{ "id": 3507884, "name": "ALTON PACKAGING CORPORATION, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees", "name_abbreviation": "Alton Packaging Corp. v. Pollution Control Board", "decision_date": "1987-09-25", "docket_number": "No. 5-86-0477", "first_page": "731", "last_page": "739", "citations": [ { "type": "official", "cite": "162 Ill. App. 3d 731" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "486 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499305 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0550-01" ] }, { "cite": "481 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600652 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0343-01" ] }, { "cite": "503 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "115 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180276 ], "weight": 4, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0065-01" ] }, { "cite": "455 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5661491 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0772-01" ] }, { "cite": "497 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 1090", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572897 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/1090-01" ] } ], "analysis": { "cardinality": 642, "char_count": 16112, "ocr_confidence": 0.761, "pagerank": { "raw": 1.55446709186496e-07, "percentile": 0.675768162545384 }, "sha256": "33fa963743e4250b535ace5f165c4187721f7283f86d0f27f7e13f9f04b046bb", "simhash": "1:56b661ce77232451", "word_count": 2639 }, "last_updated": "2023-07-14T21:56:31.562358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALTON PACKAGING CORPORATION, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees." ], "opinions": [ { "text": "JUSTICE LEWIS\ndelivered the opinion of the court:\nAlton Packaging Corporation (Alton) appeals from an order of the Pollution Control Board (Board), in which the Board affirmed the Environmental Protection Agency\u2019s (Agency\u2019s) denial of Alton\u2019s application for renewal of an operating permit at its mill in Alton, Illinois. The Agency had denied Alton\u2019s application for renewal of the permit because it had found that certain boilers at Alton\u2019s mill had been the major contributors to a violation of the Agency\u2019s sulfur dioxide standard for the area during 1984 and had concluded that these boilers might cause violations in the future. On appeal from the Board\u2019s order affirming the Agency\u2019s denial, Alton contends that the Board\u2019s findings that there was a violation of the Agency\u2019s sulfur dioxide standard in Alton in November 1984 and that continued operation of the Alton mill might cause that standard to be exceeded in the future were contrary to the manifest weight of the evidence. We affirm.\nAlton is a fully integrated company engaged in the manufacture and sale of paperboard and paperboard packaging products. In its manufacture of paperboard products, Alton operates a mill located at Alton, Illinois, which requires the use of steam produced by boilers. Two of these boilers, Nos. 6 and 7, are pulverized, wet bottom boilers, in which coal is pulverized to a fine powder and blown into the boilers. Exhaust air from these boilers is eventually vented into the atmosphere through two large stacks, which contain no devices to control sulfur dioxide emissions. It is these boilers that are the subject of this permit appeal.\nOn January 25, 1983, Alton filed an application with the Agency for renewal of its operating permit for the boilers in question. In a related proceeding, Alton, on April 23, 1983, filed a petition for variance and site specific relief from the Board\u2019s Rule 204(f) (now codified as 35 Ill. Adm. Code 214.141 (1985)), which had been revised to establish an emission limitation for sulfur dioxide of 1.8 pounds per million BTU (lbs/mmbtu). The Board subsequently dismissed the variance and site specific proceeding for lack of prosecution, but, upon appeal to this court (see Alton Packaging Corp. v. Pollution Control Board (1986), 146 Ill. App. 3d 1090, 497 N.E.2d 864), the cause was reinstated and application of the revised emission limitation to the Alton mill was stayed pending the outcome of the variance and site specific proceeding.\nIn November 1984, following Alton\u2019s application for renewal of its operating permit, the Agency recorded two excursions or ex-ceedances of the 24-hour primary ambient air quality standard for sulfur dioxide at its monitor in Alton, Illinois. Pursuant to Board regulation (codified at 35 Ill. Adm. Code 243.122 (1985)), more than one excursion from this standard of 0.14 parts per million (ppm) in a one-year period constituted a violation. The two excursions occurred on November 6 and 7, 1984, with a 24-hour average reading of 0.148 ppm, and on November 25 and 26, 1984, with a reading of 0.159 ppm. In December 1984 the Agency issued an air quality bulletin identifying Alton as a primary contributor to these excursions, and, in May 1985, the Agency completed a modeling study which confirmed that Alton\u2019s boilers had been the \u201clikely cause\u201d of the November 1984 violation of the air quality standard for sulfur dioxide in the Alton area.\nOn August 27, 1985, the Agency denied Alton\u2019s request for renewal of its operating permit, setting forth two reasons. The first reason, that the boilers in question had an average emission rate of 4.9 Ibs/mmbtu, in excess of the newly revised emission limit of 1.8 lbs/mmbtu, was subsequently rendered inapplicable when the variance proceeding was reinstated and the applicability of the new limit was stayed as to Alton. The second reason for denial was stated as follows:\n\u201c2. The Agency\u2019s ambient S02 monitor in Alton recorded a violation of the primary 24 hour S02 standard during 1984. Based upon a recent study performed by the Agency, Boilers 6 and 7 appear to have been the major contributor to this violation. Boilers 6 and 7 thus may cause violations of 35 Ill. Adm. Code 201.141 and 243.122(a)(2).\u201d\nAlton then filed an appeal with the Board from the Agency\u2019s denial pursuant to section 40 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 1040). In a hearing before the Board, Alton called two Agency employees as adverse witnesses. John Shrock, an environmental protection specialist with the Agency, testified that he had prepared the Agency\u2019s May 1985 study with regard to the alleged excursions of November 1984. He stated that it was not the purpose of this report to predict future excursions but only to determine the major contributors to the reported excursions. Upon examination by the Agency, Shrock testified that similar excursions may be possible in the future if Alton were allowed to operate at the limits they were operating at during the previous excursions, since the weather conditions present on those dates were not unusual.\nAlton further called David Kolaz, manager of the Agency\u2019s Ambient Air Quality Monitoring section. Kolaz testified concerning the range of accuracy of the Agency\u2019s monitors, explaining the procedures and requirements for recalibrating its monitors. Upon examination by the Agency, Kolaz described the precision and accuracy checks that are performed on the Agency\u2019s monitors and stated that under United States Environmental Protection Agency (USEPA) guidelines, the recorded values were not to be adjusted based upon accuracy and precision checks, but were to be reported as measured on the Agency\u2019s monitors.\nAs a final witness the Agency called Patrick Dennis, a senior analysis engineer for the Agency who had reviewed Alton\u2019s permit application and recommended that it be denied. Dennis explained the reasons given by the Agency for the permit denial and stated that either reason alone would have been sufficient to recommend denial. He further stated that Alton had provided no information to the Agency to show that operation of its boilers would not cause fixture exceedances of the air quality standard for sulfur dioxide.\nUpon cross-examination by Alton, Dennis testified that he had been aware of a modeling study prepared by Murray and Trettel and submitted by Alton as part of the variance proceeding, but stated that this study had not been considered in the context of the permit proceeding because it had not been prepared according to USEPA guidelines and because it had been part of the variance proceeding that was dismissed by the Board. Dennis stated that he had placed no reliance on the Murray and Trettel study, which was not included in the Agency record in the permit appeal, but had based his recommendation to deny Alton\u2019s permit request on the modeling study performed by the Agency to determine the source of the two excursions in November 1984, as well as information provided by Alton as to coal usage.\nFollowing the hearing, the Board, on April 24, 1986, affirmed the Agency\u2019s denial of the operating permit for Alton\u2019s mill. In stating the basis for its decision the Board found, contrary to Alton\u2019s contentions regarding the accxiracy of the Agency\u2019s recorded excursion on November 6 and 7, 1984, that there had been an excursion on that date and that Alton had failed to show that the Agency\u2019s monitor by which the November 1984 excursions were recorded was faulty. The Board further found that\n\u201cbased on the information received from the excursion study [of May 1985], the Agency could reasonably conclude that Alton\u2019s boilers may cause a violation of 35 Ill. Adm. Code 201.141 and 243.122(a)(2).\u201d\nThe Board noted that while Alton had questioned the predictive capacity of the Agency\u2019s excursion study, it had \u201cofferfed] no data to suggest that the Agency\u2019s conclusions were unreasonable.\u201d The Board continued:\n\u201cIn this permit appeal, the burden is not on the Agency to prove that a violation will occur in the future. Rather, the burden is on Alton to prove that a violation will not occur in the future. Alton has not provided the Board with any information which would enable the Board to conclude that a violation of the primary S02 24-hour standard will not occur in the future. Based on the record before the Agency, the Board finds that the information provided by Alton to the Agency fails to demonstrate that issuing a permit for Alton\u2019s mill will not cause a violation of the Act and Board regulations. Therefore, the Board affirms the Agency\u2019s denial of a permit for Alton\u2019s mill.\u201d\nOn direct appeal to this court (see Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 1041), Alton contends that the Board\u2019s decision affirming the Agency\u2019s permit denial was contrary to the manifest weight of the evidence and should be reversed. In particular, Alton maintains that there was an insufficient basis for the Board to conclude that continued operation of Alton\u2019s mill may cause future violations of air quality standards in view of testimony at the hearing that the Agency\u2019s May 1985 modeling study was not intended to be predictive of future violations and testimony that the alleged excursion of November 6 and 7, 1984, fell within the margin of error of the Agency\u2019s monitor. Alton asserts, therefore, that the evidence failed to support the second reason given in the permit denial and that the Agency\u2019s denial should be reversed.\nSection 39(a) of the Act (Ill. Rev. Stat. 1983, ch. 111\u00bd, par. 1039(a)), under which Alton\u2019s permit application was made, states in pertinent part:\n\u201cWhen the Board has by regulation required a permit for the *** operation of any type of facility ***, the applicant shall apply to the Agency for such permit and it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility *** will not cause a violation of this Act or of regulations hereunder.\u201d (Emphasis added.)\nUnder section 39, Alton, as permit applicant, had the burden of showing that issuance of a permit for operation of its mill would not cause a violation of the Board\u2019s air quality standard for sulfur dioxide. Upon appeal to the Board from the Agency\u2019s denial of such permit, the burden of proof was again upon Alton. Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 1040(a)(1); see EPA v. Pollution Control Board (1983), 118 Ill. App. 3d 772, 455 N.E.2d 188.\nIn the hearing to determine whether Alton had met this burden, the Board considered testimony elicited by Alton from the Agency\u2019s employees regarding the accuracy of the recorded excursions in the Alton area during November 1984. Alton, in its examination of these employees, sought to discredit the Agency\u2019s measuring and recording methods. The Board, however, rejected Alton\u2019s assertions that the recorded measurement of November 6 and 7 did not constitute an excursion and found that there had, in fact, been an excursion. The Board thus determined that Alton had failed to carry its burden of refuting the factual basis for the Agency\u2019s conclusion that there may be a violation of Board regulations in the future. The Board further noted that while Alton had questioned the predictive capacity of the May 1985 modeling study, this study was an adequate basis for the Agency\u2019s conclusion that Alton was a major contributor to the excursions in question.\nUpon appeal, now, from the Board\u2019s decision to this court, Alton has the heavy burden of showing that the Board\u2019s decision affirming the Agency\u2019s denial was contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1985, ch. 111\u00bd, par. 1401(b).) While the Board was required to determine, based upon the evidence in the hearing before it, whether the permit should issue, this court, in reviewing the Board\u2019s decision, must evaluate the evidence in the record and determine whether the Board\u2019s findings were contrary to the manifest weight of the evidence. (EPA v. Pollution Control Board (1986), 115 Ill. 2d 65, 503 N.E.2d 343 (hereinafter Waste Management, Inc.). That a different conclusion might be reasonable is insufficient; the opposite conclusion must be evident. (See Willowbrook Motel v. Pollution Control Board (1985), 135 Ill. App. 3d 343, 481 N.E.2d 1032.) This court, thus, must not reweigh the evidence nor substitute its judgment for that of the Board. EPA v. Pollution Control Board (1986), 115 Ill. 2d 65, 503 N.E.2d 343.\nWe have so examined the record before the Board and have concluded that there was sufficient evidence to support the Board\u2019s findings. Notwithstanding Alton\u2019s attempts to establish the unreliability of the Agency\u2019s recorded measurements, there was evidence that the Agency\u2019s monitor was operating satisfactorily and that the measurements were properly reported without adjustment as required by USEPA guidelines. In light of the evidence of Alton\u2019s role in the violation of November 1984 and Alton\u2019s failure to show that n\u00f3 such violation would occur in the future, the Board was justified in upholding the Agency\u2019s permit denial. We, accordingly, affirm the decision of the Board.\nWe note in passing Alton\u2019s alternative argument that the Board\u2019s decision should be reversed and remanded for further hearing to afford Alton the opportunity to introduce new evidence that was not part of the record before the Agency. Alton maintains that the decision of EPA v. Pollution Control Board (1985), 138 Ill. App. 3d 550, 486 N.E.2d 293, which has since been affirmed in Waste Management, Inc., referred to above, changed the law with respect to the requirements of the hearing before the Board in a permit appeal so that the parties are no longer limited to the record before the Agency but are entitled to a hearing de novo before the Board with the admission of new evidence. It is Alton\u2019s position that it should have a new hearing in which to submit evidence of its own modeling study prepared by Murray and Trettel even though this study had not been presented to the Agency in the permit proceeding.\nWe find no merit in Alton\u2019s position, because, rather than changing the law regarding the admission of evidence in Board hearings, it appears that the Waste Management, Inc. decisions merely restated the law regarding the standard of proof applicable in such hearings. While both the appellate and the supreme court opinions discussed the opportunity afforded the permit applicant, during the Board hearing, to challenge the reasons given by the Agency for denying such permit by means of cross-examination and the receipt of testimony \u201cto test the validity of the information [relied upon by the Agency]\u201d (EPA v. Pollution Control Board (1986), 115 Ill. 2d 65, 70, 503 N.E.2d 343, 345), the courts\u2019 language should not be construed to allow the supplementing of the record with new matter not considered in the Agency\u2019s denial of the permit application. (Cf. 115 Ill. 2d 65, 503 N.E.2d 343 (Board\u2019s review of Agency\u2019s permit denial limited to consideration of material relied upon by Agency).) We believe Alton was afforded an adequate opportunity here to challenge the reasons given by the Agency for its permit denial and we, accordingly, find no basis upon which to remand the case for further hearing.\nFor the reasons stated in this opinion, we affirm the decision of the Board.\nAffirmed.\nEARNS, P.J., and EASSERMAN, J., concur.\nJustice Lewis replaced Justice Jones, who retired after the cause was taken under advisement.", "type": "majority", "author": "JUSTICE LEWIS" } ], "attorneys": [ "Richard J. Kissel, Jeffrey C. Fort, and Daniel F. O\u2019Connell, all of Martin, Craig, Chester & Sonnenschein, of Chicago, and Karl K. Hoagland, Jr.,", "and Alphonse J. Pranaitis, both of Hoagland, Maucker, Bernard & Almeter, of Alton, for petitioner.", "Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, of Chicago, and James L. Morgan, Assistant Attorney General, of Springfield, of counsel), for respondents." ], "corrections": "", "head_matter": "ALTON PACKAGING CORPORATION, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.\nFifth District\nNo. 5-86-0477\nOpinion filed September 25, 1987.\nRehearing denied December 7, 1987.\nRichard J. Kissel, Jeffrey C. Fort, and Daniel F. O\u2019Connell, all of Martin, Craig, Chester & Sonnenschein, of Chicago, and Karl K. Hoagland, Jr.,\nand Alphonse J. Pranaitis, both of Hoagland, Maucker, Bernard & Almeter, of Alton, for petitioner.\nNeil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, of Chicago, and James L. Morgan, Assistant Attorney General, of Springfield, of counsel), for respondents." }, "file_name": "0731-01", "first_page_order": 753, "last_page_order": 761 }