ILLINOIS POLLUTION CONTROL BOARD
June 20,
1991
THE GRIGOLEIT
COMPANY,
)
Petitioner
)
)
V.
)
PCB 89—184
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
On May 30,
1991,
the Grigoleit Company (“Grigoleit”) filed a
Motion asking the Board to impose sanctions upon the Agency for
exceeding the scope of the Board’s November 29,
1990 Opinion and
Order.
Grigoleit requests the Board to bar the Illinois
Environmental Protection Agency (“Agency”)
from filing any other
pleadings in this matter, to direct the Agency to pay Grigoleit’s
expenses in obtaining any order pursuant to its motion, and to
order the Agency to issue an operating permit and declare the
Agency’s April 25,
1991 denial of Grigoleit’s operating permit
null and void.
On June 7,
1991,
the Agency filed a response to
the motion.
Before proceeding any further, we will first summarize the
procedural history that lead to the current motion.
On October
12,
1989,
the Agency denied Grigoleit’s application for renewal
of its air operating permit.
Grigoleit appealed the denial on
November 13,
1989.
On November 29,
1990,
the Board remanded the
case to the Agency so that the Agency could elicit the
information that it requested in subparagraphs 2(a)
and
(b)
of
its October 11,
1989 permit denial letter and,
in turn, determine
whether Grigoleit was in compliance with 35
Ill.
Adm. Code
215.301.
Subparagraphs 2(a) and
(b)
of that letter read as
follows:
2.
Your application fails to provide proof of
compliance with 35 Ill. Adm. Code 215.204(h),
(j)
and 215.301.
The following information
is required to assess compliance with these
rules:
a.
Provide usage and percentage by
volume for each ingredient in ink
and solvent used for each coating
application.
b.
Provide the weight percentage of
2
the volatile organic compound in
the ink and solvent and the amount
of ink and solvent used per hour.
In a letter dated January 10,
1991, the Agency attempted to
elicit certain information from Grigoleit.
On January 25,
1991,
Grigoleit provided information to the Agency which it claims
demonstrates that it is
in compliance with 35 Ill. Adm. Code
215.301.
On April 25,
1991, the Agency again denied Grigoleit’s
application for renewal of its operating permit.
Grigoleit filed
its motion for sanctions in response to the Agency’s January 10,
1991 letter and January 25,
1991 permit denial.
In its motion for sanctions, Grigoleit claims that the
Agency, via its January 10,
1991 letter and its April
25,
1991
permit denial,
exceeded the scope of the Board’s remand order and
that the Agency has no authority to deny Grigoleit an operating
permit or consider Grigoleit’s January 25,
1991 letter an
application for an operating permit.
In its response, the Agency agrees that,
in its January 10,
1991 letter,
it asked Grigoleit to provide information regarding
compliance with 35 Ill.
Adm. Code 215.301.
The Agency also notes
that, because it obtained information which indicated that a new
emission source was present at Grigoleit’s facility and that the
operation of the various air emission sources at the plant may
generate certain emissions, discharges,
or wastes,
it asked
Grigoleit to provide information to demonstrate that its
operation of the equipment and the emissions were in compliance
with the regulations.
The Agency also argues that the Board’s
November 20,
1991 Opinion and Order did not require the Agency to
base any future permitting decision only on the state of affairs
as of the date of Grigoleit’s first permit application
(i.e.,
July 12,
1989)
and that Section 39(a)
of the Environmental
Protection Act (“Act”) requires the Agency to examine the
additional operations at the facility to ensure that the
operations will not cause a violation of the Act or regulations.
A review of the Agency’s January 10,
1991 letter indicates
that the Agency went beyond the Board’s November 20,
1990 mandate
in three respects.
First, with respect to 35 Ill. Adm. 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 concern 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 its
concern over the additional operations.
The Agency cannot now
express concern about the additional operations in this permit
appeal at this juncture, nor can it argue that the Board did not
3
require the Agency to base its review only on the state of
affairs at Grigoleit’s facility as of the date of its earlier
permit application.
Although we did not explicitly state that
our November 29,
1990 mandate was limited in scope,
it is
implicit in any remand order that the order is limited to only
those facts that were before the Agency when it denied the
permit.
To hold otherwise would allow the Agency,
in effect, to
conduct a de novo permit review on remand.
Earl Bradd v.
IEPA,
PCB 90-173
p.
6
(May 9,
1991).
As for the Agency’s argument that
Section 39(a)
of the Environmental Protection Act would not allow
the Agency to issue a permit
if Grigoleit’s operations would
cause violations, we remind the Agency that it already made its
39(a)
determination in this case when it reviewed Grigoleit’s
permit application and chose not to list its concerns regarding
Grigoleit’s additional operations in its October 11,
1989 permit
denial letter.
Second, the Agency went beyond the Board’s mandate when it
attempted to elicit information regarding the violation of 35
Ill. Adm. Code 215.204(h)
and
(j).
In our November 29,
1990
Opinion and Order, we determined that there was sufficient
information in Grigoleit’s permit application for the Agency to
determine that Grigoleit’s emissions were exempt from and that
Grigoleit did not violate these regulatory sections.
(see
Grigoleit at
14,
116 PCB 260
(November 29,
1990)).
Accordingly,
we will not allow the Agency to cite these two sections when we
expressly limited the Agency’s scope of review on remand to
a
determination of whether Grigoleit is in compliance with 35 Ill.
Adm. Code 215.301.
Bradd, PCB 90—173 p.
6
(May 9,
1991).
Third, the Agency went beyond the Board’s mandate when it
attempted to obtain additional information regarding possible
land violations at the facility that were first cited in the
Agency’s October 11,
1990 denial letter.
Denial reason
3 of that
letter read as follows:
You have been previously notified by the
Agency’s Division of Land Pollution Control
of apparent violations of 35 Ill.
Adm. Code
Sections 722.111,
722.112, 722.134,
725.152,
725.116 and 725.273.
Since these violations
are still outstanding, pursuant to sections
21 and 39 of the Act, no permit may be
granted.
In our November 29,
1990 Opinion and Order, we struck denial
reason
3 and stated,
in part,
that if the Agency had waste
concerns,
the proper mechanism to address those concerns was
through an enforcement action rather than the denial of an air
permit.
(see Grigoliet at 16,
116 PCB 262
(November 29,
1990)).
Accordingly, we will not allow the Agency to cite possible land
violations when we expressly struck denial reason
3 and limited
4
the Agency’s scope of review on remand to a determination of
whether Grigoleit is in compliance with 35 Ill. Adm. Code
215.301.
Bradd,
PCB 90—173 p.
6
(May 9,
1991).
Based on the above, we find that the Agency has not complied
with the Board’s November 20,
1991 Order.
Accordingly, we hereby
grant Grigoleit’s motion for sanctions.
Rather than barring the
Agency from filing any other pleading regarding any related issue
or directing the Agency to reimburse Grigioleit for its costs
associated with this motion, however, we find that the most
appropriate sanction is to declare the Agency’s January 10,
1991
letter and April 25,
1991 denial letter null and void.
This
matter is again remanded to the Agency for the sole purpose of
eliciting the information requested in subparagraphs
(a) and
(b)
of denial reason
2 of the Agency’s October 11,
1989 denial letter
in order to determine whether Grigoleit is in compliance with 35
Ill. Adm. Code 215.301.
IT IS SO ORDERED.
Board Members J. Dumelle and B. Forcade dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution control
Board,
hereby certify thaf
he above Order was adopted on the
_____________
day of
___________________,
1991 by a vote of
~z/~i
);~.
Dorothy M. ~ann, Clerk
Illinois P~,llutionControl Board