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Getty Fuels v. Pollution Control Bd.

OPINION FILED JANUARY 29, 1982.

GETTY SYNTHETIC FUELS, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Petitioner (Getty) appeals the finding of the Illinois Pollution Control Board (Board) that the proper reference point for applying the emission limitation of Rule 205(f) (1) (C) of the Illinois Pollution Control Board Rules and Regulations is the emission discharge from the plant vent of its methane recovery facility rather than that naturally emitted from the landfill on which it operates its facility.

On April 7, 1980, Getty submitted to the Illinois Environmental Protection Agency (IPEA) an application for a permit to construct a methane recovery facility at a waste disposal site know as the CID Landfill. The facility was designed to extract each 5 million cubic feet of landfill gas generated by the decomposition of solid waste. The process includes a gas gathering and transporting system consisting of a network of recovery wells bored into the landfill and a series of underground pipes which connect the wells to a processing plant. The landfill gas contains a high percentage of methane which is purified by removing various unwanted components. The product is a pipeline quality gas suitable for industrial and residential use. In the methane recovery process approximately 220 pounds per hour of nonmethane hydrocarbons (heavy hydrocarbons) are separated out of the gas, of which about 90% is disposed of elsewhere or returned to the landfill, and the remaining 20 pounds per hour are emitted into the atmosphere. The Getty permit application indicated that the heavy hydrocarbons would be removed through a condensation process and that the remaining residual heavy hydrocarbons would be removed through a process know as "air stripping" in which air is introduced permitting the removal of heavy hydrocarbons by vaporization.

The IEPA determined that the methane recovery facility was a new source of waste gas disposal and was thus subject to Rule 205(g)(1), "Petroleum Refinery and Petrochemical Manufacturing Process Emissions," of the Illinois Pollution Control Board (Board) Rules and Regulations for Air Pollution Control. This rule limits the emission of organic material into the atmosphere to a "maximum of eight pounds per hour" and, as an alternate standard, provides that emissions in excess of that amount are allowable "if such emissions are controlled by air pollution control methods or equipment approved by the Agency capable of reducing by 85 percent or more the uncontrolled organic material that would otherwise be emitted into the atmosphere." The IPEA determined that the reference point for the 85% reduction option was the 20 pounds per hour of heavy hydrocarbons gas naturally emitted from the landfill.

While awaiting action on its application for a permit, and in order to proceed with construction, Getty on August 5, 1980, indicated in a modification to its application that the recovery facility would be operated to meet the 8-pounds-per-hour alternative by a new process it was developing known as "gas stripping" instead of air stripping method.

On August 21, 1980, the IEPA granted the construction permit subject to the condition that Getty comply with the requirement of Rule 205(g) (1) (C), which meant that the reference point for the 85% reduction would be the 20 pounds per hour of emission at the plant vent rather than the 220 pounds per hour emitted from the landfill. Getty then sought Board review of IEPA's determinations (1) that its recovery facility was a petroleum refinery or a petrochemical manufacturing process subjecting it to Rule 205(g) (1); and (2) that the applicable reference point for the 85% reduction requirement was the 20 pounds per hour of heavy hydrocarbons emitted from the plant itself. On March 19, 1981, the Board determined (1) that the methane recovery facility here was not a petroleum refinery or a petrochemical manufacturing process and thus was not subject to Rule 205(g) but, rather, to the general organic emissions Rule 205(f) (which contains virtually the same emissions requirements as Rule 205(g)); *fn1 and (2) that the emission subject to the 85% reduction alternative was that discharged from the facility. One member of the Board then filed a concurring opinion on April 27.

In the meantime, Getty had filed a notice of appeal on April 21 with the clerk of the Illinois Pollution Control Board following which, on May 4, 1981, it filed in this court a petition for review of the Board's decision. The IEPA filed a motion to dismiss the petition for lack of jurisdiction, asserting that the petition was not timely and that it failed to name the Board as a respondent. On May 19, Getty moved to amend its notice of appeal to restyle it as a "Petition to Review," to extend the time to file it, and to name the Board as a respondent. On May 21, the motion panel of this court continued the motions for consideration and disposition after the filing of the record on appeal.

OPINION

We first address the issues raised in respondent's motion to dismiss, in which they assert that jurisdiction is lacking because petitioner failed to file a timely petition for review in this court and, in any event, did not name all necessary parties as respondents.

Taken together, sections 29 and 41 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 1029, 1041) provide for direct review by this court of Illinois Pollution Control Board decisions. Section 29 states that "any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under section 41 of this Act." Section 41 provides in pertinent part:

"Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of * * * except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose * * *."

In addition, the exclusive procedure for direct review of orders of an administrative agency in the appellate court is found in Supreme Court Rule 335 (Ill. Rev. Stat. 1979, ch. 110A, par. 335), which states in part that a petition for review shall be filed in the appellate court and must name as respondents the agency and all other parties of record. Subsection (h) (1) thereof further provides that "[i]nsofar as appropriate, the provisions of Rules 301 through 373 (except for Rules 321 through 326) are applicable to proceedings under this rule."

Respondents maintain in their motion, and we agree, that the notice of appeal filed by Getty with the Board on April 21, 1981, was not in compliance with Supreme Court Rule 335. Respondents also argue that we lack jurisdiction to hear this appeal because Getty's petition for review, filed in this court on May 4, 1981, was not in compliance with Rule 335 in that it was filed 46 days after the Board's March 19 final order and because Getty did not name the Board as respondent.

• 1 The petition for review required under Rule 335 serves as notice of appeal. (See Committee Comments to Rule 335 (Ill. Rev. Stat., ch. 110A, par. 335, Committee Comments, at 121 (Smith-Hurd 1976)).) We are of the opinion that Rule 303(e) (Ill. Rev. Stat. 1979, ch. 110A, par. 303(e)), which provides for an extension of time in certain circumstances — "On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time * * * filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal * * *" is applicable through Rule 335(h) (1), and we find that the May 19 motions to amend the notice of appeal ...


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