ILLINOIS POLLUTION CONTROL BOARD

August 14, 1986

DUPAGE PUBLICATIONS COMPANY,

)

)

Petitioner,

)

v.

)

PCB 85—44

85—70

ILLINOIS ENVIRONMENTAL

)

85—130

PROTECTION AGENCY,

)

Consolidated

Respondent.

ORDER OF THE BOARD (by B. Forcade):

This matter comes before the Board on a June 16, 1986,

Illinois Environmental Protection Agency (“Agency”) Motion for

Reconsideration of a May 9, 1986, Board Opinion and Order.

Respondent DuPage Publications Company (“DuPage”) filed a

response on August 13, 1986. The Board’s Opinion and Order

strikes contested conditions for five heatset web offset printing

presses and reverses the denial of an operating permit for a

sixth press. Reconsideration is hereby granted and the Board’s

May 9, 1986, Opinion and Order is affirmed.

The Agency’s first argument on reconsideration is that the

Board’s finding that DuPage is not subject to the Board’s New

Source Review (~NSR”) rules is contrary to the plain and

unambiguous language of those rules and is erroneous. The Agency

cites Continental Grain v. Illinois Pollution Control Board, 131

Ill. App. 3d 838, 475 N.E.2d 1362 (1985), and Dean Foods v.

Illinois Pollution Control Board, et al., 142 Ill. App. 3d 322,

492 N.E.2d 1344 (1986). The Board addressed this argument in its

May 9, 1986, Opinion. The Board further maintains that

Continental Grain and Dean Foods do not provide an absolute bar

to Board interpretation of its rules. Only where administrative

rules are unambiguous on their face must they be construed as

written. Such is not the case with the rules at issue. The

courts in Modine Manufacturing Company v. Illinois Pollution

Control Board, 40 Ill. App. 3d 498, 351 N.E.2d 875 (1976) and

Hoffman V. Wilkins, 132 Ill. App. 2d 810, 270 N.E.2d 594 (1971)

have held that an agency ~has the power in any event to construe

its own rules to avoid absurd or unfair results.N In the instant

case, ther’e is ambiguity in the rules in that, by the Agency’s

interpretation, they could apply to facilities in an over broad

or unreasonable fashion, unrelated to ozone control.

The primary purpose of construction of regulations is to

determine the intent of the administrative body as revealed by

the language used. City of East St. Louis v. Union Electric

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Company, 37 Ill.

2c3

537, 542, 229 N.E.2d 522, 524 (1967).

However, when a word or phrase is used in a provision and its

meaning becomes an issue in a legal proceeding, the strict

meaning of the term is not as important as the sense in which it

was used by the lawmaking body, and a regulation must receive a

sensible construction, even though the construction qualifies the

universality of its language. 37 Ill. 2d 537, 542, 229 N.E.2d

522, 525 (1967). The Supreme Court, in the Union Electric case,

interpreted an ordinance of the City of East St. Louis so as to

avoid an absurd and unjust result, not withstanding the strict

literal meaning of the words used in the ordinance. Such an

approach is appropriate in construing the regulation at issue in

the instant proceeding.

The Board rule at issue states that “a major stationary

emission source that is major for organic material shall be

considered major for ozone.” In the opinion supporting the final

adoption of this rule, the Board discussed the appropriate NSR

emissions trigger for the criteria pollutant ozone:

“Finally, in either case if the non—attainment

designated pollutant is ozone, the source’s

potential to emit will be based on organic

material emissions 50 (sic) CFR 5l.l8(j)(l)

(v)(b)) (sic). It should be noted that the

NSR is applied only to project’s potential to

emit the non—attainment designated pollutant.”

R8l—l6, Docket B, In Re:

Major Source

Construction and Modification, Part 203 of

Chapter 2: Air Pollution, 53 P.C.B. 45 at 50

(July 14, 1983).

The federal regulations cited by the Board as the basis for NSR

applicability for the control of ozone provide as follows:

“Any net emissions increase that is considered

significant for volatile organic compounds

shall be considered significant for ozone.”

40 CFR 5l.18(j)(l)(v)(b) (emphasis added)

The reference to the CFR is the only authority or source

cited for the Board’s adopted regulatory language. A review of

the record in R8l—16 indicates that the terms “volatile organic

material” and “organic material” were used interchangeably by

some participants and that different definitional terms were

discussed (R8l—l6, R. at 428—39 and 724—25). The Board does not

dispute the Agency’s argument on reconsideration that the Agency

advocated the term “organic material,” rather than “volatile

organic material.” However, there is no indication in the

Board’s supporting opinion that the Agency’s position was

followed. The only citation is the CFR citation which uses the

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term “volatile.” The Board’s opinion specifically states that

“the NSR is applied only to project’s potential to emit the non—

attainment designated pollutant.” In the context of ozone, the

CFR prescribes that the designated pollutant is volatile organic

compounds.

At 40 CFR 5l.l8(j)(l)(x), the definition of “significant” is

as follows:

“(x) ‘Significant’ means, in reference to a

net emissions increase or the potential of a

source to emit any of the following

pollutants, a rate of emissions that would

equal or exceed any of the following rates:

Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (tpy)

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Particulate matter: 25 tpy

Ozone: 40 tpy of volatile organic compounds

Lead: 0.6 tpy”

While the Board used the term “organic material,” it did not

change the quantity threshold of 40 tons per year. Under the

Agency’s interpretation, a facility would come under NSR if it

was planning a modification that would emit 20 tons of isopropyl

alcohol, a reactive VOM, and 20 tons of ink solvents, while a

second facility that would emit 39 tons of isopropyl alcohol

would not. This would be an unreasonable application where the

facility emitting substantially more VOM would not come under

NSR.

In reviewing the federal regulations relevant to ozone

control, one finds both the terms “organic compounds” and

“volatile organic compounds” used in various locations (40 CFR

51, App. B. 4.0—4.6). No definitions for these terms are found

that specifically apply to NSR. Appendix B of Part 51

—

“Examples of Emission Limitations Attainable With Reasonably

Available Technology” provides a definition of “volatile organic

compounds” which is generally consistent with the Board’s

definition

—

a compound which contains carbon and hydrogen which

has a specified vapor pressure under certain conditions. No

definition of “organic compound” is provided. The ambiguity is

apparent both in the Board rule and opinion and in the federal

regulations.

As noted in the Board’s May 9, 1986, Opinion in the instant

proceeding, the general strategy in the area of ozone has been

“to control volatile organic material (VOM), which is generally

presumed to be photochemically reactive, i.e., an ozone

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precursor. Thus, VOM, rather than non—volatile organic material

is controlled because it is more likely to be emitted to the

atmosphere and, therefore, available for photochemical

reactivity. Certain VOM’s that are of negligible photochemical

reactivity are specifically excluded.” This approach is

consistent with relevant federal regulations. 40 CFR 51 App. B

4.6 Organic Solvents provides that: “organic solvents which have

been shown to be virtually unreactive in the formation of

ozone...also may be considered for exemption.” The Board,

relying on this rationale, has exempted certain solvents from

regulation as VOM’s in the R80—5, RACT II and R82—14, RACT III

proceedings. The important distinction to be made in the instant

controversy is that VOM’s are presumed to be photochemically

reactive. The same presumption does not apply to organic

material. Such an interpretation would clearly be overbroad and

unreasonable where the “common, and sole, focus of these various

programs is the control of ozone precursors emitted to the

atmosphere.” PCB 85—44, 85—70 and 85—130, DuPage Publications

Co. v. Illinois Environmental Protection Agency, Opinion of the

Board at p. 4 (May 9, 1986). In R8l—l6(B), the Agency, by public

comment No. 17, suggested that under “Organic Material”, the

Board may wish to consider exempting from the definition of

organic material the solvents methylene chloride or 1,1,1—

trichloroethane as was done in the recent RACT rulemaking” (R80—

5, RACT II). The Board did not exempt these solvents because it

did not intend that a presumption of photochemical reactivity

apply to organic material as it does with volatile organic

material.

The Agency’s second argument is that in amending the Part

203 rules by construction, the Board has erroneously allowed

DuPage to circumvent the Board’s rulemaking procedures and

created inconsistency in its approach to ozone control. The

Agency contends that by modifying the NSR rules, by construction

in the absence of a formal rulemaking, the Board has created an

administrative and regulatory morass. The Board disagrees. The

implication of the Agency’s argument is that the Board cannot

reasonably construe its own rules in the context of an

adjudicatory case. This position is clearly untenable under the

Environmental Protection Act (“Act”) which provides that the

Board shall promulgate regulations and interpret them in the

context of permit appeal, variance and enforcement cases while

the Agency monitors, investigates, issues permits and brings

enforcement actions. Landfill, Inc. v. Pollution Control Board

et al., 387 N.E.2d 258, 262—263 (1978). It is through

interpretation in an adjudicatory setting that some degree of

consistency can be achieved. As the Agency points out, it may

not be feasible to achieve total consistency in terminology

between RACT and NSR. The RACT and NSR programs apply to

different classes of facilities (existing versus new or modified)

and the degree of control prescribed is different (Lowest

Achievable Emission Rate

—

LAER versus Reasonably Available

72-25

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Control Technology

—

RACT). However, the basic purpose and focus

of these two programs should not be incompatible or different in

kind. The purpose is the same; the control of ozone through the

control of ozone precursors. While LAER is certainly intended to

be more stringent than RACT, it should be related to the control

of photochemically reactive volatile emissions.

The Agency, in its motion for reconsideration, contends that

the Board erred in relying on the fact that the printing ink oils

do not fall within the Board’s definitions of “volatile organic

materials” and “photochemically reactive material.” The Agency

states that:

“The formal record before the Board in this

case and facts of which the Board should take

official notice, overwhelmingly demonstrate

that the organic emissions from DuPage’s

offset presses do fall within the scope of

Part 203 regardless of the fact that they are

neither “volatile organic materials” nor

“photochemically reactive” as those terms are

defined” (emphasis added).

(Respondents’

Motion for Reconsideration, p. 11)

This argument appears to be based on the conclusion that the ink

solvents in question are ozone precursors and should, therefore,

be regulated. This conclusion is not supported by the Agency’s

record of decision regarding the DuPage permits, the stipulation

of facts and exhibits. The Agency urges the Board to rely on the

Carter Report and a United States Environmental Protection Agency

Administrative Order, which the Agency admits, came to its

attention subsequent to the permit decision. Under Illinois

Environmental Protection Agency v. Pollution Control Board and

Album, 455 N.E.2d 188 (1983), the pertinent case on the scope of

an air permit appeal, the “decision of the Pollution Control

Board must be based exclusively on the record before the Agency

including the record of the hearing, if any.” Id. at 194.

Consequently, the “factual” support for the Agency’s conclusion

cannot be considered by this Board in this proceeding.

The Agency further argues that the terms “photochemically

reactive materials” and “volatile organic material” are

“regulatory definitions” and are “adopted solely for purposes of

implementing a particular rule or rules” (Respondents’ Motion for

Reconsideration, p. 12). The Agency argues that, therefore,

these terms have no meaning beyond the original rulemaking

context. Because the terms “volatile organic material” and

“photochemically reactive material” were not adopted in the NSR

regulatory proceeding, they are irrelevant to this proceeding.

The implication of this argument is that the interpretation of

regulatory language is solely limited to the meaning and context

of its original adoption. This approach is too formalistic and

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unworkable especially in light of the almost continuous process

of amendment that occurs in the Board’s air regulations. Of

course, all definitions in the Board’s regulations are

“regulatory,” and their primary interpretation should be based on

their supporting opinions. However, this approach to regulatory

construction ignores the complex interrelationship of the rules

as they are amended in various regulatory proceedings. As an

example, the Agency in this proceeding argues that the Board

should utilize the “regulatory definition” of “organic material”

in the context of NSR. However, the term “organic material” was

adopted not in the R8l—l6(B) NSR rulemaking, but in the R80—5,

RACT II rulemaking. If one were to follow the Agency’s

reasoning, “organic material” would have no applicability outside

the rules adopted in RACT II. Clearly, the NSR rules were

drafted to overlay the existing regulatory scheme and to be

consistent with it.

The Board’s air regulations are intended to be a cohesive

set of regulations that are internally consistent. While

sections of the regulations are adopted in different proceedings,

they often must be interpreted as a whole rather than in a

segmented fashion. This is especially true in the “definitions”

section of the regulations where the meaning of the terms used

throughout a Part are established. Each new amendment is not

isolated from the regulations it amends but should be interpreted

in light of what already exists. Inevitably, ambiguity does

exist in the Board’s regulations but through reasoned

interpretation in an adjudicatory context, some ambiguity can be

eliminated. As the Board stated in its May 9, 1986, Opinion in

this matter, the Board has attempted to provide some consistency

between the RACT regulation and the NSR regulations. “While

these programs do entail different regulatory approaches, they

both utilize the same definitional terms and address the same

problem

—

achieving the NAAQS for ozone, in non—attainment areas”

DuPage Publications v. Illinois Environmental Protection Agency,

PCB 85—44, 85—70 and 85—130, Opinion at page 6 (May 9, 1986).

The Agency makes a number of comments regarding the

propriety and relevance of considering the pending regulatory

proceedings in R82—l4, RACT—Ill, and R85—20, New Source Review in

the context of this proceeding. The Agency argues that it was

inappropriate for the Board to decide, in the instant proceeding,

an issue which is still unresolved in the RACT—Ill proceeding,

i.e., the photochemical reactivity of heatset web offset ink

oils. However, at the same time, the Agency urges the Board to

take official notice of a specific technical report from the

record in that proceeding. The Agency also states that the

Board’s error in this case will be compounded if the Board

concludes in the RACT—Ill rulemaking that heatset web offset ink

oils do not lead to the formation of ozone. The Agency

apparently wants to “have its cake and eat it too” by relying on

selected pieces of the RACT III record, so long as the Board

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comes to the “correct” conclusion. This inconsistent argument

suggests that the Agency may not be as concerned with procedural

improprieties as with the substance of the Board’s decision.

The Agency argues that their proposed amendments in R85—20

which would change the applicability of Part 203 to “volatile

organic emissions” rather than “organic emissions” is not a tacit

acknowledgment that sources like DuPage should not be subject to

NSR because “neither the Agency nor the USEPA have ever concluded

that emissions from heatset web offset printing ink oils do not

lead to the formation of ozone.” Once again, the Agency fails to

recognize that it is the appropriate role of the Board and not

the Agency to promulgate and interpret regulatory language.

The Agency argues that the Board inappropriately took

administrative notice of an exhibit presented in the R85—20

regulatory proceeding, while refusing to take administrative

notice of the Carter Report. The Agency asserts that the Board

has been inconsistent in its application of official notice and

unequally treats litigants. The “exhibit” which the Board took

official notice of in R85—20 is an Agency regulatory proposal;

hardly a document likely to be subject of much factual dispute.

The Board believes that it is justified in distinguishing between

refusing to take official notice of a technical report on an

issue of disputed fact which is an exhibit in a pending

regulatory proceeding and taking official notice of a proposal

for regulatory language made by the Agency. The Board cannot

take official notice of the facts contained in a technical report

which are not part of the permit record. However, it is

undisputed that the Agency has filed a regulatory proposal with

the Board in R85—20. The only use the Board has made of this

“fact” is recognization that the Agency has proposed to change

“organic material” to “volatile organic material” in the

pertinent regulation at issue in this proceeding

It would be inappropriate for the Board to take official

notice of a technical document not before the Agency at the time

the permit decision was rendered. A permit appeal must be based

on the Agency record. However, the legal validity of an

underlying rule upon which the permit appeal is based can be

challenged in the context of the permit appeal. Consequently, it

is appropriate to go beyond the Agency factual record to construe

the legal import of a regulation. That is a question of law,

rather than a question of fact.

Based on the record before the Agency and a review of the

regulatory record of the underlying rules at issue in this

proceeding, the Board affirms its decision of May 9, 1986.

IT IS SO ORDERED.

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Chairman J.D. Dummelle and Board Member R. Flemal dissented.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certi~,ythat the above Order was adopted on

the /~/~2day of

____________,

1986, by a vote of

~

~

~2.

~

Dorothy M. G~f~n,Clerk

Illinois Pollution Control Board