ELR Citation: ELR 20586
No(s). 55848 (Ill. Feb 4, 1983)

The court affirms a lower court decision, 12 ELR 20671, overturning a state air pollution opacity standard and the Pollution Control Board's denial of an operating permit renewal to Celotex based on alleged noncompliance with that standard. The court first rules that §29 of the Illinois Environmental Protection Act, which allows challenges to Board regulations upon promulgation, is not the only avenue for judicial review. When an applicant appeals the denial of a permit, the Act allows the court to hear a challenge to the emission control rules on which the Board relied. The court then holds that although Celotex had accepted the regulations in prior applications, it is not estopped from challenging them now. The court strikes the opacity standard, Rule 202, because in promulgating it, the Board did not give proper consideration to economic reasonableness as required by the Act. The Board had concluded that Rule 202 was reasonable because it had determined that the mass particulate standard in Rule 203 was reasonable and that any source in compliance with the 203 standard would also comply with 202. However, in a prior ruling, the court had adjudged part of 203 economically unreasonable. The court now holds that in promulgating Rule 202, the Board made no proper finding that the rule is reasonable as it applies to solid-fuel-burning sources formerly governed by the invalidated Rule 203(g)(1).

In applying for a permit, Celotex had failed to respond to a special request for information, which the Board made after Celotex had submitted its application and certified that all information supplied in previous applications was still valid. The court rules that the Board may not require an applicant to resubmit old data that the applicant has certified as current, though the Board may require new information if it is needed to determine compliance. The court remands the permit application to the Board to determine whether in fact the information sought was not included in earlier submissions and was needed to determine compliance with valid emission control rules.

Counsel for Appellant
Douglas P. Karp, Philip L. Willman, Ass't Attorneys General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Counsel for Appellee
John L. Parker
John L. Parker & Associates
Suite 1420, 39 S. La Salle St., Chicago IL 60603
(312) 263-6560