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Material Service v. Pollution Control Bd.

OPINION FILED AUGUST 27, 1976.

MATERIAL SERVICE CORPORATION, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal from a final order of the Illinois Pollution Control Board which denied, without any hearing, a petition for variance by Material Service Corporation, which was filed under the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1001 et seq.). Petitioner Material Service Corporation requests that the cause be remanded to the Illinois Pollution Control Board with directions to grant it a hearing on its petition for a variance. The petition for a variance was denied without a hearing as we have noted.

From the record it appears that Material Service Corporation operates an expanded shale facility at its plant in the Ottawa, Illinois, area. The plant processes shale into a special lightweight concrete material known as Dy-Core, which is substantially lighter than conventional concrete and is used for lightweight construction projects such as highrise buildings. The process involves several steps by which the rough shale is reduced in size and it is processed in the final heating until it bloats or pops, in a manner similar to popcorn. The product is then conveyed to a storage area, and is eventually shipped out to buyers.

At the time of the filing of the petition, Material Service Corporation supplied about 1,200 tons of material per day, which was used by approximately 200 companies in a six-State area. The plant directly employs approximately 110 persons from the Ottawa-Marseilles area, and, in addition, also supplies employment in 100 other support and use industries, including trucking, barge traffic and rail operations in the area, according to the petition.

Petitioner asserts that it had installed pollution control devices in the top of the kiln stack five years ago. The Environmental Protection Agency denied operating permits for both the shale sizing plant and the expanded shale system in January and February of 1973. In the early part of 1975 plaintiff filed a petition for a variance for one year with the Pollution Control Board and attached engineering diagrams and time schedules for plant improvements which would bring both the shale sizing plant and the finished product operation into compliance with Agency requirements. The proposals would cost approximately $700,000. Petitioner also asserted that it would expend $3.2 million dollars in a program to upgrade further control of pollutants at the plant and that this activity would inure to the well-being of people in the area.

The Environmental Protection Agency had denied operating permits, and in December 1974, it sent petitioner notice of delinquencies and the possible results thereof. The petition for variance was filed on February 13, 1975 and sought a one-year variance from the applicable particulate matter limitation of the air pollution regulations of the Board.

The Environmental Protection Agency filed a recommendation with the Pollution Control Board that the variance be denied, but stated, alternatively, that if the variance were granted in spite of its objection, that certain conditions should be imposed in connection with the granting of the variance. The Pollution Control Board issued an opinion and order on May 8, 1975, the 84th day of a 90-day period provided under the statute in which the Board must take some action, or the resulting 1-year variance would automatically be granted. The order issued by the Pollution Control Board denied the petition for a variance, without having any hearing.

The issue before us, therefore, is whether it was proper for the Board to deny the petition for variance without a hearing. Initially, from our examination of the legislation authorizing action by the Pollution Control Board on petitions for a variance, we note that section 37 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1037) provides in the pertinent portion of such section:

"* * * If the Board, in its discretion, concludes that a hearing would be advisable, or if the Agency or any other person files a written objection to the grant of such variance within 21 days, then a hearing shall be held * * *." (Emphasis added.)

In the instant case, as noted in the brief of the Pollution Control Board, the Environmental Protection Agency filed objection and recommended that the variance not be granted, but stated, alternatively, that if the variance was granted, certain conditions should be imposed. We note, also, that the procedural rule adopted by the Board itself (Rule 405(b)) states:

"If no objection is made by the Agency or by any other person to the grant of the variance within 21 days after the filing of the petition, the Chairman shall place the matter on the agenda for Board determination whether or not to hold a hearing."

It appears obvious that the legislation enacted by the State legislature requires that a hearing be granted to petitioner, in view of the fact that the Environmental Protection Agency has filed objection thereto prior to any action by the Pollution Control Board. Obviously, if the Environmental Protection Agency had filed an objection after 21 days, but before action by the Pollution Control Board, it could hardly be consistent with the objectives of the Act to have the Pollution Control Board then say that the Environmental Protection Agency is too late and that the Board will simply accept the statements of petitioner as true, ignore the Environmental Protection Agency, and grant the variance. Similarly, prior to any action by the Pollution Control Board, when the Environmental Protection Agency has filed objections, the Board could not, consistently, arbitrarily dismiss the petition, when the Environmental Protection Act stresses the need for a hearing, if any objection is filed before the Board has acted.

It, therefore, appears to this Court that the Board failed to follow the basic objective of the Act, or, in fact, to follow its own rules, which necessarily must stem from the statutory authority granted by the legislature. Any portion of the rules inconsistent with the legislative provision or objectives would necessarily be improper. In section 37 it is specifically stated that "if the Agency * * * files a written objection to the grant of such variance," a hearing is mandated and should be granted.

The order of the Pollution Control Board which denied the petition for variance without a hearing, actually recited that "petitioner has a reasonable program of compliance," and stated that it did not satisfy the test for a variance, on the theory that no arbitrary or unreasonable hardship has been "shown." It also recites that while petitioner may not have been initially aware that its facility had any emission ...


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