ILLINOIS POLLUTION CONTROL
BOARD
December
19,
1991
D
& B REFUSE SERVICE, INC.,
)
)
Petitioner,
)
v.
)
PCB 89—106
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by M. Nardulli):
This matter
is
before the Board
on petitioner’s motion
for
reconsideration
of the Board’s opinion and order
of October
24,
1991
upholding
the
Illinois
Environmental
Protection
Agency’s
(Agency) kermit denial.
On December 17, 1991 the Agency filed its
response.
In
its October
24,
1991 opinion and order,
the Board
found
that denial reasons
nos.
2,
3,
4
and
5 were
improper bases
for
denial.
However, the Board also found that petitioner failed to
challenge all of the Agency’s denial reasons (denial reasons nos.
1 and
6) and, therefore, affirmed the Agency’s permit denial.
The
Board also noted that petitioner failed to present any evidence at
hearing and failed to file a post-hearing brief,
choosing to rely
solely on its petition for review.
Petitioner now asserts in its motion for reconsideration that
the Board erred in finding that it did not challenge denial reasons
nos.
1.
and
6.
Petitioner
asserts that
it
“did not discuss
in
detail the shortcomings of grounds
1 and
6 because those grounds
were
patently
and
facially
erroneous,
and
also
because
the
resolution
of
reasons
2,
3,
4,
and
5
necessarily
decided
the
resolution of grounds
1 and 6.”
Accordingly, petitioner requests
that the Board reconsider its decision,
find that denial reasons
nos.
1 and 6 are also improper and direct the Agency to issue the
permit.
The Board will open this matter for reconsideration to address
petitioner’s contentions.
In its opinion, the Board rejected the
Agency’s contention that petitioner failed to carry its burden of
proof by failing to present any evidence at hearing and by failing
to
file
a
post-hearing
brief.
(Board
Op.
at
3-4.)
The
Board
The Agency’s motiOn for extension of time to December 17,
1991 to file its response is granted.
128—233
2
stated that because of the posture of
a permit
appeal, ~which is
based upon the Agency record,
it is possible for a petitioner to
carry
its
burden
of
proving
that
its
application
package
demonstrated
compliance
with
the
Act
and
regulations
without
presenting
additional
evidence
at
hearing
or
filing
a
brief.
(Board Op. at 4.)
The Board noted that this was particularly true
where, as in this case, petitioner had presented a minimal argument
in its petition for review.
(Board Op. at
fn.
2.)
However,
the
Board also made clear that a petitioner may not simply dump the
burden çf argument and research on the Board and that a petitioner
who fails
to present evidence at hearing and file a brief risks
waiver of arguments before the Board.
The Agency correctly notes
that
“a
petitioner
cannot
file
its
(petition
and expect the
Board to act as its advocate, formulating the winning arguments and
researching legal authority for petitioner.”
In
reviewing
the
petition
for
review,
the
Board
found
sufficient,
albeit
minimal,
argument
relating
to
petitior~er’s
challenges to denial reasons nos.
2,
3,
4,
and
5
such that the
Board could address the merits of these denial reasons.
However,
the petition does not
set forth any argument relating to denial
reasons nos.
1 and 6, nor does it list these to denial reasons as
being challenged as the petition does with denial reasons
2,
3,
4
and
5.
(Petition at 3-7.)
We reject petitioner’s contention that
because the petition
for
review
opens
with
the
statement that
petitioner “respectfully petitions for review of the denial of
D
&
B’s
application
.
.
.“,
this
is
a
sufficient
challenge
to
all
denial reasons.
The
Board
also rejects petitioner’s
contention
that denial reasons nos.
1 and 6 were so intertwined with the other
denial reasons that resolution of the latter decided the merits of
denial reasons nos.
1 and 6.
The petition did not challenge denial
reasons
nos.
1
and
6
and the
Board
is under
no obligation
to
discern this relationship in the absence of some argument to this
effect by petitioner.
If the Board were to reverse itself and find
that petitioner adequately challenged denial reasons nos.
1 and
6,
the Board would be placing its imprimatur on a petition for review
which stated only that “this
is an appeal of the Agency’s denial
of a permit.”
This the Board will not do.
The Board has reconsidered its October 24,
1991 opinion and
order and declines to reverse
its determination that petitioner
failed
to
challenge
all
of
the Agency’s
denial
reasons.
The
Agency’s decision is affirmed.
IT IS SO ORDERED.
Section
41
of the
Environmental
Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
ill
1/2,
par.
1041)
provides
for the appeal
of
final Board Orders within 35 days.
The Rules of the Supreme Court
establish filing requirements.
128—234
3
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Board hereby cer~,ifythat the above Order was adopted on the
/~-
day of
~
,
1991 by a vote of
/~,
—o
Dorothy N. p~nn,Clerk
Illinois P~3lutionControl Board
128—235