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Epa v. Pollution Control Bd.

OPINION FILED AUGUST 1, 1980.

THE ENVIRONMENTAL PROTECTION AGENCY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 1, 1980.

The Illinois Environmental Protection Agency (Agency) appeals from an order of the Illinois Pollution Control Board (Board) directing the Agency to issue an operating permit, which it had previously denied, to United States Steel Corporation (U.S. Steel). On appeal, the Agency contends that: (1) the Board improperly relied on its own knowledge concerning a question of fact never before raised by the Board and not a part of the record before the Agency; (2) the Board improperly shifted the burden of proof from U.S. Steel to the Agency; and (3) the Board's interpretation of Rules 203(a), (b) and (f) of the Air Pollution Control Regulations was erroneous in that it departs from the Board's previous interpretation and is not supported by the plain language or regulatory history of the rules. U.S. Steel raised two additional points in motions that we agreed to take with the case. It contends that: (1) the Agency has no standing to appeal the Board's decision; and (2) the appeal is moot because of the Board's adoption of new Air Pollution Control Regulations which specifically apply to the emissions here in question. We reverse.

The following facts were submitted to the Board in the review proceedings in the form of a stipulation of facts and the Agency's record, which included U.S. Steel's permit application, the Agency's correspondence denying the application, U.S. Steel's written responses and the Agency's calculations on the permit application.

U.S. Steel's Chicago South Works, on Chicago's far southeast side, employs approximately 10,000 persons and contains facilities for the production of iron and the making, shaping and treating of steel. Among the facilities at the South Works are four blast furnaces, which were the subject of applications for operating permits which U.S. Steel filed with the Agency on October 3, 1977. A blast furnace is basically a vertical shaft furnace. Reactant materials, such as iron ore, sinter and limestone, are heated and melted in the furnaces by preheated combustion air which is injected into the furnace through truyeres at the bottom. The reactants eventually change into molten iron, which collects at the bottom of the furnace. When the level of molten iron is sufficiently high, the furnace's tap is opened and the molten iron is poured into waiting ladle cars for transfer to the steel-making area. This "casting" or "tapping" operation takes place in the "cast house," which contains a roof monitor, doors and other openings.

The blast furnace operation emits particulate matter from the stove stack and the cast house. Gas generated in the melting process is removed and cleaned and then reused as a combustion fuel in the stoves that heat the combustion air. Some particulates are emitted from the stove stack after the gas cleaning process. The casting process also produces particulate emissions, primarily iron oxide which results from the contact of the molten iron with cooler air during casting. These emissions reach the atmosphere through the various openings in the cast house. The cast house emissions are unavoidably produced and released during the casting process. They are not controlled by U.S. Steel, and particulate controls for molten iron casting operations in connection with basic iron blast furnace operations are not used by any other operator in Illinois.

Standards and limitations for particulate emissions are governed by Rule 203 of Chapter II of the Air Pollution Control Regulations adopted by the Board. The Agency took the position that the four blast furnaces must comply with Rule 203(a) and that the cast house emissions are to be included in measuring the particulate matter that reaches the atmosphere during the casting process. The amount of cast house emissions is determined by multiplying the number of tons of metal tapped by a cast house emissions factor. Prior to 1977, the Agency granted operating permits for basic iron blast furnaces without requiring controls for the cast house emissions because the emission factor necessary to calculate cast house emissions was not yet known. In 1977, after conducting tests in conjunction with Bethlehem Steel Corp., Dominion Foundries of Canada and Ford Motor Co., the United States Environmental Protection Agency (USEPA) found that cast houses have emission factors ranging from .26 to .6 pounds per ton of metal tapped. The USEPA selected .3 pounds per ton as a conservative estimate which is now used by the USEPA in quantifying basic iron blast furnace casting emissions. The Illinois Agency took notice of the USEPA factor and, beginning in 1977, took cast house emissions into consideration in determining compliance with Rule 203.

The allowable emission load based on the amount of material charged per hour, or the process weight rate, was computed under Rule 203, while the actual emissions per hour were calculated on the basis of the USEPA .3 cast house emission factor. Each of the furnaces was found to emit particulate matter from their cast houses in excess of the amount allowed under Rule 203(a), and the Agency accordingly refused to grant the permits.

U.S. Steel was notified of the Agency's decision in a letter dated June 22, 1977. On October 3, 1977, the Agency received a letter from U.S. Steel in response to the denial of the operating permit. U.S. Steel took exception to the Agency's interpretation of the rules, maintaining that the cast house emissions were fugitive emissions that were subject to, and in this instance in compliance with, Rule 203(f). The Agency treated the letter as a reapplication and, on October 31, 1977, restated its denial of the permits for lack of compliance with Rule 203(a). On December 9, 1977, U.S. Steel filed its petition for review with the Board. The Agency's motion to dismiss the review on the grounds that it was untimely filed was denied by the Board and, following the Agency's filing of the permit application record with the Board, the matter proceeded to a hearing. No testimony was taken. The Agency and U.S. Steel submitted a stipulation of facts and filed separate briefs. On September 7, 1978, the Board issued an opinion and order directing the Agency to grant the permit sought by U.S. Steel. The Board denied the Agency's motion for rehearing or reconsideration on November 16, 1978, and the Agency subsequently filed a petition for review in this court pursuant to the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1001 through 1051) and Supreme Court Rule 335 (Ill. Rev. Stat. 1977, ch. 110A, par. 335).

OPINION

I.

We will first address the issues raised by U.S. Steel's motions as to whether or not this appeal should be considered.

A.

U.S. Steel maintains that the Agency has no standing to bring this appeal because review was sought under Supreme Court Rule 335 and section 29 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1029). U.S. Steel contends that only section 41 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1041) could give the Agency standing, but that the Agency should not have standing to appeal ...


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