ILLINOIS POLLUTION CONTROL BOARD

November 25, 1987

USI CHEMICAL,

Petitioner,

v

)

PCi3

87—149

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by J.D. Dumelle):

This matter comes before the Board upon Illinois

Environmental Protection Agency’s November 9, 1987 Motion To

Dismiss Petitioner’s Permit Appeal And Petitioner’s Response

filed November 16, 1987.

The Agency asserts that Petitioner’s permit appeal should be

dismissed because the statutory period for attacking the

regulation is past. Petitioner has responded by stating

regulations may be challenged in a permit appeal action. Celotex

Corp. v. IPCB 94 Ill. 2d 107, 445 NE2d 752 (1983). The issue

appears settled that a permit denial applicant may challenge a

regulation as applied to that applicant. However, the extent and

scope of such a hearing is not well settled.

In Village of Carey v. IPCB 403 NE2d 83 (2nd Dist., 1980)

the court stated as follows:

when the validity of a regulation has been

challenged, as in this case, the Board may

properly consider tne evidence received

when it adopted

...

the regulation

...

and

that evidence should be made a part of the

record

...

for purposes of judicial review.

Accordingly, the Board orders the parties to present

arguments concerning the burdens of proof, standard~of review

and relevant evidence to be considered at such a hearing. The

Board gives the parties until December 16, 1987 to comply witri

this Order.

IT IS SO ORDERED.

83—15 1

---

—2—

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

Board, hereby certify that the above Order was adopted on

the

______________

day of

~#i.4.m,~~44& ,

1987 by a vote

of

~~-o

.

~

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

83—152