ILLINOIS POLLUTION CONTROL BOARD
June 10,
1987
JOLIET
SAND
AND
GRAVEL COMPANY,
)
)
Petitioner,
)
vi
)
PCB 87—55
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent1,
)
ORDER OF THE BOARD (by
B1,
For cade):
On April 30, 1987, Joliet Sand and Gravel Company (herein-
after
NJolietN)
filed a petition for hearing to contest permit
denial.,.
In the May 14,
1987, Order setting
this matter
for
hearing, the Board questioned whether
it had jurisdiction to
proceed:
The
Board
notes
that Joliet appealed
a
previous denial
of
this permit
to the
Board,
and
the
Board,
in
PCB
86—159,
affirmed
the
Agency’s
deniaL.
Joliet
has
appealed
the
Board’s
decision
to
the
Illinois
Appellate
Court
in
Joliet
Sand
and
Gravel
Company
v1,
Illinois
Pollution Control
Board
and Illinois
Environmental Protection Agency, Appeal
NO,.
3—
87—014L.
That
case
is
presently
pending
before
the
Appellate
Court..
The
Board
questions
whether
it
has
jurisdiction
to
adjudicate
the
present
petition
in
light
of
the
Appellate
Court’s
jurisdiction
over
that
appeal1,
The
Board
does
not
have
sufficient
facts
before
it
to
determine
whether
the
instant
petition
is
an
action
separate
and
distinct
from
the
prior
petition,
or
whether
these
actions
are,
in
fact,
so
similar
as
to
divest
the
Board
of
its
jurisdiction..
Therefore, the Board requests that the parties
submit briefs on this issue1,
The briefs shall
be due within twenty—one
(21) days of the date
of this Order..
On June 4, 1987, Joliet filed a response to the Board
Order1,
That response stated that Joliet had submitted information to the
Illinois Environmental Protection Agency (hereinafter “Agency~)
after
the Board Order
of February
5,
1987,
in PCB 86—159
(hereinafter
~the first permit denials), and requested issuance
78-400
—2—
of a permit1,
On March
26,
1987, the Agency denied the
application for
a permit finding
it to be
incomplete1,
Joliet
filed the instant Petition for Review on April
30, 1987
(hereinafter
“the second permit denial”),.
The
response further
states that Joliet has followed all procedures of the Illinois
Environmental Protection Act (hereinafter “the Act”)
and
Administrative Code and that Joliet does not understand how the
Board could be divested of jurisdiction1,
On June 4, 1987,
the Agency filed a “Memorandum
in support
of Respondent’s Motion to Dismiss,.”
That memorandum argued that
the Board lacks jurisdiction in this case under
the theory
articulated in Album,
mc,.
v..
IEPA,
PCB 81—23, March
19, 1981,
and Caterpillar
Tractor Company
v,. IEPA, PCB 79—180, July 14,
1983,.
The Agency argues that such a holding is necessary to
avoid
a “continuous stream of hearings and appeals with no
decision ever
being
final,.”
On June
9,
1987, Joliet filed a
response to the Agency’s memorandum stating that no “motion” has
been filed
and the memorandum should be struck, that the time for
a dismissal motion has passed and that Album
and Caterpillar
do
not apply,.
Since the jurisdictional issue was raised by the
Board
in its first order
in this proceeding, all arguments to
that issue are timely and will be accepted1,
The relevant facts
in this proceeding seem clear,.
The first
permit denial concerned an application by Joliet to operate a
sand and gravel processing plant at 2509 Mound
Road,.
Joliet
asserted that the application contained “adequate information” to
demonstrate that its operations would not violate Board
regulations or
the Act regarding particulate emissions,.
The
Agency denied that application for
inadequate information and
that denial was,
in part, affirmed by this Board on February 5,
l987~ Joliet appealed the Board’s decision in that matter
to the
Third District Appellate Court on March 12,
1987
(Case
No,.
3—87—
0141),.
That appeal
is presently pending before the Third
Distr ict,.
The second permit denial concerned an application by Joliet
to conduct the same sand and gravel operation at the same
location,.
Joliet again asserted that the application contained
“adequate information” to demonstrate that its operations would
not violate Board regulations or the Act regarding particulate
emissions,.
The Board does not believe that the Act allows a facility to
seek multiple contemporaneous permit reviews before this Board
and the courts involving the same facility attempting to conduct
the same operations under
the same regulatory framework
(the
particulate emissions regulations)1,
In both Album
and Caterpillar,
the Board held that the
Agency lacks the authority to issue a second valid and legally
78-401
—3—
enforceable permit to the same facility for
the same operations
under
the same regulatory framework while the first permit is
under
review by this Board,.
In Album,
the Agency moved to
dismiss a pending permit appeal because of the probable issuance
of subsequent permits resolving the controversy1,
The Board
denied dismissal:
The permits issued on September
9,
1980,
to
petitioner,
once
appealed
to
the
Board,
could not
be nullified by Agency modification
or
reissuance
until
dismissal
of
the
petitions1,
Negotiations
and
settlements
subsequent
to
the lawful
issuance of
a
permit
cannot
render
the
permit
of
no
legal
import
once
it has been appealed
to the Board,.
Unless the proceedings
in PCB
80—189
and
80—190
are
to
be
withdrawn,
and modified
or
new permits are
to be subsequently issued, the
prior permits remain
in full legal
effect,.
It
is
axiomatic
that
two
permits
covering
the
same process
or equipment and issued pursuant
to
the
same
legal
authority
cannot
have
simultaneous
legal
effect,.
Because
neither
petitioner
nor
respondent
has
alleged
that
either permit is of no legal effect,
the Board
concludes
that
the
ones
issued prior
in
time
have
primacy
and
that
the
later
permits,
assuming they exist, did not nullify the legal
effect’ of
the
prior
permits,.
(Album,
March
19,
1981),.
In Caterpillar, the permit applicant moved
to dismiss the pending
permit appeal
after
issuance of a subsequent permit which
resolved the controversy,.
The Board first considered whether
the
second permit could issue at all:
This
motion
indicates
that
confusion
still
exists
concerning
the
ability
of
the
Agency
to
modify
a
permit
by
issuing
yet
another
permit
during
the
pendency
of
its
appeal
to the Board,.
In Album,
Inc..
v..
IEPA,
PCB
81—23,
23
(March
19,
1981,
as reaffirmed
May
1,
1981),
the Board considered
the effect
of the Agency’s purported “issuance”
of
a new
permit covering the same operation of the same
facility which was the subject of an earlier,
still.
pending,
permit
denial
appeal,.
The
Board
found
that
the
earlier
issued
permits
“could not be nullified by Agency modification
or
reissuance
until
dismissal.
of
the
petitions,.”
78-402
—4—
To put this more clearly, the Board finds
that
the
Agency has
no jurisdiction
to
issue
any
subsequent
permits
once
the
disputed
permit has been appealed to the Board, just as
the
Board
has
no
authority
to
modify
its
Orders
once
they
have
been
appealed
to
the
courts,.
The
April
18,
1983,
“permit
issued”
to
Caterpillar
is
a
nullity1,
(Caterpillar,
June 3,
1983),.
After
additional oriefing of the issue, the Board was
persuaded by the parties arguments that a subsequently issued
permit was voidable:
Caterpillar’s primary
argument
is
that
the
April
18,
1983,
permit
should
be
considered
a
voidable
permit,
rather
than
a
void
one,.
The
argument
is
premised
on
the
fact that since the Agency has the legal power
to
issue
permit
modifications
according
to
Illinois contract law, any unauthorized use of
that
power
by
the
Agency
would
result
in
a
permit which
could
be voided
or validated
by
the
permittee,
but
which
could
not
be
repudiated
by
the
Agency..
See
Litchfield
v,.
Litchfield
Water
Supply
Co..,
95
Ill,.App,.
647
(1901),
and
Corbin
on
Contracts,
Section
6
(1952)..
Cateipillar
argues that its Motion to
Dismiss
amounts
to
a
satisfaction
of
the
modified
permit,
which
would
be
upheld
by
a
Board Order
dismissing the appeal..
*
*
*
However,
the
Caterpillar
“voidable but
not
void”
permit
argument,
as
buttressed
by
the
Agency’s
“draft
permit
subject
to
USEPA
review”
argu.~nt, is
persuasive..
The
Board
finds that the permit “issued” April 18,
1983,
is
a
voidable
permit,
having
no
effect
until
the
dismissal
of
the
instant
permit
appeal..
Caterpillar’s May
6,
1983,
motion
to dismiss
is
hereby
granted..
(Caterpillar,
July
14,
1983)..
In both proceedings,
the Board was considering the validity
of a subsequent permit decision regarding the same facility for
the same operations,
under
the same regulatory framework,.
In
both proceedings,
the Board held that the second permit decision
was of no force and effect while the first permit decision was
still under appeal
to this board
~g403
—5—
The Board did not hold
in Album
or Caterpillar
that the
permit applicant and the Agency were completely foreclosed from
attempting
to resolve
their
differences once a matter
was on
appeal,.
The Board held that any subsequent permit decision by
the Agency was “voidable” by the applicant..
If the applicant and
the Agency believe they can resolve their differences,
they
can
proceed through the permitting procedures that are mandated by
state and federal
law,.
If the “voidable” permit decision which
results from that process
is acceptable
to the applicant, the
applicant can move to dismiss the pending permit appeal..
Once
the prior permit appeal
is dismissed,
the “voidable” permit
decision would become legally effective,.
This ensures that
requirements which are placed on the permitting process can be
met
(e,.g.~, public notice, hearing and participation
in the
development and revision of any permit;
40 CFR Part 25, Part 51,
Part 124), while still encouraging negotiations to settle
disputes..
That process
is exactly what occurred
here..
While
the first matter
was on appeal, Joliet submitted a second
application, the Agency evaluated that application within the
procedural. confines of the law and rendered a decision,.
That
decision
(a determination of incompleteness)
is voidable by the
applicant,.
It is not, however, appealable since it is of no
legal
force and effect until
the applicant dismisses the pending
permit appeal, or until
a “final” determination is made on the
permit appeal..
Since the first permit denial
is presently under
review
in the Third District, no “final” decision has been issued
in that controversy..
Since the second permit denial has no legal
force and effect while the first permit denial
is still under
judicial review, this Board lacks jurisdiction to review the
second permit denial,.
Accordingly, the April
30,
1987, petition
for review filed by Joliet is hereby dismissed,.
The Board notes that this proceeding provides an even more
compelling
case that subsequent permit decisions lack the force
and effect of law that would allow their
appeal..
Permitting
decisions must be made by •the Agency in short time periods,
usually 120
days,.
Review of those decisions by the Board and
courts can ultimately take several years, during which time the
applicant can continue
to submit permit applications..
If each
Agency decision were reviewable,
an applicant could have many
“permit decisions” under
review by the Board,
the appellate
courts and the Supreme Court..
This could encourage permit
applicants to submit minimal information in the first application
and provide more information
in each subsequent permit
application until the Agency granted a permit or
a favorable
decision was reached by one of the reviewing bodies on one of the
many “permit decisions..”
As the Board has cietermined that it lacks jurisdiction in
this matter, all other pending motions are dismissed as
moot..
IT IS SO ORDERED
783~~
—6—
Board Member
Joan Anderson dissented,.
I, Dorothy
M,. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order
was adopted on
the
/e~
day of ______________________,
1987, by a vote
of~ç-,
12Z~4~A~*
Dorothy
M,.
thin, Clerk
Illinois Pollution Control Board
7g~405