ILLINOIS POLLUTION CONTROL BOARD

November 29,

1990

THE GRIGOLEIT COMPANY,

Petitioner,

v.

)

PCB 89—184

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

(by B.

Forcade and J.

D.

Dumelle):

We respectfully dissent from today’s action.

We believe the

Agency’s denial should have been affirmed.

Additionally, we note

that the “Opinion and Order of the Board” contains the

unqualified support of only three Board Members, with four Board

Members either dissenting or specially concurring.

We are

therefore uncertain what,

if any, precedent attaches to that

Opinion’s language.

Today’s decision by the purported majority represents a

significant departure from prior Board holdings.

In our opinion

this new holding eliminates the Agency’s ability to deny

a permit

because the applicant fails to demonstrate compliance with the

Environmental Protection Act

(“Act”)

and Board regulations.

Now,

the Agency could only deny where the information clearly shows a

violation will occur.

Under this new rule the Agency must

somehow give the applicant a draft denial letter and allow the

applicant an opportunity to rebut the Agency’s proposed denial

reasons; otherwise,

this Board will remand.

We are curious as to

how this Board would react if the appellate courts required us td

give permit denial appellants a draft opinion and order affirming

denial prior to issuing a final sustainable denial opinion.

We

seriously doubt this Board could manage such activities within

the tight timeframes mandated by the Act, yet the prevailing

opinion has no difficulty placing such a burden on the Agency.

Our first objection to the prevailing opinion is that it is

unduly critical of Agency conduct.

For example, the prevailing

opinion finds fault with the Agency for providing a

“Notice to

the Board” that it could not support denial reason #1.

Without

citation of authority the purported majority concludes that,

“the

Agency cannot unilaterally retract a denial reason.

•“

We

thought any litigant could confess error of fact or law during a

proceeding.

To complain that this action flows from a Notice to

the Board rather than from a Notion seems overly pedantic.

As a

further example, the prevailing opinion complains about the

Agency’s use of CROPA to process permits.

Quite

frankly, how the

Agency chooses to internally process permits should be of no

116—26 5

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2

concern to either this Board or Grigoleit.

No one has argued

that CROPA sets any substantive pollution control standard which

Grigoleit was required to meet; the question of who in the Agency

looks at permit application information seems irrelevant to the

permit appeal.

The prevailing opinion’s innuendo that these

“rules” need to be promulgated,

seems an unjustified invasion of

internal Agency procedures.

Overall, the purported majority

language has

a tone of “Agency bashing” that clearly seems one

sided and out of place.

If the Board is going to get indignant about improper

conduct in this proceeding, then more attention to Grigoleit

seems appropriate.

The Agency has correctly noted that

Grigoleit’s application was internally inconsistent and simply

could not be accurate

Petitioner has alleged that the Agency has all

of

the

information

necessary

to

determine

compliance, since Grigoleit

certified

“that

all

previously

submitted

information

referenced

in this application remains true,

correct,

and current”.

The increase in usage

of

raw

materials,

the

switch

to

electric

infrared

dryers,

the

addition

of

the

lithograph

machine

and

the

paint

mixing/cleaning

room

are

all

changes

to

Petitioner’s previously submitted information.

(Respondent’s Brief,

p.11)

A less charitable person could conclude that Grigoleit’s permit

application information contained outright lies.

Certainly,

the

prevailing opinion’s absolute silence on this issue raises

questions of bias.

Grigoleit’s subsequent histrionics in the

reply brief

(p.

2) claiming Agency perjured testimony, dishonesty

and arrogance seems to be a diversionary smoke screen in light of

Grigoleit’s conduct,

yet no criticism is present in the

prevailing opinion.

In our view,

the prevailing opinion chooses

to only see half of the misconduct that could be described in

this proceeding

-

the Agency’s half.

Our second,

and most important,

objection is that the Agency

permit denial for failure to show compliance with 215.301 must be

affirmed unless two facts are clearly evident in the record.

The

first fact is adequate information to prove that Grigoleit emits

less than 25 tons per year so that only the provisions of

35 Ill.

Adm. Code 215.301 apply.

The second fact is that Grigoleit show

that they comply with the

8 pound per hour limit of that section.

Grigoleit’s arguments for emitting less than 25 tons relies on

the Agency knowing which part of the admittedly false application

data

is in fact true.

However, as regards the

8 pounds per hour

data, Grigoleit’s arguments are totally specious:

(1)

the

calculations are presented for the first time in the company’s

116—266

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3

briefs,

not in information that was before the Agency,

(2) the

calculations use the 6,000 gallon figure for VOlATILE organic

material,

not the presumable 11,988 gallon figure for ORGANIC

MATERIAL, and

(3)

assuming the 2080 hours of operation was

legally enforceable,

it only shows that the annual average hourly

emission rate

is not above 8.0 pounds per hour.

Our regulations

are never to exceed values,

not annual averages.

Unless this

Board can show a calculation that proves Grigoleit never emits

more than 8 lbs per hour of organic material, we

cannot conclude

Grigoleit demonstrated compliance.

No such showing can be made.

The prevailing viewpoint candidly admits that Grigoleit

failed to submit adequate information to demonstrate compliance:

Moreover, even

if we were not to rely on the

above

cases,

we

note that we have difficulty

in ruling fully on the merits of this denial

reason

because

there

was

insufficient

information submitted as

regards Grigoleit’s

compliance with 35 Ill. Adm. Code 215.301, and

because we are restricted to a review of the

information that was before the Agency during

its permit review.

(Opinion, p.

13)

Historically, when the applicant provided insufficient

information to demonstrate compliance with Board regulations, the

permit denial was affirmed.

For whatever precedential value it

may have,

the prevailing opinion today creates a new rule.

The prevailing opinion relies on Wells Manufacturing Company

v.

IEPA,

195 Ill. App.

3d

593,

552 N.E.2d 1074

(1st Dist.

1990),

to support its conclusion.

We find this to be a substantial and

totally unwarranted extension of the holding in Wells.

The Wells

court was faced with a situation where an existing facility

sought renewal of an existing permit by filling out a two page

certification that the operations at the facility had not

changed:

In December 1985,

the Agency sent a two-page

renewal

form

to

Wells

in

which

Wells

was

required

to

certify

that

its

equipment

remained unchanged or,

if changed, to explain

those

changes.

Wells

executed

the

form

certifying that no changes had been made and

returned it to the Agency on December 5.

The

next communication received by Wells from the

Agency was dated

February

28,

1986,

and was

notification that Wells application to renew

its operating permit was denied.

Supra,

at 335.

116—267

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4

Wells’ permit renewal was not denied for failing to demonstrate

compliance with the specific numerical emissions limitations

under which Wells was seeking a permit, but for possible

violations of a totally unrelated statutory narrative standard

about unreasonable interference with the enjoyment of life or

property.

The court noted that an actual enforcement action

charging unreasonable interference would invoke the factors in

Section

33

(c)

of the Act,

factors which were not considered in

the Wells permit decision.

Certainly,

Wells controls regarding

Agency permit renewal denials where “unreasonable interference”

forms the basis for denial.

However, to extend the Wells holding

to cover situations where

(1)

there have been substantial changes

to the facility and its operations,

and

(2) the applicant simply

fails to demonstrate compliance with the specific numerical

emission limitation under which

a permit

is sought represents an

unwarranted and irrational extension.

The Environmental Protection Act,

at Section 39

(a),

requires the Agency to issue a permit,

“upon proof by the

applicant that the facility.

.

.will not cause a violation of this

Act or of regulations hereunder.”

Today’s prevailing opinion

changes that language to require a permit be issued unless the

facts prove a violation will occur.

We do not agree,

therefore,

we dissent.

One additional factor about the prevailing opinion must also

be mentioned.

Grigoleit has added two new emission sources that

were never previously permitted: the Lithograph machine,

and a

new Systems Group H.

The prevailing opinion does not discuss

these new sources in any manner.

We presume the Agency is free

under today’s decision to address these new sources in any

appropriate manner.

___________________

~

Bill S. ~±c~de

/,3.

D. Dumelle

Board Member

1Board Member

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, here~ycertify that the above Dissenting Opinion was filed

on the

/~“~-~

day of

__________________,

1990.

~

,~.

Dorothy N.~unn, Clerk

Illinois Pollution Control Board

116—268