ILLINOIS POLLUTION CONTROL BOARD

July 20, 1995

JACK PEASE,

 d/bfa

)

GLACIER

LAKE

EXTRACTION,

)

Petitioner,

)

V.

)

 PCB 95—118

)

 (Permit Appeal-Mining)

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

MARY

BRYANT

BROWN

AND

BRYANT APPEARED ON BEHALF OF THE

PETITIONER,

AND

CHUCK

GUNNARSON

APPEARED

BEHALF

THE

RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

 (by C.A. Manning):

This matter is before the Board on a petition for review of

a final determination of the Illinois Environmental Protection

Agency’s (Agency) denying a permit to petitioner, Jack Pease

d/b/a Glacier Lake Extraction

 (GLE),

 brought pursuant to Section

40(a)

 of the Illinois Environmental Protection Act (Act).

 (415

ILCS 5/40(a).)

 The petition for review was filed with the Board

on March 31,

 1995,

 and seeks reversal of the Agency’s February

24,

 1995 decision denying GLE a non-NPDES mine-related pollution

control permit for its sand and gravel mine located in Richmond,

 McHenry County, Illinois

 (GLE site).

 The Agency denied the

permit on the basis that the information was insufficient

regarding contamination ot groundwater at the site and the

effects that the operation of the mine have on the migration of

contaminants.

(R.

at

 109.1)

A public hearing was held before the Board’s Chief Hearing

Officer, Michael Wallace, on May 31, 1995 at the McHenry County

Government Center in Woodstock,

 Illinois.

 Members of the public

were present, but only one offered public comment.2 The following

persons testified on behalf of GLE: Jack Pease, the owner of

 GLE,

11n this opinion the citations that will be used are:

 For citations to

the record on appeal,

 “R. at

“;

 for citations to the IPCB hearing transcript,

“Tr.

at

 “p for citations to the petitioner’s post-hearing brief,

 “ret.

 ar. at

“;

 for citations to the respondent’s post-hearing brief,

 “Agency Br.

at

“;

for citations to a deposition of Bruce Yurdin admitted at hearing,

 “Yurdin Tr.

at

“;

 and for citations to exhibits admitted at hearing,

 ‘~Pet. Exh.

#

“.

2Section 32

of

the Act allows members of the public to offer comment at

Board hearings.

 Pursuant to Board procedure, the hearing officer in this case

asked if anyone from the public wanted to make any statements.

 Minard E.

Hulse,

 an attorney,

 offered public comment on behalf of Jeanne F. Pettry.

2

Thomas Hartz, an employee of Pease Construction and the permit

manager for GLE, and Michael Tryon, laboratory director and

president of McHenry Analytical Laboratory.

 GLE also called as

adverse witnesses,

 Robb Layman,

 legal counsel for the Agency, and

Bruce Yurdin, the permit reviewer of the Glacier Lake permit

application.

 Bruce Yurdin also offered testimony on behalf of

the

Agency.

hearing,

the

hearing

officer

admitted

several

exhibits offered by petitioner includin~the deposition testimony

of Bruce Yurdin, and several site maps.

 (See Pet. Exh.s #1-10.)

On June 19,

 1995 both GLE and the Agency filed their post-hearing

briefs, and on June 21,

 1995, the Board received a post-hearing

written comment from Minard

 E. Hulse.

For reasons more fully explained below, we hereby reverse

the Agency’s final determination issued February 24,

 1995, and

remand the matter to the Agency for final action consistent with

this opinion and order.

FINDINGS OF FACT

Location and Operation of the Mine

Glacier Lake sand and gravel mine is located at 7317

 Keystone Road,

 Richmond, McHenry County, Illinois.

 It was

purchased in 1989 by Jack Pease and James Tonyan as a

partnership, and in May,

 1994,

 Jack Pease acquired all of James

Tonyan’s interest in the property.

 (Yurdin Dep.

 Exh. #5.) The

Glacier Lake site has been commercially mined for sand and gravel

since at least August,

 1990 by GLE, and prior to GLE’s ownership,

since approximately 1945.

 (R. at 98.)

 GLE has had a permit from

the Agency for virtually the same operation it seeks in this

permit since l990.~

 (R. at 20-21; Tr.

 at 31,64.)

The entire site is approximately 70 acres with eight to ten

acres presently reclaimed and reseeded.

 (R. at

 16.)

 30 acres

3me hearing officer did not admit the deposition transcript of Thomas

Mcswiggen,

 an employee of the Agency, which was offered as evidence by the

petitioner during the hearing.

 In the petitioner’s post—hearing brief, GLE

requests that the Board admit two “statements against interest” made by

Mcswiggen which appear in the deposition transcript.

 In response,

 on June 23,

1995, the Agency objected to the motion to admit on the basis that it is

inappropriate to use discovery as evidence in the form of a “statement against

interest” especially when the deposed party was not called to testify.

We

agree and deny the motion to admit.

 The hearing officer’s ruling

has

not been

challenged,

 and we will not allow portions of that transcript to be used as

“evidence” when the party deposed could have been but was not called to

testify.

41n August 1990 the Agency issued a non-NPDES surface mining operating

permit to James Tonyan d/b/a Glacier Lake Extraction, of which Jack Pease was

a partner.

 (R. at 20.)

 This permit is being requested by Jack Pease d/b/a

Glacier Lake Extraction.

3

are currently open and being mined.

 (Pet. at

1.)

 25 acres of

the site remain for further mining.

 At the current rate of

mining, the Glacier Lake site will be mined out by the year 2001.

However mining in the current portion of the site should be

completed in two to three years.

 (Pr. to 20; R.

 at 98.)

 When

mining at the site is completed, the owner expects to convert the

property into a low-density housing development of approximately

twenty home sites around two man-made lakes.

 (Tr. at 27-28;

R.

at 12.)

Sand and gravel are mined at the site by using an

earthmoving piece or equipment known as a “scraper”

to

shave—off

surface soil or “overburden.”

 (Tr. at 50—51.)

 After the

overburden is removed and placed elsewhere on the site,

 front-end

loaders and backhoes are used to dig up the mined material which

 is the sand and gravel.

 The sand and gravel is washed with plain

water and sorted according to size and stored pending shipment

out of the site.

 No chemicals or explosives are used in the

processing of the sand and gravel.

 Sorted material is then

loaded into large dump trucks by the front-end loaders for

shipment off-site.

 (Pr.

 at 49.)

 All of the operating machinery

at the mine is powered by diesel fuel oil and each piece

of

equipment uses approximately 80 gallons of fuel per day.

 (Tr. at

41—42.)

 At hearing, Thomas Hartz, a project manager for Pease

Construction, who manages GLE’s permits, testified that GLE

stores no fuel on the site and GLE conducts fueling of the GLE

vehicles away from the open pit on an area that is either

concrete or clay with greater than 100

 compaction.

 GLE also has

a contingency plan, which includes training sessions, for dealing

with spills should they occur.

 (Pr.

 at 40-56.)

2.994 Operating Permit Application

In August 1994,

 four months after Pease acquired Tonyan’s

partnership interest, the Agency notified Pease that he should

apply for a new permit as a 1990 operating permit was not

transferable to Jack Pease because it was issued solely in the

name of James Tonyan.5

 (Pr. at 31-32.)

 On behalf of GLE, Jack

Pease submitted the permit application at issue seeking an

operating permit on November 28,

 1994 pursuant to

 35 Ill.

 Adm.

5The Agency takes the position that the petitioner no longer has a valid

operating permit and it has instituted various legal actions (most of which

are still pending and none of which are before this Board)

 in an effort to

cause Pease to cease and desist his operations at the mine solely because of

the permit/ownership

issue.

 Additionally,

 Mdflenry County has also instituted

legal action against Jack Pease regarding this issue.

 There appear to be no

other allegations of violation of the Act at issue regarding this site other

than for Pease’s continued operations of the site in light of the ownership

question.

 (Tr.

 at 33—35.)

4

Code, Subtitle D,

 “Mine Related Water Pollution” Part 404,

 “State

Permits”.

 (R. at 9—38.)

 The application described the project

covered by the application as the open sand and gravel pit and

indicated that the application was for “abandoning”.

The

application also attached three permitting schedules,

 one for the

construction and opening or reopening a mine, operating the mine,

and the abandonment of a mine.

 (R. at 14-16.)

 Though any permit

the Agency would issue would not cover or otherwise authorize

GLE’s future plans for construction on the site, the application

 attached reclamation plans which describe GLE’s plans to convert

the site to a low-density housing development.

(R.

 at 18.)

While none of the questions on the application specifically

request information regarding groundwater monitoring at the GLE

site,

 the Agency’s permit application form requested certain

information regarding water pollution at the site,

 as well as

information regarding groundwater, waterwells and impact on local

public water supplies.

 The application requested that the

applicant “discuss proposed means of avoiding air,

 land and water

pollution at this site when opening the mine.”

(R.

at

 14.)

In

response, GLE stated:

 “Any water within the mine area will remain

contained.

 Waters will be tested quarterly both upstream and

downstream from the pit.”

The application also requested that CLE provide certain

information regarding groundwater.

 GLE was asked to provide a

list underground water resources, public water supplies, a map

showing all private water supplies within a one-mile radius,

location of wells within the set—back zone and supporting

hydrogeolic data.

 The application further requested that the

applicant discuss any affects the mine will have on water

supplies.

(R.

 at 15, Questions ##6-9.)

In response, GLE provided information regarding the public

water supplies,

 a. groundwater monitoring well map

showing three

groundwater wells

(R.

 at 39), groundwater sampling data for

rounds of sampling in April of 1993 and June of 1994

 (R. at 27-

31), and well construction logs for three of the four groundwater

monitoring wells located on the GLE property and for a wash plant

well.

 (R. at 40-43.)

 GLE also provided two reports, one of

which

 is entitled

 Groundwater Monitoring Surveillance for Tonyan

Brothers, Inc.,

 and was compiled by McHenry Analytical Laboratory

to explain the April 1993 sampling data, and the second report is

a water resource inspection report by McHenry County for the GLE

site.

 (R. at 37—38.)

The groundwater data reports submitted to the Agency show

roadings

of

Purgeable

Organic

carbon

 (POC)

at

the

GLE site.

Regarding the April 1993 data, the POC reading for one well

tested is 2.887 mg/L

 (or 2887 ug/L).

(R.

 at 36.)

 On the issue

of POC, the McHenry Analytical Laboratory report, which

accompanied these results, stated that:

5

Purgable Organic Compounds

 (sic.) (POC) are a total sum of

Volatile

Organic

Compounds

(VOC).

These

compounds

are

found

fuels

such

 gasoline or diesel fuel.

 POC5 should be

used

indicator

 potential problems.

 Should POC5 be

found,

 it is recommended

that

a

volatile organic compound

screen

be

performed.

 (R. at 35.)

At

hearing, Michael Tryon, the laboratory director and

president of McHenry Analytical Laboratory, who prepared the

report for GLE, testified that this paragraph was only intended

to give gravel pit owners and operators an idea of what it was

their groundwater was being tested for, and was not intended to

be the sole basis upon which the Agency should determine the

meaning of a facility’s groundwater analysis.

 (Tr. at 197.)

 (For

additional discussion on the nature of POC,

 see infra,

 at pages

9—12.)

Regarding the June 28th round of sampling, the POC results

were:

GL#1

521

ug/L

GL#2

“unable

collect

sample

 due to dry well”6

GL#3

—

 388 ug/L

GL#4

—

 1607 ug/L.

 (R. at 27—31.)

The

Agency’s

December

27th

Request

for

Additional

Information

One month later, on December 27,

 1994, the Agency issued a

letter requesting additional information from GLE.

 (R. at 69-70;

Exh.#7.)

 The Agency asked for several categories of information;

however, the request for additional information pertinent to this

appeal is found at paragraph #5 of the Agency’s December 27th

letter.

 That paragraph stated:

The attachments to the application refer to four

(4)

monitoring wells installed after 1991.

 The plans for

the site must identify the location of all wells,

monitoring

and

potable,

the

property.

The

results

of the monitoring included in the application indicate

concentrations of purgable organic carbon

 (POC)

at

three well from a June 28, 1994 round of sampling.

Please provide data on the construction of the wells,

screened and finished depth, and the possible source(s)

of the POCs detected in the samples.

 If additional

analyses were conducted on these samples to identify

specific volatile organic compounds, please provide the

results.

6This well is

consistently dry; therefore even though GLE submitted

sampling data for four groundwater monitoring wells, only three of the wells

actually have sampling results.

 (See e.g.

 It. at 27-31.)

6

The letter further provided that the Agency has received

several requests to hold public hearing on this application, but

that

decision

had

been

made

regarding

the

hearing.

The

letter

finally stated that if the responses were adequate, the Agency

would complete its review.

(P.

 at 70; Exh.

 #7.)

GLE’s

Response

the

Agency

In response to the December 27th letter, Hartz

 (Tr.

 at 63)

and Mary Bryant, GLE’s counsel, each sent Bruce lurdin letters

dated January 11,

 1995.

 Hartz’s letter enclosed:

 (1) for a

second time, well

construction

 logs for the three groundwater

wells and the wash plant well

 (see

R.

at 40-43 and R.

 at 77—80);

(2) a second copy of the same map which was previously submitted

showing three groundwater monitoring wells and the wash plant

well (see R.

at

 39 and R.

 at 76.);

(3)

 a copy of the McHenry

County Manual for Groundwater Monitoring and Protection at Earth

Materials Extraction Sites adopted by the McHenry County Board

(R.

 at 81-87); and

 (4) a copy of the McHenry Analytical Water

Laboratory sampling procedures, which was also in the Agency’s

 possession as part of the groundwater sampling data.

 (See R.

at

2/,

33

and

 /5.)

 Regarding the possible sources of POC, the

letter

stated

paragraph

#5:

The well logs are enclosed.

 There are only three wells

actually on the pit property.7

 The POCs indicated on

the

test

results

are

found

both

upstream

and

downstream

upgradient

 and downgradient

 from the pit with the

upstream well producing the higher amounts of POCs.

These results suggest that POCs originate off site from

the upstream property.

 The POCs may potentially

emanate from any fuels or farm chemicals used on the

adjacent property.

 The McHenry County Health

Department evaluate our samples every quarter.

 They

are satisfied to date.

(R.

 at 97—101.)

7The Agency requested that GtE provide additional information on the

location of

four groundwater monitoring wells on the pit property and the

installation logs for these wells.

 OLE only provided supplemental information

for well nos.

1,

 2, and 3, and offered no additional information for well #4.

In addition to being a groundwater monitoring well, well #4 is also a drinking

water well located within 75 feet of a rental house on the OLE property, and

 the record shows that at this well, the POC readings are the highest levels.

At hearing,

 on behalf of CLE, Hartz explained that the inetaHation

log

was

not provided for this well because none exists, and that he did not show it on

the site map due to an oversight.

 He testified that he was not attempting to

hide any information regarding well #4 and that the Agency did have knowledge

of the location of this well.

 Zurdin also testified that the Agency had a

site

plan with

well

GL#4 identified

on the map in its file (this map was

admitted as Exhibit #10 at hearing).

 The record also shows that the Agency

had the groundwater sampling data for this well showing the POC reading of

1607 ugh.

 (See petitioner’s Exhibit #10, which is a site map showing all

four wells;

Tr.

 at 220—21.)

7

Bryant’s letter also addressed POC and its possible sources.

Her

letter

provided:

Monitoring

the

near—surface

groundwater

over

the

past

two

years

has

revealed

 significant water

quality concerns,

 as Illinois EPA must know from its

review of data submitted by Glacier Lake as well as by

Glacier Lake’s opponents.

 The only elevated

constituent,

 POC,

 is still very low, and it is

consistently higher at upgraclient well No.1 than it is

at downgradient well No. 2.~ This would suggest an

upgradient

 source

for the contaminant, and further

suggests that Glacier Lake may have an attenuating

effect

 Poe, thus improving water quality at the

nearby fen.9

(R.

 at 97—101.)

Neither Hartz or Bryant’s letter provided any additional

sampling analysis of the June 28, 1994 sampling data.

 Neither

Hartz nor Bryant submitted any analysis for volatile organic

compounds for the June 28,

 1994 round of sampling, or for any

other round of sampling.

 No VOC screening analysis was conducted

at GLE’s gravel pit until arter the Agency’s final determination

denying the permit was issued; therefore,

 no VOC screening was

provided in GLE’s response.

In addition to the Agency and GLE’s communication by letters

of December 27, 1994 and January

11,

 1995, there were several

telephone conversation between the parties, which occurred during

the statutory review period, and several additional letters sent

to the Agency.

 After sending the January 11,

 1995 letters to

the Agency, Hartz telephoned Yurdin on at least five separate

occasions, to determine if Yurdin needed any information in

addition to that in the January 11, 1995 responses.

 Hartz

testified that he offered to meet,

 fax information, and do

whatever it

took to

give the Agency additional information.

 (Tr.

at 65-70.)

 In each of these phone calls, Yurdin indicated that

he had not completed his review of the GLE file.

 (Id.; see also

Tr. at 223—24,

 227 and Yurdin Dep. at 19—20,

 76—78, and 82.)

In a letter dated February 13,

 1995,

 counsel for GLE

responded to the Agency’s letter of January 25, 1995 which was

R1fl

 Petitioners posthearing brief, GLE’s counsel clarifies

tnat

 fler

reference to Well No.

 “2” is incorrect.

 She states that this well should

properly have been designated “downgradient well No.3,” and that well No.

2

is

always dry.

 (Pet.

 Br. at 30,

 citing, Tr.

 at 186—187.)

9We take technical and administrative notice that a fen is a swampy

marsh area or bog which contains alkaline decaying vegetation that may develop

into peat.

 Active decomposition of organic matter can produce humic

 acid,

fulvic acid and humin.

 (See e.g. Tr.

 at 177-178.)

addressed

various

citizens

regarding

the

Agency

holding

hearing,

and

the

Agency’s

request

for

 groundwater information

from

the

citizens.

(R.

97.)

 (See

 discussion of Agency’s

correspondence

with

citizens

 infra

page

13.)

that

letter,

Bryant

stated

that

GLE

viewed

hearing

inappropriate

and

further

offered

that

 meeting take place.

 The letter states

that

“GLE

wanted

the

 same opportunity

...

 meet with IEPA and

present

Glacier

Lake’s

position

...

that

IEPA

had)

offered

parties

who

 wish to put Glacier Lake out of business.”

(R.

at

97.)

According

GLE,

the

Agency

did

not

respond

this

letter.

However,

February

21,

 1995, Robb Layman,

 counsel for

the Agency, spoke with GLE’s counsel.

 At hearing, Layman

testified that he informed GLE’s counsel that a basis for the

 permit denial had already been determined and that if GLE wished

to address the basis of the denial, a waiver of the statutory

decision deadline would be required.

 (Tr.

 at 106-107; R.

at

 102.)

In response, GLE’s counsel sent another letter to the Agency

via fax on February 22, 1995 memorializing the conversation

between Layman and Bryant on February 21,

 1995.

(R.

 at 102-104.)

The letter indicates that in response to Layman, Bryant asked

Layman what the technical grounds ror denial were, and that if

the Agency provided her with a draft denial letter explaining the

proposed grounds for denial, she might advise her client to agree

to a 30—day extension of time to resolve the technical issues.

The letter indicated that as of February 22,

 1995,

 no draft

denial letter was sent to Bryant, and that GLE would therefore,

not extend the 90-day statutory period for the Agency to make a

determination.

 (R. at 102-104.)

Also on February 22,

 1995, two days prior to the permit

denial, Hartz called Yurdin for the fifth time to ask him’ what

the technical concerns were at the site so that GLE could respond

immediately and not delay issuance of the permit.

 (Tr. at 70; R.

at 102.)

 Yurdin replied that he had not yet finished going

through the file and that there was not adequate time left to

meet on the permit.

 (R. at 103; Tr.

 at 70.)

February

24.

1995

Denial

Letter

—

the

 Section 39(a) Statement

February

24,

1995,

 the Agency issued its final permit

denial letter regarding GLE’s permit application, which is the

subject of the instant appeal.

 Essentially, the Agency denied

the permit application on the basis that the information

provided by GLE was insufficient to determine whether the permit

would violate Sections 12 and 39 of the Act.

 In relevant part,

the Agency’s denial letter provides:

Insufficient data has been provided to the Agency in

regard

the

contamination

groundwater

the

site

and

the

effects

that

the

operation

the

pit

will

have

the

migration

the

contaminants.

Refer

our

9

letter

December

27,

1994

and

your

response

January

11,

1995.

The

response

letter

contends

that

the

contaminants

originate

of f

site.

This

contention,

however,

not

supported

the

data

contained

the

response

letter

the

application.

The

data

provided

application

form

Schedule

line

concerning

the

documentation

underground

water

resource

which

are

within

which

directly

 receive

drainage

from

the

site,

was

incomplete.

The

groundwater

quality

data

provided

indicate

contamination

and

off

site,

with

higher

concentration

 of purgable organic

carbon

 site.

The

Agency’s letter of December 27, 1994

requested

additional

data

 in terms of

possible

 sources of this

contamination

and

additional

analysis

these

samples

identify

the

specific

compounds

involved.

information on these matters was provided.

No

additional well sampling data were submitted for

results

from

samples

taken

prior

following

the

June

28,

1994

round

samples

provided

the

application.

 No information was provided concerning

the ettect that operations at the site will have on the

further release and migration of the contaminants.

(R.

at 109.)

The Agency further provided that it would evaluate a revised

application,

 and additionally issued a warning that it would be a

violation of the Act to operate without a permit.

The Indicator of Contamination:

 Puraeable Organic Carbon

 (POC)

The only question of contamination raised in this record and

this

appeal

 is the Agency’s concern over what it believes to be

elevated

level

 purgeab.e

 organic carbon,

 or POC at the

site.

 At the outset,

 it is

important

note

that

there

standard

for

POC

set

the

Board.

(Tr.

138;

Yurdin

Dep.

24.)

POC

 not a specific constituent, but is instead

indicator

parameter

for

 possible presence of certain compounds,

specifically volatile organic compounds.

 Illinois has

regulatory requirement to monitor for POC at gravel pit mines in

the State of

Illinois.

(Yurdin

Dep.

27;

Tr.

138.)

 Though

the Agency has the authority to require groundwater monitoring

wells through the placement of a special condition in an

operating permit, the Agency has not required the placement of

monitoring wells at any mines in the State because it has not

viewed

such

 a measure as necessary.

 (Tr.

 at 138; Yurdin Dep.

at

28.) Additionally, for this gravel pit in particular, there is no

Gtate permitting requirement or special condition requiring that

GLE monitor groundwater for Poe or otherwise.

 GLE was not

requested to provide groundwater information in its prior permit

application regarding POC, other types of sampling, or on

groundwater

flow.

10

GLE

does

monitor

groundwater

quarterly

for

POC

but

does

pursuant

conditional

use

permit

 issued by McHenry County.

The

county

requires

quarterly

groundwater

sampling

for

all

gravel

pit

mines

the

county

establish

background

levels

for

five

parameters~

Chlorides,

Nitrate,

Ammonia

 Nitrogen,

 Specific

Conductivity, Partible

sic

 Organic Carbons

 (POC) and pH.

(R.

at

and

73.)

 The county’s groundwater

monitoring

manual

states

that

the

county

monitors

groundwater

for

POC

because

it

“can be present in the groundwater from a number of operational

sources, including fuel spills and motor oil leakage.”

 (R. at

85.)

Technically, POC is a fraction of total organic carbon

(TOC)

 that can be removed from an aqueous solution by gas

stripping under specified test conditions.

 Therefore POC

represents the carbon content of all organic compounds present in

a water or wastewater sample that volatilize within a specific

range of temperature.

 In other words, POC is a measure of the

carbon content of volatile organic compounds,

 or VOCS.

Therefore, the presence of POC in groundwater indicates the

 presence of VOCs.

 However, these VOCs may or may not be

constituents that are regulated under federal or State

environmental programs.

 (See

 e.g. Yurdin Tr.

at

133_134,b0

Tryon

Pr. at 163.)

VOCs may be present in the groundwater as

 a result either of

groundwater contamination or of naturally occurring processes.

Poe sampling may indicate the presence of VOCs in the groundwater

which are associated with light distillates such as gasoline and

diesel fuel.

 (Tr. at 135-36;

 see also

 Pr. at 40-52.)

 There are,

however, other compounds which can naturally occur and be present

in the purgeable organic carbon fraction.

 The POC result may

also include organic acids such as humic acid, formic acid,

fornate acetate, methane gas, trihalomethane.

 (Tr. at 166-167.)

A

VOC screen could conclusively

 establish

whether

the POC level

was actually the result of regulated VOCs.

Presence of Purgeable Organic Carbon at the GLE Site

The Agency testified at hearing that its

 concern for POC at

this site stemmed from the possibility that POC detected in the

groundwater could indicate the presence of VOC5.

 Yurdin

10When Bruce Yurdin first encountered the POC groundwater sampling

results in the GLE permit application from June 28, 1994 and April,

 1993,

he

testified that he did not know what POC was and he further testified that he

did not specifically research POC.

 (Tr. at 118, 122, 123,

 130-31, 137; Yurdin

Dep.

 Tr. at 92.)

 Instead, he relied on the McHenry Analytical Laboratory

report which stated that POC is a total sum of VOCs.

 (Tr.

 at 118; Yurdin Dep.

32—33.))

1.1

testified that it is possible that fuel spills from fuel leaking

through the soil and into the groundwater could account for the

presence of POC.

 (Pr. at 135-136.)

 However, Hartz testified

that GLE has never had a spill from fueling operations and such a

situation

appears

unlikely given the operations of the

site,

since GLE stores no fuel, conducts fueling of vehicles away from

the open pit on an area that is either concrete or clay with

greater than 100

 compaction, and has a contingency plan which

includes training sessions1 for dealing with spills should they

occur.

 (Hartz,

 Tr. at 40-56.)

On

the issue of whether the operations of a sand and gravel

mining operation could contribute to groundwater pollution,

Yurdin explained in his deposition that while it is possible, he

could cite no actual examples of this problem occurring in

Illinois.

 He explained that when the overburden of top soil is

stripped off, the groundwater is left in a generally vulnerable

 state and that the capacity of the remaining rock and material to

attenuate any kind of spill or other contaminant would be at

a

low level.

 (Yurdin Dep. at 25.)

 However, the two examples

offered by the Agency regarding groundwater contamination at

a

gravel pit had to do with extenuating circumstances being present

at the site.

 For one gravel pit, a neighboring landfill had

leachate problems which contributed to groundwater pollution on

the site and at a second gravel pit, naturally occurring metals

and other contaminants were present in the groundwater.

 (Yurdin

Dep.

at

 26.)

On behalf of GLE, Tryon testified that in his experience of

providing analysis for 15 or

 16 sand and gravel pits in McHenry

County and conducting between 200 and 400 POC analyses (Tr.

at

153), the presence of POC in the groundwater does not necessarily

correlate to a presence of regulated VOCs.

 He cited several

examples from an Illinois State Water Survey study,

 An Assessment

of Reqional Ground—Water Contamination in Illinois”

 where high

POC readings were detected which, once screened for VOC5, did not

show the presence of regulated VOCs.

 (Tr. at

172.)12

 Based on

his review of the ISWS study and conversations with its authors,

Mr. Thomas 1-Joim and Michael Barcelona, and additionally on the

Practical Handbook of Ground-Water Monitoring,

 Tryon

 testified

that the range for total organic carbon which naturally occurs in

aquifers is between 1 mg/i and 10 mg/i

 (Tr. at 173—74,

 194;

 Pet.

Exh.

#7)

 and the purgeable fraction of TOC,

 or POC,

 is between 5

11This document was admitted at hearing as petitioner’s Exhibit #6.

t2The two examples cited by Tryon from the study where POC level

readings of 1.1 mg/i in a municipal drinking water well in Woodstock, Illinois

and POC readings of 21.9 mg/i in a drinking water supply in Meredosia,

Illinois, where at each source, there were no VOCs detected.

 (Tr. at 172;

Pet. Exh. #6 at 15-16.)

12

and

percent.

(Tr.

175;

Pet.

Exh.

13.)

Therefore,

opined that the naturally occurring range for POC in Illinois

aquifers is between .05 mg/ and 5 mg/i

 (Tr.

 at 175-76) and that

the POC levels at the GLE site are typical of the levels seen at

similar gravel pits for which the McHenry Analytical Laboratory

provides the laboratory analysis.

 (Tr. at l75.)’~

Citizen Interest in the Operating Permit Application

While

 the record in this case shows substantial citizen

interest in the permit application submitted to the Agency GLE

during the permit review process, the Board notes that few

 members of the public attended our hearing and only one offered a

public comment on the record.’4

 Prior to the Agency’s receipt of

GLE’s permit application on November 28,

 1994, the Agency

received 25 letters all dated October 19,

 1994 from private

citizens asking that the Agency hold a public hearing on the

Glacier Lake permit application.

 (Pet. Not. to Supp. the Record,

Exh. A.) One of these letters was from a McHenry County Board

Member, and the Agency received an additional letter from a

second member of the NcHenry County Board dated October 24,

 1994.

Additionally, the agency received a letter on ~anuary 19, 1995

from an Illinois State Representative.

 Each of these letters

requested that a public hearing be held.

 (Id.)

In response to the citizens who had written the Agency

regarding a public hearing on the application, the Agency sent

out a letter on January 25,

 1995 which requested specific

information regarding groundwater quality.

 (Mot. to Supp.

Record,

 Exh. A.)

 In response, the Agency received two letters

from citizens, one of which was a group letter signed by 31

residents.

 Both letters expressed the citizens’ concern for

groundwater, and requested that GLE be required to identify the

131n support of his opinion that regulated VOCs are not present in a

quantity to be threat to groundwater, or to violate the Act, Tryon testified

that the results of a VOC screening analysis conducted in March of 1995 after

 the permit denial

letter was issued, demonstrate that even though the

Poc

levels

vary from 94 to 886 ug/L, there were no VOC levels detected at the

site.

VOC

screening analysis for each groundwater monitoring well was admitted

at hearing as Petitioner’s Exh. #9 over the objection of the Agency who had

concerns that the data was collected after the permit denial letter issued as

was therefore, not a part of the Agency’s record.

 (Tr.

 at 213-15.)

 Since this

information was not part of the record before the Agency, we will not consider

this data, as this is not a

cte

novo review ot the Agency’s

final,

 decision.

(IEPA v.

 IPCB (5th Dist.

 1983)

 118 Ill. App.3d 772; 74 Ill. Dec. 158, 164.)

141n both her comments at hearing and in her posthearing

comments,

Pettry expressed her opposition to issuing a permit to OLE and dissatisfaction

with OLE’s explanation of the source of the POC readings. She believes it is

not satisfactory to explain the source of the POC as originating off—site and

for GLE to also state that the gravel pit may have an attenuating effect.

(Pettry Comment, at 3-4.)

13

source of Poe at the site, and the citizens’ belief that a public

hearing is appropriate in this case.

 (Yurdin Dep. Exh.# 17 and

18.)’~

When GLE’s counsel, Bryant,

 learned of the correspondence

between the citizens and the Agency, she sent a letter to Robb

Layman, expressing GLE’s position that it did not favor a public

hearing being held in this case.

 (R. at 97-99.)

 She also

specifically requested a meeting with the Agency.

(R.

 at 101.)

The basis of her opposition to the public hearing was that the

Agency did not have the authority to extend the permit review

period in order to hold a public hearing.

 Additionally,

 in other

letters in the record, GLE expressed a desire early on in the

permit application process that the Agency conduct an expedited

review if possible, based on GLE’s desire to obtain a valid

operating permit and continue operating,

 and in order to resolve

the outstanding concerns regarding the transfer of ownership

issue.16

ARGUMENTS OP THE PARTIES

Glacier Lake Extraction

Indicating that this case is “not an ordinary permit appeal”

(Pet.

 Br. at 1), GLE has enumerated a litany of arguments as to

why the permit denial was improper.

 It argues that the Agency

did not rely on valid, technical grounds for its denial.

Instead,

 it posits that the Agency denial was motivated in part

by its desire to hold a public hearing during the 90-day

statutory review time, and that the denial letter is insufficient

and was obviously drafted at the last minute.

 More specifically,

GLE argues that the Agency’s February permit denial letter itself

 is both technically and legally insufficient.

Technically,

 OLE argues

 that the denial fails to provide any

specific technical reasons, but instead merely alludes to a

possibility of contamination at the site as a result of POC being

present in the groundwater.

 GLE argues that the POC levels were

not and are not a problem at the site,

 and further argues that

t5Additionally, the record also shows that the Agency held at least

three meetings with various citizens to discuss the GLE site prior to the

application being filed as well as one which took place after the

application’s submission.

 (Yurdin Dep.

 at 53—54,

 60; ~r. at 232.)

second GLE counsel,

 Donald Stinespring, sent a letter dated January

24,

 1995 to the Agency requesting expedited review of the permit on the basis

that GLE had been barred from obtaining a McHenry County operating permit

since the State had taken the position that the underlying State 1990

operating permit was invalid due to the transfer of ownership issue and that

such a position was putting an economic burden on several associated

businesses.

 (R. at 90-91.)

14

there is no evidence which supports the Agency’s conclusion that

there is or may be groundwater contamination as a result of

GLE’s operation.

 GLE cites the uncontroverted testimony of its

expert, Michael Tryon, for the proposition that all POC levels at

 this

site are within naturally

occurring ranges, and that the

Agency has no technical basis to conclude that the Poe level is

an appropriate basis for the conclusion that the groundwater is

threatened.

 Petitioner argues that the testimony of the Agency’s

own witness, Bruce Yurdin, indicates that the denial was based on

mere “assumption,” as he testified that he did not initially even

have knowledge of what POe was and he did “no research

whatsoever” to determine whether the specific level of POC

indicated a presence of pollutants.

 (Pet.

 Br. at 27, citing

Yurdin Test

•

Tr

•

 at 123.).

Moreover, GLE argues that there is no evidence that the

operation of the pit is having an adverse effect on the area

groundwater or that any contaminants are migrating in or around

the pit.

 GLE points out that the Agency requested no specific

information about the gravel pit operations or about how the

operations may have caused POC to be present in the groundwater.

While Yurctin testified at hearing that POC could be present in

groundwater due to fuel spills leaking through the soil and into

the groundwater, GLE contends that no fuel is stored on site, nor

is there evidence that fuel spills have occurred,

 or much less

had an impact on groundwater.

 (Pet.

 Br. at 28-29.)

 Additionally,

GLE asserts that the entire operation uses plain water which

simply forces the natural sand and gravel through a series of

screens, and no chemicals or explosives which might contribute to

any contamination are used at the gravel pit.

GLE also argues that the denial is based upon reasons which

should have been better articulated by the Agency during its

permit review process since the denial is based,

 in part,

 upon a

lack

of information

 that GLE claims it was not on notice that the

Agency required,

 information that GLE claims

 it could have and

would have provided had the Agency indicated it was necessary.

GLE cites

 Wells Manufacturing v. IEPA,

 195 Ill. App.3d 593,

553

N.E.2d 1074

 (1st Dist.

 1990),

 for the proposition that the Agency

was under a duty to let GLE know,

 in specific terms, what

information it needed to make a decision.

 GLE contends that it

responded to the information requests in the December 27th

letter, and that to deny its permit on the grounds stated in the

permit denial letter, without telling GLE what additional

information might be required, violated due process.

 GLE argues

that it made several offers by both telephone and letter to

provide any additional information the Agency might need,

and

that the Agency did not respond,

but instead waited until the

last minute to make the decision to deny the permit based on

“incomplete information.”

More specifically, GLE argues that the information

it

15

provided to the Agency in response to the December 27th request

concerning POC (“Please provide data on

...

 the possible

source(s) of the POC detected in the samples”) was sufficient.

Likewise, GLE argues that it is not reasonable to deny the permit

because it did not conduct VOC screening,

 since the Agency’s

December letter stated only that “If additional analyses were

conducted on these same samples to identify specific volatile

organic compounds, please provide the results.”

 Since GLE had

not conducted a

voC

screen, and since the Agency did not indicate

more specifically that one was necessary, GLE argues that it was

not under an obligation to provide such information.

Ultimately, GLE argues that since it had no way of knowing

that the Agency would issue a denial based on the POC results,

it

can not now be held responsible for failing to prove to the

Agency that the application would violate the Act.

 While GLE was

requested to provide possible sources of Poe, GLE asserts that it

could not have expected or known that the Agency considered Poe

to be a contaminant that was threatening the groundwater since

there is no regulation or standard concerning Poe, and there are

no procedures or criteria promulgated for the Agency’s review for

gravel pit mining permit issuance.

 (Pet.

Br.

 at 34.)

 Further,

since the Agency admitted that gravel pits are not normally even

required to test the groundwater, and GLE was not required to do

so under its prior permit, and GLE is the only gravel pit in the

State that has been asked to provide POC data, GLE argues that

the Agency seeks to hold it to an

 ad hoc

 standard, which it is

specially creating for GLE.

 (Pet. Br. at 33—34.) GLE believes

the Agency’s denial is especially egregious under

 Wells

Manufacturing

 in light of GLE’s repeated requests to the Agency

to supply any further information or to hold a meeting.

 (Pet.

sr. at 27,

 citing, Wells,

 195 111. App.3d at 597.)

In sum, GLE maintains that the information submitted to the

Agency during the

permit review

period is sufficient

to provide

the Agency with knowledge that no violation of the Act would

occur if this permit had been granted.

The

Illinois

Environmental

Protection

Agency

In support of its final determination to deny the permit to

GLE, the Agency argues that GLE has not met its burden of proving

that the permit,

 as applied for to the Agency, would not violate

the Act or the Board’s regulations.

 The Agency contends that the

data GLE did provide shows a high level of Poc in the

groundwater,

 that POC is indicative of possible contamination at

 the Glacier Lake facility, and that no factual information was

provided by OLE during the Agency’s statutory review period which

indicates that there was no contamination or that the

contamination was “unrelated” to the mining operations.

According to the Agency, the application and GLE’s responses to

the Agency’s December 27th letter were missing hydrogeologic data

regarding the flow of the groundwater and information regarding

the presence of POC and VOCs in the groundwater.

 (Agency Br. at

6-7; Tr.

 at 142-143.) The Agency argues that at the time of its

February 24, 1995 decision,

 it had insufficient information to

determine whether the

POC were originating

~

or

“on—

site”,

 or to determine the significance of the presence of

POC

at

the site.

 (Pet.

Br.

at

 11.)

The Agency argues that,

 at hearing,

 it provided an adequate

reason for having concerns regarding this site.

 Yurdin supported

his concern for POC by testifying it is possible that POC

contamination

of groundwater

 could occur from gasoline or diesel

fuel spills or leakage onto the ground, and consequently, seepage

could take place, passing through the soil and into the

groundwater.

 The Agency further argues that existence of POC in

 the groundwater is indicative of the presence of light

distillates,

 including gasoline and diesel fuel, and that GLE

never provided any data durinc~the statutory review period which

would corroborate GLE’s argument on appeal that there is no VOC

problem at the site.

 Regarding the VOC screen that GLE did

provide after the permit denial and prior to hearing, the Agency

argues that the data cannot be used as a basis to overturn the

permit denial since the Agency was not provided with the VOC

analysis during the permit review process.

 The Agency argues

that the Board cannot consider information that was not before

the Agency in making its permit denial decisions.

Ultimately, the Agency takes the position that the

petitioner was under an obligation to present everything

necessary for the Agency to make a determination that the

issuance of a permit would not violate the Act.

 The Agency

argues it was under no obligation to request any additional

information from the petitioner and the Agency believes that GLE

was always free to submit any information that it felt was

necessary

show

that

 violation would

occur if the

permit

were to issue.

 Regarding the issue of communication with

representatives of GLE, the Agency testified that it was not

unusual for the Agency to take the entire 90-day period to make a

decision and in this case the decision was not made until the

90th

 day.

RELEVANT LAW

The Illinois Environmental Protection Act establishes a

system or checks and balances integral to the Illinois system of

environmental

governance.

 Concerning the permitting function, it

is the Agency who has the principal administrative role under the

law.

 8pecifically, the Agency has the duty

to establish and

administer a permit process as required by the Act and

regulations,

 and the Agency has the authority to require permit

applicants to submit plans and specifications and reports

regarding actual or potential violations of the Act, regulations

17

or permits.

 (Landfill,

 Inc.

 v. IPCB

 (1978)

 74 Ill.

 2d 541;

25

Ill. Dec.

 602,

607

 citing,

415

ILCS 5/4.)

 Further, the Agency

has the authority to perform technical,

 licensing and enforcement

functions.

 It has the duty to collect and disseminate

information, acquire technical data,

 and conduct experiments.

It

has the authority to cause inspections of actual or potential

pollution sources and the duty to investigate violations

 of the

Act, regulations and permits.

 (Id.

 at 606)

Regarding permits, the Act provides that it “shall be the

 duty of the Agency to issue such a permit upon proof by the

applicant that the facility

...

will

 not cause a violation of

this Act or of regulations hereunder.”

 When the Agency makes a

decision to deny a permit, the Act provides that it must transmit

to the applicant a detailed statement as to the reasons for the

denial.

 The statement shall include, at a minimum, the sections

of the Act or regulations which may be violated if the permit

were granted;

 the specific type of information,

 if any, which

the Agency deems the applicant did not provide the Agency;

 and a

statement of specific reasons why the Act and the regulations

would be violated if the permit were granted.

 (415 ILCS 5/39

(a) (1)

—(4).)

 Finally, the Act charges that the Agency “shall

adopt such procedures as are necessary to carry out its duties

under this the

 permitting) section.”

 (415 ILCS 5/39

 (a).)

After the Agency’s final decision on the permit is made, the

permit applicant may appeal that decision to the Board.

 (415

ILCS 5/40 (a) (1).)

 The Board then holds a hearing between the

parties at which the public may appear and offer comment.

The

question before the Board in a permit appeal is whether the

applicant has met its burden of proving that issuance of the

permit would not violate the Act.

 It is well-settled that our

 review in most types of permit appeals including this one,

 is not

de novo but is limited to information submitted to the Agency

during

the

Agency’s

statutory

review

period,

and

not

on

information developed by the permit applicant,

 or the Agency,

after the Agency’s decision.

 (See

 Alton Packaging Corporation v.

IPCB,

 (5th Dist.

 1987)

 162 Ill. App.

3d.

 731; 516 N.E.2d 275,

280.)

 However,

 it is the hearing before the Board that provides

a mechanism to the petitioner to prove that the application would

not violate the Act.

 Further, the hearing affords the petitioner

with the opportunity “to challenge the reasons given by the

Agency for denying such permit by means of cross—examination and

the Board the opportunity to receive testimony which would ‘test

the validity or the information relied

 upon by the Agency’”

(Alton Packaging Corporation v. IPCB

 (5th Diet.

 1989)

 162 Ill.

App.

 3d 731;

 114 Ill. Dec.

 120,

 quoting, IEPA

V.

IPCB,

 115 Ill.

2d

at 70.)

Under the Act,

 both the Agency

and the Board operate

under

tight statutory time frames to make a decision.

 For the Agency,

the statutory time to issue a permit decision is 90 days.

 (415

18

ILCS 5/39

 (a).)

 For the Board, the statutory-required time

period is 120 days.

 During this time,

 we must hold a hearing,

review the evidence and arguments, and make a final decision

concerning

the

Agency’s

 permit decision.

 (415 ILCS 5/40

 (a) (2).)

ANALYSIS

well-established

that

the

 issues before the Board in a

permit review are framed by the Agency’s denial letter.

 (See

Centralia

 Environmental Services,

 Inc.

 v. IEPA

 (May 10,

 1990) PCB

89-170,

 slip op. at 6.)

 We must therefore determine whether the

stated reasons

in

the

Agency’s

February

24,

1995

final decision

deny

GLE

operating

permit

are

proper.

Those

reasons

are

the Agency’s concern that the issuance of the operating permit

might result in a violation of the Act and that it had

insufficient information to determine whether the application as

submitted would violate the Act or Board regulations.

 In order

to reach a decision on the propriety of the denial letter, we

 must consider whether the petitioner has satisfied its burden of

proving that no violation of the Act or the regulations would

occur if the permit were to issue.

 For the following reasons we

believe

 that

GLE

has in this case.

As an initial matter, we note that the denial letter itself

vaguely states that Section 12, the prohibitory language in the

Act making it unlawful to contaminate the water of the State of

Illinois, may be violated if the permit were to issue.

 (415 ILCS

5/12.)

 While Section

 12 sets forward specific subsections

regarding how the waters are being contaminated,

 (See Section

12(a)—(h)), the letter itself fails to provide any explanation of

what paragraphs

 of Section 12 might be violated by GLE’s

operation.

 While the Agency voiced concerns that there may have

been a fuel spill, such concerns were not raised until the

hearing and were specifically denied by GLE.

We nevertheless conclude that its decision to deny the

permit because of the POC readings, was not proper.

 POC is

merely a measurement which quantifies the carbon content of VOCs

present in a sample.

 It does not necessarily indicate an

exceedence of a groundwater quality standard for a regulated VOC.

(See 35 Ill.

 Adin. Code Part 620.)

 Even after a POC test is

performed,

the

 POC result itself is subject to interpretation as

to what the reading represents and, furthermore,

 there is no

regulatory standard against which to judge whether the POC

reading is high, low or normal.

 The Agency’s position during

this appeal, and the position which appears to have led to its

conclusion that the operation may be causing a violation of the

Act,

 ic that the POC levelo may be elevated at the cite.

We are persuaded by the testimony of GLE’s expert that the

POC readings at this site are within naturally occurring ranges.

GLE’s expert has reviewed between 200 and 400 POC tests in his

review

the

groundwater

sampling

analysis

for

 15 or 16 gravel

pits in McHenry County, and he believes that it is just as likely

that

the

POC

readings

this

site

reflect

the

existence

naturally-occurring

 constituents such as humic acid (which are

not regulated VOC5 under Part 620),

 as it is to reflect the

presence of VOCs (which are regulated and have groundwater

quality standards, which if exceeded would cause a violation of

the regulations and the Act).

Further, there is no evidence in this record that the

operations of this site in any way caused or contributed to any

alleged

contamination.

 This site

does not use any chemicals or

 explosives in

its

mining

operations

which

would

potentially

cause

groundwater contamination with VOC5.

 This is a simple operation

whereby

GLE

scrapes

f earthen material, merely washes sand and

gravel with plain water,

 and sorts the material according to the

size of the gravel.

 While the Agency conjectures that there may

have been a fuel spill, the petitioner specifically denies that

any spill occurred during its operation.

 Moreover, we note that

while there is evidence of other actions pending against GLE for

continued operation of the site regarding the permit/ownership

issue, none of these actions

 appear to be initiated

by the State

or McHenry County for violation of groundwater standards.17

Since the Agency denial was based upon the assertion that it

lacked the necessary information it needed to evaluate whether or

not the permit would violate the Act, and since it would have us

uphold its denial for GLE’s alleged failure to provide the

information it says it wanted, we make the following comments.

The Agency has every right, and an obligation to the people of

the State of Illinois, to request of a permittee all information

necessary to show that its operation will not violate the Act.

This

 is particularly so when the Agency has sufficient reason to

suspect that there might be a problem.

 Indeed,

 in some cases,

particularly when the applicant seeks

a renewal permit,

the

courts have also held that the Agency has an obligation to inform

the permittee of its concerns and give notice as to what

information

needs

yet

presented

 to resolve those concerns.

(See

e.g.

 Wells Manufacturing v. IPCB,

 195 Ill. App.

 3d 593

 (1st

Dist.

 1990);

 Celotex Corp.

 v. IPCB

(1983)

Ill.

107,

Ill.

Dec.

108,

445

N.E.2d

752

 and Reichhold Chemicals v. IPCB

 (5th

Dist.

1990)

207

Ill.

App.3d

974,

566

N.E.2d

724.)

obviously,

the

Agency attempted to comply with those cases when it sent GLE the

December letter requesting more information.

When

 such information is requested,

 then, the permittee has

17We also note that if the Agency discovers new evidence which leads it

to conclude that the GLE operation

 is causing groundwater contamination in

violation of the Act, the Agency is always free to institute an enforcement

action pursuant to Section 12 of the Act.

20

the additional burden of going forward to produce the evidence

requested

order

 to meet its burden that the permit would not

violate the Act.

 We disagree with the Agency, however, on the

point that GLE did not provide the information requested.

Rather, we believe that the

information

provided

 GLE was

sufficient

given

 the nature of the questions raised and the

information solicited by the Agency.

 The Agency’s denial letter

mischaracterizes its December request for more

information.

The

denial says that letter “requested

 additional analysis on

these samples to identify the specific compounds involved.”

It

did not.

 It requested such data only “if available,” and

arguably only concerning the June

28,

1994

 sampling.

When the Agency undertakes, as is quite appropriate and

sometimes required, to provide a permit applicant with written

requests for more information, the Agency must carefully consider

what it

is that

it is requesting.

 The Agency cannot deny a

permit application on the basis that it lacks information which

its earlier request

leads

 one to reasonably conclude only needed

to be provided “if” it was available.

If

the Agency had a

serious enough concern to deny this permit as a result of the

POe

levels, and only a VOC screen would conclusively establish

whether the POC number is indicative of contamination,

 it should

not have suggested that VOC data be provided only “if available.”

It should have required such data.

Moreover, the evidence is uncontroverted that the Agency had

ample

opportunity,

pursuant

numerous

phone

calls

and

 requests

for meetings made by GLE’s representatives, to more directly

request the VOC sampling and have the record set straight.

In

factual situations such as these, where miscommunication confuses

the

decision-making

process,

promulgation

permit

procedures

or

criteria

could

aid

the

permit

review

process.

DECISION

Under the facts of this case, where a mining operation has

been active at this site for the past fifty years and has been

permitted for at least the last five years, the mere detection of

POC in the groundwater, which may or may not be an indication of

contamination, does not constitute a sufficient basis for

complete denial of the mining permit.

 This is particularly so

under

circumstances

where

the

Agency

has

not

general

practice required the submittal of data concerning POC at mining

sites, and where the Agency’s request for additional data did not

specifically

request

 analysis of the particular regulated VOCs

present,

 if any.

This opinion constitutes the Board’s findings of fact and

conclusions

law

this

matter.

ORDER

The Board hereby reverses the Agency’s determination dated

February

24,

1995,

denying

Jack

Pease

 d/b/a Glacier Lake

Extraction’s application for a mine—related operating permit.

This

matter

remanded

the

Agency

for

issuance

operating

permit

with

standard

and

special

conditions

consistent

with

this

opinion

and

order

and

GLE’s

prior

operating

permit.

ORDERED.

Board

Member

Dunham

concurred.

Section

 the Environmental Protection Act

 (415 ILCS

5/41)

provides

for

the

appeal

final

Board

orders

within

days

the

date

service

this

order.

 (See also

Ill.

Adm. Code 101.246, Motion for Reconsideration.)

I,

 Dorothy M.

 Gunn, Clerk of the Illinois Pollution Control

Board,

hereby

certif~

that

the

above

opin

order

was

adopted

the

c’Ctt~

 day of ___________________,

 1995,

byavoteof

_________.

Dorothy M. Gunn

 Clerk

Illinois Poll

 on Control Board