ILLINOIS POLLUTION CONTROL BOARD

October 10, 1985

ELLINOIS POWER COMPANY

(¼ood River Power Plant)

)

500 South 27th Street

Decatur, Illinois 62525

)

Petitioner,

)

v.

)

PCB

~5—E~4

)

ILLINOIS ENVIRONMENTAL

)

PROTECT:EON AGENCY,

Respondent.

ORDER OF THE BOARD (by LID. Dumelle):

This matter comes before the Board upon an October 3, 1985,

motion for reconsideration filed on behalf of the Illinois Power

Company (IPC) to which the Illinois Environmental Protection

Agency (Agency) responded on October

9,

1985. IPC filed a motion

for leave to reply and a reply on October 10, 1985. The motion

for leave is hereby granted. IPC requests that the Board

reconsider its September 20, 1985 Order denying IPC’s September

6, 1985, motion for summary judgment. In that Order the Board

based its decision on the hearing requirement for permit appeal;

pursuant to Section 40(a)(1) of the Environmental Protection Ac;~.

(Act). IPC characterizes that basis as a “non sequitur”.

However, though the motion was not particularly clear regardintj

the relief requested, the Board construed that motion as

requesting the Board to order the Agency to issue the permit

without the contested conditions. If so, holding a hearing woH

become a useless act, contrary to the legislative intent

expressed in mandating

such

a hearing.

The motion for reconsideration does not clarify the re1i~f

requested. The Board could construe the motion as requesting th~

Board to simply remand the proceeding to the Agency to issue th~

permit in whatever form it deems appropriate using proper

procedures. However, that course of action appears to be

precluded because the Agency then would have been given “the

identical options to consider as permit conditions which

petitioner originally contested as objectionable,” and,

therefore, the Board would have failed to adjudicate the

controversy. Illinois Power Co. v. IPCB, 426 N.E.2d 1258, 1261

(1981).

At the heart of IPC’s request for summary judgment is its

concern that the Agency, through its alleged disregard of state

and federal law, has deprived IPC of the ability to adequately

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prepare for hearing by reason of the Agency’s failure to respond

to IPC’s written comments during the permit review proceeding

before the Agency or otherwise to explain its rationale for the

contested conditions when the permit was issued. IPC further

argues that unless the Board decides those issues now, the Board

will be contributing to the due process violations. However, IPC

should be able to determine the Agency’s position on the

substance of the contested conditions through the discovery and

prehearing process, thereby avoiding any prejudice at hearing.

In its reply IPC indicates that this procedure may somehow shift

the burden of proof to it. The Board does not understand this

argument. The burden of proof cannot be altered by the discovery

process. Thus, the Board does not believe that the issues raised

by IPC need be decided at this time and since those issues

present questions of both law and fact, they are best decided

after hearing.

The Board notes that a decision is due in this matter on

October 16, 1985, and that hearing has not been scheduled due to

an administrative oversight. Obviously, hearing cannot be

properly held in a timely manner, and as of that date IPC will be

entitled to an appellate court order pursuant to Sections

40(a)(3) and 41(d) of the Act. The Board regrets that this has

occurred. However, the Board will make every effort to reach a

final determination in this matter as expeditiously as possible.

The Board hereby affirms its September 20, 1985 Order.

IT

IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certifi th the above Order was adopted on

the /,~Z~dayof ~

,

1985 by a vote of 7°

orothy M. Gunn, Clerk

Illinois Pollution Control Board

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