ILLINOIS

POLLUTION

CONTROL

BOARD

February

2,

1978

WINNETKANS

INTERESTED

IN

PROTECT ING

THE

ENVIRONMENT

(WIPE)

Complainant,

v.

PCB

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

VILLAGE

OF

~INNETKA,

Respondents

DISSENTING

OPINION

(by

Mr.

Ycunq~

Although

I agree

bhat the

Co:npiaimt

must

be

dismissed,

it

should

he dismissed

for rant

of

jurisdiction, rather than

for

the

reasons

set

forth in the Tna9orsty

position.

It

is

not

an

accident,

that

there

is

no

provision

in

the

Environmental

Protection

Act:

for a

contest

of the Agency grant

of

a

nermit;

the

permit

funcuico

established

by the Act was

not

structured

to

authorize

such

a

oroceeding

nor

is

one

necessary to accomplish the

purroses of

the

statute.

The principar

uz~ef1

105

t~me

t

L~ìestate of a permit

system such as that

established by the Act

are as follows:

1)

To

orovide

an accurate

rr:Lonti

tativc’ and qua

lita—

ti

VC

invontory

Oi

the

CfflSSSlOfl,

d,i

sc!iarqc

or

disposal

of

contaminants

t;o

ti-ic

air,

water

and

land;

and,

2)

To

provide

an accurate invensory

of

the

loca-

tion and

ideftib:icanion

of

facilities

and

equip-

ment

capable

of

and

necessary

to

the

removal

of

contaminants

orbs

to

beneficial

use

or

the

emission,

discharqe or disposal

to the

air,

water

and

land;

andy

3)

To

provide

reasonable assurance

that

proposed

facilities

and

equinment

necessary to the

removal

of

notential contaminants

have

sufficient

capability

to

remove

such

contaminants

to

levels

necessary

to

comply

with existinq

regulatory

and

statutory

limitations

or

standards;

and,

---

4)

To provide a periodic update of inventory infor—

mation;

5)

To simplify enforcement;

6)

To generate revenue.

The

permit system performs the following useful functions

~:‘~r

the nermittee as follows:

Reasonable assurance by the state that the

facilities and equipment

proposed for the

removal of potential contaminants have

sufficient capability to

remove

such

con-

taminants

to

the

levels necessary to comply

ciith

existing

regulations and statutory

limitations or standards;

and,

Concise summation by the state of operational

parameters for facilities and equipment necessary

for compliance with existing regulations and

statutory limitations or standards.

Ththss

the permit system with the issuance of

a

permit

mbes

the degree of finality which can be relied

upon

oern:ittee sufficient to justify his commitment

of

resc’r’~

~

c’:~e initiation of construction, the system is of

no

va:.’~:e

tre nermittee and there is serious question

if the exp~:~

sorb

a system could be justified.

:1

it

was intended that the decision

of

the Agency

i

en:::rou a permit be subject to Board review on

complaint

are’ person it

would be necessary,

in order

to satisfy

i~

‘oress requirements, for the Act to require

publicatior

:eticu

of

permit applications and opportunity

for

public Hr

ection

and hearing before the Board.

No such

provisior

1

sopears

except as the Act was amended to do just that to

utooid~authorization for Agency issuance of National

PolJutent

schrrqo

El

imination

System (NPDES )

perrni U;

for di

schui

qes

to

~:I:u

u~tors

of

LIie State.

The sections added (Sections il(a)2

~rrouqt

ll(a)6, 11(b),

12(f),

13(b)

and 39(b)) do not extend

:hat authorization to other than NPDES permits.

The

sheer volume of oermits issued annually by the Agency

uiL5’rrtes

against

a

system

which

would

require

public

notice

orrmIt

issuance;

the

cost

of

publication

of

notice

alone

would

orchibitive.

Such

a

system

is

unnecessary

with

the

existence

a

erovision,

as

in

Section

31(b)

of

the

Act,

which

allows

‘rerson

to

bring

a complaint for revocation of a permit for

~:~on

of any provision of the Act,

the Board’s regulations,

any permit or term or

condition

thereof.

Section

45(h)

hot

further provides that any person adversely affected

:tor injunctive relief if denied relief by the

Board

Si on

31 (b).

29—188

---

—3—

No permit system, which issues permits prior

to the con—

traction and actual ooeration of a facility or equipment, can

urttrmitee

operation

of that facility or equipment without

a

o

ition any more than operation of facilities and equipment

cc

npliance with the law during one period of time guarantees

orip

rance during the following period.

In the system established

b~

~the

Act,

the issuance of a permit is no defense against any

)latiofl of the Act,

regulations or permit terms

or conditions,

~-e

that

of

operating

without a permit.

I am unable

to find any authorization in the Act which

ta

~shes

an action before the

Board to contest the Agency

rermination

on

a

permit aoplication except by the applicant

one

pursuant

to

Section

40,

After commenting on the right

o

ti

s applicant to contest Agency denial of a permit under

~

ori)n

40 of the Act

in

70 Northwestern L.R.

389

(1975),

o ~

P.

Currie, Professor of Law,

University of Chicago and

~Lrst Chairman of the Pollution Control Board,

states

(at

~The statute makes

no comparable provision for

review of the Agency~sgrant of a permit.

One

receiving

a permit for activity that allegedly

violates the law can be charged with causing

or threatening to cause such violation in

a

citizen complaint under Section 31(b), and the

regulations expressly provide that the existence

of a

permit

is no

defense

to such a complaint.’t

)ecisions

of

the

Pollution Control Board are subject to

mu

c. ci review pursuant to the Administrative Review Act

(ARA)

exressly

provided

by Section 41 of the Environmental Pro—

n

Act.

The Environmental Protection Act makes no similar

,

ov~eionfor the review of Agency decisions, and since the Act

~c

s

mt by express reference adopt the provisions of the ARA

imjency decisions, Agency grant of a permit is not subject

~o

ilicial review under the ARA

(Ill,

Rev.

Stat.

1975 Ch, 110,

S

Nor is the issuance of a permit~’iThjectto review under

\tministrative

Procedure

Act

(effective

on

January

1,

1978)

he

a

e

the Agency permit action is not required

to be preceded

re’

notice

and opportunity for

hearing

and

exempt

by

Section

16(a)

N

zt

Act.

Since

the

ourpose

of the ARA

was

to

dispense

with

the

use

o

muidamus,

certiorari,

injunction and the other extraordinary

moos

as

the

means

of reviewing

administrative

decisions

(Quin-

mind

Tyson,

Inc.

v.

City of

Evanston,

324 N.E.2d 65,

25 Ill.

Z~o~3rd

65;

People

ex

rel,

Builders

Supply

and

Lumber

Co.

v.

~“

la~j

aood,

160 N.E,2d,

22

I11.App.

283),

it

would

seem

~

i~f

the

Agency

issuance of the permit is subject to review,

review

must be sought

in

circuit

court under one of the extra—

othinary

writs.

29

—

189

---

—4—

The Environmental Protection Agency haE the duty to

administer, under Section 4(g) of the Act, such permit systems

as

are established by the Act or regu1ati~isthereunder and

are constrained to do so in accordance

with Title X of the

Act.

Under

Section 39, the Agency is required to adopt such

procedures

as necessary to carry out its duty to issue a permit

upon

proof by the applicant that issuance of the permit will

not

cause

a

violation

of

the

Act

or

of

the

regulations.

It appears, especially from

the absence of any provision

of

the Act which purports to authorize administrative review

of

Agency grant of a permit by the courts or the Board, that

the

action of the Agency in the grant of a permit was deemed

a

purely

ministerial action and for that reason not made subject

to the review usually reserved to discretionary administrative

decisions.

Finally,

I must conclude the Agency,

in the exercise of

its

duties under Section 4(g)

and Title 10 of the Act, is not

subject to a complaint before the Board under Section 31(b)

of

the

Act.

For this reason,

I do not believe that the Board

Procedural

Rule 503(a), which purports

to establish

an action

before the Board

seeking revocation of

a permit on the ground

that it was issued by the Agency in violation

of the Act or the

regulations,

is

valid.

Although

I appreciate that it is of no significance,

I am

a

bit vexed by the proposition that the

issuance, of a permit

by the

Agency,

which

in

express

terms

prohibits

any

violation

of the

Act

or

the

regulations,

somehow constitutes

an Agency

violation of the Act or the regulations.

Since

the

action

here

is

nothing more than a petition for

the review of the Agency grant of a permit

over which the Board

has no

jurisdiction,

the

action

should

have

been dismissed on

that

basis.

mes L. Young

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Con-

trol Board, hereby certify,that

the

ov

Dissenting Opinion was

submitted

to me on the

IL~

day of

__________________,

1978.

ChristanL.

of

f~t~)

Clerk

Illinois Pollution Control

Board

29

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