ILLINOIS POLLUTION CONTROL BOARD
January 18,
1991
EARL R. BRADD,
as
)
owner
of the BRADD
)
SANITARY
LANDFILL,
)
)
Petitioner,
PCB 90—173
v.
)
(Permit Appeal)
I
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE
BOARD
(by 3. Anderson):
This matter is before the Board on a “Motion to Strike the
Agency’s Denial Letter” filed by Earl R.
Bradd, as owner of the
Bradd Sanitary Landfill
(“Bradd”).
The motion was dated December
19,
1990, but was not received with the Board until January
3,
1991.
On December 31,
1990, the Illinois Environmental
Protection Agency (“Agency”)
filed its Response to Bradd’s Motion
to Strike.
In his motion, Bradd states that he filed an Affidavit for
Certification of Closure with the Agency on June 29,
1990.
The
Agency notified Bradd of its denial of the Affidavit via a denial
letter dated August 21, 1990.
Bradd asks that the Board enter an
Order striking the Agency’s August 21,
1990 denial letter.
Bradd
also requests the Board to find that Section 39(a)
of the
Environmental Protection Act (“Act”), as applied in this case,
is
fundamentally unfair and denies him due process of law, and to
direct the Agency to approve his Certificate of Closure.
In support of his motion, Bradd first asserts that the
Agency’s
August
21,
1990 denial letter does not include
a
statement of specific reasons why the Act and regulations might
not be met if the Certificate was approved,
as the Agency is
required to do under Section 39(a) (4)
of the Act.
Rather,
Bradd
argues that the letter simply lists several statutory and
regulatory citations that may be violated if the Certificate of
Closure was approved.
Section 39(a) (4)
of the Act provides,
in
part, as follows:
If the Agency denies any permit under this Section,
the
Agency shall transmit to the applicant within the time
limitations for this Section specific, detailed
statements as to the reasons the permit application was
denied. Such statements shall include, but not be
limited to the following:
*
***
118—93
2
4.
a statement of specific reasons why the Act
and the regulations might not be met if the
permit were granted.
Next,
Bradd argues that Section 39(a)
of the Act,
as applied
in this instance, denied him due process of law in violation of
the Fifth and Fourteenth Amendments of the United States
Constitution because:
1)
it allowed the State to deny his
property interest without requiring the State to make a specific
allegation that he violated an applicable statute or rule or
specify any specific statute or regulation alleged to have been
violated, and 2) the denial letter failed to provide “information
sufficient to the applicant to determine the basis for the
Agency’s determination” or to provide him with sufficient notice
to allow him to effectively and fairly assert his interests in
this proceeding.
In response, the Agency states that, when the various
statutory and regulatory sections in the August 21,
1990 denial
letter are examined in conjunction with an April
6,
1989 letter
denying Bradd’s application to revise its groundwater monitoring
program, little if any further specificity could be provided in
the August 21,
1990 letter to describe how the deficiencies
listed therein would prevent the requested Certificate of Closure
from meeting the requirements of the Act and the regulations.
The Agency also notes that, with regard to each of the denial
points in the August 21,
1990 denial letter, the requested
Certificate of Closure contained material that was contrary to
the provisions of Bradd’s existing permits.
The Agency argues
that,
in effect, the requested Certificate of Closure was a
supplemental permit application seeking modification of existing
permit requirements with which Bradd had not complied, and that
if the Agency had approved the requested Certificate,
it would
have violated the Act and regulations because it was not
convinced that there would be no violations of the Act or
regulations if the requested Certificate was granted.
As for Bradd’s assertion that Section 39(a)
of the Act
denied him due process, the Agency argues that such assertion is
contrary to the Board’s holding that permit denials are not to be
used as enforcement tools.
In most cases a denial letter stands alone.
However,
because the April
6,
1990 denial letter refers to several
problems with Bradd’s groundwater monitoring program and because
the August 21,
1990 denial letter references the April
6,
1990
denial letter, the April
6,
1990 and August 21,
1990 denial
letters are inextricably linked in this particular instance and
must be examined together.
118—9
4
3
It appears from our review of the August 21,
1990 denial
letter in conjunction with the April
6,
1989 letter, that the
Agency, on the whole, has provided an explanation of why the Act
and the regulations might not be met if the requested Certificate
of Closure were granted.
However, the Agency has cited two
regulatory subsections,
35 Ill. Adm. Code 807.205
(b) and
(c),
without providing a reason why these subsections might not be met
if the requested Certificate of Closure was granted.
When the Agency fails to support its denial by setting forth
the reason(s) why certain sections of the Act or regulations will
be violated, the Board cannot step in and supply the missing
information.
In other words, the separation of duties does not
allow the Board to examine the record in an attempt to glean and
deduce the Agency’s intent in denying the requested Certificate
of Closure.
If the Board were to supply a reason to support the
Agency’s citation of a statutory or regulatory section, the Board
would exceed its statutory authority and the principles of
fundamental fairness would be violated.
On the other hand, we recognize that we will not be able to
determine whether Bradd has met its burden of demonstrating that
no violation of the Act or regulations would occur if the
requested Certificate was granted if we do not have this
information.
Therefore, we conclude that the instant matter must
be remanded to the Agency with directions to supply the reasons
for its citation of 35 Ill.
Adia.
Code 807.205(b)
and
(c).
(see
Centralia Environmental Services.
Inc.,
V. IEPA,
PCB 89-170
(May
10,
1990, and City of Metropolis v.
IEPA, PCB 90-8
(February 22,
1990).
Accordingly, we hereby deny Bradd’s Motion to Strike the
Agency’s August 21,
1990 denial letter, and direct the Agency to
amend its denial statement,
consistent with this Order, within 28
days of the date of this Order.
We wish to make two final notes.
First,
because we remand
this matter to the Agency, we will not address Bradd’s
constitutional claims.
Second, the format of the denial letter
has required the Board to take considerable time to parse its
contents in order to discern whether the Agency,
in fact,
sufficiently satisfied the requirement of Section 39(a) (4)
of the
Act.
We suggest that it would be helpful if the Agency,
in the
future, would
1)
frame its denial letters to be consistent with
the order of the numbered paragraphs in Section 39(a)
and
(b),
and
2) link the specific reason(s) why the Act and the
135 Ill.
Adm. Code 807.205(b)
states,
“The Agency may adopt
procedures requiring such additional information as is reasonably
necessary to determine whether the waste management site will meet
the requirements of the Act and Regulations.”
35 Ill.
Adia.
Code
807.205(c)
states, “The Agency may prescribe the form in which all
information required under these Regulations shall be submitted.”
118—95
4
regulations might not be met if a Certificate of Closure or a
permit was granted to each statutory or regulatory section citec
in the denial letter.
Such an approach would aid in evaluating
Agency denial letters and avoid motions of this nature in the
future.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Contro
Bo
d
hereby cer ifies that the above Order was adopted on the
_______
day of
_____________,
1991, by a vote of
7~
Dorothy M(jtunn,
Clerk
Illinois ~‘ollutionControl Board
118—96