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12/29/88 the Illinois State Chamber v. Pollution Control Board Et

December 29, 1988

THE ILLINOIS STATE CHAMBER OF COMMERCE ET AL., APPELLANTS

v.

POLLUTION CONTROL BOARD ET AL., APPELLEES



Presented below is a brief review of the background needed to understand the basis of this appeal. Other facts relevant to the issues raised in this petition for administrative review will be included in this Disposition where appropriate.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 987, 177 Ill. App. 3d 923, 127 Ill. Dec. 158 1988.IL.1914

Appeal for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

When this case came on for oral argument, counsel for the parties presented this court a "Joint Motion to Stay Proceedings Pending Implementation of Settlement Agreement," alleging that the parties have entered into compliance plans and that they needed until April 1989 to secure their approval from the Pollution Control Board and the Attorney General.

We deem this motion too little and too late. We are always pleased to receive settlement motions at an appropriate time. However, we remind counsel that the date of hearing is an inappropriate time to tender such motions.

When the date of hearing is reached, each of the Judges of this court has read the parties' complex and extensive briefs, and the record has been checked for key facts and pleadings. In many cases the Judges have prepared extensive prehearing memoranda. In the event we were to continue the matter until April 1, 1989, as requested, and the matter were to be heard, a great deal of this preparatory work would have to be redone. This would definitely impact unfavorably in our ability to produce legal decisions without undue delay. We therefore reject the continuance motions. We admonish counsel that their tactics are not favored and are detrimental to the prompt processing of appeals. They will not be condoned. We have, therefore, denied the joint motion to continue. We proceed to the merits.

Pursuant to section 41(a) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1041(a)) and Supreme Court Rule 335 (107 Ill. 2d R. 335), appellants Illinois State Chamber of Commerce, Jefferson Smurfit Corporation (Smurfit), and Container Corporation of America (Container) seek administrative review of the October 19, 1987, final order of the Pollution Control Board (the Board) amending section 215 of the Illinois Administrative Code (35 Ill. Adm. Code 215 (1985)), regarding emissions of volatile organic materials from flexographic and rotogravure printing facilities. The new regulation subjects flexographic and rotogravure printing operations, with annual volatile organic material usage between 100 and 1,000 tons per year, to new emission limitations. The Board specified that these operations must comply with these emission limitations by December 31, 1987.

In this court, the appellants maintain that the Board failed to consider the proper statutory factors in limiting the exemptions under regulation and that the adoption of a December 31, 1987, compliance deadline was arbitrary, capricious, and unreasonable. The appellants ask this court to vacate the Board's October 29, 1987, final order amending Board Rule 215.245 (35 Ill. Adm. Code 215.245 (1985)), and remand this matter to the Board with directions to adopt a reasonable compliance date and a proper exemption level, taking into consideration factors set forth in section 27(a) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1027(a)).

The instant matter came before the Board upon a proposal of the Illinois Environmental Protection Agency (the Agency) to amend certain portions of section 215 of the Illinois Administrative Code (35 Ill. Adm. Code 215 (1985)) pertaining to emissions of volatile organic materials from flexographic and rotogravure printing facilities. The origin of this proceeding is rooted in the requirements of the Clean Air Act (42 U.S.C. § 7401 et seq. (1982)). Pursuant to section 109 of the CAA (42 U.S.C. § 7409 (1982)), the United States Environmental Protection Agency adopted a national ambient air quality standard for ozone. Attainment of this NAAQS was to have been demonstrated for all areas of Illinois by December 31, 1982, according to the provisions of section 172(a)(1) of the CAA. (42 U.S.C. § 7502(a)(1) (1982).) However, Illinois was unable to make such a demonstration and, therefore, applied for and received an extension of this deadline until December 31, 1987, pursuant to the provisions of section 172(a)(2) of the CAA. (42 U.S.C. § 7502(a)(2) (1982).) As a prerequisite to obtaining this extension, Illinois was required in the interim to include in its "State Implementation Plan" for areas which are nonattainment for ozone "such reduction in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology." (42 U.S.C. § 7502(b)(3) (1982).) "Reasonably available control technology" is not defined in the CAA. However, the USEPA promulgated industry specific "control technology guidelines" (CTGs) that are intended to describe RACT for a given industry and assist States in determining RACT. USEPA has published three groups of CTGs.

On December 30, 1982, In The Matter of RACT II Rules, R80 -- 5, the Board adopted rules intended to satisfy the RACT requirement as specified in the second group of CTGs, which covered the following source categories: factory surface coating of flatwood panelling, petroleum refinery fugitive emissions, pharmaceutical manufacturing, rubber tire manufacturing, surface coating of miscellaneous metal parts and products, graphic arts (printing), dry cleaning perchloroethylene, leak prevention from gasoline tank trucks and vapor collection systems, and petroleum liquid storage in external floating roof tanks. However, on July 11, 1985, the USEPA proposed to disapprove certain of the rules adopted by the Board in R80 -- 5. Included in the proposed disapproval were two provisions related to flexographic and rotogravure printing. These provisions were the 1,000-ton-per-year exemption found at section 215.402 of the Illinois Administrative Code (35 Ill. Adm. Code 215.402 (1985)) and the "good engineering design" alternative found at section 215.402(d)(2) (35 Ill. Adm. Code 215.401(d)(2) (1985).

In regulation R85 -- 21 the Agency proposed to reduce the exemption limit provided in section 215.402 to 100 tons per year and to eliminate the "good engineering design" provision of section 215.402(d)(2) with both amendments applicable only in nonattainment areas. The counties designated as nonattainment areas were Cook, Du Page, Kane, Lake, Macoupin, Madison, McHenry, Monroe, St. Clair and Will. The Agency filed its proposal on September 23, 1985. Merit hearings were held on December 12 and 13, 1985, in Springfield, and on March 6 and 7, 1986, in Chicago. At both the December 12 and March 6 hearings the Agency offered amendments to its original proposal.

As originally filed and amended, the Agency's proposal in R85 -- 21 addressed matters in addition to flexographic and rotogravure printing. These matters included amendments to definitions found in section 211.122 of the Illinois Administrative Code (35 Ill. Adm. Code 211.122 (1985)) and to various provisions related to miscellaneous metal parts and products, petroleum liquid storage in external floating roof tanks, and leak prevention from gasoline tank trucks and vapor collection systems. On August 28, 1986, the Board split the docket in R85 -- 21, placing the flexographic and rotogravure printing amendments in docket B and all other provisions of the Agency's proposal in docket A. This action was occasioned by the June 17, 1986, determination of the Department of Energy and Natural Resources (the Department), and the June 20, 1986, concurrence of the Economic and Technical Advisory Committee, that an economic impact study (EcIS) should be prepared for only the flexographic and rotogravure printing amendments. Splitting of the docket thus allowed the Board to proceed with the docket A subject matter while activities associated with the EcIS were being undertaken.

Subsequently, on March 31, 1987, the department filed "the Economic Impact of the Rotogravure and Flexographic Printing Provisions of Proposed Regulation R85 -- 21," the EcIS in the instant matter. EcIS hearings were held on May 4, 1987, in Chicago and on May 20, 1987, in Springfield. A revised and final copy of the EcIS was filed with the Board on July 31, 1987.

Docket B was sent to first notice by Board order of May 25, 1987. Publication occurred at 11 Ill. Reg. 11925 (July 17, 1987). The Board received 31 public comments (PCs) in the overall R85 -- 21 proceeding, including nine filed during the first notice period of docket B which pertained specifically to the subject matter of flexographic and rotogravure printing. The first two were filings by the Department (PC No. 23) and the Agency (PC No. 24), consisting principally of responses to questions posed at the final EcIS hearing. PC No. 25 through No. 31 consisted of perspectives on the content of the proposed rules dealing with flexographic and rotogravure ...


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