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Celotex Corp. v. Pollution Control Bd.





Appeal from the Appellate Court for the Third District; heard in that court on a petition for review of an order of the Pollution Control Board.


This appeal is from a decision by the Illinois Environmental Protection Agency (the Agency) to deny an operating permit for the Celotex Corporation. The Agency's decision to deny the permit was affirmed by the Illinois Pollution Control Board (the Board). The appellate court considered the denial on a petition for direct review and reversed the Board. (100 Ill. App.3d 520.) (Under the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1041), review proceeds directly to the appellate court.) We granted the Agency leave to appeal under Rule 315 (73 Ill.2d R. 315).

Celotex owns and operates a roofing felt plant in Peoria. The plant uses two coal-fired boilers to generate steam for heating and electricity. Gases from the boilers pass through dust collectors and are discharged through a common stack.

Celotex operated the boilers from at least 1968 to March 17, 1978, pursuant to operating permits issued by the Agency and its predecessor, the Air Pollution Control Board. An operating permit had been denied in 1975; however, the Agency and the Board were subsequently ordered to issue the permit in Celotex Corp. v. Pollution Control Board (1977), 53 Ill. App.3d 662, because Air Pollution Rule 204(c)(1)(A) (Ill. P.C.B. Rules & Regs., ch. 2, R. 204(c)(1)(A)), a sulfur dioxide emission standard upon which the Agency and the Board based the denial, had been declared invalid in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App.3d 271, aff'd (1976), 62 Ill.2d 494.

On March 13, 1978, prior to the expiration of the permit issued through the court's order, Celotex applied to the Agency for a renewal of the operating permit. In so doing, Celotex used the Agency's standard application form. Under the application heading "DATA AND INFORMATION INCORPORATED BY REFERENCE FROM CURRENT OPERATING PERMIT," Celotex answered "no" to the question, "HAS THE OPERATION AS DESCRIBED IN THE REFERENCED OPERATING PERMIT BEEN MODIFIED * * *?" Further, Celotex certified that "ALL PREVIOUSLY SUBMITTED INFORMATION REFERENCED IN THIS APPLICATION REMAINS TRUE, CORRECT AND CURRENT * * *."

On April 14, 1978, the Agency sent Celotex a letter requesting current information. The letter asked whether a letter of intent Celotex prepared in 1974 stating that it proposed to buy 30,000 tons of coal annually with a 1% maximum sulfur content still expressed Celotex' intention. Too, it asked for proximate coal analyses and annual tonnages from each supplier as well as data regarding the disposal of solid waste material. There was also a question asking whether the fly ash reinjection units were currently in use, and if they were not, the date of their disconnection and whether they had been removed from the plant. The letter closed with a warning that a failure to supply the information by May 12, 1978, might entail denial of the permit.

Celotex responded by a letter dated May 8, 1978. Celotex did not submit the requested information, saying that it considered the Agency's request to be untimely. The letter also stated, "Besides, we cannot understand why you would need the additional information, since our previous permit application papers were deemed sufficient for you to issue us an operating permit. As indicated in our renewal application filed March 13, 1978, the operation as described in the operation permit has not been modified." Eventually, however, Celotex did submit some data concerning its use of coal.

As it had warned it might, the Agency on May 18, 1978, denied Celotex' application for renewal of its permit. The Agency said that, if the permit were renewed, section 9(a) of the Environmental Protection Act (hereafter the Act) (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1009(a)), and Air Pollution Rules 103(b), 202(b), 203(g)(1)(B) and 204(c)(1)(A) (Ill. P.C.B. Rules & Regs., ch. 2, Rules 103(b), 202(b), 203(g)(1)(B), 204(c)(1)(A)) would be violated.

Section 9(a) of the Act prohibits the emission of any contaminant into the atmosphere in violation of pollution standards adopted by the Board under the Act. Rules 202(b), 203(g)(1)(B) and 204(c)(1)(A) are emission standards adopted by the Board for existing emission sources. Rule 202 sets visual emission standards. Part (a) of Rule 202 sets standards for certain new sources, while part (b) sets a standard for all other sources. With certain exceptions, Rule 202(b) prohibits the emission of smoke or other particulate matter having an opacity of over 30%. Rule 203(g)(1)(B) is a particulate-emission standard for solid fuel combustion sources. It limits the emission of particulate matter in any one-hour period. Rule 204(c)(1)(A) also applies to solid fuel combustion sources. It establishes an hourly limit upon the emission of sulfur dioxide.

Rule 103(b), on the other hand, is not an emission standard. It is the rule governing operating permits. It provides in relevant part:

"(2) Existing Emission Sources:

Prohibition. No person shall cause or allow the operation of any existing emission source or any existing air pollution control equipment without first obtaining an Operating Permit from the Agency. . .

(3) Application. An application for an Operating Permit shall contain, as a minimum, the data and information specified in paragraph (a)(2) of this Rule 103. Each application shall list all individual emission sources for which a permit is sought. Any applicant may seek to obtain from the Agency a permit for each emission source, or such emission sources as are similar in design or principle of operation or function, or for all emission sources encompassed in an identifiable operating unit. To the extent that the above specified data and information has previously been submitted to the Agency pursuant to this Rule 103, the data and information need not be resubmitted; provided, however, that the applicant must certify that the data and information previously submitted remains true, correct and current. An application for an Operating Permit shall contain a description of the startup procedure for each emission source, the duration and frequency of startups, the types and quantities of emissions during startup, and the applicant's efforts to minimize any such startup emissions, duration of individual startups, and frequency of startups. The Agency may adopt procedures which require data and information in addition to and in amplification of the matters specified in the first sentence of this paragraph (b)(3), which are reasonably designed to determine compliance with this Chapter, and ambient air quality standards, and which set forth the format by which all data and information shall be submitted." Ill. P.C.B. Rules & Regs., ch. 2, R. 103(b).

The Agency's letter of denial stated that Celotex' failure to supply all the additional information requested by the Agency left the Agency with insufficient data to complete its analysis and consideration of the permit application. Too, the letter said that opacity readings of the plant conducted on January 18, 1978, April 19, 1978, and April 20, 1978, showed a violation of Rule 202(b).

The letter also stated that, because Celotex did not submit facts to prove its actual emission levels, the Agency used data previously submitted along with standard emission factors in its calculations. The standard factors were taken from a United States Environmental Protection Agency Publication entitled "Compilation of Air Pollution Emission Factors," which publication is commonly called AP-42. Based upon those calculations, the Agency concluded that the Celotex boilers will emit particulate matter and sulfur dioxide in excess of the standards set out in Rule 203(g)(1)(B) and Rule 204(c)(1)(A).

As we have noted, the Board upheld the denial of Celotex' application. It recognized, though, that the denial could not be based upon Rules 204(c)(1)(A) and 203(g)(1)(B) of the Board, because those rules have been held to be invalid. See Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App.3d 169; Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App.3d 839, appeal dismissed (1979), 78 Ill.2d 1.

The appellate court judged that neither could the denial be based upon Rules 202(b) and 103(b). The court decided that all of Rule 202 was invalid, because in adopting the opacity standard, the Board had failed to consider the economic reasonableness of the rule as required by the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1027(a)). The permit could not be denied under Rule 103(b), the court said, because Celotex' certification of the currentness of the previously submitted data obviated the necessity of providing "current information." In view of its invalidation of Rule 202, the court concluded that the recorded violations of that rule would not justify a demand by the Agency for current information.

Accordingly, the court reversed the Board's order that affirmed the denial. The court remanded the cause to the Board to give the Board an opportunity to validate Rule 202 in accordance with the Act.

The Agency makes five contentions before us: (1) the appellate court was without jurisdiction to consider an attack upon the validity of Rule 202; (2) Celotex is estopped to challenge the validity of the rule; (3) the appellate court erred in deciding that the rule is invalid; (4) the court's invalidation of the entire rule was overly broad; (5) the appellate court erred in deciding that the permit could not be denied for the failure to submit the requested information. We will consider the points in the above sequence.

Under the Act a decision by the Agency to refuse a permit may be contested in a hearing before the Board. (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1040.) The Act provides that, after such a contest, one who has been denied a permit may obtain review in the appellate court by filing a petition for review within 35 days. (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1041.) Here, Celotex filed a petition for review within 35 days of the Board's decision to deny the permit, which decision was based in part upon the Agency's view that granting a permit would violate Rule 202(b). The Agency contends that, although the petition for review ...

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