ILLINOIS POLLUTION CONTROL BOARD
December
6,
1991
CWM
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 3. Anderson):
This
matter
is
before the Board
on
CWN
Chemical
Services,
Inc.’s
(CWM)
November
7,
1991 motion to remand for correction of
procedural defects.
CWN
filed a supplemental memorandum in support
of its motion on November 12,
1991.
On November 19,
1991, amicus
curiae the
35th
District Environmental Task Force
(Task
Force)
filed
a response in opposition to CWM’s motion.
On November
20,
1991,
the Attorney General, on behalf of the Agency and the People
of the State of Illinois,
filed a response in opposition to
CWM’s
motion.
That November
20
filing was accompanied by
a motion to
file
the
response
instanter.
The motion to
file
instanter
is
granted.
This proceeding is
CWM’s
appeal of the Agency’s September 1989
denial of CWN’s request for a RCRA Part B permit for its hazardous
waste incinerator in Chicago.
A brief review of the chronology of
events at the Agency level
is necessary to understand the motion
to remand.
CWM
(then SCA Chemical Services,
Inc.)
first filed an
application
for
a
Part
B
permit
on
August
17,
1983.
Another
application was
filed
in March
1985.
After
numerous
reviews,
requests
for additional
information,
and submittals by
CWM,
the
Agency issued a draft permit on May 15, 1987.
A public hearing was
held on July
9,
1987.
The Agency then received numerous public
comments,
including comments
from
CWN,
in
1987.
In
1988,
CWM
advised the Agency
that
it
was
involved
in negotiations
on
an
enforcement matter.
After the enforcement matter was resolved,
CWM
submitted additional information to the Agency in regards to its
Part B permit application.
Submittals were made on January
17,
1989,
February
3,
1989,
and April
28,
1989.
The April
28,
1989
correspondence stated “This revised Part B application is intended
128—05
2
to
replace
the
previously
submitted
documents
in
entirety.”t
(Rec., Book A, pp. l448_l450.)2
On August 8, 1989, the Agency sent
CWM
a notice of deficiencies.
(Rec.,
Book A,
pp.
1672-1698.)
CWN
sent responses to the Agency on August
28
and August
31,
1989.
(Rec.,
Book A, pp.
1718—1759.)
On September 19,
1989, the Agency
denied CWN’s application, based on 96 denial reasons.
(Rec., Book
A,
pp.
1779—1814.)
Parties’ Arguments
In its motion to remand
this proceeding to the Agency,
CWM
contends
that
the
Agency
failed
to
follow
crucial
regulatory
procedures
during
the
Agency’s
permit
review
process.
Specifically,
CWM
maintains that
the Agency
failed
to
issue
a
notice of intent to deny the Part B permit.
That notice of intent
to deny would then trigger the issuance of
a
fact sheet,
public
notice
of
the
Agency’s
tentative
decision,
notice
of
the
opportunity for
a public hearing,
and notice of opportunity~for
public comment.
CWM’s
contentions are
based on 35 Ill.Adm.Code
705.141, which states in part:
a)
Once
an
application
is
complete,
the
Agency
shall
tentatively decide whether to prepare a draft permit or
to deny the application.
b)
If the Agency
tentatively decides to deny the permit
application,
it shall issue a notice of intent to deny.
A notice of intent to deny shall be subject to all of the
procedural requirements applicable to draft permits under
paragraph
(d)
35 Ill.Adm.Code 705.141.
CWM
argues that the Agency’s action in proceeding from a notice of
deficiencies (August 8,
1989)
to a notice of denial (September xx,
1989) violated the requirement of 35 Ill.Adm.Code 705.141 that the
Agency issue either a draft permit or a notice of intent to deny.
CWM
contends that the Agency’s failure to issue a notice of intent
to deny denied
CWM
and the public their right to respond to issues
raised by the Agency.
CWM
maintains that this failure denied it
the opportunity to submit evidence which might have persuaded the
Agency to
issue
the permit,
and also precluded the Agency
from
1
On
July
11,
1991,
the
Board
denied
CWN’s
attempt
to
supplement the record with its 1985 and 1987 applications.
That
denial was based on the Board’s finding that the April
28,
1989
application was intended to replace,
not supplement,
the earlier
documents in their entirety.
2
The phrase “Rec.” will be used to denote the administrative
record of decision filed with this Board by the Agency.
128—06
3
conforming to the regulatory requirement that the Agency respond
to comments raised by the tentative denial.
CWN
concludes that the
Board should remand this matter to the Agency to give the Agency
the opportunity to follow the permit application review procedures
mandated by the regulations.
Additiona)ly,
CWN
argues that it has not waived its right to
raise this procedural motion at this point in the proceeding.
When
this motion was raised at the
first day of hearing,
the hearing
officer 4sked the parties to consider the possible issue of waiver,
given the amount of time that has passed between the review process
at the Agency level
(1989)
and the first day of hearing
(November
7,
1991)
at the Board level.
CWN
contends that it has not waived
its ability to raise the motion.
CWN
states that in its November
2, 1989 petition for review,
it noted that procedural deficiencies
occurred.
CWM
maintains that the Board’s rules do not require that
motions based on procedural defects at the Agency level be filed
within any set time period,
or prior to hearing.
CWM
notes that
35
Ill.Adm.Code
103.140
requires
that
motions
preliminary
to
hearing
and motions
based
on jurisdictional objections must be
filed before hearing.
CWM
argues that
a motion to remand because
of
procedural
defects
in
the
Agency’s
permit
process
are
not
objections to the Board’s jurisdiction.
Further, CWNasserts that
amotion to remand is not preliminary to hearing.
CWN
notes that
the administrative record was
filed
in March
1991,
but contends
that the record did not make it clear whether the Agency had not
followed
regulatory
procedures,
or whether
the
procedures were
followed but evidence of that had been omitted from the record.
CWM
argues that testimony and evidence revealed at hearing have
made it clear that the record is complete, but that the Agency did
not follow required procedures.
In response, the Attorney General argues that the Agency did
not commit any procedural error in its review and processing of the
permit application and that therefore no remand of the matter to
the Agency is necessary.
The Attorney General maintains that
CWN’s
arguments ignore the six years of procedural history between the
initial submittal of an application in August 1983 and the denial
of the application
in 1989.
The Attorney General points to the
Agency’s May 15, 1987 draft permit, and the subsequent hearing and
public comments, in support of its contention that it conformed to
the
regulatory
requirements.
The Attorney General
argues that
CWM’s April 28, 1989 application did not wipe out everything which
had
occurred
prior
to
that
point,
but
simply
limited
the
information which
the Agency
considered in making
its decision.
The Attorney General contends that the Agency need not “start over”
with all procedural requirements because the applicant submits new
128—07
4
information
as
a
“revision”
to
the
original
application.3
The
Attorney General argues that the RCRA permitting process would be
“devastated”
if an applicant were able
to
force
a
totally new
review procedure by submitting revised information.
In sum, the
Attorney General maintains that there is no regulatory requirement
that the Agency redo the entire draft permit
(or notice of intent
to deny) and public notice procedures where
CWM
submitted revisions
to its application.
Ainicus curiae Task Force also filed a response in opposition
to CWM’s motion to remand.
The Task Force contends that the motion
is untimely, arguing alternatively that
CWN
has waived its right
to
raise
the procedural
claims
at
this
point,
or that
CWN
is
equitably estopped from raising the alleged procedural defects by
the doctrine of laches.
The Task Force also maintains that
CWIM’s
motion
is
without merit,
because the Agency
followed
both
the
letter and the spirit of the regulations.
Finally, the Task Force
argues that even if the Board finds that the Agency’s procedures
were
flawed,
any
defect
was
harmless
and
does
not
affect
the
validity of the permit denial.
Board Conclusions
Initially,
the Board must determine whether CWM’s motion to
remand
is
timely,
or whether
CWN
waived
its
right
to make
its
motion.
After
a
review
of
its
procedural
rules,
the
Board
concludes
that
this
motion
to
remand
is
untimely
under
35
Ill.Adm.Code
103.140(a).
That
rule
requires
that
all
motions
“preliminary to hearing” be presented to the Board or the hearing
officer at least 14 days prior to the date of hearing.
The Board
finds that in the context of this proceeding, the motion to remand
is
a motion preliminary to hearing which should have been raised
at least 14 days prior to hearing.
Instead, this motion was filed
on November
7,
1991,
which was the
first
day
of
hearing.
CWN
cannot
characterize this
motion as
not
a motion preliminary to
hearing when the relief
sought is
a remand of the matter to the
Agency,
thus staying (or mooting) any hearing at the Board level.
The
Board
is
bothered
by
CWM’s
assertion
that
“testimony
and
evidence revealed at hearing” showed that the record was complete,
but that the Agency did not follow the procedural
requirements.
This motion was filed at the beginning of the hearing, before any
testimony or evidence was presented.
Obviously
CWM
did know before
hearing that the record was complete, or the written motion could
not have been prepared prior to hearing.
The Board further notes
that CWM’s attorney stated at the first hearing that
CWM
was aware
of the alleged procedural defect, but chose not to raise it because
“it’s been our hope all along that some other resolution of this
~ The Attorney General points to language in CWM’s April
28,
1989 correspondence which twice refers to that April submission as
a “revised” application.
(Rec., Book A, pp.
1448—1450.)
128—08
5
matter would be reached.”
(Tr.
30-31;
see also 41-43.)
For
CWM
to argue in its written filings that the motion
is timely because
“it is made in light of new information” (motion to remand at 4),
while stating on the record
a.t hearing that it had chosen not to
raise the issue earlier is, at the least,
inconsistent.
The Board
finds that this motion, which seeks a remand of the proceeding to
the Agency, thus halting hearings at the Board level,
is a motion
“preliminary to hearing” which was to have been filed at least
14
days
prior
to
hearing.
The
Board
finds
that
the
motion
is
therefor~untimely filed.
Even if the motion was timely, the Board finds that no remand
is necessary in this
case.
The Board agrees with the Attorney
General
that
the
Part
705
procedural
requirements
are
not
retriggered every time an applicant submits additional information
or a “revised”
application.
The Board has found
no
language
in
Part 705 which requires
such a result.
To hold that the Agency
must “start over again” after every revision would indeed throw the
RCRA
permitting
process
into
an
uproar.
The
Board
is
also
persuaded that CWM’s April 1989 submission was a “revision” of its
application.4
CWM
twice
characterized
the
submission
as
a
“revised”
application
in
the
cover
letter
accompanying
the
application.
(Rec., Book A, pp. 1448-1450.)
CWM’s statement that
the April 1989 application was intended to replace the previously
submitted documents goes only to the actual documents which
it
wished the Agency to consider in making its permitting decision.
After
the
lengthy
history
of
the
application,
with
numerous
submittals,
it makes
sense that
CWN
wished to present all of its
information to the Agency
in one submittal.
CWN
never, indicated
that it wished to terminate the earlier proceedings and start anew.
Because the Board finds no requirement that the Agency revisit the
Part
705
procedural
requirements
after
a
revision
of
an
application,
and because the Board
finds
that CWN’s
April
1989
submittal was a revision, the Board finds that the Agency properly
followed the regulatory requirements in this case.
In
sum,
the
Board
finds
that
CWN’s
motion
to
remand
is
untimely pursuant
to
35
Ill.Adm.Code
103.140(a).
Even
if
the
‘~
This result
is consistent with the Board’s July
11,
1991
ruling that
CWN
could not supplement the record with the 1985 and
1987 applications.
The issue in supplementing a record is whether
the information which
is sought to be added was information which
the Agency considered,
or should have considered,
in making its
decision.
The
1989
application
superseded
the
previous
applications,
and therefore those
earlier applications were
not
part
of
the
Agency’s
decision
in
terms
of
the
merits
of
the
application.
The Board further notes that
CWM
argued in its June
17, 1991 filing that the permit application process began prior to
the April 1989 submittal.
CWN
cannot not now allege that the April
1989 application was the start of the process.
128—09
6
motion were timely,
the Board finds that the Agency followed the
Part
705
procedural
requirements.
Therefore,
CWM’s
motion
to
remand is denied.
IT IS SO ORDERED.
R. Flemal, 3. Theodore Meyer, and M. Nardulli dissented.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
hpreby
cerl4fy that the above
Order
was adopted
on the
______
day of
,~-~-~-~--‘
,
1991, by a vote of
-‘t~
Dorothy M./~unn,~Clérk
Illinois Pc~V1utionControl Board
128—10