ILLINOIS
POLLUTION
CONTROL
BOARD
December
4,
1980
THE
CELOTEX
CORPORATION,
Petitioner,
v.
PCJ3 78—177
tLLINOIS
ENVIRONMENTAL
PROTECTION
I
AGENCY,
Respondent.
JOHN
L.
PAMER,
JOHN
L.
PARKER
&
ASSOCIATES
LINITSO,
APPEARED
ON
RERALF
OF
PETITIONER.
DOUGLAS
P.
KARP,
ASSISTANT
ATTORNEY
GENERAL,
APPEARED
OPT
BEHALF
OF
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by I. Goodman)’
On June 30,
1978 the Celotex Corporation (Celotex) filed an
appeal
before
the
Board
from
the Illinois Environmental Protection
Agency’s
(Agency)
May
18,
1978 denial of an
operating
permit
for
Celotex’ two boilers at its Peoria, Illinois plant.
Four hearings
were held in this matter and
the
Board
has received no public
ccmment.
me subject of this case is the denial by the Agency of an
operating permit for
the Celotex facility in Peoria.
Celotex
alleges that the operation at the facility remains precisely the
same as it was in prior years when the Agency had issued an
operating
permit.
The Agency; on the other hand, alleges that it
has
evidence of a possible change in operation at the facility
and
cites
Celotex’
lack
of
response
to
a
request
for
more
inform’-
ation by the Agency
as
the
major reason for the permit
denial.
With respect to Rules 204(c)(1)(A) and 203(g)(1)(A) of Chapter
2, Air Pollution Control Rules and Regulations, whether or not the
Agency was correct in invoking the rule at the time of the permit
application denial is now
an
academic
question,
as
the
~rcfnulgation
of
those
rules
has
been
overturned
by
the
state
courts.
If
the
Board
were
to
find
the
Agency had
acted
correctly
with
respect
to
these
rules,
the
legal result would be either that the case would
be
remanded
to the Agency to apply the rules as they exist today
or that any
appeal to the appellate court would also result
1Ashiand Chemical Company v. PCB, 64 Ill.App.3d 169,
381
N.E.2~3
fd
(3tDist.1978); and Illiifls State
Chamber
of
Commerce~
!tai. v.
!ca,
67 Ill.App.3d 8 9,
3
N.
.2
9 2 (1st Dist.1978).
40-21
in
the
application
of
the
rules
as
they
exist
today.
The
Boar~J
feels
constrained,
therefore,
to
apply
the
rules
as
they
exist
today.
The
Board
finds
that
the
Agency
was
in
error
in
applying
those
rules
to
Celotex’
application.
The
Board
notes
that
the
r~iles
still
exist
as
a
part
of
the
Illinois
State
Implementation
Plan
and
are
enforceable
at
the
federal
level
(Sherex
Chemical
Cornpan~
x.
V.
Illinois
Environmental
Protection
~en~y,
PCB
80—66,
October
2,
1980).
The
requirenent
of
§39(a)
of
the
Illinois
Environmental.
Protection Act (Act)
with which Celotex alleges
the
Agency did.
not
comply is
that
the Agency
must
issue
the
permit
if
Petitioner
had
demonstrated that there will be no violations of the Act or of the
Board’s regulations
(see
Par,
(iv)(2)
of
the
petition).
In hearings concerning permit appeals
the
burden
is
on
the
petitioner
(S40(a)
of the Act).
In the instant case,
Celotex
must prove that the follo’~ingreasons
for the Agency’s denial
were
in
error
(see discussion at Tr,179—88)~
1.
The application was
insufficient
under
Rule
103(h)(3)
of Chapter 2;
2.
Opacity readings
taken
on January 18,
1978,
April
19,
1978 and April 20,
1978 indicated
that
Rule
202(b) of Chapter 2
would be violated.
The Agency’s denial, except for
No.
2 above
(opacity), was
based upon
its
inability to complete its technical analysis of
whether violations of the
Act or Board regulations would result.
The denial
letter stated that Petitioner did not respond to its
April
14,
1978 letter requesting additional
information, and that
because of the absence of actual emission level data,
the
total
suspended
particulates
(TSP)
level
was
calculated
with
reference
to
the
emission
factors
given
in
the
document
AP—42,
“Compilation
of
Air Pollution Emission.”
Petitioner’s sulfur dioxide
(SO2)
emission levels were calculated
based
upon the data Petitioner
submitted with its application.
Finally,
the Agency denial letter
invited Petitioner to resubmit
the
application and
listed the
specific information which should he included with that resubmittal.
The
hearing
officer,
during
each
of
the
four
hearings held
in
this
matter,
ruled
that
under
three
federal
cases
the
relevant
witnesses
would
be
“whoever
makes
investigations
as
to
TSP
or
507 emissions
on behalf of the
Agency,”
rather than heads
of
departments of the Agency.
He ruled that the Director of the
Agency and the Manager of
the
Agency’s Air Pollution Control
Division need not appear unless and until Petitioner shows that
they would have “personal knowledge2of something substantially
important” to
the
case
(lTr,32—37),
The hearing officer made
several other rulings throughout
the
four hearings regarding the
2lTr. refers
to the transcript of June 18, 1979;
2Tr. refers
to the transcript of August
8,
1979.
40—22
prohibition
in
Oscar
Mayer&Com~any.
V.
IEPA, PCB 78—14
(June
8,
1978 Interim Order) of inquiry into why the
permit
decision
maker
made
the
decision
he
or
she
did,
and
stressed
throughout
that
the
Facts
within
the
Agency~s
record
must
stand
or
fall
by
themselves
witbout
rejarcl
to
motive
or
other state of
mind..
The
Board
Finds
nc)
abuse
of
discretion
and
no
lack
oF
authority
in any of the
hearing
of Ficer’
s
rulings
Tn
fact,
under
the
circumstances of
this
case1
including
the
discovery
squabbles
noted
in
Board.
discovery—related
Orders
in
this
case,
the
Board
finds
the conduct
of
the
hearing
officer
to
have
been
exempl;iry
and
to
be
commended.
Fair
and
orderly
proceedings
have
been
conducted
consistently
for
two
full
years
in
this
matter,
The
hearing
officer
ruled
that
the
Agency’s
1973
permit
denial, which is part of
the
record,
was
irrelevant
to
its
1978
denial
(lTr.116—26),
This is
true, especially as the 1973 denial
was
not
based
upon
the
permit
application
and
other
Facts
upon
which
Celotex
in
1978
sought renewal
~iere
presence
in the
record
of
a
particular
fact
does
not
create
a
presumption
of
relevaucy to
the issues
on
appeal
(see
1Tr~222),
Ce1otex~ May
8,
1973
response
to
the Agency’s
letter
requestlug
additional
data
(Ex,I,
p~l86)
stated
that
Rule
103(h)
does
not
require
it to forward
additional
information
since
the
~‘\qency’srequest was not made
within
the
30—day
period
require~1
under subsection
(4)
of
that rule.
Petitioner added,
“Besides,
we
cannot
understand
why
you
would need the additional
information,
since
our
previous
applications
were
deemed
sufficient
indicated
in
our
renewal
application
the
operation
as
described
in
the
permit
has
not
been
modified,”
Pule l03(b)(4) provides that applications are deemed “filed”
when all information required under
Rule 103(h)(3)
is submitted.
If the Agency’s letter requesting information
is not
received
by
an applicant within 30 days of its original purported filing,
then its application is deemed “filed”
as of the date the
incomplete application was first
filed
(see Sherex,
supra).
Finally, a Rule 103(b)(4) Agency letter, whenever sent,
is grounds
for
an
appeal
to
the Board of a permit denial based upon the suffi-
ciency of the application
(see also §39(a)(3)
of the Act)~
In
this
matter,
the
date of the original purported
filing with
the
Agency
was
March
13,
1978.
Celotex’
receipt
of
the
Agency
letter
on
Apr.11
21,
1978
was
more
than
30
days
after March
13,
1978;
therefore,
the
purported
filing
date
is
the
true
filing
date
for
purposes
of
the
90—day
statutory
decision
period
under
~40
of
the
Act.
The
Agency
letter
also
entitled
Celotex
to
treat
the
appli-
cation
as
having
been
denied,
but
Celotex
did
not
do
this
at
that
time
Nor
did
it
provide
the
Agency
with
this
additional
inform-
ation
it
deemed
necessary
for
its
decision
(Ex,I,
pp.178-9):
1,
Whether
Celotex’
August
5,
1974
letter
of
intent
to
purchase annually
30,000
tons
of
coal
with
a
maximum
sulfur
content of 1.0
was still valid;
2.
Proximate
coal
analyses
and
annual
tonnages
of
coal
40—23
—4—
received from each supplier;
3.
Blending procedures utilized to comply
with Rule
204(c)(1)(A)
if coal was received from more than one supplier;
4.
Whether flyash
reinlection
units were in use and,
if
not,
the
date of their disconnection
and whether they have been removed
from the plant;
and
5.
Addendum
L,
Disposition of
Solid ~iaste Material
From
Dry
Collector (APC-103).
The Agency’s
letter
further
notified
Petitioner
that
Failure
to supply this information by May 12,
1978
could cause
a denial
of
the permit.
On May 18,
1978
the Agency denied the permit
(Ex,I,
p.
205),
citing
Rule
103(b)(3)
and
§39
of
the
Act.
On
June 30,
1978
Celotex appealed this May 18,
1978 denial,
stating
the
date
of
denial to be
May
30,
1978,
which was
when
the
Agency’s
May
18,
1978 letter,
sent by certified
mail,
was
alleged
to
have
been
received.
The question before the Board
in
this
matter
is
whether
the
Agency
properly
denied
the
March
13,
1978
application
on
May
18,
1978.
The Board finds that it
did.
Under §39(a)(3)
of
the
Act,
the Agency
is
entitled
to
deny
a
permit
for
insufficiency
of
information
when
the
entire
application
does
not
provide
adequate
proof
that
the
equipment
or
facility
will not cause violations of
the Act or the Board’s regulations, and the denial letter so stated.
The
further questions
before the Board are
(1) whether
Celotex’
application,
as
filed,
was
sufficient to
prove
to
the
Agency
that
no violations of
the
Act or Board regulations would occur,
The
issue of sufficiency of
the
application centers upon the items
listed
in
the
Agency’s April
14,
1978
letter,
to which
its
May
18,
1978 denial letter refers
(as
previously
set forth herein)
because
one reason
for denial
was
insufficiency;
and
(2) whether Petitioner
demonstrated
no
violation of Rule 202(h),
The record of
the
four hearings
is
inadequate to support
Celotex’ contention that the items about which the Agency requested
information were unnecessary to
show
that issuance of the permit
would not cause environmental violations.
At hearing Celotex’
constant position was that, because
the
Agency had granted it
a
permit in 1977,
effective from
August
30,
1975 through March 17,
1978,
and that, because its 1978 application stated
no
change
in
the circumstances which had existed on August 30,
1975,
Celotex
was entitled to a renewed permit.
The
Agency’s
April
14,
1978
letter made clear that it needed
more proof of
present
conditions than Petitioner’s statement that
circumstances had not changed in five years,
Accordingly,
it sought
information
as
to those circumstances which
it believed
relevant
to
operating the facility in 1978.
This it was entitled to do
even
had.
it found
to its satisfaction that certain 1978 circumstances
were exactly the
same
as in 1975,
This is because not only can
applicable state or federal laws change in the interim, hut the
Agency’s own procedures,
especially those regarding testing,
40—24
monitoring and .other technology—related requirements, may have
changed.
Indeed, the Agency testified that prior stack testing
methodology had
become
contrary to its 1978 permit—issuing
policies (2Tr.225—30; 250—2; 261—3).
Between the time of the June 2, 1975 application and the
May 18, 1978 denial, the
Agency
received information which supple-
mented that contained in the 1978 application.
It received
Celotex’ coal analysis
(Ex.I, pp.192—9), a UREPA report on visi-
bility (Ex.I, pp.200—04), and interoffice calculations regarding
opacity (Ex.I, pp.180—5),
all of which were properly considered
by the Agency.
On April
20, 1978 representatives from both the USEPA and
the Agency read visual stack emissions and obtained opacity
readings for each boiler.
At that time, Celotex represented that
an updated coal analysis would be submitted.
The Agency’s con-
clusion from these readings was that “the visual emission
standards of Rule 202(b) have not been met”
(Ex.I, p.180).
Readings taken on April
21, 1978 also showed noncompliance with
Rule 202(b)
(Ex.I, p.202).
Celotex sent the USEPA its coal analysis by letter dated
May 11, 1978
(Ex.I, p.192).
Copy was also sent to the Agency.
The report showed ash (9.55)
and sulfur (2.38)
contents and
was based upon a sampling taken on April 19, 1978, which was after
the date of the Agency’s letter requesting more information
(Ex.t,
p.198).
A second sampling on April 21, 1978 indicated an ash
content of 7.69
and a sulfur content of 2.43
(Ex.I, p.199).
The Board presumes the Agency received the analysis before its
May 18, 1978 denial.
Even considering the fact that Celotex’
submittal of the coal
analysis
responded
in
part
to
the
Agency’s
request
for
additional
information,
the
Agency
had
evidence
of violations of Rule 202(b)
fron its first—hand stack readings, which conflicted with the
statement in the application
that
there had been no change in
circumstances.
Celotex bore a burden at hearing to prove that
its operation,
as described by the information submitted in its
application, would not cause a violation of Rule 202(b).
Celotex
produced no evidence that the Agency’s readings were inaccurate
or in any way unreliable.
the Board finds that neither Celotex’ application nor evidence
produced at hearing demonstrated that its operations would not violate
Rule 202(b) and therefore §9 of the Act.
At hearing, Celotex
offered testimony that increased opacity does not necessarily
indicate increased TSP emissions (Tr.459,464,536—8); however, this
was produced as an opinion of an engineer from U.
S. Pipe and
Foundry
Company,
whose only personal knowledge of the issues in this
case is limited to the record (2Tr.520—25).
Furthermore, Agency
witnesses, including one
that
was involved in the calculations
for the 1974
permit
application, testified that increased opacity
is usually considered good evidence of increased TSP emissions
(2Tr.685).
Fran the Agency’s findings as to opacity violations one
could reasonably infer TSP violations.
This is especially true
40—25
given the lack of coal—related data (other than the coal analysis)
which the Agency by its letter
deemed
necessary for Celotex to
provide.
Celotex’ claim that Rule 202(b) does not apply given
the exception thereto in Rule 202(c)(3) is erroneous because there
is no
mass
emission limitation in force as a Board regulation with
which to comply so as to exempt the applicability of Rule 202(b).
it
is not necessary to the applicability of the visual standard to
~ source for an emission limitation to be applicable to that
source, as they are
two
different environmental standards.
The
Board,
for the reasons above stated, upholds the Agency’s
permit
denial.
On October 16,
1980 Celotex filed a notion to strike the
hearing officer’s statement as to credibility of witnesses, which
is required by the Board’s Procedural Rule 319(d).
The purpose of
the rule is to allow the hearing officer to indicate to the Board
his or her opinion of the credibility of witnesses as indicated
by demeanor,
etc., since the
Board
itself cannot physically be
present at hearings of this kind.
in this
case
the hearing officer
indicated to the Board that one Celotex witness’ responses were
“evasive.”
Whether or not the witness was evasive in his testimony
is irrelevant in this case to Celotex’ contention in the ‘notion
that the hearing officer
was
biased since the few facts the witness
testified to were already in the record, and since his opinion, in
the light most favorable to Petitioner, was not of such matters
as would constitute prejudice or irreparable harm even were the
hearing officer biased.
In a thorough review of the record, the
Board finds no evidence of incompetency on the part of the hearing
officer, as the motion alleged.
Indeed, considering the conduct
of both parties,
all hearings were handled in a calm, fair and
unbiased manner.
The Board denies Celotex’ motion to strike the
statement.
One
last
procedural
matter
remains.
Under
Section
40
of
the
Act, the Board has 90 days within which to act on a
permit
appeal
filed before it.
Under certain conditions, petitioners histor-
ically will waive this right if they find that it is beneficial
for them to do so.
On July 2, 1980 Celotex filed a motion to allow
an interlocutory appeal of the hearing officer’s discovery orders
(dating back to 1979) and a motion to continue the hearing set for
July 11, 1980 pursuant to Procedural Rule 311.
At the
same
time
Celotex filed a waiver of time for decision purporting to grant
the Board until October 29,
1980 to issue its Order.
Rule 311(b)
states, “no continuances shall be granted to the Petitioner for any
variance or permit appeal proceeding unless the deadline for final
Board action, whenever applicable, is extended by the Petitioner for
a like period, as a minimum.”
On July 10, 1980 the Board granted
Celotex’ July 2, 1980 motion to continue the hearing set for
July ii, 1980 and ordered the hearing officer to set hearing within
45 days of the date of the Board’s future Order deciding the issues
of the interlocutory appeal.
The third paragraph of that July 10,
1980 Order stated that grant of the appeal “constitutes a waiver
~ço tantq of the deadline for the decision date.
That date is
hereby
extended from October 29, 1980 through and including
December 31, 1980.”
Celotex did not appeal this Order.
40—26
On August 21,
1980 the Board entered an Order disposing of
the arguments raised in Celotex’ interlocutory appeal; the Order
reiterated the decision date of December 31,
1980.
Although
Celotex filed a motion for reconsideration of the August 21,
1980
Order, that motion did not address the December 31, 1980 decision
date.
On October 16,
1980, the day before the last scheduled
Board meeting prior to the October 29, 1980 date, Celotex filed
its 32—page final brief in this matter, which alleged that fail-
ure by the Board to act before October 29, 1980.
i.e., the next
day, would result in a permit being issued to Celotex by operation
of law.
The Board rejects this evaluation of the statutory decision
date under §40 of the Act.
When Celotex requested pursuant to
Procedural Rule 311 that the Board delay the proceedings herein
in order to consider an interlocutory appeal, and accepted the
Board’s grant of the continuance, Celotex agreed to an extension of
the
time
for decision to a date
beyond
that
stated
in
its
prior
waiver for a like period, as a minimum, as that required by the
Board to decide the appeal.
Because of the uncertainty of when
the Order regarding that appeal would issue, the Board notified
Petitioner of a date certain by which the entire proceeding would
be decided.
Even
if Rule 311(b) itself were not .so explicit, to allow
any party before the Board to ignore the specific contents of two
separate Board Orders, one of which was appealed on other grounds,
would constitute an intolerable surprise both upon the other party
and upon the Board.
This Opinion constitutes the findings of fact and conclusions
of
law
of the Board in this matter.
ORDER
The May 18,
1978 denial by the Illinois Environmental
Protection Agency of the Celotex Corporation permit application
is upheld in accordance with the Opinion herein.
Mr. Werner dissents.
I’L’
IS
SO
ORDERED.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby cprtify that *he abqve Opinion and Order
were
adop~edon the
P
day
of
tZtca-,v~J-’~
,
1980 by a
vote of&-J_.
~____________________________
thristan L. Mo!fett, Clerk
Illinois Pollution Control Board
40—27