ILLINOIS POLLUTION CONTROL BOARD
    March 21,
    1996
    ESG WATTS,
    INC,
    an Iowa Corporation,
    )
    )
    PCB 94-243
    Petitioner,
    )
    94-306
    )
    94-307
    )
    94-308
    )
    94-309
    ILLINOIS ENVIRONMENTAL
    )
    95-133
    PROTECTION AGENCY,
    )
    95-134
    )
    (Consolidate)
    Respondent.
    )
    (Permit Appeal
    -
    Land)
    DISSENTING
    OPINION
    (by
    J.
    Theodore Meyer):
    I agree that the standard of review for an Illinois Environmental Protection Agency
    (Agency) decision to deny a permit renewal under Section
    39(i)
    is less
    stringent thanthe
    arbitrary and capricious standard espoused by the parties in this matter. For denials based on
    Section
    39(i)
    the Board must review not only the operating history of the permit applicant, but
    also the Agency’s analysis of such history to determine whether or not the Agency abused its
    discretion in denying the permit.
    However, I disagree with the majority’s
    analysis which
    found that the Agency did not abuse
    its discretion in denying ESG Watts (Watts) its permit
    renewals.
    In explaining its decision to deny Watts’ permits, the Agency stated that it looked at
    Watts’ history
    “in the aggregate”.
    (Transcript at 62-65.)
    The Agency never fully explained
    this analysis.
    Watts has an operating history
    which includes a civil penalty of $350,000 for
    violations of landfill regulations
    at its
    Sangamon County landfill, and
    19 administrative
    citations over a period of 10 years.
    These are not mere allegations and therefore can be
    legitimately~
    considered in an analysis of an operator’s history.
    However,
    Watts’ operating
    history does not consist ofthese facts alone.
    There are factors
    in mitigation to
    consider,
    including those set forth in Section
    745.141(b)
    of the Act,
    as mentioned in the majority
    opinion.
    For six years,
    Watts operated the Taylor Ridge facility, the landfill at issue in this case,
    without incurring any violations and despite having endured 32 Agency inspections.
    In
    addition,
    the permit renewals at issue
    all involve waste stream permits,
    none ofwhich
    have
    been found in
    violation ofthe Act or Board regulations.
    In fact, none ofthe prior
    adjudications against Watts involved
    waste streampermit violations.
    Section 39
    (i)
    allows for a great amount of discretion on the part of the Agency.
    As
    a
    result, the Agency must explain as fully as possible its bases for denial under this
    section to
    2
    show that it did not abuse its discretion in denying a permit.
    If the Agency had articulated in
    the record that it had balanced the adjudicated violations against mitigating factors
    such as
    Watts’ recent record at the Taylor Ridge facility, and found Watts to
    be a threat to the
    environment due to
    its operating history,
    upholding its decision to deny the permits may have
    been warranted.
    However, the Agency only mentioned the adjudicated violations--some of
    them rather minor and over 5 years old--as its basis for denying the permit renewals.
    Without
    this typc of balancing test, or weighing ofthe evidence, the Agency’s decision can be
    interpreted
    as utilizing permit denials as an enforcement tool, which is
    strictly prohibited.
    (ESO Watts. Inc.
    v. IEPA, (October 29,
    1992) PCB
    92-54, aff’d,
    IEPA v.
    IPCB,
    252
    Ill.
    App.3d 828,
    624
    N.E.2d 402 (3rd Dist.
    1993).)
    There, the Agency tried to deny Watts a
    permit based on Section 39(i), but failed because its
    analysis ofWatts’ operating history was
    founded on allegations, not adjudications Q4~.)Once those allegations were adjudicated, it
    seems that the Agency used them to deny these permit renewals.
    I find the Agency’s failure to
    articulate whether or not it considered any mitigating factors in this case to
    be an abuse of its
    discretionary power under Section
    39(i).
    As the majority indicates,
    a federal district court case
    set forth the proposition that a
    permit holder has certain property and liberty
    interests in permit renewals
    and as such is
    entitled to certain due
    process protections.
    (Martell v. Mauzv,
    511
    F.
    Supp.
    729
    (N.D.
    Ill.
    1981).)
    These property and liberty interests are inherent in permit renewals for the simple
    reason that a permit is granted in the first place because the
    Agency believed it would not
    violate the Act.
    Once granted, and without evidence of any violations under that permit, the
    permit holder should expect
    it
    to be
    renewed
    Such is the case for Watts’ waste
    stream. permit
    renewal applications.
    The Agency considered Watts to be a sufficiently competent operator to
    grant it waste
    stream permits
    in the
    first place; without evidence of violations under these
    permits, Watts has a legitimate expectation that these permits will be renewed.
    For these reasons, I respectfully dissent.
    J. t~jeodore
    Meyer
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was
    filed on the
    /‘~
    day of
    ,
    1996.
    ‘V
    ~
    Dorothy M. ~unn,
    Clerk
    Illinois Polltion
    Control Board

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