he further states that he is not required to
do so.
(Jci.)
7
citing various cases pertaining to police powers, Mr. Justice argues that the state
police powers do not require that he obtain apermit.
Mr. Justice states,
“~the
police power is
certainly exceeded when the Act and the regulations are sought to be applied to a business
which is not polluting the
air.
“
(Pet. Br. at9.)
Mr. Justice contends that the coating lines of
his facility meet the requisite standards and cause no pollution.
(
14.)
He further states that
“because the Agency itselfdeclares that petitioner causes no pollution, he cannot see how he
canbe required to obtain any permit from it.
“
(14.)
Finally, Mr. Justice argues that he does
not have to submit anything to
theAgency and requests the Board to make a determination that
a permit is unnecessary.
(Pet.
Br. at 10.)
In response, the Agency argues that Mr. Justice is not entitled to relief from the
Agency’s permit denial determination sincepetitioner failed to meet the requisite burden of
proof.
The Agency cites various case law stating that the permit applicant bears the burden of
demonstrating that no violation ofthe Act orthe regulations would have occurred if the
requested permit had been issued.
(Ag. Br. at
5-6,
citing
John Sexton Contractors Company
v. IEPA, PCB 88-139 (February 23,
1989).
The Agency argues it has no obligation to
perform
scientific testing or
monitoring
of an applicant’s facility and further states, citing
Wilmer Brockman, Jr.
and First Midwest
Bank
ofJoliet v. IEPA
,
PCB 93-162 (February 3,
1994), that the
“primary focus” must always remain on the adequacy ofthe applicant’s permit
application and other information submitted to the Agency.
(Ag. Br. at 6.)
The Agency believes that Mr. Justice has not presented evidence that theMicrocosm
facility is in compliance or will come into compliance with the applicable
Part 218 regulations.
The Agency contends that this case is devoid ofproper factual support
for the threshold issue
ofwhether the administrative record demonstrates that the issuance ofa permit will not cause a
violation oftheAct and Board regulations.
(Ag. Br. at 8.)
Further, the Agency statesthat the
information submitted with the permit application neither addresses the cogenerator control
efficiency nor the destruction efficiency ofthe cogenerator.
(
j4.)
Because no actual testing of
capture efficiency or destruction efficiency
ofthe cogenerator was evertechnically performed,
the Agency argues that petitioner’s contentions as to capture efficiency cannot be considered.
(Ag. Br. at 9.)
The Agency continuesto argue that petitioner failed to demonstrate
appropriate facts as to the quantity of VOM emissions, coating materials or existence ofthe
roll coaters.
(Ag. Br. at 10.)
TheAgency ultimately states that petitioner has presented scant
evidence as to the cogeneration process and its effectiveness in controlling VOC emissions
from the coating operations.
Regarding petitioner’s argument he is exempt from the Act or Board regulations, the
Agency states that a permit exemption status would not eliminate petitioner’s burden ofproof
to demonstrate compliance with other substantive provisions ofthe Act or Board regulations.
(Ag. Br. at 11-12.)
The Agency argues that it sufficiently advised petitioneras to deficiencies
ofthe permit application as is required by Part 201.
(Ag. Br. at 14.)
Overall, the Agency
contends that thepermitting process and theindependent requirements ofthe consentorder
required the petitionerto properly demonstrate that the cogenerator would not cause violations
under the Act or Board regulations.
(Ag. Br. at 6.)
For all the above reasons, the Agency
8
asks the Board to affirmthe denial of Mr. Justice’s permit application and deny any request
forrelief
RELEVANT LAW
The Act establishes a system of checks and balances integral to the Illinois system of
environmental governance.
Concerning the permitting function, it is the Agency whohas the
principal administrative role under the law.
Specifically, the Agency has the duty to
establish
and administer apermitprocess as required by the Act andregulations, and the Agency has
the authority to require permit applicants to submit plans and specifications and reports
regarding actual or potential violations ofthe Act, regulations or permits.
(
Landfill, Inc.
v.
IPCB, (1978) 74 Ill. 2d 541; 25 Ill. Dee.
602, 607 citing, 415 ILCS
5/4.)
Further, the
Agency has the authority to perform technical, licensing and enforcement functions.
It has the
duty to collect and disseminate information, acquire technical data, and conduct experiments.
It has the authorityto cause inspections of actual or potential pollution sources and the duty to
investigate violations of the Act, regulations, and permits.
(
jçj at 606.)
Regarding permits, the Act provides that it
“shall be the duty ofthe Agency to issue
such a permit upon proofby the applicant that the facility.
.
.
will not cause a violation of this
Act or of regulations hereunder
“
When the Agency makes a
decision to deny a
permit, the
Actprovides that it must transmit to the applicant a detailed statement as to the reasons for the
denial.
The statement shall include, at aminimum, the sections ofthe Act or regulations
which may be violated ifthe permit were granted; the specific typc of information, ifany,
which the Agency deems the applicant did not provide the Agency; and a
statement ofspecific
reasons whythe Act and the regulations would be violated if the permit were granted.
(415
ILCS 5/39 (a)(l)-(4).)
Finally, the Act charges that the Agency
“shall adopt such procedures
as are necessary to
carry
out its duties
under this the
permitting
section.
“
(415 ILCS
5/39
(a).)
After the Agency’s final decision on the permit is made, the permit
applicant may
appeal that decision to the Board.
(415 ILCS 5/40(a)(l).)
The Board then holds a hearing at
which the public may appear and offer comment.
The question before the Board in a permit
appeal is whether the applicant has met its burden ofproving that issuance of the permitwould
not violate the Act.
It is well-settled that our review in all permit appeals, except NPDES
permits,
is not
de novo
but is limited to information submitted to the Agency during the
Agency’s
statutory review period, and not on information developed by the permit applicant or
the Agency afterthe Agency’s decision.
(
Alton Packaging Corporation v. IPCB
,
(5th
Dist.
1987) 162 Ill. App. 3d. 731; 516 N.E.2d 275, 280.)
However, it is the hearing before
the Board that provides a mechanism to the petitionerto prove that the application would not
violate the Act.
Further, the hearing affords the petitioner with the opportunity
“to challenge
the reasons given by the Agency for denying such permit by means ofcross-examination and
the Board theopportunity to receive testimony which would ‘test the validity ofthe
information relied
upon by the Ageneyj’.
“
(Alton Packaging Corporation v. IPCB
(5th Dist.
1989)
162 Ill. App. 3d 731;
114 Ill. Dee.
120, quoting,
IEPA v. IPCB,
115 Ill. 2d at 70.)
9
Under the Act, both the Agency and the Board operate under tight statutory time
frames to make a decision.
For the Agency, the statutory time to issue a permit decision is 90
days.
(415 ILCS
5/39
(a).)
For the Board, the statutory-required time period is 120 days.
Absent a waiver ofthe statutory decision deadline,
we must hold ahearing, review the
evidence and arguments, and make a final decision concerning the Agency’s permit decision.
(415 ILCS 5/40 (a)(2).)
ANALYSIS
AND
DECISION
Previous eases before the Board have established that the Agency’s denial letter frames
the issues in a permit review.
(
See Centralia Environmental Services, Inc. v. IEPA
,
PCB 89-
170, slip op. at 6 (May 10,
1990).)
We must therefore determine whether the stated reasons
in the Agency’s February21,
1995 final decision letter to deny Mr. Justice an operating
permit are proper.
The Agency’s reasoning is that the issuance of the operating permitmight
result in aviolation of the Act and that it lacked sufficient information to determine whether
the application as submitted would violate the Act or Board regulations.
In order to reach a
decisionbased on the propriety of the denial letter, we must consider whether Mr. Justice has
satisfiedhis burden of proving that no violation of the Act or the regulations would occur if
the Agency issued the air permit.
For the following reasons, we fmd that Mr. Justice has not
met the requisite burden in this case.
Mr. Justice did not submitthe requested informationto the Agency for the issuance of
an air permit for the Microcosm facility.
The Agency informed Mr. Justice of his
application’s deficiencies in anotice of incompleteness on December
1,
1994.
The notice of
incompleteness was specific as to the supplementary informationnecessary to complete Mr.
Justice’s permit application.
Mr. Pilapil testified on behalf of the Agency stating that the
missing information was necessary to establish, among other things, the permit limitations and
fulfillment of the Part 218 requirements.
In response to the notice of incompleteness, Mr.
Justice promptly tried to cure the deficiencies in his permit application
He supplied the
Agency with various answers to
several questions; he submitted diagrams to explain the
actions atthe Microcosm facility.
Mr. Pilapil testified as to the extensive amount of
information submitted by Mr. Justice with regard to the material usage
forcleanup solvent
used at the facility; however, he stressed that scant evidence was produced by Mr. Justice with
regard to the VOM containing materials, uncontrolled emissions, capture efficiency and
control device efficiency.
(‘Er. at 66-67,
70-71.)
Furthermore, as Mr. Justice attested to at
hearing, the VOM of the coatings at the Microcosm site exceeded the 2.9 pounds per gallon
limitationrequired by
35 Ill. Adm. Code 2 18.204.
(Tr. at29-30.)
Part 218 requires that pollution control equipment must result in the reduction of 81
percent ofthe total uncontrolled VOM emissions from the coating lines.
The control device
must control 90 percent of the total VOM throughput.
Typically, compliance with the
pollution control equipment performance standards is demonstrated by mass balance
10
calculations.
In this ease, Mr. Justice’s plan does not include an estimation of controlled
VOM emissions which is necessary
for the Agency to establish permit levels and overall
efficiency.
The compliance plan does not contain any technicaljustification to support Mr.
Justice’s assertion of the appropriate efficiency of the cogeneration process.
Mr. Justice
admitted during the hearing that no testing was done to evaluatethe efficiency of the VOM
capture and control system as required by the Board regulations.
(Tr. at 38-39.)
Also, Mr.
Justice’s contention that the eogenerator is exempt from permitting requirements does not
excuse Mr. Justicefrom filing the requested informationto the Agency.
Here, Mr. Justice did
not provide enough information for the Agency or the Board to find that Mr. Justice’s
cogeneration system is exempt from the Act or Board regulations.
Mr. Justice submitted a
flow diagram
as part of his supplementary information; howeverhe failed to submit sufficient
evidence which would prove the eogeneration process is not a pollution control facility.
The
Board finds this petitionerfailed to demonstratethat thetechnology at the Microcosm site met
the minimum performance standard.
The Board further
finds that the exemptionclaimed by
Mr. Justice applies to stationary engines less than 1500 horsepower, not pollution control
devices for regulated processes.
The process flow diagram submitted by Mr. Justice failed to include information
showing an overall reduction efficiency of the capture system and control device.
(Tr. at71-
72.)
Further, the diagram failed to include any hooding, duet work or fan flow rate,
all of
which are necessary
to ascertainthe efficiency ofthe capture system and control device.
The
flow diagram was vague and incomplete because it did not detail the entire capture system and
control device processes; it failed to include pertinent information such as the precise placing
ofthe roll eoaters.
Moreover, the Agency did not haveany previous knowledge that the
facility even contained roll coaters until the hearing.
(Tr. at 73.)
Mr. Pilapil also testified that
he hadnever before seen any company use a eogenerator for control ofa coating line.
(Tr. at
78-79.)
Due to this fact, Mr. Pilapil did not find that the information submitted by Mr. Justice
defectively informed the Agency as to the correct use of a eogenerator for control of a coating
line.
As such, Mr. Pilapil simply needed further detailedinformation about the eogenerator
and its function at the Microcosm facility.
Additionally, the Board notes Mr. Pilapil’s lengthy
experience with coating permits.
As a result of the lack ofinformation submitted by Mr
Justice, the Agency was unable to determine whether or not the Microcosm facility complied
with the Act
and
Board regulations.
CONCLUSION
Accordingly, for all of the aforementioned reasons, we findthat the Agency properly
denied the air permit for the Microcosm facility.
This opinion constitutes the Board’s findings
of fact and conclusions of law in this matter.
II
ORDER
The Board hereby affirms the Agency’s
February 21,
1995 denial of an air operating
permit to John C.
Justice
dlbla
Microcosm.
The Board hereby denies petitioner’s request for
relief.
IT IS SO
ORDERED.
Section 41
of the Environmental Protection Act (415 ILCS 5/41
(1994)) provides for
the appeal of final Board
orders
within
35 days of the
date
of service ofthis order.
The Rules
of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill.
Adm. Code
101.246
“Motions for Reconsideration.”)
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution
Contxgl
Board, hereby
certify
that
the above opinion and order was adopted on
the~~/~MIay
of
/‘/‘7/t.cIJ
,
1996,
by a vote
of
___
~
L
Dorothy M.
941m,
Clerk
Illinois Pollutbin Control Board
