ILLINOIS
POLLUTION
CONTROL
BOARD
November
8,
~89
REICHHOLD CHEMICALS,
INC.,
Petitioner,
v.
)
PCB 89—148
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On October
16,
1989,
Reichhold Cnemicals,
Inc.
(“Reichhold”)
filed a Motion for Sanctions asserting
that the Illinois
Environmental Protection Agency (“Agency”)
had failed
to file
the
record in
a timely r~iatter.
On October
23,
1989,
the Agency filed
a Response to the Motion,
asserting
that the late filing was due
to staff shortages and not for the purposes
of delay.
On Oct ~ber
25,
1989,
the Agency filed a Motion
to Dismiss or Alternatively
Stay Proceedings.
On October
31,
1989, Reichhold filed an
Opposition
to the Motion.
On November
7,
1989,
Reichhold filed
an emergency motion
to the Board
for rulings
on discovery
requests.
The Board will first address
the Motion
to Dismiss.
In its motion
to dismiss,
the Agency asserts
that the Board
lacks jurisdiction over the instant proceeding.
The Agency
states that a previous permit decision involving the same
facility and the same issues was appealed
to this Board as
Reichhold Chemicals
v.
EPA,
PCB 89-94.
On June
8,
1989,
the
Board dismissed that appeal because
the matter was under
reconsideration by the Agency at Reichhold’s
request.
Reichhold
appealed that dismissal
to the Third District Appellate Court
in
the matter of Reicbhold Chemicals,
Inc.
v.
IPCB and IEPA, Case
No.
3—89-0393.
That matter
is still pending.
The Agency asserts
that jurisdiction over this conflict now lies with the Third
District, and that under
the theory of Joliet Sand and Gravel
ç~p~y~~PA
,
PCB 87—55
(June 10,1987),
this matter must
be
dismissed.
Reichhold asserts
that the Agency comes
to the Board with
unclean hands
(since the record was filed
late),
and that counsel
for the Agency has not demonstrated that he
is entitled
to
represent respondent under the theory of People ex
rel.
Scott
v.
Briceland,
65 Ill.
2d
485,
359 N.E.2d 149
(1979).
Further,
—
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decided.
As
a preliminary matter the Board must note that the Agency
attacks this Board’s jurisdiction
to hear the case.
Assuming,
1fl5 353
—2—
for purposes of argument,
that the Agency was guilty of unclean
hands and that counsel was not authorized
to represent the
Agency,
such facts would not confer jurisdiction to hear
a case
upon the Board.
Therefore,
the Board must still evaluate whether
it has jurisdiction here.
Since the Board finds
that
it
lacks
jurisdiction, all other matters need not
be addressed in today’s
order.
Reichhold
is attempting
to secure an air operating permit
for its batch polyester
resin plant
in Morris.
To accomplish
that purpose Reichhold submitted factual information
to the
Agency
(Permit Application No.
86020013).
After reviewing those
facts and the relevant
law,
the Agency denied the permit on April
25, 1989.
On May 30,
1989, Reichhold appealed that denial
to
this Board.
On June
8,
1989,
this Board dismissed
the proceeding
for
lack of
jurisdiction.
Reichhold appealed that decision to
the Third District
in Case No.
3—89—0393.
The question of how
the laws
of the State of Illinois should be applied
to the facts
of Application No.
86020013 now resides
in the Third District.
Shortly after
the Agency denied the permit on April
25,
1989,
Reichhold requested reconsideration of Permit Application
No.
86020013.
On May 15,
1989,
the Agency denied the permit and
Reichhold appealed to this Board on September
19,
1989.
In the
present proceeding Reichhold asks the Board to apply the
laws of
the State of Illinois
to the
facts in Application No.
86020013.
This
is the same question that
is pending
in the Third District.
The Board notes
that the Appellate Court could reach
a
conclusion
that the Board decision was incorrect and remand the
matter
to the Board.
In a
similar manner,
the Court might reach
a conclusion
~hat the Agency determination
to deny the permit was
incarrec~:, ~
~
o~th:~~~z:t:eis:~’uc.
short,
the Appellate Court has jurisdiction over the question of
how the laws apply to Application No. 86020013.
Any action by
this Board on that question could
be viewed as
an attempt
to
undermine
the Court’s authority;
the Board will
not pursue such a
course of action.
Reichhold has provided
no law to support the
proposition that this Board could act on a question pending
in
the Appellate Court.
The Board’s most recent decision regarding multiple permit
reviews was IBP,
Inc.
v.
IEPA, PCB 88—98,
September
13,
1989.
There
the Board stated:
Secondly,
the
Board points out
that there
are
three
potential
permits
mentioned
in
1BPs
petition,
IBP’s
brief
and
the
Agency’s
brief.
All
three
are
for
the
same
facility,
the
same
operations
and
under
the
sane
regulatory framework.
This
is the potentially
unending
scenario
depicted
in
the
Board’s
previous opinion
in Joliet Sand and Gravel Co.
v.
IEPA,
PCB 87—55
(June
10,
1987).
105—354
—3—
IBP, Supra,
at
3.
The Board will follow the same rationale adopted
in Album,
Inc.
v.
IEPA PCB 81—23, March 19, 1981; Caterpillar Tractor
Company v.
IEPA, PCB 79—180, July 14, 1983;
Joliet Sand and
Gravel
v.
IEPA,
PCB 87-55, June 10,
1987; and IBP,
Inc.
v.
IEPA,
PCB 88—98, September
13,
1989.
Those cases stand
for the pro-
position that the Act does not allow a facility to seek multiple
contemporaneous permit reviews before this Board and the Courts
involving the same facility attempting
to conduct
the same
operations under
the same regulatory framework.
The Board notes that almost all of the permit appeals before
this Board proceed in the normal manner.
The permit applicant
either appeals the original Agency permit decision or the
applicant seeks reconsideration before the Agency and then
appeals after the decision on
reconsideration.
Here,
Reichhold
is pursuing both courses of action at the same time, creating
what the Agency accurately describes as
a “procedural morass”.
A
similar situation arose in Joliet Sand and Gravel,
where the
Appellate Court received two appeals
(Nos.
3—87—0141 and 3—87—
0398)
involving the same facility attempting to conduct
the same
operations under
the same regulatory framework.
This leaves the
Board
in. the uncomfortable position of either
invading the
Agency’s prerogative to reconsider
its decisions or usurping the
Third District’s
jurisdiction. Petitioner has yet to explain in
what manner the normal appeal procedures would infringe its
rights.
In summary, the Board grants the motion
to dismiss.
The
Board will not grant
the motion to stay.
The Petitioner
is
~tt.iLled under
the Act
ta
a
fital ftcisica
y~h1:~
12C
the Petitioner prevails by default.
Petitioner has not granted a
waiver of that decision deadline.
The Board will not construe
any other action as equivalent
to
a waiver,
for fear
of injecting
yet another procedural
issue
into what should have been a rather
straightforward matter involving
issues of air pollution control.
IT IS SO ORDERED
I,
Dorothy M.
Gunn,
Clerk of
the Illinois Pollution Control
Board, hereby certi.~fythat
the above Order was adopted on the
s:;.t~~
day of
__________________
,
1989,
by a vote of
_______
//
.~
;~_~
~/-~
//~.
Dorothy
M. Gunn,
Clerk
Illinois Po~IlutionControl
Board
105—355
S