ILLINOIS POLLUTION CONTROL BOARD
May 18,
1995
JACK PEASE,
d/b/a
)
GLACIER
LAKE
EXTRACTION
)
)
Petitioner,
)
v.
)
PCB 95—118
(Permit Appeal-Mining)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
This matter is before the Board on a timely-filed petition
for review filed by the petitioner, Jack Pease d/b/a Glacier Lake
Extraction (Glacier Lake), on March 31,
1995.
The petition for
review seeks reversal of the Illinois Environmental Protection
Agency
(Agency)
final determination of February 24,
1995 denying
Glacier Lake an operating permit to carry out surface mining
activities pursuant to 35 Ill.
Adiu. Code 404.
The Board has
received three motions in this case, which is currently scheduled
for hearing on May 31,
1995:
(1) Motion to Supplement the Record
filed by Glacier Lake;
(2) Motion to Strike filed by the Agency;
and
(3) Motion to Dismiss filed by the Agency.
Motion to Supplement the Record
The first motion is a motion to supplement the record filed
by Glacier Lake on April 25,
1995 wherein Glacier Lake argues
that certain information should be made part of the record.’ The
Agency filed a response on May 2,
1995 objecting to any
additional information being added to the record which, the
Agency argues, should only consist of the permit application, the
correspondence between the applicant and the Agency and the
denial letter, all of which the Agency has provided the Board.
(Response at 2,
citing,
35 Ill.
Adin.
Code 105
•
102 (a) (4).)
With the exception of one category of information, which we
will leave to the hearing officer to address on or before the
scheduled hearing in this case as explained below, we grant the
1The
motion asks the Board to supplement the record with:
(1)correspondence
from 33 elected officials and citizens to the Agency (Group
Exhibit A);
(2) 31 letters from the Agency to the elected and citizens
(Group
Exhibit B);
(3) information requostd by Glacier pursuant to the Freedom of
Information Act which was denied by the Agency on “investigatory records”
grounds
(sea
Exhibits
D and E);
(4)
September 28,
1994 “Complaint Receipt &
Report Form”
(see
Exhibit F); and
(5) October 28,
1994 Analytical results of
samples taken at Glacier Lake Gravel Pit on September 28,1 994 compiled by the
Agency
(see
Exhibit C).
2
petitioner’s motion to supplement the record.
While
the Board’s
procedural rule at Section 105.102(a) (4) sets forth the minimum
information that the Agency must provide as the “record” in a
permit appeal, there is nothing in the rule limiting the record
solely to the permit application, the correspondence between the
applicant and the Agency, and the denial letter.
The rule states
that the “entire record” shall be filed with the Board and from
our review of the documents, each pre—dates the Agency’s final
denial letter of February 24,
1995, and the documents therefore,
were in the Agency’s files, and available to the Agency when
making its permit decision.
To the extent the Agency did not
rely on any such documents when it made its determination,
it can
make those arguments at hearing.
However, regarding certain documents that Glacier Lake
requested from the Agency pursuant to Illinois’ Freedom of
Information Act which were not provided to Glacier Lake on the
basis they were developed as part of an “investigation,” and
which Glacier Lake now seeks to have the Agency produce for the
record in this appeal
(see
Exhibits D and E), we will not direct
the Agency to supplement the record with this information at this
time.
Rather, we direct the hearing officer, who is in a better
position to hear all relevant arguments of the parties at this
juncture, resolve this portion of Glacier Lake’s motion to
supplement the record in the course of the hearing.
Motions to
Strike and
Dismiss
On April 20,
1995, the Agency filed a motion to strike and
on May 1,
1995 filed a similar motion to dismiss all references
in the petition and its exhibits relating to one of Glacier
Lake’s appeal points regarding the Agency having an “improper’
and “unstated” reason for the permit denial.2
In both motions,
the Agency argues that Glacier Lake is restricted to only those
issues as presented in the permit denial letter.
We hereby deny the Agency’s motions to strike and dismiss.
In responses filed April 25,
1995 and May 3,
1995, petitioner
argues that it should be allowed to prove at hearing that Glacier
Lake is entitled to the operating permit and that the Agency’s
permit denial reasons were “untrue” and “spurious”.
It appears
that a portion of Glacier Lake’s case—in-chief consists of
demonstrating that the Agency may have denied the permit for a
reason not otherwise stated in the denial letter.
Glacier Lake
2Glacier Lake claims that in addition to arguing that the permit denial
was unsupported by the record,
it is Glacier Lakers intent to prove that the
Agency was under public pressure to hold a hearing at the Agency level, to
which Glacier Lake was opposed.
According to Glacier Lake,
by denying the
permit,
the Agency would require Glacier Lake to resubmit the application to
the Agency,
thus allowing time for a public hearing in this matter.
3
is entitled to make such an argument at hearing.
While the
caselaw limits the Agency, at hearing, to the denial reasons set
forth by its final denial letter, to hold the permit applicant to
this same standard would potentially foreclose legitimate
arguments regarding the propriety of those stated denial
reasons.3
We remind the petitioner that it remains Glacier
Lake’s burden of proof to demonstrate that the reasons for denial
detailed by the Agency in its denial letter are inadequate to
support a finding that permit issuance will cause a violation of
the Act or regulations.
(Technical Services Co., Inc.
v.
IEPA,
(November 5,
1981), PCB 81—105 at 2.)
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
/7~day of
~‘h
‘9-r
,
1995, by a vote of
L
—c)
3Relying on Centralia Environmental Services,
Inc.
v.
IEPA (May
10,
1990),
~ca
89—170 and City of Metropolis v.
IEPA,
(February 22,
1990), PCB 90—
8), the Agency argues that Glacier Lake
is foreclosed from making any
arguments which are allegedly outside the scope of the permit denial.
In each
of these case, however,
it was the Agency who had tried to present grounds for
permit
denial in the hearing other than those
Bet
forth
in the permit denial
letter.
M~.
Control Board