ILLINOIS POLLUTION CONTROL BOARD
August 6, 2009
WISCONSIN ELECTRIC POWER
COMPANY d/b/a WE ENERGIES,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 10-11
(Permit Appeal - Land)
ORDER OF THE BOARD (by S.D. Lin):
On July 30, 2009, Wisconsin Electric Power Company d/b/a We Energies (We Energies)
timely filed a petition asking the Board to review a June 30, 2009 determination of the Illinois
Environmental Protection Agency (Agency).
See
415 ILCS 5/40(a)(1) (2008); 35 Ill. Adm. Code
101.300(b), 105.402, 105.404. The Agency’s determination concerns We Energies’ request for a
beneficial use determination concerning a coal combustion by-product (CCB) pursuant to
Section 3.135(b) of the Environmental Protection Act (Act) (415 ILCS 5/3.135(b) (2008)). For
reasons below, the Board accepts We Energies’ petition for hearing.
Section 5(d) of the Act authorizes the Board to conduct proceedings on several
specified types of actions, including Agency permit decisions, and on:
other petitions for review of final determinations which are made pursuant to this
Act or Board rule and which involve a subject which the Board is authorized to
regulate. The Board may also conduct other proceedings as may be provided by
this Act or any other statute or rule. Section 5(d) of the Act (415 ILCS 5/5(d)
(2008)).
Section 3.135(b) of the Act provides that the Board shall “adopt regulations establishing
standards and procedures for the Agency’s issuance of beneficial use determinations.” 415
ILCS 5/3.135(b) (2008). The Agency has not proposed, and the Board has not itself proposed or
adopted, any rules implementing Section 3.135(b). But, Section 3.135(b) specifically provides
that the Agency may make written beneficial use determinations concerning CCB under the
Section prior to the effective date of any Board regulations.
Id.
Section 3.135(b) of the Act
specifically provides that all Agency beneficial use determinations are “subject to review under
Section 40” of the Act, which governs appeals of Agency permit decisions.
Id
, and 415 ILCS 5/
40 (2008). The Board’s rules at 35 Ill. Adm. Code 105 establish the procedures for appeals
under Section 40.
See
35 Ill. Adm. Code.Subparts A and B.
2
The Board accepts the petition for hearing. We Energies has the burden of proof.
See
415 ILCS 5/40.2(a) (2008); 35 Ill. Adm. Code 105.112(a). Hearings will be based exclusively
on the record before the Agency at the time the Agency issued its decision. Accordingly, though
the Board hearing affords petitioner the opportunity to challenge the Agency’s reasons for its
decision, information developed after the Agency’s decision typically is not admitted at hearing
or considered by the Board.
See
Alton Packaging Corp. v. PCB, 162 Ill. App. 3d 731, 738, 516
N.E.2d 275, 280 (5th Dist. 1987); Community Landfill Co. & City of Morris v. IEPA, PCB 01-
170 (Dec. 6, 2001),
aff’d sub nom.
Community Landfill Co. & City of Morris v. PCB & IEPA,
331 Ill. App. 3d 1056, 772 N.E.2d 231 (3rd Dist. 2002).
Hearings will be scheduled and completed in a timely manner, consistent with the
decision deadline (
see
415 ILCS 5/40(a)(2) (2008)), which only We Energies may extend by
waiver (
see
35 Ill. Adm. Code 101.308). If the Board fails to take final action by the decision
deadline, We Energies may deem its request granted.
See
415 ILCS 5/40(a)(2) (2008).
Currently, the decision deadline is November 30, 2009, which is the first business date after the
120th day after the date on which the Board received the petition, July 30, 2009.
See
35 Ill.
Adm. Code 105.114. The Board meeting immediately before the decision deadline is scheduled
for November 19, 2009.
Unless the Board or the hearing officer orders otherwise, the Agency must file the entire
record of its determination by August 31, 2009, which is the first business date after the 30th day
after that the Board received We Energies’ petition.
See
35 Ill. Adm. Code 105.116 and 105.212
(a). If the Agency wishes to seek additional time to file the record, it must file a request for
extension before the date on which the record is due to be filed.
See
35 Ill. Adm. Code 105.116.
The record must comply with the content requirements of 35 Ill. Adm. Code 105.212 (b).
IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 6, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
