ILLINOIS POLLUTION CONTROL BOARD
    August 30,
    1990
    OLNEY SANITARY SYSTEMS
    and ANDREW OCHS,
    Petitioners,
    V.
    )
    PCB 89—175
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by N.
    Nardulli):
    This matter comes before the Board on
    a “Motion For Summary
    Judgment Or In The Alternative, Petitioners’ Response To Statement
    Of Respondent” filed August 24, 1990 by petitioners Olney Sanitary
    Systems
    and
    Andrew
    Ochs.
    On
    August
    29,
    1990,
    the
    Illinois
    Environmental
    Protection
    Agency
    (Agency)
    filed
    a
    response
    to
    petitioners’ motion for summary judgment.
    On October
    3,
    1989,
    within the 90-day statutory period, the
    Agency filed
    a
    statement denying petitioners’
    permit application
    (“denial statement”).
    On November 2,
    1989, petitioners filed their
    petition for review alleging that the Agency failed to comply with
    Section
    39(a)
    of
    the
    Environmental
    Protection
    Act
    (Act)
    which
    requires that the denial statement set forth the specific sections
    of
    the Act and
    regulations
    upon
    which
    denial
    of
    the
    permit
    is
    based.
    Prior
    to hearing,
    on July
    16,
    1990,
    the Agency
    filed
    a
    “Motion For Leave
    To File Statement Of Respondent Concerning The
    Basis For Permit
    Denial Instanter.”
    The Agency’s amended denial
    statement contains the specific section of the Act and regulations
    supporting denial.
    On July
    19,
    1990,
    the Board entered an Order
    stating
    that
    it
    would
    not
    grant
    the
    Agency’s
    motion
    to
    file
    instanter at that time, but would allow petitioners the opportunity
    to
    respond.
    Petitioners
    responded with
    the
    instant motion
    for
    summary judgment or,
    in the alternative,
    response to the Agency’s
    statement.
    Petitioners argue that they
    are entitled to summary
    judgment because the Agency failed to comply with Section 39(a)
    of
    the Act and,
    therefore,
    the permit should
    issue
    by
    operation of
    law.
    Section 39(a)
    of the Act requires that, within 90 days of the
    filing
    of
    an
    application
    for
    a
    permit,
    the
    Agency
    provide
    the
    applicant with
    a detailed statement of the reasons for denying the
    permit
    application.
    (Ill.
    Rev.
    Stat.
    1989,
    ch.
    111
    1/2,
    par.
    1039(a).)
    The
    Agency’s
    denial
    statement
    must
    include
    the
    following:
    (1)
    the sections
    of the Act which may be violated
    if
    the permit were
    granted;
    (2)
    the provisions
    of
    the
    regu1ation~:;
    which may be violated if the permit were granted;
    (3) the specific
    1
    1
    4~-7
    63
    2
    type of information,
    if any,
    which the Agency deems the applicant
    failed to provide; and
    (4)
    a statement of the specific reasons why
    the
    Act
    and
    regulations
    might
    not
    be
    met
    if
    the
    permit
    were
    granted.
    (Id.)
    In
    Centralia
    Environmental
    Services
    V.
    IEPA,
    PCB
    89—170
    (Interim
    Order
    May
    10,
    1990)
    the
    Board
    addressed
    the
    issue
    presented here.
    In both Centralia and the instant case, the Agency
    issued
    denial
    statements
    within
    the
    90-day
    period
    that
    were
    inadequate and did not comply with the terms
    of Section 39(a)
    in
    that the statements failed to set forth the specific sections of
    the Act and regulations which might be violated if the permits were
    granted.
    In Centralia,
    the Board noted that the failure to file
    a complete
    denial
    statement
    is
    not
    tantamount
    to
    the
    Agency’s
    failure
    to act within the 90-day period
    which would trigger the
    issuance of the permit by operation of law.
    (Ill. Rev.
    Stat.
    1989,
    ch. 111 1/2, par. 1039(a).)
    However, finding that the language of
    Section
    39(a)
    clearly
    and
    principles
    of
    fundamental
    fairness
    require
    that
    the
    Agency
    provide
    the
    applicant
    with
    such
    information,
    the Board
    in
    Centralia remanded
    the matter
    to the
    Agency
    with the directive
    to cure this
    deficiency
    and
    issue
    an
    amended denial statement.
    Because the Agency’s amended statement
    would be filed after the hearings had taken place in Centralia, the
    petitioner
    was given the opportunity
    to
    request another hearing
    and/or file a supplemental brief.
    Initially,
    the Board grants the Agency’s motion to
    file its
    amended denial statement instanter.
    The Board concludes that its
    decision in Centralia controls the outcome of petitioners’ motion
    for summary judgement.
    Therefore, petitioners’ motion for summary
    judgment
    on
    the
    basis
    of
    the
    Agency’s
    failure
    to
    comply
    with
    Section 39(a)
    of the Act is denied.
    IT IS SO ORDERED.
    I,
    Dorothy
    N.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby cert~fythat the above Order was adopted
    on the
    ~
    day of
    ~
    ,
    1990 by a vote of
    7-~
    Dorothy M.
    Gja
    n,
    Clerk
    Illinois Pollution Control Board
    I I~-~7(~.+

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