ILLINOIS POLLUTION CONTROL BOARD
    June 20,
    1991
    THE GRICOLEIT COMPANY,
    Petitioner,
    V.
    )
    PCB 89—184
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION
    AGENCY,
    )
    Respondent.
    DISSENTING OPINION
    (by B. Forcade and
    3.
    D. Dumelle):
    We respectfully dissent from today’s action.
    We continue to
    believe that the original Agency permit decision should have been
    affirmed.
    Today’s decision further compounds that error by
    imposing sanctions in a manner contrary to appellate case law.
    The Board’s November 29,
    1990 Order remanded the matter to
    the Agency.
    That “Opinion and Order of the Board” contained the
    unqualified support of only three Board Members, with four Board
    Members either dissenting or specially concurring.
    As
    interpreted today, that Opinion attempts to allow Gr’igoleit on
    remand to supply additional information to the record for issues
    that were decided against Grigoleit,
    but claims to prevent the
    Agency from acquiring or submitting any additional information
    for issues that were decided against the Agency.
    If the original
    record contained inadequate information to demonstrate compliance
    with the Act, the permit denial should have been affirmed.
    If
    the matter is remanded to acquire additional information, both
    parties
    should be free to inject new information into the record.
    A Board order that allows only one party to supply additional
    information, and only allows information on the points which that
    party lost, would appear to be biased.
    Further, the Board now attempts to enforce with sanctions
    its prior unappealable order of remand,
    a result contrary to
    existing case law.
    In Illinois Environmental Protection Agency
    v.
    Illinois Pollution Control Board and Centralia Environmental
    Services, No.
    5—91-0099
    (Order, June 14,
    1991), the Agency
    attempted to appeal a Board decision where it prevailed in the
    outcome, but disagreed with many of the legal conclusions.
    The
    Court at page 6, held,
    “...the
    Board’s denial of some of the
    Agency’s reasons for rejecting the permit application is not
    precedential or law of the case, and the Agency would not be
    estopped from using those reasons again...”
    That rule applied to
    this case would clearly allow the Agency to re-raise the issues
    decided against it in the November 29 Opinion.
    Today, the
    majority not only attempts to stop the Agency from raising those
    issues; they sanction the Agency for the attempt.
    The Board is
    2
    wiliing to sanction the Agency for adhering to a course of
    conduct approved by the courts, but the Board itself
    is unwilling
    to follow the case law mandates.
    Today’s holding is particularly troublesome because the
    majority appears to state that the Agency must issue a permit to
    two sources that have never been subjected to Agency
    review.
    Today’s Order,
    at page 2, states:
    First,
    with
    respect
    to
    35
    Ill.
    Adiu.
    Code
    215.301,
    the Agency went beyond the Board’s
    mandate
    when
    it
    attempted
    to
    elicit
    information regarding additional operations at
    Grigoleit’s
    facility.
    It
    appears
    that
    although Grigoleit informed the Agency of the
    existence of the additional operations in its
    July 12,
    1989 permit application, the Agency
    chose not
    to express any concerns about the
    operations
    in
    its
    October
    11,
    1989
    permit
    denial.
    Rather,
    the Agency waited until
    its
    January
    10,
    1991
    letter and until
    after the
    Board’s
    remand
    to
    express
    concern
    over
    the
    additional operations.
    (Emphasis Added)
    This statement is not precisely accurate.
    The Agency denial
    letter of October 11,
    1989 denied the facility a permit because
    the application did not demonstrate compliance with 35 Ill. Adm.
    Code 215.301.
    That denial letter did not specifically ask for
    information on any particular emission source or exclude from
    consideration any particular emission source.
    The letter denied
    permit to
    ~JJ~
    emission sources, including the two new sources.
    In its brief in that part of the proceeding,
    the Agency clearly
    argued that compliance had not been demonstrated for these two
    new sources (October 22,
    1990 Brief,
    pp.
    5-6),
    just as it argued
    compliance had not been demonstrated for the other sources.
    We
    simply cannot understand how the majority can conclude that the
    Agency waited until the January 1991 letter to “express any
    concern” about these two new sources.
    The January 10,
    1991
    letter asks for precisely the same information about the two new
    sources,
    i.e.,
    the Lithographic Machine and Group H
    (at paragraph
    1. a and b of that letter) as was asked about all emission
    sources in the October 11,
    1989 letter
    (at paragraphs 2.a and b
    of that letter).
    We cannot endorse an order that grants
    a permit to these two
    sources under these circumstances.
    Bill S. Forcade
    Board Member
    3
    -~
    (
    /2
    ~
    L
    ) ~
    ~
    ~:
    7/~
    /‘
    3.
    D. Dumelle
    /
    Board Member
    I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that
    thp
    above Dissenting Opinion was filed
    on the
    -~f
    ~‘-~
    day of
    “~I-L
    -~
    ,
    1991.
    Dorothy N.
    Illinois
    I
    Control Board

    Back to top