ILLINOIS POLLUTION CONTROL BOARD

January

19,

1989

VINCENT

A.

 KOERS,

 and DANVILLE

CITIZENS FOR CONTROL OF

HAZARDOUS WASTE INJECTION,

Petitioners,

v.

)

 PCB 88—163

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY and

ALLIED-SIGNAL,

 INC.,

Respondents.

CONCURRING OPINION

 (by B.

 Forcade):

I agree with the majority

that

 a third—party appeal

 of this

permit

 is not authorized by law.

 ~iowever, I believe the alleged

problems raised by the petition are

 issues that this Board may

properly address

 if they are filed

as

 a ccmplaint,

 rather than as

a

 third—party permit appeal.

In Landfill

 Inc.

 v. PCB,

 387 N.E.2d 258

 (1978), the Supreme

Court stated:

Section

 31(b)

 authorizes

 citizen

 complaints

against

 alleged

 violators

of

the

 Act,

any

Board

 rule

 or regulation,

 or Agency permit;

requires

the

 Board

to

 hold

a

 hearing

on

all

such

 complaints which

 are not “duplicitous

or

frivolous”

 (Ill.

 Rev.

 Stat.

 1975,

ch.

111

 1/2,

par.

 1031(b)).

 that

 hearing,

the

 com-

plainant

bears

the

burden

 of showing actual or

threatened

 pollution

or

 actual

or

 threatened

violations

of

any

 provisions

of

the

 Act,

rules,

 regulations,

or

 permits.

 (Ill.

 Rev.

Stat.

 1975,

ch.

111

 1/1,

 par.

 1031(c).)

The

grant

of

a

 permit does not insulate violators

of

 the Act

 or give them

 a license

 to pollute;

however,

 a citizen’s statutory remedy

is

 a new

complaint against

 the polluter,

not

an

 action

before

the

 Board

 challenging

the

 Agency’s

performance of

 its statutory duties

 in issuing

a

 permit.

As

the

 principal

 draftsman

of

the

Act has noted,

 “One

 receiving

 a permit

for

an

activity

 that

 allegedly

 violates

the

law

can

be

 charged

 with

 causing

or

 threatening

to

cause

 such

 violation

in

a

 citizen

 complaint

95—339

—2—

under

 Section

 31(b),

and

the

 regulations

expressly

 provide

 that

the

 existence

of

a

permit

is

no

 defense

to

 such

a

 complaint.”

Currie,

 Enforcement

 Under

 Illinois

 Pollution

Law,

 70 Nw.U.L.Rev.

 389,

478

 (1975).

In Koers’ petition

 for hearing many of the “causes” appear

premised on claims that Allied’s proposed operation under

the

terms

of

 the permit would violate

 statutory or

 regulatory

provisions.

 Under Landfill Inc., such claims can be validly

reviewed

 if the document making

 those claims

 is captioned

“complaint,”

 rather

 than “third—party permit appeal.”

For

 these reason~, I concur.

Bi

 orcade, Board Member

I,

 Dorothy M.

 Gunn, Clerk

 of the Illinois Pollution Control

Board, hereby certify

 that the above-concurring Opinion was

submitted on the

~7tZ

 day of _________________________,

 1989.

//

Dorothy

M.

 çunn, Clerk

Illinois Pe’llutiori Control Board

95—340