ILLINOIS POLLUTION CONTROL BOARD

February

8,

1990

IN THE

MATTER

OF:

)

AMENDMENTS TO 35 ILL. ADM. CODE

)

R90-8

105.102; REPEAL OF DE NOVO

)

(Rulemaking)

HEARINGS FOR APPEALS OF NPDES

PERMITS

DISSENTING OPINION

(by

J. Anderson):

The stated purpose of separating out this rulemaking from

the general procedural

rules update effort was

to repeal the

existing de novo language

regarding NPDES permit appeals.

I

fully support

raising this issue at

this time.

The proposed

language,

however, also deletes

the burden of proof language

in

that subsection and proposes new language.

I believe that

it

is

unwise

to

raise this

important issue only

in

Lhe context of NPDES

permits.

The opinion itself creates confusion as

to the intended

effect of this language on other permits.

The Opinion

first

states:

“The

Board’s

intention

in

this

proceeding

is

to

make

the

NPDES

appeal

process

function

in

the

same

manner

as

the

appeal

of

all

other

Agency issued permits.”

The Opinion

then states:

“Today’s

proceeding

is

not

intended

to

make

any changes

in the manner

in which other non—

NPDES

permit

appeal

proceedings

are

conducted.”

The Opinion also states:

“This

language,

as well as the burden of proof

language,

is

found

with

minor

semantic

differences

in Section

40(b),

(c),

and

(d)

of

the Act governing permit appeals.”

Section

40(b)

addresses

third party RCRA appeals; Section

40(c)

references Section

39.3 which

is essentially inoperative;

and Section

40(c) addresses air permits.

I believe

that the burden of

proof

language does,

in fact,

affect non—NPDES permits

and,

at

the very

least, should have been

103—179

---

repeated

in the non-NPDES permit appeals subsection.

At least

permittees holding non-NPDES permits would have been alerted to

its implications

for them.

I do not see why the language had to

be proposed at all at

this

time.

I believe the burden of proof

language:

creates

inconsistencies with other language

in that subsection,

some of

which needs to be deleted to conform with case

law;

appears

to

go

beyond Sections 40(b),

(c),

and

(d)

of

the Act;

and raises issues

that would more appropriately be addressed

when

the whole permit

appeal

section

is proposed

to be amended.

It

is for

these reasons

that

I respectfully dissent.

1.

-~

/

Joan

G. Anderson

I,

Dorothy M.

Gunn, Clerk

of

the Illinois Pollution Control

Board, hereby certify

that the above Dissentina Opinion was

submitted on the

____—

day of

______________

,

90.

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board

i08120