ILLINOIS POLLUTION CONTROL BOARD
March 19, 1987
WELLS MANUFACTURING COMPANY,
)
Petitioner,
v.
)
PCB 86—48
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
MR.
JOSEPH S.
WRIGHT,
JR.,
OF MARTIN,
CRAIG,
CHESTER &
SONNENSCHEIN, APPEARED ON BEHALF OF COMPLAINANT.
MR.
GLEN C.
SECHAN,
ASSISTANT STATE’S ATTORNEY,
MR. CAREY
COSENTINO, ASSISTANT ATTORNEY GENERAL, MS.
SUSAN SCHROEDER,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ATTORNEY, AND MR.
JOSEPH
R.
PODLEWSKI, JR., ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
ATTORNEY, APPEARED ON BEHALF OF RESPONDENT.
OPINION OF BOARD MEMBERS
3.
ANDERSON,
3. MARLIN AND
3.
T. MEYER
This Opinion provides our reasons for concurring with the
Board’s Order of March
5,
1987.
In that Order, by
a vote of 6—0,
the Board affirmed
the February 28,
1987 denial by the Illinois
Environmental Protection Agency (Agency) of the request
for
permit renewal. filed
by Wells Manufacturing Company (Wells)
on
December
5,
1985.
RECORD
Wells initiated this appeal by the filing of
a petition for
review on April
1,
1986.
Hearings were held
in this matter at
the Morton Grove Village Hall,
Morton Grove,
Illinois,
on July
31,
1986,
and September
11,
1986.
The Hearing Officer estimates
that approximately 150—200 persons were
in attendance at the
first hearing and approximately 35—50 persons were
in attendance
at the second hearing.
In addition to public comment received
from approximately 15 citizen witnesses, testimony was received
from four Agency employees called as witnesses by Wells and
four
citizen witnesses called by the Agency.
Petitioner’s Brief (hereinafter
“Wells’
Brief”) was filed on
November
12,
1986.
Respondent’s Brief (hereinafter “Agency
Brief’t) was filed on December
17,
1986.
Wells
filed
a reply
brief on January
16,
1987.
In addition
to the original petition for review, hearing
transcripts
(hereinafter
“R..”)
and briefs,
the record
in this
76-324
—2—
matter
includes six exhibits appended
to
the Permit Appeal
(hereinafter “Appeal Ex.”),
and 349 exhibits1 constituting the
Agency Record2
(hereinafter
“Joint Ex.”).
The majority of the
Joint Exhibits, approximately 250
in number, •consist of complaint
forms
filed with the Agency concerning
the facility
in
question.
Approximately another dozen of these exhibits consist
of letters and petitions filed with the Agency by citizens.
All
such materials were on file with the Agency,
and hence available
to
the Agency, prior
to the Agency’s action
in the instant
matter.
Several exhibits were also entered at hearing and were
identified
as Petitioner’s and Respondent’s exhibits.
We note that on September 20,
1986,
S.T.O.P.
(“Suburbs Turn
Off Pollution”)
submitted
to the Board
a letter
and approximately
81 pages of copies of newspaper articles.
Neither of these
items,
in
the form submitted
to the Board, constitute materials
before
the Agency at the time of the Agency denial action,
other
than as some portion of these materials might be duplicated
within the Agency’s record.
Since Board review on permit appeals
is confined
to the record before
the Agency,
and since
there
is
no provision for admission of third party evidence
in permit
appeals before the Board,
these
items should not be admitted into
the record.
BACKGROUND
Wells conducts an
iron castings operation at its facility
located at 7800 North Austin Avenue,
Skokie,
Illinois.
The
facility
is located
in
an area of Skokie
zoned for heavy
industrial
use.
However,
the facility is also located near both
schools and residential
areas,
including parts of adjacent Morton
Grove.
Wells has been
in continuous operation at its Skokie
facility since 1947.
The facility therefore predates much of the
adjacent residential
area,
as well
as construction of at least
the immediately adjacent school, Niles West High School.
One of the operations conducted
at Petitioner’s facility
is
a shell molding operation,
which includes emission sources from
shell molding, shell pou~ring,and baghouse equipment (hereinafter
collectively “shell molding operation”).
Shell molding
is
a
process
in which
fine sand mixed with a resin
is packed around a
pattern that is
to be duplicated
in cast metal.
Upon heating,
1 The numbers of the exhibits
in the Joint Exhibits actually
extend
to and
include number
353.
No exhibits were submitted
under
the numbers 296,
297,
331, and 337.
2 These exhibits were moved
for admission jointly by Wells and
the Agency
(R.
at
185).
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—3—
the
resin melts and bonds
the grains of sand together.
The sand
thus retains the desired shape
and can be used as a mold for
creation of castings (Joint
Ex.
334, p.
2).
Wells admits that
the shell molding process produces a “distinctive
odor...characteristic
of the resin”
used
in
the process
(Id.,
pgs.
2—3).
The resin used
is phenol formaldehyde
(Id., p.
3)
Prior
litigation
Discussion of previous litigation involving
the Board,
the
Agency, Wells and its neighbors
is necessary to
an appreciation
of the many troublesome aspects of the instant permit appeal.
Odors from Wells’
shell molding operation were the subject
of enforcement cases brought against Wells
in 1973 by the Agency
and Citizens
for
a Better Environmental alleging violations of
Section 9(a)
of the Act.
During
the pendancy of
these cases the
Agency denied Wells
an operating permit
for
a shell molding
operation which pre—existed
that at issue here
(which received
initial construction and operating permits
in 1980 and 1981,
respectively.)
These cases were consolidated
by the Board
and disposed of
in
a single decision, IEPA
v.. Wells Manufacturing, PCB 73—403,
73—418,
74—257
(consolidated),
20 PCB 135, February 26,
1976.
After the lengthy discussion of
the evidence presented
in the
enforcement cases,
the Board
found that in 1972 through 1974
Wells had violated Sections 9(a)
of the Act by emitting odors
from its foundry.
The Board disposed
of the permit appeal
in
a
single sentence,
stating that “Considering the evidence presented
at the hearings and
the foregoing discussion,
the Agency properly
refused Wells an operating permit”.
In discussing
the evidence presented
at hearing,
the Board
stated
that:
“Taken
as
a whole,
the citizen
testimony indicates
that
there
is,
at
times,
an
odor
characterized
as
‘phenolic’
emanating
from
the Wells
facility.
The
testimony
further
indicates
that
the
odor
has
an
effect
ranging
from
unpleasantness
in most
people
to physically affecting
the respiratory systems of
people who
are afflicted with respiratory problems
or
who
are
engaging
in
heavy
exercise
(emphasis
added;
20 PCB at 140”.
In considering
the factors contained
in
Section 33(c)
of the Act,
the Board found that social
and economic value of the Wells
facility was unrefuted.
As
to the suitability of its location,
the Board
noted that while
in 1947 the area consisted of
swampland, vacant land, farm land and
land used
by industry,
beginning
in
1950 the area became more residential
in area,
and
76.326
—4—
Niles West High School was built on land purchased from Wells.
The Board finally found that three methods of odor abatement were
technically feasible.
Economic reasonableness was addressed by
the Board only in passing,
as the Board
found that Wells had
“effectively waived”
its right for Board consideration of this
issue.
On appeal,
the Boards findings were reversed by the
appellate court for the First District.
Wells
Mfg. Co.
v.
IPCB,
48
Ill. App.
3d 337
(1977).
The First District’s reversal
of the
Board’s
findings was affirmed by the Illinois Supreme Court.
Wells
Mfg. Co.
v.
IPCB, 73
Ill.
2d 226
(1978).
In their
decisions, each of these courts extensively discussed the
enforcement cases, but devoted no more than
a line or two to
discussion of the operating permit appeal,
which the Agency was
ordered
to issue.
For purposes of the present discussion, the noteworthy
portion of the Supreme Court’s opinion concern the Section
33(c(iii) “location suitability” and Section 33(c)(iv)
“technical
practicability/economic reasonableness of abatement measures”
criteria.
As
to location, the Court noted
that:
“The
Board
further
found
that Wells has
increased
its
size
and
capacity
and
production
facilities
subsequent
to
the construction
of
Niles West
High
School
and
some
of
the
houses
in
the
residential
area.
An industry cannot,
of course, substantially
increase
its
odorous
emissions
and
simultaneously
rely on
its
priority of
location
in the
area as
a
mitigating
factor.
This
sort
of
changed
circumstance
would,
as
the
Board
points
out,
undermine
the
industry’s
priority—of—location
argument.
The
sketchy
references
in
the
record
regarding
those
increases
are, however,
simply not
sufficient
to
meet
the
Agency’s
burden
of
establishing that Wells has substantially increased
its
emission,
in
either
volume
or
offensiveness,
subsequent
to
the development of the high school
or
residential areas.”
73
Ill.
2d at 237.
In discussing
the technical practicability of abatement
measures,
the Court
found that the burden was on the Agency “to
come forward with evidence that emission reduction
is
practicable.”
The Court noted that the evidence
in the record
concerning
the
three abatement methods consisted
of testimony by
three salesmen, each
of whom advocated his particular
system
while raising doubt
about
the efficiency of his competitor’s
systems.
The Court
therefore stated that:
“Thus,
as
to
the
implementation of any particular
technology,
one
expert
assured
success
while
two
76-327
—5—
raised
serious
questions
as
to
its
practicability.
We
agree with
the appellate court
that
this
conflicting
expert
testimony
does
not
support
the Board’s
findings that
any of the
three
methods would
abate
the foundry odors....
Our
review of
the
record
persuades
us
the Board’s
action
was contrary
to
the manifest weight
of
the
evidence and was properly reversed by the appellate
court.
We
also
believe
that
court
correctly
ordered
an
operating
permit
be
granted
to
Wells.
Obviously,
our
opinion
should
not
be
read
as
a
condonation
of
Wells’
emissions.
Rather,
we
believe
the
Agency
failed
to
establish
the
unreasonableness of those odors
as required
in the
Environmental Protection Act.
73 Ill.
2d at 238”.
Odors and Response
Activities in 1984 and 1985
Wells was granted
a construction permit for the shell
molding
operation by the Agency on January 11,
1980.
On May 4,
1981,
the Agency granted
an initial operating permit expiring
April
9,
1986.
In
the
spring
of
1984,
residents living
in
the vicinity of
Wells began
to register complaints with the Village of Morton
Grove
and with the Agency concerning odors from Wells.
This
resulted
in drive—by inspections of the facility on June
1,
18
and
20 by Jeanne Damlos, the Agency inspector who has been
assigned
to Wells since 1981.
On each occasion Ms. Damlos
noticed strong odors
for about half
a mile downwind
of the
facility.
Joint Ex. 302.
A meeting was held on August 13,
1984
between representatives of the Agency,
Wells, and the Village.
At the meeting, Wells explained that since June
it had done
a
complete maintenance check of its baghouses and had
installed
additional collection hooding.
A new procedure for handling
complaints was instituted, which required the keeping
of
a log
showing date
and time of complaints, wind direction and intensity
of odor.
It was hoped that the log could
be correlated with
activities at the plant
to determine the source of the problem.
In concluding
her report of this meeting, Ms. Damlos stated that
“No further action
is needed at this
time.”
Joint Ex.
303.
However,
beginning
in approximately April,
1985,
residents
again began to complain
to the Agency, as well as to the Village
and USEPA,
about noxious odors
from Wells.
As of December
20,
1985 the Agency had received over 250 written citizen complaints,
plus additional
letters and petitions concerning
the emission of
odors from the Wells facility.
Joint
Ex.
6—224—231,
234—236,
238—245,
247,
248,
250—263,
275—285,
343—350,
352—353.
76-328
—6—
Eighteen residents of the area surrounding
the Wells
facility presented comments or testimony at hearing concerning
the detrimental
impact
the facility’s emissions have on their
lives.
Summarized below are the statements of five area
residents each of whom had filed complaints concerning
odors from
Wells.*
These statements are representative both of the balance
of the citizen comments and testimony at hearing, as well
as of
the written complaints.
Ken Lisjeberg testified that the smell
from those emissions
has caused him to experience headaches, upset stomach, dizziness,
and nausea
(R.
at 15), and has caused him to vomit mucus several
times
(R.
at 16).
He also stated that the odor has steadily
increased
in severity
in recent years,
although apparently
decreasing somewhat
in 1986,
possibly due
to the direction of
prevailing winds
(R.
at 20—21).
Jack Galick, who
is
a chemist by profession,
testified that
the odor released by Wells’
emissions
is phenol formaldehyde
(R.
at 25).
He indicated that he has suffered burning
of the eyes
and respiratory effects
from the smell, even though he does not
suffer
from those problems generally (R.
at 25—26).
Thomas Sokalski testified that his wife and two children
have experienced
coughing,
nausea, sore throats, and irritated
eyes from the Wells odors
(R.
at 53).
Lorraine Biegart, Angie
Adler, Mark Siegal,
and James Davis all testified that,
inter
alia,
the odors have definitely gotten worse over the past
several years
(R.
at 56,
60,
77,
85,
89).
Nancie Cohen testified on behalf of the Agency that although
she has lived
since
1972
in
a home three blocks north and
a half
block east of the Wells
facility,
she has only noticed the odors
from Wells since
1981
(R.
at
349—350).
She
further indicated
that the odors have continually gotten worse since 1984
(R. at
353—354).
Carol Salinger
also testified as
an Agency witness.
Mrs.
Salinger
is a
teacher at Lincoln Junior High School
in Skokie,
and lives approximately five
to six blocks west
of the Wells
facility
(R.
at 369—370).
She has
a degree in biochemistry and
has worked
as an organic chemist
in an organic
synthesis lab
(R.
at 371).
She labels the odors
as phenolic
in nature,
and says
*
We believe that the Hearing Officer correctly allowed
the
testimony of those Agency witnesses who were called
to amplify
upon joint exhibits contained
in the Agency record.
The Hearing
Officer was similarly correct
in ruling that the testimony of
Agency witness Judy Sloan was inadmissible because
it was not
offered
for
the purpose of amplifying any portion of the Agency
record.
76-329
—7—
she can so
identify it because of her
training and familiarity
with these
types of products
(Id.).
Mrs. Salinger describes the
Wells odors as “intolerable”
and says they have caused her to
experience headaches and nausea
(R..
at 370),
the latter
to the
point
where
at
times
she
cannot
stay
outside
without
fear
of
vomiting
(R.
at 383—384).
On May
2,
1985,
Ms. Damlos inspected the facility in
response
to
several
complaints
of
strong phenol odors.
Her
report
concerning
the inspection noted that a
strong phenol odor
in the shell molding area.
The report states that approximately
a year previously,
the shell molding
area had been enclosed “so
that the smoke and/or odors would not permeate the entire
plant.
The molding area
is then exhausted
to
a baghouse which
is
exhausted outside.”
Ms.
Damlos opined that the shell molding
operation was the source of the odor complaints, and that the
increase
in complaints “could be due
to
1)
an increase
in
operating
hours
(from over
the past
2—3 years)
due
to business
picking—up and
2)
an increase
in the amount of material going
to
the baghouse from
the one shell molding
area since
it was
enclosed.”
Ms.
Daxnlos noted that Wells had been investigating
control
options and was leaning toward installation of a
cartridge
type baghouse, but that due
to the need
to install
a
new electrical transformer
to handle the power
load,
that six
months would be necessary to complete the installation.
Joint
Ex.
304.
As
a result of this inspection, on May
7,
the Agency sent
Wells
a letter of inquiry concerning apparent non—compliance with
Section 9(a)
of the Act, which notified Wells of the Agency’s
intent
to begin preparation of a formal enforcement case,
and
which requested Wells to attend
a pre—enforcement conference on
May 23,
1985.
Joint Ex.
305.
A June 6,
1985 letter
from Wells
to the Agency indicates that Wells did attend
the conference;
this letter also chronicled
steps
taken by Wells and steps
to be
taken by Wells
in
an attempt
to control
odors.
Joint Ex.
306.
Notwithstanding Wells’
efforts,
odor complaints continued
and residents of southeast Morton Grove and parents of Niles West
High School students began
to organize
to cause the odor problem
to be more vigorously addressed.
They formed
a group entitled
“Suburbs Turn Off Pollution”
(STOP)
which held
a rally on June
24,
1985 at the high school.
Petitions and complaint forms were
circulated; many of these complaints are included
in this
record.
This rally was highly publicized
in area newspapers;
as
reflected
in Joint Exhibits 332,
333 and 334, both STOP and Wells
received
a high degree
of coverage in the local newspapers
between June and December,
1985.
On August
13,
1986,
the Village of Morton Grove adopted
Resolution 85—33 which “condemned” Wells’
actions and directed
two of the Village’s Departments
to consult with the citizens and
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all appropriate enforcement agencies to correct the problem.
Joint
Ex.
312.
At
some
point during
the course of the summer,
four
government agencies became
involved
in
a joint investigation of
the Wells situation:
the Agency, USEPA,
the Cook County State’s
Attorney and the Cook County Department of Environmental Control
(County DEC).
By September, the County DEC had completed what it
titled “Wells Manufacturing Emission Study” which identified
three potential sources of odor emissions from the
shell molding
operation:
11
molding machines whose exhaust is released
uncontrolled, the uncontrolled core mold oven,
or
the shakeouts
on the phenolic resin oven which are controlled by two
baghouses.
Five control approaches were suggested:
an
afterburner, chemical absorption scrubbers, and experimentation
involving
three possible process changes.
Joint Ex.
317.
USEPA,
the County DEC and the Agency each took various steps
to monitor emissions from
the facility.
USEPA contracted
for
stack tests at the Wells facility at
a cost of $48,000; the
results of these
tests, which were to be completed by January 1,
1986 are not included
in this record.
Joint Ex.
324..
The record
contains various sampling
results and protocols produced by the
County DEC and the Agency.
Joint Ex.
326—330.
Additionally,
Jeanne Dainlos continued her visits to
the Wells facility and
vicinity.
Inspection reports and testimony concerning 24 visits
between May
1,
1985 and October
27,
1985 are contained
in this
record.
Joint
Ex.
289—293, 298—301;
R.
189—206, 229—239.
The observed odors ranging
in
severity
from
“none”
to
“strong”
(Wells’ Brief,
p.
21—22).
When the results of these
observations are summarized
in
an organized fashion,
it
is clear
that Ms.
Damlos most frequently observed no odor or odors of mild
or moderate severity,
as opposed
to strong odors
(Id.).
On some occasions,
Ms.
Darnlos also conducted
tests
for
the
presence of phenol
and formaldehyde in samples of ambient air
using Drager
tubes.
See e.g.
R.
105,
133—134,
194,
197—198,
231,
240.
While
these tests did not detect the presence of either
chemical, the Drager tubes have
a threshold detection limit 100
times greater
than the odor threshold
(R.
247—249), so
that it is
“very common”
to be able to smell
an odor yet not detect
it with
a Drager
tube
(R.
249).
The Permit Application and Denial
On December
6,
1985, Wells submitted
a
first renewal
application
for the operating permit for
the shell molding
operation.
Procedurally,
the Agency provides that permit renewal
applications may be initiated
by the applicant returning
to the
Agency a signed copy of
a two—page form provided by the Agency.
As the
form in question notes, this mechanism for application
76-331
—9—
renewal
is available
to
the addressed permittee “if
your
operation is
unchanged”
and
it
is certified “that the original
application information remains true, correct, and current”
(Appeal Ex.
5;
Joint Ex.
3).
Wells’
renewal application was of
this form,
and carried the required certification over the
signature of Marshall
K. Wells, Wells’
President (Id.).
Mr. Anton Telford, the IEPA’s metallurgical permit expert
(R. 274—275)
reviewed the Wells permit application on December
20,
1985,
ten days after
it was received
(R.
289)
and
approximately two months before the permit was denied.
At that
time,
Mr. Telford
identified nine areas in which he believed more
information
was
needed
and
so
noted
items
(a)
through
(i)
on
page
2
of his Calculation Sheet
(Joint Ex.
2,
p.
3).
Those missing
items are characterized by this author
as
follows:
(a)
an explanation of the use of the catalyst—hexamethylene—
tetrarnine which “Jeanne Dainlos states.., was not part of the
construction permit”;
(b)
a justification of the use of that catalyst through a
stack
test;
(c)(d)(e)
monitoring, modeling and meteorological data;
to
substantiate Wells
claim that it was not causing odors;
(f)
an explanation as
to whether
there was “poor maintenance
of aging
equipment”;
(g)
a question of whether
there was an
increase or change
in
the use of catalysts or resins;
(h)(i)
a need
to compare “complaint lists and numbers”
and
reports from consultants.
Mr. Telford testified that he primarily consulted
the
following documents in reaching his decision
to recommend denial:
(1)
The original construction permit application
(R.
301);
(2)
the Pre—Enforcement Conference or 31(d) letter warning
Wells of possible action
(R.
301);
(3)
The application for renewal which
is Exhibit
5 to the
Petition
for Review
(R.
301);
(4)
The field
inspectors’
reports concerning Wells which are
Exhibits 289,
290,
291,
292,
293,
294,
298,
299,
300,
301, 302,
303 and 304
(R.
302).
While Mr. Telford made
a “quick perusal of someof
the
citizen complaints”,
and noted that there were
a great number of
them,
he testified that he placed more reliance on the existence
76-332
—10—
of the 31(d)
letter
and various telephone conversations with
Jeanne Damlos
and other Agency personnel
(R.
335—337).
Mr. Telford’s concerns and recommendation
to deny the permit
were relayed to his superior, Harish
B.
Desai.
Mr. Desai
consulted with Mr.
Telford and other Agency personnel prior
to
drafting the permit denial letter which
he signed.
R.
128,
181,
183,
301,
303.
At no time prior
to issuance of the denial letter
was Wells contacted by the Agency and requested
to provide
additional
information
in
response
to
the
concerns
identified
by
Mr.
Telford.
R.
292—294,
297,
299.
The Agency issued
its denial letter on February 28,
1986.
As reasons for denial,
the Agency stated:
The
permit
is
DENIED
because
Section
9
of
the
Illinois
Environmental Protection Act,
and
35
Ill.
Adm.
Code
201.141
(formerly
Rule
102)
might
be
violated.
The
following
are specific
reasons why the Act and
the Rules and Regulations may not be met:
The
Agency
has
on
file
verified
citizen
odor
complaints
to
the
effect
that
the
equipment
described
in
the
above—referenced
application,
either
alone
or
in combination with other
sources
is causing,
threatening,
or
allowing
the discharge
or
emission
of
air contaminants,
which are causing
air
pollution,
in violation
of
35
Ill.
Adm.
Code
201.141
(formerly
Rule
102).
These
complaints
allege emissions of odors
into the environment from
the facility
are causing
a
public
nuisance
in
the
neighborhood.
Until
necessary measures
are
taken
to
correct
these
deficiencies,
a
permit
cannot be
issued
for
the
above—referenced
application.
(emphasis added)
(Joint Ex.
1)
At hearing, Mr. Desai defined “verified”
as meaning “that
the field
inspector has gone out and discussed and determined
that only such and
such an odor
is coming
from Wells”.
(R.
155).
Mr. Telford defined
a verified odor complaint as “one that
is received
in written form and verified by the
field operators
section”.
(R..
342).
The Agency’s denial
letter further states that the
“Agency
would be pleased
to re—evaluate
the
permit application” on
receipt of written request and the submission of certain
information and documentation
(Id.,
p.
2).
76-333
—11—
“If
the Wells Manufacturing Company feels that they
are not discharging
or emitting air conteminants
that are causing citizen’s odor complaints then
the
company should submit detailed calculations showing
that the amount and type of emissions from this
source cannot cause citizen’s odor complaints.
Such calculations should include at least
the
following information:
(a)
Material safety data sheet
for each type of
resin
and other chemicals used
in the shell
molding
process;
(b)
Justification of emissions data by actual
stack test reports;
(c)
Ambient air monitoring data of chemicals
emitted since 1/1/85;
(d)
Modelling data of type of contaminants emitted
since
1/1/85;
(e)
Meteorological data
since 1/1/85;
(f)
Maintenance record
of process equipment since
1/1/85;
(g)
Detailed production
and process weight
rate
record
for each of the raw materials used
since~1/1/85;
(h)
Detailed
log
of complaints received from
citizens since
1/1/85;
and
(i)
Reports from consultants about air emissions.”
STANDARD OF REVIEW
IN PERMIT APPEAL PROCEEDINGS
The Board’s historic approach in permit denial proceedings
was best stated
in Oscar
Mayer
& Co.
v.
IEPA, PCB 78—14,
30 PCB
397,
398
(1978)
“Under
the
statute,
all
the Board
has authority to
do
in
a
hearing
and
determination on
a
Section
40
petition
is to decide after
a hearing
in accordance
with
Sections
32
and
33(a)
whether
or
not,
based
upon
the
facts
of
the
application,
the
applicant
has
provided
proof
that
the
activity
in
question
will
not
cause
a
violation
of
the
Act
or
of
the
regulations.
76-334
—12—
In
a
hearing
on
a
Section
40
petition,
the
applicant must verify the
facts
of his application
as
submitted
to
the
Agency,
and,
having
done
so,
must
persuade
the
Board
that
the
activity
will
comply with
the Act
and regulations.
At
hearing,
the
Agency
may
attempt
to
controvert
the
applicant’s
facts
by
cross—examination
or
direct
testimony;
may
submit
argument
on
the
applicable
law
and
regulations
and
may
urge
conclusions
therefrom;
or,
it may choose
to
do either;
or,
it
may choose
to present nothing.
The written Agency
statement
to
the
applicant
of
the
specific,
detailed
reasons
that
the
permit
application
was
denied is not evidence of the truth of the material
therein
nor
do
any
Agency
interpretations
of
the
Act
and
regulations
therein
enjoy
any
presumption
before
the
Board.”
Reviewing courts have affirmed the validity of this
approach.
For example,
in Illinois Environmental Protection
Agency v.
Pollution Control Board, 118 Ill.
App.
3d 772
(1983),
the First District Appellate Court reviewed the Board’s reversal
of the Agency’s imposition of certain conditions within some
short term air construction and operating permits
for
a
facility.
The court stated
that:
The
sole
question before
the Board
in
a review of
the
Agency’s
denial
of
a
permit
is
whether
the
petitioner can prove that its permit application as
submitted
to
the
Agency
establishes
that
the
facility
will
not
cause
a
violation
of
the
Act.
118
Ill. App.
3d at 780.
See also IEPA v.
IPCB,
138 Ill.
App..
3d 550
(3rd Dist.
1985),
aff’d
_____
Ill.
2d
_____
(1986)
(Board need not apply
manifest weight of the evidence standard
in reviewing Agency
permitting decisions).
Thus,
the decision before the Board
in
the case
at bar
is to
determine whether Wells has shown that the operating permit
renewal application
it submitted
to
the Agency establishes that
no violations of
Section 9 of the Act or of
35
Ill. Adm. Code
201.141 would result from the continued operation of the shell
molding operation at the Wells facility.
Wells’
Assertions
Of Error
Wells’
challenges
to this permit denial
fall
into two main
categories.
The first is that the manner
in which the Agency
procedurally
denied
this
application
was
in
contravention
of
various
Board
regulations,
and
so
arbitrary
and
capricious
as
to
amount
to
a
denial
of
due
process.
The
second
is
that
the
Agency
76-335
—13--
has misconstrued Section 9(a)
of the Act and applied
it to
incorrect “facts”
in determining that Wells has failed
to meet
its burden of proving, pursuant to Section 39,
that Wells will
not cause
a violation of the Act.
We will
not deal with the
arguments presented by Wells seriatim, as to do so obscures the
principal practical
issue which is posed.
When the operating permit was granted
in
1981,
it was on the
basis of
an Agency determination that Wells had demonstrated
pursuant to Section 39(a)
that the permitted activity “will not
cause
a violation of this Act or regulations thereunder”.
In
submitting
the renewal application certifying that its operation
had remained unchanged, Wells
hoped to demonstrate that its
processes and resulting emissions are identical
to those
previously determined
to be
in compliance with the Act and
regulations.
It is clear
from the record
in this case that as early as
20
days after
the application’s filing, that the Agency did not
believe that the operation was unchanged, despite
the
certification, based
on inspection reports and the increasing
volume of recent citizen’s complaints.
The thrust of the denial
letter is that the Agency would consider the application complete
and sufficient for reconsideration upon the filing of the
specified “necessary”
information.
While,
as Wells correctly alleges Telford did not fully
explore the entirety of the information available
to him, as have
we,
the Board Members, Telford did consider
the most salient
information:
the citizens’ complaints and the Damlos inspection
reports.
While
in the ordinary course of events the mere
existence of complaints and/or
a
31(d)
letter might not be
sufficient to trigger
a request
for more information, the prudent
permit reviewer could reasonably determine, based on the sheer
volume of the complaints and
a quick perusal
of their contents
that he was not faced with the ordinary situation.
While Damlos’
Drager
sampling did not detect phenols or
formaldehyde, her
inspection reports did verify the existence of odors
and
operational
changes
in Wells operation such as enclosure of the
shell molding operation.
We wish to note
that, on the basis of this record
it
is
impossible
to determine whether
1)
the enclosure of the shell
molding
operation, which Wells does not contest,
is
a de minimus
change,
2) Wells has
in fact used catalysts or resins different
from those permitted
as Damlos suggests, or whether Wells is
using
the same catalysts and resins with differing suppliers’
product identification numbers as Wells suggests,
3) Wells has
in fact increased production since
1981, or
4)
the shell molding
operation whose permit
is at issue here
is the sole source of
offensive odors or
is a source of odors
in combination with the
shell molding operation which was the subject of the prior Wells
76-336
—14--
litigation.
However, considering
the totality of the record, we
believe that the Agency correctly determined that Wells submitted
insufficient information to prove that circumstances were
unchanged and that the facility could operate in compliance with
the Act and regulations.
The Agency’s permit denial
is affirmed.
Wells raises procedural challenges concerning
the Agency’s
failure to
advise
it of defects
in its submittal prior
to the
denial of the permit.
There are two procedural mechanisms by
which, and time—frames within which,
the Agency may determine
to
deny
a permit.
The first is upon a determination that the
application
is incomplete
to be made within
30 days of its
filing,
as provided by 35
Ill. Adm. Code 201.153.
The second is
upon
a determination that the applicant has failed
to prove
compliance with the Act and regulations
to be made within 90
days, pursuant
to Section 39(a).
Wells asserts that the Agency’s
failure
to employ the Section 201.153 notification of
incompleteness mechanism amounts
to
a denial of due process which
in and of
itself requires reversal of the permit denial.
Related
arguments are
1) that
if the Agency is going
to
require more
than the minimum permit application data and
information as
specified
in Section 201.157,
that the Agency may do
so only
after adoption of specific procedures,
2)
and that the Agency
has failed
to adopt permit review procedures
in violation of
Section 39(a)
of the Act.
At the outset, we wish
to note that the Act does not embody
a provision
for “deterrence” of Agency procedural error by
allowing
for issuance of
a permit without regard
to environmental
effects.
As the Board has previously stated
The
action of the Agency in
the denial
of
a
permit
is
not
the
issue;
the
issue
is
simply
whether
or
not
in the sole judgment of the Board
the applicant
has submitted
proof
that
if
the
permit
is
issued,
no
violation
of
the
Act
of
regulations
will
result.
Environmental Protection Agency
v. Allaert
Rendering,
Inc.,
PCB 76—80,
35 PCB 281,
283
(1979).
However,
there
is some merit in addressing Wells’
contention
concering Section 201.158.
Wells cites Sherex Chemical Co.,
Inc.
v.
IEPA, PCB 80—66,
Oct.
2,
1980, affd. sub nom.
IEPA v.
IPCB,
100 Ill.
App.
3d 730,
426 N.E.
2d 1255
(1981), wherein the Board
held
that:
It
would
be
a
somewhat
capricious
exercise
of
its
powers
under
the
Act
for
the
Agency
to
deny
a
permit
on
its
merits
for
insufficiency
of
information proving nonviolation while
knowing that
if
specific
additional
data
or
information
were
provided or were considered
it could make a better—
informed decision on the application.
76-337
—15—
Section 39(a)
puts the burden of proving compliance on the
applicant, but also puts
a burden on the Agency where a permit is
denied
to give “specific reasons why the Act and the regulations
might not be met if the permit were granted”
as well as “the
specific
type of information...which the Agency deems the
applicant did not provide”.
Under
the Act,
the Agency always
bears a burden of analysis of an application and explanation of
its deficiencies: this occurs whether the Agency denies a permit
“outright” within 90 days or
rejects
it as incomplete within
30
days,
since the incomplete application
is treated as a permit
denial
for purposes of appeal.
Although not comparable in all
respects,
the regulations’
provision of two
tiineframes
for Agency action
finds an analogy in
the Board’s handling
of variance petitions.
Where the Board
early—on determines that the application is deficient on its
face,
it issues an Order
to that effect and declares the petition
to be subject to dismissal without further review.
This action
obviously does not precommit the Board
to grant variance
if
information addressing the deficiencies is supplied.
The Board
could legally omit this step and wait until
the end
of the
proceeding
to deny a petition
for failure
to provide,
for
instance, any information concerning hardship or
a compliance
plan, but, even without specific provision for
a “more
information” procedure,
the Board has consistently determined
that the better course
is
to request the filing of the
information prior
to considering
the application on
its merits
and prior
to the date of decision.
Similarly,
the Court
in Sherex supra,
426 N.E.
2d at 1257,
as well
as the Board
(in
a Supplemental Opinion,
40
PCB 187,
Dec.
19,
1980),
found
that the Agency has no statutory duty to request
an applicant
to provide additional
information, but instead found
that in some circumstances “the better practice would
have been
to request the additional information”.
This is one of those
circumstances.
In this case,
the record
is clear that the Agency
had quickly determined,
based on its own records,
that the
application was deficient on its face.
Communication with Wells
prior
to denial could have obviated the need for this appeal, or
at least have allowed
for refinement of the
issues
in
the event
that Wells
had chosen
to supply the additional information.
We note that Wells has not been able
to provide the Board
with
the additional
information specified by the Agency in this
denial letter,
as the Board’s review in this matter
is limited
to
the record before the Agency.
Wells remains,
however,
free to
submit this information
in any reapplication for
an operating
permit.
The last major area wich
it
is desirable to
address
is the
dispute
as
to whether
the Agency and the Board
are required
to
consider Section 33(c)
factors
in considering
a permit
76-338
—16—
application pursuant
to Sectionh 39(a).
It
is clear
from this
record that the Wells operation produces odors which are
offensive
to the community and which interfere with the quality
of life
for Wells’
neighbors.
It is reasonable
to believe on the
basis of this record that the source of these odors is the shell
molding operation.
In the previous Wells litigation concerning
the pre—existing
shell molding operation,
the Supreme Court
essentially held that odors which are proven
to be offensive
could
be found “reasonable” pursuant to 9(a)
of the Act where
the
burden of proof concerning the Section 33(c)
factors had not been
met.
Because the Board’s stated basis
for affirming the permit
denial was the invalidated 9(a) finding of violation,
the Supreme
Court directed that the permit should issue.
Due
to
the
procedural posture of the case and the manner
in which the issues
were presented, the Court did not consider or address the issue
of the inter—relationship, if any, between the Section 33(c)
enforcement case factors and the Section 39(a)
requirement that
an applicant submit proof
“that
the facility will not cause
a
violation of this Act or
rules thereunder.”
Wells argues that the Agency should be required
to employ
Section 33(c)
factors
in determining whether
to issue
a permit
where, as here,
the existence of odors have been “verified” by
inspectors.
Initially, assuming arguendo the correctness of the
assertion,
it logically follows that the burden would be placed
on
the applicant to
submit information to
the Agency with its
application information relative
to all of the Section 33(c)
factors.
As Wells submitted
no information here concerning,
for
example,
the economic reasonableness and technical practicability
of control
options,
a finding would be required that Wells had
failied to meet its burden of proof pursuant to Section 39(a)
that its odor emissions are “reasonable”.
However, we do not believe that Section 33(c)
can be
legitimately employed
in
the permitting process.
To do
so would
create
a bastardized,
in camera enforcement proceeding
in which
1)
the public cannot participate and
2)
the “record” created
is
faulty.
The record could be
improperly slanted by either
the
Agency or the applicant.
The applicant could largely control
the
record by its ability
to provide selective
information not
subject to cross—examination.
The Agency, for its part, could
develope
information also not subject
to cross—examination,
to
rebut
information developed
by the applicant to insert it into
the record, and then deny the permit.
While
the Agency’s
“adjudication”
of violation based
on the record which it to some
extent controlled would
be appealable to the Board, record
deficiencies
would
have
no
ability
to
be
remedied.
This Opinion constitutes our findings of fact and
conclusions
of
law
in
this
matter.
76-339
—17—
IJ.
Anderson
Marlin
~7,
Meyej7~’
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Opinion of Board
Members
J.
Anderson,
J.
Marlin
and
3.
T. Meyer was filed on the
~
day
of Yh&~__L’
,
1987.
(.
/~/
Dorothy M.
~unn, Clerk
Illinois Pollution Control
Board
76-340
