ILLINOIS POLLUTION CONTROL BOARD
July 11,
1991
CWN
CHEMICAL SERVICES, INC.,
)
)
Petitioner,
)
v.
)
PCB 89—177
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY and
)
PEOPLE OF THE STATE
)
OF ILLINOIS,
Respondents.
ORDER OF THE
BOARD
(by J. Theodore Meyer):
This matter
is before the Board
on
CWN
Chemical
Services,
Inc.
‘5
(CWM) June 3,
1991 supplement to the record.
Although there
was no motion with the June 3 filing,
CWM
seeks to supplement the
record submitted by the Illinois Environmental Protection Agency
(Agency).
On June 11,
1991, the Attorney General, on behalf of the
Agency and the People of the State of Illinois,
filed a response
to
CWM’s
supplement.
CWN
filed
a
“response”
to the
Attorney
General’s filing on June 17,
1991.1
It is well-settled that the Agency record in a permit appeal
consists only of the information which the Agency considered
or
should have considered in making its permitting decision.
(Alton
Packaging
CoriD. v
Pollution Control
Board
(5th Dist.
1987),
162
Ill.App.3d 731,
516 N.E.2d 275,280,
114 Ill.Dec.
120; Joliet Sand
& Gravel v. Pollution Control Board
(3d Dist.1987),
163 I11.App.3d
830,
516 N.E.
2c1
955,
114 Ill.Dec.
800.)
CWN
seeks to supplement
the
Agency
record
with
its
March
1985
RCRA
Part
B
permit
application
for the Chicago incinerator
(1985
application),
its
April 1987 RCRA Part B draft permit application
for the Chicago
incinerator (1987 application), and with 1987 revisions to the RCRA
1
Although captioned a
“response”,
CWM’s June
17
filing is
really a reply to the Attorney General’s response.
The Board notes
that Section 101.241(c) of our procedural rules states that there
is no right to reply to a response, except as allowed by the Board
or hearing officer.
CWM
did not submit a motion for leave to file
a reply.
Ordinarily the Board would not allow the reply
in the
absence of a motion.
However, because
CWM
did not articulate its
reasons for the supplement in the initial filing, the Board will
accept the reply so that it may make a fully informed decision.
124—29
2
Part B draft permit application
(1987
revisions).
The Attorney
General objects to the inclusion of all but one of the documents
which
CWM
seeks to add to the record.
The Attorney General notes
that on April
28,
1989,
CWM
submitted a revised
Part
B permit
application (1989 application) to the Agency.
In the cover letter
to that application,
CWM
stated “This revised Part
B application
is
intended
to
replace
the
previously
submitted
documents
in
entirety.”
(Ex. A to Attorney General response; also included in
the
record at Book
A,
Volume
8,
pp.
1448-1450.)
The Attorney
General states that the Agency, at CWM’s request in the April 28,
1989 letter, did not consider the information which pre-dates the
April
1989 application.
Therefore,
the Attorney General
argues
that most of the documents which
CWM
seeks to add to the record
(including
the
1985
and
1987
applications,
and
most
of
the
documents which make up the 1987 revisions) were not considered by
the Agency,
since it pre-dated the 1989 application, and therefore
should not be part of the record.
The Attorney General objects to
the inclusion of an August 11,
1989 letter from
a
CWM
consultant
to
Gary Westefer
at the United
States
Environmental
Protection
Agency
(USEPA)
on the grounds that this correspondence is not in
Agency
files,
that
there
is
no
indication that the Agency
was
copied,
and that the
correspondence was not
considered
in
the
Agency’s permit decision.
There are several documents in the 1987
revisions which the Attorney General
states are already
in the
Agency record, and one document
(addenda and errata to August 25,
1989 NOD responses) to which the Attorney General does not object.
In
its
reply,
CWM
argues
that
the
documents
at
issue
constitute part of the RCRA permit appeal process and are therefore
proper
supplements to the
record.
CWN
states that the permit
application process which ended in the September 1989 denial of the
permit
(the decision which has been appealed to the Board)
began
prior to the April 1989 application.
CWM
contends that the earlier
submittals,
in combination with the. 1989 application, document the
overall decisionmaking process.
Therefore,
CWM
maintains that the
earlier documents should be a part of the record.
After
a
review
of
the
documents
submitted
by
CWM
and
consideration
of
the arguments made
by the
parties,
the
Board
denies
CWN’s request to supplement the record with the 1985 and
1987 applications, and the 1987 revisions.
The only exception is
the August 25, 1989 addenda and errata sheet.
The Board finds that
because
CWM
stated in its April 28,
1989 letter to the Agency that
the 1989 application was intended to replace the earlier documents
in entirety,
CWM
cannot now claim that the Agency did consider or
should
have
considered
the
earlier
documents
in
making
its
permitting decision.
CWM’s
contention that the earlier documents
are part of
a continuing process might carry weight in the absence
of
CWM’s
clearly
stated
intention
to,
in
effect,
withdraw the
earlier applications.
This is not a situation where the applicant
simply amended its application.
The language of the 1989 letter
clearly
states
that
the
1989
application
will
replace
the
124—30
3
previously
submitted
documents,
making
the
1989
application
in
effect an entirely new application.
CWM’s request to supplement
the record
is denied,
with the exception of the August
25,
1989
addenda and errata sheet.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby
ce
~fy,that the
above
Order was
adopted on
the
//~
day of
_______________,
1991, by a vote of
7-&
~
/~
//~/
Dorothy M.
Gj4fin,
Clerk
Illinois PolMation Control Board
124—3 1