ILLINOIS POLLUTION CONTROL BOARD
December 4,
1990
DOUGLAS FURNITURE OF
)
CALIFORNIA,
INC.,
)
Petitioner,
v.
)
PCB 90—22
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board on
a motion for summary
judgment filed on November 8, 1990 by petitioner Douglas Furniture
of California,
Inc.
(Douglas).
On November 20,
1990,
respondent
Illinois
Environmental
Protection
Agency
(Agency)
filed
its
response.
On November 28, 1990,
Douglas filed a motion for leave
to file its reply and supporting memorandum instanter.
Initially,
the Board will address Douglas’ motion
for leave
to file its reply instanter.
While a moving party does not have
a
right
to
file
a
reply
(35
111.
Adm.
Code
101.241(c)),
the
importance of the issue presented by the Wells Manufacturing,
Inc.
v.
PCB,
552 N.E.2d 1074
(1st Dist.
1990), which is
t
basis for
the
motion
for
summary
judgment,
prompts
the
Board
to
grant
Douglas’ motion
for leave to
file
its reply instanter.
In
its
reply,
Douglas
raises
a
question
as
to
the timeliness
of
the
Agency’s response.
A response to a motion
is due
7
days after
service.
(35
Ill.
Adm.
Code 101.241(b).)
35
Ill.
Adin.
Code
101.144(c) provides that “Et3here is a rebuttable presumption that
service by First Class mail is complete four days after mailing.”
Douglas’ certificate of service states that on November 8,
1990 it
served
the
attached
motion
by
United
States
mail.
Douglas’
certificate of service fails to specify whether it was mailed via
First
Class
mail.
The
Agency
states
in
its response
that
it
received Douglas’ motion on November 13,
1990
——
five days after
mailing.
In any event, November 12,
1990
--
the fourth day of
presumed receipt of mailing
——
was a federal holiday.
The Agency’s
response
was
filed
on
November
20,
1990
(35
Ill.
Adm.
Code
101.102(d)
—-
within
seven days from the date of service.
The
Board finds the Agency’s response to be timely filed.
Douglas
filed with the Agency
a
permit renewal application
dated
September
29,
1989
on the standard
form provided by the
Agency.
(R.
7.)
By
filing this
application,
Douglas
sought
renewal of an operating permit issued on February 8,
1985 with an
expiration date of February
8,
1990.
(R.
73.)
The renewal form
provided by the Agency allows the applicant to certify that “all
117—05
2
previously submitted information referenced
in this
application
remains true, correct and current”
by “affixing his signature” to
the application for renewal;
Stuart Applebaumu, Vice President of
Douglas,
signed and certified the renewal application.
(R.
7..)
On December 28, 1989, the Agency issued a permit denial letter
stating that:
“the
application
does
not
contain
sufficient
information to determine compliance with 35
Ill.
Admu.
Code 215.204(g).
Manufacturer’s specification sheets for
the
enamel
coatings
must be
provided to
demonstrate
compliance
with
35
Ill.
Adm.
Code
215.204(g)
or
calculations must be provided to show that emissions of
volatile organic material from the facility do not exceed
25 tons/year as allowed by 35 Ill. Adm. Code 215.206(a)
.“
(R.
1.)
The denial
letter also contains the statement that “(t)he Agency
will be pleased to re—evaluate your permit application on receipt
of
your
written
request
and
the
necessary
information
and
documentation to correct or clarify the deficiencies noted above.”
(R.
1.)
Douglas’ motion for summary judgment is based upon the recent
appellate court decision in Wells Nanufacturina,
Inc.
v.
PCB, 552
n.E.2d 1074
(1st Dist.
1990).
In Wells,
the petitioner filed
a
permit
renewal
application on the
form provided by the
Agency
certifying that the previously submitted information referenced in
the renewal application remained true,
correct and current.
(552
N.E.2d at 1075.)
Wells did not submit any additional information
in support
of
its renewal
application.
The next communication
Wells
received
from the Agency was
a denial
letter offering to
reevaluate
the
denial
if
Wells
submitted
nine
categories
of
information.
(552 N.E.2d at 1076.)
Wells appealed to the Board
and the Board affirmed the Agency’s denial.
(552 N.E.2d at 1076.)
The appellate court determined that the Agency’s permit renewal
procedures,
or lack thereof, did not afford Wells an opportunity
to respond prior to the permit
denial
and,
therefore,
deprived
Wells of due process.
(552 N.E.2d at 1078.)
The court explicitly
found that a permit renewal applicant’s opportunity to challenge
the Agency’s denial before the Board in
a permit review hearing
pursuant to Section 40 of the Environmental Protection Act did not
cure the due process violations.
(552 N.E.2d at 1078.)
The court
reversed the permit denial and remanded.
(552 N..E.2d 1078.)
On
October 11,
1990,
the Board remanded the matter to the Agency to
act in accordance with the appellate court’s decision.
(PCB 86-
48.)
Douglas argues that the facts
in the instant renewal permit
appeal
are
virtually
identical
to
Wells
so
that
Wells
is
117—06
3
controlling, that there are no issues of material fact and that it
is
entitled
to summary
judgment
as
a matter
of
law.
Douglas
requests that the Board reverse the Agency’s permit denial, direct
the Agency to issue an operating permit and any other appropriate
relief,
as justice requires.
The Agency
attempts to distinguish Wells
from the instant
case.
The Agency argues that Wells
is restrIcted to those cases
where the Agency denies a renewal application based on information
not known to the applicant.
According to the Agency, Douglas had
notice
of
its
non-compliance through Agency
compliance
inquiry
letters dated November 24,
1987 and December 28,
1989,
an Agency
pre-enforcement conference letter dated April
14,
1988 and Agency
31(d) meetings on January 6, 1988 and May 10,
1988.
(R.
12, 57 and
67.)
The Agency also asserts that material issues of fact exist
as to whether Douglas has demonstrated compliance with the Act and
regulations such that summary judgment is inappropriate.
The Board disagrees with the Agency’s assertion that a genuine
issue
of material fact exists and precludes summary judgment in
this
case.
While
there may be
a
factual dispute
over whether
Douglas’
application
demonstrates
compliance with
the
Act
and
regulations, which is the ultimate issue in this case, there is no
dispute concerning the facts which are pertinent to a determination
of whether Wells applies and whether the Agency followed the proper
procedures in issuing its permit renewal denial.
The existence of
procedural defects obviates the need to reach,
at this time,
the
ultimate issue of compliance.
Therefore,
the Agency’s arguments
relating to factual disputes concerning compliance are not relevant
to the disposition
of the motion for summary judgment presented
here.
The Agency’s interpretation of Wells
as being
limited
to
those
cases
where
the
Agency
denies
an
application
based
on
information not
known
to
the applicant
is
not borne
out by
a
reading of
Wells.
It
is
not possible to glean
from the Wells
decision whether Wells knew of the 250 verified citizen complaints
in the Agency’s
files which apparently
formed the basis
of the
Agency’s denial.
Given that the appellate court did not make a
distinction between
information
not known
to an
applicant
and
information known to the applicant but not relied upon in seeking
renewal, the Board declines to make such a distinction here.
The Agency’s attempt to distinguish Wells
from the instant
matter on the basis that Douglas had knowledge of the information
upon which the Agency
based
its denial
and,
therefore,
a
pre—
denial opportunity to rebut such information is also unpersuasive.
In Wells,
the Agency
apparently denied Wells’
application based
upon approximately 250 citizen complaints which it had in its file
regarding alleged odor violations.
In fact,
such complaints had
been
the
basis
for
previous
enforcement
action
by
the
Agency
against Wells.
In the instant case,
a formal enforcement action
117—07
4
was not filed until April 18, 1990, approximately four months after
the
permit
denial.
Here,
Douglas
was
no more
on
notice
of
allegations of non—compliance than was Wells.
Pursuant to Wells, where insufficient information forms the
basis of the Agency’s denial,
an applicant seeking renewal of
a
permit who certifies that previously submitted information remains
true,
correct and current must be given a fair chance to respond
and provide information prior to the denial.
The Agency failed to
provide Douglas with a fair chance to protect its interest. There
being no genuine issues of material fact,
and finding that Douglas
is
entitled to
judgment as
a
matter
of law based upon Wells,
Douglas’ motion for summary judgment is hereby granted.
Although
Douglas has requested that the
Board grant summary judgment and
direct the Agency to issue the permit, it is clear that under Wells
the appropriate relief is to remand this matter to the Agency with
the directive that it adhere to the procedures enunciated in Wells.
IT IS SO ORDERED.
B. Forcade dissents.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby cer ~ifythat the above Order was adopte&~onthe
~
day of
~
,
1990 by a vote of
-8~/
~
Dorothy N.
a’in~ C1~rk
Illinois Pq~)lutionControl Board
117—08