ILLINOIS POLLUTION CONTROL BOARD
Nay 7,
1992
IN THE MATTER OF:
)
)
AMENDMENTS TO 35 ILL.
ADM.
)
R90-8
CODE 105.102; REPEAL OF
)
(Rulemaking)
DE NOVO HEARINGS FOR APPEALS
)
OF NPDES PERMITS
)
DISSENTING OPINION (by B. Forcade):
I respectfully dissent from the dismissal of this docket.
had previously articulated an approach to resolving the permit
appeal procedural dilemma we face.
That approach was not adopted
by the majority.
Since the ideas and concepts I developed in
that conceptual proposal still seem valid to me,
I express those
concepts today in my dissenting opinion, as they were drafted for
consideration earlier by the Illinois Pollution Control Board
(“Board”).
On February
8,
1990, the Board proposed to amend 35 Ill.
Adiu. Code 105.102.
The proposed amendment focused on 35 Ill.
Adin. Code 105.102(b) (8) which requires the Board to hold de novo
hearings on disputed issues of fact in NPDES permit appeals.
The
proposed changes to Section 105.102 were published in the
Illinois Register, Volume
14,
Issue
8 on February 23,
1990.
Public comments on this proposal were received from several
concerned industries and organizations.
A hearing on the
proposed amendments was held on May 16,
1990.
Recent appellate
court opinions have addressed the issues concerning the review of
permits.
As a result of the comments, hearing and recent court
opinions concerning permit appeals,
it was apparent that the
proposal did not fully address the problems associated with
permit appeals.
To address the concerns of the public and secure
the Board’s objective in the permit appeal process,
I felt
additional amendments to the Board’s permit appeal regulations
were required.
On March 29,
1991, First Notice expired on the
proposed amendments.
I would have revised the previous proposal
and proceeded to Second First Notice, expanding the scope of the
proposed amendments.
I believe that the time may be ripe to revisit the
procedures governing all permit appeals covered by 35 Ill.
Adm.
Code 105.102.
I would have changed the caption from “Amendments
to 35 Ill. Adm. Code 105.102; Repeal of De Novo Hearing for
Appeals of NPDES Permits” to “Amendments to 35
Ill.
Adm. Code
105.102; Amendments to Permit Appeals”.
My intention was to
suggest one small change in the permit review process.
That
change
is that any new information developed because the permit
applicant was surprised by the final permit, or because the
permit issuance process was fatally flawed procedurally, must be
submitted to the Agency in a remand proceeding.
I would not
I 33—327
2
intend to address or in any manner expand or contract the permit
applicant’s rights to submit information into the permit
determination process (the change is to whom the information is
submitted,
not to what information can be submitted).
In a
similar manner,
I would not intend in any manner to alter the
petitioner’s right to an adjudicatory hearing on permit issues.
I would intend to modify the question of who gets to review the
information first, the Agency informally, or this Board in an
adjudicatory context.
My intention would have been to express a
strong preference for the former option of having the information
submitted to the Agency through the informal process of
permitting.
My intention was not to alter the Board’s longstanding
practice of allowing review petitioners to supplement the record
filed with the Board by the Agency when the petitioner can
demonstrate that the information existed prior to the Agency
decision and that the information was or should have been in the
possession of the Agency.
Such information is also admitted when
the parties both agree.
In those cases, we allow the additional
information to be submitted to the Board, without remand.
With
regard to the issue of supplementation,
it is well recognized
that,
if there was information in the Agency’s possession upon
which it actually or reasonably should have relied, the applicant
may submit such information to the Board for the Board’s
consideration.
Waste Management,
Inc.
v. IEPA, PCB 84-45,
61,
68,
60 PCB 173,
201
(October 1,
1984)
and 61 PCB 301,
310, 312,
313
(November 26,
1984) (monitoring data in the Agency’s
possession which contradicted earlier monitoring data which did
not come to the attention of Agency decision makers should be
included in the record), aff’d sub
~.
IEPA v.IPCB and Waste
Management,
138 Ill. App.
3d 550,
486 N.E.2d 293
(3d Dist.
1985),
aff’d 115 Ill.2d 65,
503 N.E.2d 343
(1986); Wells Manufacturing
Company v.
IEPA, PCB 86—48,
71 PCB 34,
35—36
(July 11,
1986),
76
PCB 301,
303,
310
(March 19,1987) (Hearing Officer correctly
allowed the testimony of Agency witnesses who were called to
amplify upon joint exhibits
testimony
of citizens whose forms,
letters, and petitions that were on file with and available to
the Agency, prior to the Agency’s action in the matter
contained
in the Agency record),
76 PCB 324
(March 19,
1987),
rev’d and
rein’d on other grounds 195 Ill. App.
3d 593,
552 N.E.2d 1074
(5th
Dist.
1990); Joliet Sand and Gravel Company v.
IEPA, PCB 86-159,
75 PCB 228,
232—233
(February 5,
1987) (in appeal of Agency denial
of application for renewal of operating permit, documents
contained in Agency’s file relating to original operating and
construction permits were admitted into evidence because
application for renewal referenced expiring operating permit
which,
in turn, referenced construction permit), aff’d Joliet
Sand and Gravel Company v.
IPCB and IEPA,
163 Ill.App.3d 830, 516
N.E.2d 955,
958
(3d Dist.
1987);
Frinks Industrial Waste.
Inc.
v.
IEPA,
PCB 83—10,
52 PCB 447,
449
(June 30,
1983) (supplements to
the record had been necessary when the Agency located additional
I
33—328
3
relevant documents);
Sherex Chemical Co.
Inc.
v.
IEPA,
PCB 80-66,
39 PCB 527,
530
(October
2,
1980) (Board overturned Agency’s
denials of both an operating and a stack construction permit
based on modeling data in the record,
which because of the
Agency’s denial letter, theoretically included only the Dames
&
Moore results, but which
in point of fact included all prior
permit application considerations), aff’d sub
~
IEPA v.
Sherex
Chemical Co.
and IPCB,
100 I1l.App.3d 735
(1981).
STATUTORY PROVISIONS
The Illinois Environmental Protection Act (“Act”),
Ill.
Rev.
Stat.
1991,
ch.
111 1/2 par.
1001 et.
seq. under Title X,
provides the statutory authority for the Illinois Environmental
Protection Agency (“Agency”)
to issue permits
(S39)
and the Board
to review the Agency’s decisions concerning permits
(S40).
Section 40 of the Act provides the applicant, who has been denied
a permit or issued a permit with conditions, the right to
petition the Board for a hearing to contest the Agency’s
decision.
The Act does not specify the scope or content of the
Board’s review,
except for a select group of special permits
involving third party appeals from RCRA permit decisions
(S40(b)),
appeals
(including third party appeals)
from non-RCRA
hazardous waste disposal permit decisions
(S40(c)), and appeals
from specified federal Clean Air Act-related Agency permit
decisions
(S40(dfl.
For this group of permits, the Act mandates
that the Board base its review of Agency permitting decisions
solely upon such facts as are in the Agency’s permit decision
record.
However, the Act does not mandate any scope of review
for other permits not specified in Sections 40(b),
40(c)
and
40(d).
Further, the Act does not address the situation in which
an Agency permit decision is based upon information which is
unknown to the applicant or to which the applicant has been
denied the opportunity to respond prior to the Agency’s
permitting decision.
JUDICIAL INTERPRETATION OF THE STATUTE
A number of recent court cases have addressed the issue of
the scope and content of Board review of Agency permitting
decisions.
The following listing does not represent a
pronouncement on the holdings of the cases, but is simply a
listing of issues to enumerate the difficulty the Board faces in
attempting to accommodate the various principles implied by the
many court cases:
1.
The applicant has an in~Eerestin the issuance or denial
of a permit and should be allowed an opportunity to
protect that interest.
133—329
4
2.
Board review is not equivalent to submitting evidence
to the Agency during the application process and
hearings before the Board do not cure deficiencies that
occurred at the Agency level.
3.
The Agency has no authority to modify or reconsider its
decisions.
4.
Hearings before the Board are limited to the record
before the Agency,
and should not consider information
developed after the Agency decision.
A protected property interest was found to be at stake by
the Federal District court in Martell v. Nauzy,
511 F.Supp 729
(N.D.
Ill E.D.
1981) where an operating permit for a landfill was
denied after the developmental permit was issued.
The court in
Martell held that the failure to hold a “pre-denial hearing”
deprived the applicant of due process of law.
The Appellate
Court of Illinois,
in Wells Manufacturing Co.
v.
IEPA,
195 Ill.
App.
3d 593,
552 N.E.2d 1074 (1st Dist.
1990)
agreed there was an
interest involved in issuing permits that gives rise to due
process concerns.
However,
in Wells, while the court found that
the denial of an application to renew an operating permit was
analogous to the Martell situation,
the court refused to require
pre—denial hearings for permits.
The second principle listed above was developed in Wells,
where the Agency denied Wells’ application to renew its air
operating permit and offered to “reevaluate” the denial if Wells
so requested,
and if additional information was submitted to the
Agency.
Wells elected to file an appeal with the Board so that,
pursuant to the Act, it could continue operations during the
appeal.
Ill. Rev.
Stat.
1985,
ch.
127, par.
1016(b)
‘.
After
conducting hearings, the Board affirmed the Agency’s denial of
the permit.
On appeal the First District reversed, determining
that Wells was denied a fair chance to protect its interest due
to the manner in which the Agency collected information.
The
court held that Wells should have had an opportunity before the
Agency to protect its interest and Board review was not
considered equivalent to submitting evidence during the
application process.
If a complete air pollution permit renewal application is
received at least 90 days prior to expiration of the old permit,
the old permit’s terms and conditions will remain in effect until
final administrative action on the application.
(~9.1of the
Act as amended by PA-87—0555,
September 17,
1991)
133—33(3
5
The second principle was also discussed
in Sauget v.
PCB,
207
Ill. App.
3d 974,
566 N.E.2d 724
(5th Dist.
1990),
and
Reichold Chemicals v.
PCB,
204 Ill. App.
3d 1345,
561 N.E.2d 1343
(3d Dist 1990).
A description of the proceedings before the
Agency and the Board in support of this principle can be found
in
IEPA v.
Waste Management,
Inc.,
138 Ill. App. 3d 550,
486 N.E.2d
293
(3rd Dist.
1985) and the Supreme Court’s affirming opinion,
IEPA v.
Waste Management,
Inc.,
115 Ill. 2d 65 503 N.E.2d 343
(1986)
In Sauget, the court held that the village and company
(Monsanto) were denied the right to submit comments or request a
hearing before the Agency concerning the proposed conditions
suggested by the U.S. EPA and thus were denied the right to
participate in the NPDES permit process.
The court found that
the procedural safeguards to which the applicant was due at the
agency level were not afforded and that subsequent hearings
before the Board did not cure the deficiency.
In Reichold, the
court followed the Wells decision and questioned the fundamental
fairness of the Agency’s proceedings which did not give the
applicant an opportunity to submit more information.
In a permit case, the process involving the Agency and the
Board is an administrative continuum.
Waste Management,
138 Ill.
App.
3d 550,
486 N.E.2d 293.
The hearing before the Board
includes consideration of the record before the Agency together
with the receipt of testimony and other proofs under the full
panoply of safeguards normally associated with a due process
hearing.
The Illinois Supreme Court,
in Waste Management,
115
Ill. 2d 65,
503 N.E.2d 343 affirmed the Board decision reversing
Agency denial of the permit and held that the Agency is not
required to conduct hearings, therefore procedures to test the.
validity of the information,
such as cross-examination,
are not
available to the applicant.
The procedures before the Agency
have none of the characteristics of an adversary proceeding.
The
safeguards of
a due process hearing are absent until the hearing
before the Board.
Due to the nature of the previous proceedings,
the Board is not required to apply the manifest-weight test to
its review of the Agency’s decision denying the permit.
The courts articulated the third principle for the first
time in Reichold Chemicals
V.
PCB,
204 Ill. App.
3d 674,
561
N.E.2d 1343
(3d Dist.
1990),
where the Agency offered to
reevaluate the application after denying the operating permit.
In Reichold, the court stated, “no such authority to modify or
reconsider its decisions has been granted by statute to the
Agency,
and no such procedures haye been provided by rule.”
When
the Agency denies an application, the applicant’s only options
are to start over with a new application to the Agency or to
petition the Board for review.
If the Agency lacks the authority
to reconsider,
then the only method to reevaluate new evidence or
correct obvious procedural defects seems to be
a Board remand.
I
33-331
6
The fourth principle, which limits the scope of Board
review,
is well established.
It was recently articulated in
Joliet Sand
& Gravel Co.
V.
PCB,
163
Ill. App. 3d 830,
833,
516
N.E.2d 955, 958
(3d Dist.
1987) where the court held the standard
of review in a permit appeal is as follows:
“Tjhe
sole question before the Board
is whether the
applicant proves that the application,
as submitted to
the Agency, demonstrated that no violation of the
Environmental Protection Act would have occurred
if the
requested permit had been issued.”
(Emphasis added)
This standard of review was repeated in Browning—Ferris
Industries of Illinois,
Inc. v.
IEPA,
179 Ill. App.
3d 598,
534
N.E.2d 616
(2d Dist.
1989).
This language properly focuses
attention to the fact that it is information that is submitted to
the Agency which should be under review by the Board in a permit
appeal, not information developed after the Agency decision.
JUDICIAL INTERPRETATION OF BOARD REGULATIONS
For NPDES permit appeals,
35 Ill. Adm. Code 105.102(b) (8)
provides for de novo hearings on disputed issues of fact.
The
Second District,
in Dean Foods Company v. PCB,
143
Ill. App.
3d
322,
492 N.E.2d 1344
(2nd Dist.
1986), held “de novo” required
the Board to entertain facts not before the Agency in its permit
review.
The Board reevaluated Section 105.102(b) (8) regulation
and determined that “de novo” meant a “new and fresh” look at the
facts before the Agency and a decision that did not grant
deference to the prior Agency decision.
In City of East Moline
v.
PCB,
188 Ill. App.
3d 349, 544 N.E.2d 82
(3d Dist.
1989), the
court disagreed with the Board’s new interpretation of de novo,
holding that a de novo hearing required the Board to receive and
consider evidence beyond the scope of the Agency record providing
it was relevant to the denial of the permit.
In Citizen
Utilities Co v. PCB,
193 Ill. App.
3d 93,
549 N.E.2d 920
(3d
Dist.
1990) the court followed the holding in City of East Moline
stating, “the Act contemplates that the Board will take more than
a “live” review of the record before the Agency.”
Allowing the introduction of information that was not before
the Agency, would interfere~withthe Agency role as the permit
issuing entity in Illinois,
a role exercised pursuant to Section
39(a)
of the Act, and Village of Hillside v. John Sexton Sand &
Gravel Company,
105 Ill.
App.
3d 533,
434 N.E.2d 382
(1st Dist.
1982).
However, the Board’s interpretation of what a permit
appeal should be is at odds with our existing regulatory language
regarding NPDES permit appeals, according to Dean Foods,
143 Ill.
App. 3d
322, 492 N.E.2d 1344, City of East Moline,
188 Ill.
App.
3d 349,
544 N.E.2d 82,
and Citizens Utilities 193 Ill. App.
3d
93,
549 N.E.2d 290, which allow additional evidence to be
submitted for consideration by the Board.
I
33—J32
7
PUBLIC COMMENTS AND HEARINGS
Public comments were received from Illinois Coal Association
(PC 2),
Illinois Steel Group
(PC
5
& PC 10), Agency
(PC 5,
PC 7
&
PC 9), Pekin Energy Co.
(PC 6
& PC 8), Stepan Co.
(PC 11)
and
Illinois Environmental Regulatory Group
(IERG)
(PC 12).
At
hearing testimony was received from Sid Marder of IERG, Steve
Ewart of the Agency, Daniel ICucera for Citizen Utilities Co.,
of
Illinois, Northern Illinois Water Corp.,
Consumers Illinois Water
Co. and Illinois American Water Co., Percy Angelo for Pekin
Energy Corp and Stepan Corp.
and James Harrington on behalf of
the Illinois Steel Group.
The comments discuss many issues raised by the proposal to
repeal the requirement of de novo hearings for NPDES permit
appeals.
Some of the comments stated there was not a problem
with de novo hearings or if there was a problem it was so minimal
that a change in the procedure was not warranted.
(PC 10,
Tr. at
p.
59).
Some of the other issues raised in the testimony and
comments were:
Whether a de novo hearing is required by the Act
or other legislation?
(PC 4,
5,
6,
Tr. at p.
61).
Does due
process require the Board to conduct de novo hearings?
(PC 5,
Tr. at p.
70).
Whether allowing de novo hearings leads to forum
shopping?
(PC 5).
The testimony and comments also expressed the
concern of the regulated community of getting information in to
the permit review when a permit condition or denial occurs too
late in the Agency process for the applicant to comment.
(PC 6).
Some of the comments discussed a procedure for remand or
reconsideration of the permit by the Agency.
(Tr.
at p.
29).
At hearing the potential problem of a permit applicant
withholding information until the de novo review was discussed,
as well as the potential for forum shopping.
Ms. Angelo
testified that there is a distinct preference for presenting
information directly to the Agency:
.“There is no one in their right mind in the
regulated community who would rather deal with these
issues in an evidentiary process before the Pollution
Control Board where you cannot talk to the people
making the decision, rather than through the Agency
where you can go down,
you can bring your materials,
you can have
a meeting, you are not subject to
evidentiary standards.
You just make your pitch to the people who have to make
the decision.
That is by fa~the better solution to
the problem.
The idea that people would rather bring
these cases to the Board is just unrealistic.
We would all rather try and convince the Agency first,
and that’s why you see the process whereby people file
1 33—333
8
their permit appeals
a.nd than they try to negotiate
with the Agency.
The fact of the matter is
it
is very
hard to get the Agency’s attention until you file your
permit appeal,
and then they will answer your phone
calls.”
(Tr. at p.
88—89)
******
“It is much safer, much more conservative, much
less risky for the client to go down and have a
technical discussion with the Agency about the issues
that are of concern to both parties.
There may be Agency lawyers and your lawyers there.
But that is a more preferable way to discuss these
issues and handle these problems.
You can’t discuss
technical issues in a give and take direct and cross
examination.
Even lawyers who do it would never choose
that as the ordinary way to try to make your point to
someone.
“You would always rather discuss it with the
Agency and have them reach the same conclusion that you
do on the basis of the information you present to them
in a meeting or written submission, or something like
that.”
(Tr. at p. 102—103)
PROPOSAL
My intention would have been to create a standard remand
procedure to allow the applicant the opportunity to supplement
the record of the Agency in a proceeding before the Agency, where
previous action on the part of the Agency precluded the
information from being submitted or where the permit process was
fatally flawed procedurally.
My ideas would also establish that,
except for remand situations,
the Board’s review shall be based
solely upon the record available to the Agency at the time the
permit determination was made.
It would further make the scope
of NPDES permit appeals the same as that for all other Agency
permit determinations.
Burden of proof language was also added
to the permit appeal regulation.
•
This language is directly from
Section 40(a) (1)
of the Act.
Similarly,
statutory language
regarding the burden of going forward was added to the NPDES
regulatory language.
I
33—334
9
My hypothetical amendments provide the applicant with the
option to request,
at the time of filing a petition for review,
that the proceeding be remanded to the Agency for review or
further action.
The remand procedure provides the applicant with
a means to supplement the record when the applicant has been
denied the opportunity to protect its interest.
The remand
procedure also allows the Agency to review its decision
considering the newly submitted information and does not put the
Agency in the position of defending a denial of
a permit without
the opportunity to analyze the additional information.
Supplementing the record gives the applicant the opportunity to
protect its interest and will cure deficiencies from the previous
proceedings.
Remanding the proceeding prevents the applicant
from having to restart the permit application procedure or be
subject to a review by the Board, where the Board does not
consider information that was not before the Agency when the
permit was denied.
This procedure will also provide the Board
with a complete record on which to base
its review and the Board
will not be reviewing information which the Agency did not have
the opportunity to consider in reaching the permitting decision.
My hypothetical changes to the regulation would not
eliminate the applicants right to a hearing.
They would merely
allow a permit application to be remanded to the Agency for
reconsideration prior to any hearings being held,
based on
motions and affidavits of the parties.
In a case whose factual
situation requires the Board to remand to the Agency, conducting
hearings prior to remanding is unnecessary and additionally
burdens the financial and time resources of the applicant, the
Agency and the Board.
If after remand, the Agency reaches a
decision unfavorable to the applicant,
the applicant could again
appeal, but the additional information submitted on remand would
be part of the new Agency record.
The time to file a motion for remand would be limited to the
initial filing of the permit appeal.
Limiting the time for
filing a motion for remand would prevent delays in the review
process.
If a motion to remand were filed later, the parties
would have prepared to go to hearing and any scheduled hearing
would need to be cancelled.
The proceedings would only be
remanded when action on the part of the Agency prohibited the
applicant from participating in the permitting process.
This
would prevent an applicant from using the remand procedure as a
means to control the submission of information to the Agency.
The remand procedure would allow information to be submitted
directly to the Agency.
At the Agency level,
information is
normally submitted in an informa1~manner by the applicant’s
technical personnel.
On appeal to the Board information
is
normally received in a formal adversarial proceeding.
Allowing
the applicant to submit information to the Agency on remand
instead of to the Board during the appeal process would result
in
time and cost savings for the applicant, Agency and Board.
33—3
V
10
This concept would also provide additional time and cost
savings by reducing the number of time—consuming and costly
hearings that result in the permit review being remanded back to
the Agency.
In Wells,
195 Ill. App.
3d 593,
552 N.E.2d 1074, the
Board conducted two hearings and the permit appeal lasted in
excess of four years before the Appellate Court remanded the case
for further proceedings.
The deficiency in the Wells case was
known by the applicant at the time of the initial filing of the
appeal.
To cure the deficiency, the permit appeal needed to be
remanded to the Agency for further action.
My conceptual
amendments provide for remand to the Agency based on motions from
the applicant and the Agency prior to conducting discovery or
hearings.
If a case factually similar to Wells were filed with
the Board today,
in the absence of a remand procedural rule,
the
Board would be obligated to conduct largely useless hearings and
then would be obligated to remand the matter to the Agency.
The Board could construe the Order granting the motion to
remand as restarting the Agency’s statutory time clock to reach a
permit determination as if a new permit application were filed
with the Agency.
For construction, installation or operating
permits, the Agency would then have the statutory 90 days to
reconsider the permit
(Section 39a).
For permits to develop a
landfill the Agency would have 180 days (Section 39a)
to reach a
permit decision.
The Agency could be provided with the same
amount of time to reconsider the permit as
it was allowed to make
its original determination.
I would have included language that, the board “may” remand
the proceeding to the Agency for review or further action.
This
language would allow the Board to use its discretion in granting
or denying a motion for remand.
The motion may satisfy all of
the requirements but other circumstances of the case may result
in the motion being denied.
This leeway would limit any possible
abuse of the remand procedure.
While the factual circumstances where a motion to remand
could be granted are numerous, several situations already mandate
remand to the Agency.
Where the facts of the case are similar to
those presented by Wells or Sauget, the Board would be obligated
to remand.
Some examples of recent adjudicatory cases in which
the Board has remanded the proceeding include, Grigoleit v.
IEPA,
PCB 89-184; Clean Quality Resources v.
Marion County Board,
PCB
91—72; Douglas Furniture v.
IEPA,
PCB 90—22;
Centralia
Environmental Services v.
IEPA, PCB 89—170;
DiMaggio,
et.
al.
v.
SWANCC,
et.
al.,
PCB 89-138; Modine Manufacturing v.
IEPA,
PCB
86-124; City of Rockford
v. Winnebago County, PCB 87-92; and Earl
Bradd v.
IEPA,
PCB 90—173.
In those circumstances where remand
is appropriate, the
Board would need to determine its authority to remand,
the
procedures regarding remand, and the obligations
(including time
1
3:3—336
11
constraints for decisiorimaking) that remand would place on the
Agency.
My conceptual proposal is an attempt to address those
issues in a prospective manner by regulation, rather than in the
ad hoc manner of case by case determinations.
My conceptual proposal limits the scope for all permit
reviews to the Agency record at the time that the permit decision
was made.
This is equivalent to the procedure that is currently
provided by statute for the review of third-party appeals from
RCRA
permit decisions (~40(b)),appeals
(including third-party
appeals)
from non—RCRA hazardous waste disposal permit decisions
(S40(c)) and appeals from specified federal Clean Air Act—related
Agency permit decisions
(S40(d)).
The Agency record is comprised
of all the information that the Agency was or should have been in
possession of,
on or before the date of the permitting decision.
This idea eliminates the requirement of de novo hearings for
NPDES permit appeals making the scope the same as in other permit
appeals.
In other permit appeals, the Board does not allow a
hearing based on totally new factual material not previously
before the Agency.
The Board looks at the evidence and
determines if
it supports denial of the permit or the application
of conditions to a permit.
Allowing new material to be submitted
directly to the Board denies the Agency the opportunity to
analyze the new material in a non—adversarial setting.
In summary,
I would have proposed the following language for
public comment.
Since the Board would not adopt such an
approabh,
I respectfully dissent.
The language
I would have
proposed is as follows:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 105
PERMITS
Section
105.101
Setting Standards
105.102
Permit Appeals
105.103
Permit Review
105.104
Cost of Review
APPENDIX A
Old Rule Numbers Referenced
AUTHORITY:
Authorized by Section’ 26 of the Environmental
Protection Act
(Ill.
Rev. Stat.
1979,
ch.
111½, par.
1026) and
implementing Sections
5,
39,
40 and 40.1 of the Illinois
Environmental Protection Act
(Ill. Rev.
Stat.
1979,
ch.
111½,
pars.
1005,
1039,
1040 and 1040.1,
as amended by P.A. 82—682).
i
3:3—337
12
SOURCE:
Filed with Secretary of State January
1,
1978;
amended 4
Ill. Reg.
52, page 41, effective December 11,
1980; codified
6
Ill. Reg.
8357; amended in R90—8 at
_____
Ill. Reg.
effective _______________________
Section 105.102
Permit Appeals
a)
Permit Appeals Other than NPDES
(National Pollutant
Discharge Elimination System)
Permit Appeals:
1)
If the Agency denies the permit,
it shall advise the
permit applicant in writing in accordance with the
requirements of Section 39(a) of the Act.
2)
In the case of a denial of a permit or issuance by the
Agency of a permit with one or more conditions or
limitations to which an applicant objects, an applicant
who seeks to appeal the Agency decision shall file a
petition for a hearing before the Board within 35 days
of the date of mailing of the Agency’s final decision.
The petition shall include:
A)
Citation of the particular standards under
which
a permit
is sought;
B)
A complete and precise description of the
facility,
equipment, vehicle, vessel, or
aircraft for which a permit is sought,
including its location;
C)
A complete description of contaminant
emissions and of proposed methods for their
control; and
D)
Such other materials as may be necessary to
demonstrate that the activity for which the
permit
is sought will not cause a violation
of the Act or the regulations.
3)
The method of filing service shall be in accordance
with Sections 103.122 and 103.123.
4)
The Agency shall appear as respondent
in the hearing
and shall, within 14 days, upon notice of the petition,
file with the Board the entire Agency record of the
permit application,
including:
A)
The application;
B)
Correspondence with the applicant; and
133—338
13
C)
The denial.
~j
The decision of the Board in reviewing any denial or
condition of
a permit by the Agency shall be based
exclusively on the record before the Agency at the time
that the permit was denied.
THE BURDEN OF PROOF
SHALL
BE ON THE PETITIONER.
(Section 40 of the Act.)
~j
An applicant wishing to assert that Agency actions have
precluded the applicant from raising or responding to a
material issue of fact or law on the record or assert
that Agency procedural errors have rendered the permit
determination invalid, may file a motion for remand
with the Board.
Such a motion and affidavits must be
filed at the same time as the initial petition for
review in the proceeding. Such
a motion must be
supported bV affidavit,
stating the Agency action, the
information involved, when the applicant became aware
of the information, and its asserted effect on the
validity of the permit decision.
The A~encvshall file
a reply to the applicant’s motion to remand within 14
days from the Agency’s receipt of the motion, which may
include opposing affidavits.
~j
If the Board, after reviewing a motion to remand and
affidavits,
determines that the permitting process was
procedurally flawed or that the applicant was precluded
from raising or responding to a material issue of fact
or law, the Board may remand the proceedings to the
Agency for review or further action.
The Order to
Remand will be considered as the filing of
a new permit
application for purposes of determining the time period
for the Agency to reconsider the permit.
.~iS+The Clerk shall give notice of the petition and hearing
in accordance with Part 103.
2i~6-)-The proceedings shall be in accordance with the rules
set forth in Part 103.
b)
NPDES Permit Appeals:
1)
If the Agency denies an NPDES Permit,
it shall advise
the permit applicant in writing in accordance with the
requirements of Section 39(a)
of the Act.
2)
In the case of the denial of an NPDES Permit or the
issuance by the Agency of an NPDES Permit with one or
more conditions or limitations to which the applicant
objects,
the applicant may contest the decision of the
I
33—119
14
Agency by filing with the Clerk of the Board
a petition
for review of the Agency’s action in accordance with
this Section.
3)
Any person other than the applicant who has been a
party to or participant at an Agency hearing with
respect to the issuance or denial of an NPDES Permit by
the Agency,
or any person who requested such a hearing
in accordance with applicable rules, may contest the
final decision of the Agency by filing with the Clerk a
petition for review of the Agency’s action.
4)
The petition shall be filed and notice issued within 30
days from the date the Agency’s final decision has been
mailed to the applicant and all other persons who have
right of appeal.
The method of filing and service
shall be in accordance with Sections
103.122 and
103. 123.
5)
The Agency shall appear as respondent and shall file an
answer consisting of the hearing file of any hearing
which may have been held before the Agency, including
any exhibits, and the following documents:
NPDES
Permit application, NPDES Permit denial or issuance
letter, and all correspondence with the applicant
concerning the application.
6)
All parties other than the petitioner who were parties
to or participants at any Agency hearing shall be made
respondents.
7)
The petition shall contain
a statement of the decision
or part thereof to be reviewed.
The Board upon motion
of any respondent shall, or upon its own motion may,
require of the petitioner a specification of the errors
upon which the petitioner relies in his petition.
8)
The hearingo before the Board ohall extend to all
quecitiono of law and fact prccicnted by the entire
rccord.
The Agcncy’cz findingci and concluciionci on
qucationci of fact cihall be prima facic true and
correct.
If the Agcncy’ci conclucionci of fact are
diciputed by the party or
if
iciciucci of fact arc rai3ed
in the review proceeding, the Board may make ita own
determination of fact bacicd on the record.
If any
party decirco to introduce evidence before the board
with rccipcct to any diciputed isciuc of fact, the Board
-.
1
eenduct
a do novo hearing and receive evidence
with recipcct to ouch isciue of fact.
The decision of
the Board in reviewing under this Section any denial or
condition of
a permit by the Agency shall be based
THE
exclusively on the record before the Aaencv
133—340
15
BURDEN OF PROOF SHALL BE ON THE PETITIONER.
IF,
HOWEVER,
THE
AGENCY ISSUES AN NPDES
PERMIT
THAT
IMPOSES
LIMITS WHICH ARE BASED UPON A CRITERION OR DENIES A
PERMIT
BASED
UPON
APPLICATION
OF
A
CRITERION,
THEN
THE
AGENCY SHALL HAVE THE BURDEN OF GOING FORWARD WITH THE
BASIS FOR THE DERIVATION OF THOSE LIMITS OR CRITERION
WHICH WHERE DERIVED UNDER THE BOARD’S RULES.
(Section
40 of the Act.)
~j
An applicant wishing to assert that Agency actions have
precluded the applicant from raising or responding to a
material issue of fact or law on the record or assert
that Agency procedural errors have rendered the permit
determination invalid. may file a motion for remand
with the Board.
Such a motion and affidavits must be
filed at the same time as the initial petition for
review in the proceeding.
Such a motion must be
supported by affidavit, stating the Agency action, the
information involved, when the applicant became aware
of the information,
and its asserted effect on the
validity of the permit decision.
The Agency shall file
a reply to the applicant’s motion to remand within
14
days from the Agency’s receipt of the motion, which may
include opposing affidavits.
~QJ
If the Board, after reviewing a motion to remand and
affidavits, determines that the permitting process was
procedurally flawed or that the applicant was precluded
from raising or responding to a material issue of fact
or law, the Board may remand the proceedings to the
Agency_for review or further action.
The Order to
Remand will be considered as the filing of a new permit
application for purposed of determining the time period
for the Agency to reconsider the permit.
JJJ.
This proceeding shall be in accordance with Part 103.
j~j The order of the Board entered pursuant to hearing may
affirm or reverse the decision of the Agency,
in whole
or in part, may remand the proceeding to the Agency for
the taking of further evidence,
or may direct the
issuance of the permit in such form as it deems
just,
based upon the law and the evidence.
Th
H.~
Bill
S.. Fdicade
Board Member
1
1
1
I
16
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, he~~~y
certify that the above Dissenting Opinion was filed
on the
~ ~
day of
_____________________,
1992.
g-~~
~.
~
liorothy N. Gu~, Clerk
Illinois Po1lt~tionControl Board
133—342
