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Env. Prot. Agency v. Poll. Cont. Bd

OPINION FILED SEPTEMBER 29, 1983.

THE ENVIRONMENTAL PROTECTION AGENCY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



Petition for review of order of Pollution Control Board.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Petitioner, Illinois Environmental Protection Agency (Agency), filed a direct appeal in the appellate court (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1041) challenging the decision of the Illinois Pollution Control Board (Board) to remove several conditions from the construction and operating permits the Agency had issued in September 1980 to Alburn, Inc., operator of a liquid waste incinerator in Chicago, Illinois. The Agency contends that the Board's decision to remove the permit conditions was against the manifest weight of the evidence; the Board argues in response that the Agency's action in imposing the conditions was unreasonable and unnecessary to prevent air pollution.

We reverse the decision of the Board and reinstate the two conditions that the Agency here argues were properly imposed on the September 1980 permits issued to Alburn, Inc. Because the Agency does not present specific arguments for the reinstatement of several of the remaining conditions, we do not include those conditions in our deliberations.

FACTS

The liquid waste incinerator that is the subject of this controversy was constructed in 1974 and has been operating under an Agency permit scheduled to expire on December 3, 1979. During the permit period, operation of the facility was taken over by Alburn, Inc., although there is no record that the permit was transferred to the subsequent operator. When Alburn applied for a renewal of this operating permit, the Agency decided that because of the change in operators as well as the various modifications made to the facility, the detailed information usually requested on new permit applications would be required.

After meeting with representatives of Alburn early in 1980, the Agency twice requested and received additional information. Although Alburn forwarded to the Agency various diagrams, flow charts, descriptions of its waste tanks, and an "operating procedures manual" prepared by an earlier owner, the Agency found these to be of little value for permit issuance purposes. Alburn's own consulting engineer admitted that the submitted plans were inadequate for a complete and accurate review of Alburn's ability to comply with the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1001 et seq.) and the regulations developed by the Board to implement the environmental control standards established by the Act. Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1005(b).

Consequently, in February 1980, the Agency denied Alburn's request for an operating permit. Instead, it issued a construction permit allowing Alburn limited operation subject to several conditions designed to ensure compliance with the Act while maintenance and operating procedures were developed, testing was conducted, and modifications were made to the facility to enable Alburn to meet emission standards determined by the Agency to be applicable to Alburn's incinerator. The permit itself was issued only after Alburn guaranteed that even though it could not produce sufficient detailed information to meet the Agency's requirements, "the emission source and control equipment would comply with all applicable standards." Nevertheless, a stack test conducted June 2, 1980, resulted in emissions exceeding the limits established in Rule 203(e)(3) of the Board's rules and regulations. Illinois Pollution Control Board Rules and Regulations, ch. 2: Air Pollution (1970).

On September 9, 1980, in an effort to accommodate Alburn's business needs, the Agency issued short term construction and operating permits containing the contested conditions, which were designed to ensure Alburn's compliance with the Act and applicable regulations while further information about the facility was gathered. Alburn promptly filed an appeal with the Board, and on May 1, 1981, obtained a stay of conditions. Hearings were held before the Board in July and August, 1981; on February 17, 1982, the Board ordered the removal of several of the contested conditions on the grounds that the Agency (1) inappropriately applied the emission standard of Rule 203(e)(3) to the Alburn incinerator, and (2) failed to recognize Alburn's capacity to blend wastes. The Agency appeals from the Board's order.

OPINION

I

• 1 We first address two procedural issues raised by the Board: (1) whether the Board's order removing the permit conditions was final and appealable, and (2) whether the Agency's failure to appeal a 1976 Board decision declaring Rule 203(e) inapplicable to liquid waste incinerators may be used collaterally to estop the Agency from relitigating that same issue in any subsequent case. The Board first claims that because its order removing the challenged conditions also remanded the permits for Agency revision and did not terminate the Agency's duty to impose conditions effecting the purposes of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1039(a)), it was not an "order * * * which terminates the proceedings before the administrative agency" (Ill. Rev. Stat. 1979, ch. 110, par. 264) and therefore did not quality as a final judgment appealable under the authority of Supreme Court Rules 335 and 301. 73 Ill.2d Rules 335, 301.

Section 41 of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1041) grants to "[a]ny party to a Board hearing" the right to judicial review of any order, determination, or other final action of the Board. Section 40 of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1040) requires the Agency to appear as respondent in an action before the Board to contest the Agency's denial of an operating permit; for purposes of review, the imposition of conditions is regarded as a permit denial. (Rule 103(k), Illinois Pollution Control Board Rules and Regulations, ch. 2: Air Pollution (1970).) The Agency, having been made a party to the action before the Board, may seek review of a Board decision that arguably impinges on the Agency's authority to determine whether or not a specific applicant is entitled to a permit. (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 1004, 1039; Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 387 N.E.2d 258.) We find that to be the case here, and therefore we conclude that the present case is properly before us on appeal.

II

• 2 The second procedural issue raised by the Board is based on its claim that because the Agency failed to appeal an earlier Board decision refusing to apply certain emission standards to liquid waste incinerators, the Agency will be estopped from appealing the same issue in any subsequent case. We find the precedent ...


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