ILLINOIS
POLLUTION
CONTROL
BOARD
June
8,
1978
OSCAR MAYER
& CO.,
Petitioner,
V.
)
PCB 78—14
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
INTERIM
ORDER
OF
THE
BOARD
(by
Mr.
Young)
On
May
9,
1978,
the
Environmental
Protection
Agency
filed
a
Motion
for
an
Interlocutory
Appeal
and
for
stay
of
a
ruling
by
the
Hearing
Officer
in
a
matter
concerning
the scope
of
discovery
in
an
action
under
Section
40
of
the Act
to
contest Agency denial of
a permit.
Petitioner
filed
a Response on
May
19,
1978, objecting to the Agency’s
Motions.
On May
25,
1978,
the
Board
granted
the
Agency’s
Motion for Interlocutory
Appeal
together
with
a
stay
in
the
proceedings.
The
Environmental
Protection
Agency
appeals
from
an
Order
of
the
Hearing
Off:icer
compelling
answers
to
Interroga—
tories
which
the
Agency
claims
are
beyond
the
scone
of
dis-
covery
in
this
type
of
proceeding,
In
~ssence,
the
Interroga—
tories
request
that
the
Agency identify
all
personnel
who
were
consulted
for
advice,
gave
an
opinic
or
participated
in
making
the
process
weight rate detero:ation
for Peti-
tioner’s 1973 and 1977 permit applicat
~.~1&S
and
all materials,
including internal
Agency
memoranda, consulted or relied
upon in making
those decisions.
Section
39
of
the
Environmental
Pro tee
t ion
Act
provides
Lhn t.
the
Agency
nhai
1
issue
a
permit.
on
eroof
by
the
eppi
icant
that
the
permitted
activity
will
not
cause
a
violation
of
the
Act
or
of
regulations
adopted
in
accordance
with
the
Act.
Section
40
of
the
Act
provides
that
an
applicant
who
has
been
refused
a
permit
by
the
Agency
may
petition the Board for a
hearing to contest the decision of the Agency and that the
burden of proof in
such
hearing
shall
be
on the applicant.
While
a very few of
the
Section 40 petitions
filed
with the Board have involved a dispute between
the
applicant
and the Agency over
the
validity
of
the
facts
contained
in
30
—
397
—2—
an application, most Section 40 petitions arise from
a
difference
in
interpretation
of
a regulatory definition.
Since there
is no provision
in the Act under which
the
Board might provide
an advisory oninion
in such
a contro-
versy,
the
Section
40 petition affords
the only avenue
to secure a Board interpretation of
its regulations or
a
finding of
fact,
shor:: of an enforcement action.
From the beginniag
the Board experienced some diffi-
1
culty
in structuring the hearing on a Section
40 oetition.
One of the continuind reasons therefore has no doubt been
the early styling of the proceeding in Board practice as
a
“permit denial appeal.”
It
is obviously not an appellate
review of an administrative decision, nor could
it seem to be
so when there has
beer. no recorded hearing and written
finding of fact at the permit issuance level.
More importantly,
the Act does not confer jurisdiction on the Board to sit in
appellate review of Acency decisions.
Neither is
a Section 40
hearing available for a rehearing or contest of the adoption
of Board regulations or
as
a review of Agency policy and pro-
cedure in the exercise of its permit authority under Sections
4
and
39 of the Act.
Under the statute, all
the
Board has
authority
to do in a hearing and determination on a Section
40
petition is
to decide after
a hearing
in accordance with
Sections 32 and 33(a)
whether or not, based upon the facts of
the application, the applicant has urovided proof that the
activity in cuestion will not cause a violation of the Act or
of the regulations.
In
a hearing on
a Section
40 petition,
the applicant must
verify
the
facts of his application as submitted
to the Agency,
and,
having
done
so,
must
nersuade
the
Board
that
the
activity
will
comply
with
the
Act
and
regulations.
At
hearinq,
the
Agency
may
attemot
to
controvert
the
applicant’s
facts
by
cross
examination
or
direct
testimony;
may submit argument on
the applicable law
and
regulations
and
may
urge
conclusions
therefrom;
or,
it
may
choose
to
do
nitliar;
or, it may choose
tr~
present
not
ii
no.
rho wri
tt:en
f\qeticy
si
~il
en~’iit
I
~
I
lie
op1
1—
(‘~U)
t
0!
the
speci
Ii
C
,
(te
tail
ed
rcisons
ii
a
I
t he
p urn
I
t
appi
ica—
Lion
was
denied
is not
evidence
of
the
Leo Lhi
of
the
mu Lerial
therein nor do any Agency interpretations
of the Act and regu-
lations therein enjoy any presumption before the Board.
After
hearing,
the Board may direct
the
Agency
to issue
the permit,
or
order
the
petition dismissed,
depending on the Board’s
finding that the applicant has or has not proven to the Board
that his activity will not cause
a violation of
the Act or
regulations.
(1)
Currie, David P.,
“Enforcement Under the Illinois
Pollution Law,”
70 N.W,
Univ.
L.Rev.
389,
475—479
(1975).
30
—
398
—3—
The Board opinion most frequently cited on the question
of the scooe of a hearing on a Section 40 petition
is Soil
Enrichment Materials
Corporation
v.
EPA,
5 PCB 715
(1972).
Much therein is still applicable; however,
it must be kept
in
mind that Section 39 of the Act was amended subsequent to
that decision
by
Public Act 78-862, approved September 14,
1973.
P.A.
78—862 established, in Section 39(a), definitive
criteria for a detailed Agency statement to the applicant
of the specific reason for the denial of a permit application.
At
5 PCB 715,
the Board
said:
“Clearly the issue is whether the Agency
erred in denying the permit,
not whether
new material that was not before the
Agency
persuades
the
Board
that
a
permit
should be granted.”
A cursory reading of that sentence might indicate to some that
the burden of the applicant in a Section 40 proceeding
is
to
prove that the Agency made an error
in law,
a misinterpretation
of fact or
a failure in procedure
in arriving at the Agency
decision to deny the permit.
To do so ignores
the
requirement
of Section
39 that a permit issues only on proof by the appli-
cant that the activity in question does not cause
a violation
of
the Act or regulations.
The Agency errs
in denying a permit
only when the material,
as submitted
to the Agency by the
applicant,
proves
to the Board that no violation of the Act
or regulations will occur if the permit
is granted.
The require-
ments
of a Section
40 petition
as set forth
in the Board’s
Procedural Rule 502(a) (2)
further indicate the Board’s con-
clusion
as to the dictates of the statute.
Procedural
Rule 502(a) (4)
requires that in a Section
40
proceeding the Agency must file within
14 days
of notice, the
entire record of the permit application,
including the applica-
tion,
correspondence, and the denial.
The application
is
necessary
to estab1~sh
the
facts which were before the Aqency
for
consideration,
The
correspondence
file,
i
I
any,
supplements
the application insofar as
it provides
additional
facts.
The
denial statement
is necessary
to verify that the requirement
of Section
39(a)
of
the Act has been fulfilled.
This material,
in the opinion of the Board, should be sufficient
to frame
the issue of fact or law in controversy
in any hearing on a
Section 40 petition.
In a recent attempt to clarify the scope of discovery in
a Section
40 matter,
the Board made the following statements
in Owens-Illinois,
Inc.
v.
EPA,
PCB 77-288, February
2,
1978:
“The scope of discovery permissible
in
an
action to contest Agency denial of a permit
under Section 40 of the Act is controlled
30
—
399
by the
general
iss~e
~ic~ent
,
obviously
inquiry
into
matte:
o~ts:dc
~f the
general
issue will not pt~duce elevant
evidence
and should ~n
be allowed.
It is proper to inqri~e
nd discovery
should be allowed
to
~.
~ra
~at
the
record filed by the lcur~p’ i:
cot plete
and contains all o
the uc~~~lcon~
cerning
the
permit
a~pi~
:
d
~ 0
that was
before
the
Agency
wier
hi?
al state-
ment
was
issued
If
the
Agency
knows ~
the
pendency
of
a
ps~
that either the th’:~a
sented
by
the appldQ
1
incomplete,
the A e
v
information
in wr~ir
permit
review per~o
written
statement
~
re~uired
by
Secthon
~9
Agency may not at ae-
on any
material
in
and disclosed
to the
described abo~re, as
denial of
the
peitur
ary
i
applicant may in~.
support
of
the
app
i
before
the
Agency
so
;
during
LIon,
~ Ions pre—
aLsourate or
~i3se
such
he
statutory
r
r,
dthaLled
denial
~
The
so
:
reliance
ti-so record,
t
the manner
a
Agency
than the
1
in
noc
The ultimate questiat
I-
matter is whether or not eric~n
~,
the permit was denied eAceed me
of Chapter II of the Board~ ~e
resolution of the questiua i~-
S
of the actual weight of tht ma
Li
process per hour,
as ~Ietireb P
a
the Board’s
regul
ac~5~e
•
only the weight of csoh
i~t~
determine which of
tilO
u
~.
Board regulation,
LL~
be
~
i
the actual weight in~eu
~
-is
or why the Agency arrlied a: a
ii-~ti.~
facts is simply not
tet~i
I
~
the
Board in this
process
for
whict~
ars of Rule 203(b)
~eiitral to the
usor~
by
the
Board
j,:r
soared
into
the
so
rapter
II
of
~~COS
to
know
so
Board
can thea
:
intended,
by
~
~a~culation
of
~soss
per
hour,
Hoc~
)IIOUS±Ofl
on the
sat
i
see
mination.
For the ices
d
~
e~ving
soJene3
the Order of t~so
tharir5
fat
at
-
:~
i~.y
3~ 1978,
sastth
the Order of
the Hearing JrL~cer
a r~.
~
soiLerrogatories
7 and 8 of
Petitioner~s
Jth-:
sthLo
Os
~a~pondent
uatect
—5--.
March 14,
1978.
The Order of the Hearing Officer is sustained
as to Interroqatories
1(a)
and 2(a);
the Order of the Hearing
Officer
is reversed as
to Interrogatory 1(b) through
1(g);
Interrogatory
2(b)
through
2(y),
and Interrogatories
3,
4,
5,
6,
9 and 10.
The matter
is remanded
to
the
Hearing Officer
for revision
of his Order of May
8,
1978,
consistent with the foregoing.
IT
IS SO ORDERED.
Mr. Werner dissented.
I, Christan
L. Moffett,
Clerk
of
the
Illinois Pollution
Control Board,
hereby certify
the
above
Interim
Order was
adopted on the
~
day of
~
1978 by a
vote of
4-i
.
6
Chr~stnn L.
Moffe~~~lerk
Illinois
Pollution
Control Board
30
—
401