ILLINOIS POLLUTION CONTROL BOARD
October
6,
1988
NATURAL GAS PIPELINE
CO.
of America,
Petitioner,
v.
)
PCB 87—150
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon the motion of
Respondent,
Illinois Environmental Protection Agency (Agency)
requesting this Board
to order Petitioner, Natural Gas Pipeline
Co.
of America,
to amend
its pleadings.
In specific the Agency
states that Petitioner has supplemented its petition for review
with data and information not presented
to the Agency during the
course of
its
permit review analysis.
Because data not submitted
to the Agency
is immaterial
in
a permit appeal proceeding
the
Agency asks this Board
to order Petitioner
to amend
the request
for hearing and remove all data and references
to data which was
not earlier provided
to the Agency in the original application
package.
It
is well established that the sole issue at any permit
appeal hearing
is whether the application package submitted
to
the Agency demonstrated compliance with the Environmental
Protection Act.
IEPA v.
IPCB,
(1st Dist.
1984)
118 Ill. App.
3d
772, 455 N.E.2d
189;
City of East Moline
v.
IEPA, P~CB86~’l8,
decided September
8,
1988.
Recently,
this Board has ruled
as follows on the issue of
scope
of inquiry at
a permit appeal hearing:
The hearing
to contest permit denials,
or
to
contest
special
permit
conditions,
is
an
adversarial
hearing,
providing
for
discovery,
motions,
cross—examination
of
adverse
witnesses,
argument,
and
briefs.
It
is
this
hearing
which protects
the due
process
rights
of
the
applicant
within
the
context
of
the
Agency’s decision
to deny
a
permit
or
impose
93—27
—2—
special
permit
conditions.
But
it
must
be
remembered
that
it
is
the
Agency’s
action
which
is
being
appealed;
and,
consequently,
the framework for,
and scope
of review of that
Agency action
is established
at the moment the
Agency’s action occurs.
The
relative
burdens
of
the parties
at
a
permit appeal are well established:
“...
A
Petitioner
•..
must
persuade the Board
that the activity
in
question
will
not
cause
a
violation
of
the
Act
or
Board
regulations.
In
response,
the
Agency may contest
the facts
in
the
application
or
it
may
choose
to
do
either
or
it
may
choose
to
present
nothing.
...
The
issue
is
simply
whether
or
not,
in the sole judgment
of
the
Board,
the
applicant
has
submitted
proof
that
if
the
permit
is
issued,
no
violation
of
the
Act
or
regulations
will
result.
(The
propriety
of
this
...
procedure was
reviewed and upheld by the Appellate
Court,
Third
District
in
SCA
Services,
Inc.
v.
IPCB
&
EPA,
71
Ill.
App.
3d
715,
389
N.E.2c1
953.”
EPA
v.
Allaert
Rendering,
Inc.,
PCB
76—80, September
6,
1979.
In a similar case the Board held
as follows:
“Under
the
statute,
all
the
Board
has
authority
to
do
in
a
Ipermit
appeal
hearing
...
is
to
decide
after
a
hearing
...
whether
or
not,
based upon
the facts
of the
application,
the
applicant
has
provided
proof
that
the activity
in
question will
not cause
a
violation
of
the
Act
or
the
regulations.”
Oscar Mayer
&
Co.
v. EPA, PCB 78—14,
June
8,
1978.
93—2 S
—3—
“Clearly,
the burden
is
on the applicant;
and
at
hearing
the
applicant’s
burden
is
to
demonstrate
that
the
Agency’s
denial
of
a
requested permit
is simply not justified given
the
data
provided
by
the
applicant.
At
a
hearing
before
the Board
to contest denial of
a permit application,
the sole question before
the Board
is whether the applicant proves that
the
application,
as
submitted
to
the
Agency,
demonstrated
that
no
viol~ETon
of
the
Environmental
Protection
Act
would
have
occurred
if
the
requested
permit
had
been
issued.
IEPA v.
IPCB,
(1984)
118
Ill. App.
3d
772,
455
N.E.2d
189;
Joliet
Sand
&
Gravel
Company
v.
IEPA &IPCB,
(1987) 163
Ill.
App.
3d
830,
516 N.E.2d 955 (3rd Dist.
1987).
In
reviewing
the
Agency’s
permitting
decisions,
the
Board
considers
the
data
submitted with
the application package.
But,
because
the
Board’s
role
is
one
of
reviewing
the
Agency’s
action,
the
Board
does
not
consider
new
facts
and
circumstances
which
change
after
the
date
of
decision;
nor
does
the
Board
consider
data
submitted
to
the
Agency after
the permit
application
is denied
(this
is
the
province
of
a
new
permit
application).
The Board’s
duty
is
to
review
the
Agency’s
decision
within
the
context
of
the
data
provided
by
the
Petitioner
in
its
permit application, and determine whether this
decision
was
correct
or
incorrect.
The
Illinois
Supreme
Court
has
held
that
the
Agency’s
(permitting)
decisions
are
not
presumptively
correct
upon
review
by
this
Board.
IEPA
v.
IPCB
(1986)
115
Ill.
2d
65,
503 N.E.2d 343.
Thus,
by placing
itself
in
the Agency’s
position
——
equipped with the same application
data possessed by the Agency when the decision
was
made
——
this
technically
qualified
Pollution
Control
Board
decides
whether
the
permit
application
should
have
been granted.
If
the
answer
to
this
is
yes,
the
Board
can
either
order
the permit issued or unilaterally
Strike
the
improper
special
permit
conditions.
The
Board,
by placing
itself
in
the
Agency’s
position,
decides
anew
whether
the
permit
should have
been
issued.
In
this
Sense,
the
Board
is
making
its
determination
anew;
afresh;
a
second
time.
Black’s
Law
93—29
—4—
Dictionary,
4th
Edition.
In
practical
terms,
all
this
really means
is
that
the Board
does
not
recognize
the
Agency’s
decision
as
presumptively
correct.
The
Board
does
not
grant deference to the Agency’s decision....
The Board does not,
however, conduct
a de
novo review in the sense
that it considers new
evidence
not
previously
presented
to
the
Agency
during
its
deliberation.
Doing
so
would usurp
the distinct function
of the IEPA
as
the
state
permitting
agency.
Ill.
Rev.
Stat.
1987
ch.
111
1/2,
pars.
1004 and 1039(a)
IEPA v.
IPCB
(1986)
115 Ill.
2d
65, 503 N.E.2d
343.”
City
of
East
Moline
v.
IEPA,
PCB
86—
218.
In view of the unbroken line of precedent discussed above,
the Board cannot consider data which was not made available
to
the Agency during
its permit application review process,
that
is,
prior
to the Agency’s September
4, 1987 denial of Petitioner’s
permit application.
As the Agency notes
in its Motion to Require
Amendment to Pleadings,
Petitioner has inserted,
as part of its
October
9, 1987 and August
31,
1988 filings,
information which
was
not before the Agency during the permit application review
process and has indicated
its
intent to perform other activities
in the future
in support of its arguments for
reversal
of the
Agency’s determination.
The Board will not consider such data;
the Hearing Officer
is directed
to deny any offer
of proof
regarding such data.
Having this addressed the underlying issue,
the Board
nevertheless
is reluctant
to grant Respondent’s motion.
The
Board
is loathe to undertake or supervise the rewriting of
petitions
or other pleadings;
ordering
a party to redraft its
Pleadings sets
the Board upon
a course which invites challenges
to its authority, encourages
unnecessary delay~andtaxes
i-tS
resources.
Further,
the Petitioner’s petition for review in this
case appears
to state
a prima facie cause of action; dismissal or
striking of the pleadings would
thus be inappropriate.
The Board
may require
a different result
in future actions should
a pattern
of flagrant attempts to abuse
the permit appeal process emerge;
it will not look kindly upon efforts
to end—run established
precedent,
confuse the
issues or
taint the
record of permit
appeal proceedings.
For the foregoing reasons Respondent’s motion
to require
amendment of Petitioner’s pleadings
is denied.
IT
IS
SO ORDERED.
93—30
—5—
I,
Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board, her~y~certifythat the above Order was adopted on
the
_____________
day of
i~-t~.
,
1988 by a vote
of
7-
b
.
Dorothy M7Gunn,
Clerk
Illinois ~ollution Control Board
93—31