ILLINOIS POLLUTION CONTROL BOARD

June 10,

1987

JOLIET SAND AND

GRAVEL

COMPANY,

)

)

Petitioner,

)

V.

)

PCB 87—55

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

DISSENTING OPINION

(by J.

Anderson):

The Order

of the majority of the Board dismissed this appeal

of

the denial of a permit.

The grounds were that, since the

Third District Appellate Court is considering

an appeal

of a

prior

(August

26,

1986) Illinois Environmental Protection Agency

(~Agency)denial of an operating permit for

the same operation at

Joliet’s facility, the Board lacks jurisdiction to consider

issues arising

from the Agency’s later March 26,

1987,

decision

to deny.

While

both the March, 1987 denial

letter and the August,

1986 denial letter were essentially based on the fact that the

respective applications as subi~ittedcontained inadequate

information, the March, 1987 letter does not just repeat the

permit denial

reasons of

the August, 1986 letter.

None of the

four reasons

in the earlier letter

is repeated

in the latter

letter; and none of the reasons

in the later letter appears

in

the earlier letter.

I dissent from the majority Order because

I believe that the

petitioner’s statutory and due process rights are being

constrained because,

in order

to prevent multiple appeals, the

Board decision

in essence requires the petitioner to abandon

certain rights

in order

to preserve others.

I also believe that

the Board’s reliance on the Board’s holdings

in Album,

Inc. v.

IEPA,

PCB 81—23, March

19,

1981 and Caterpillar Tractor Co.

v.

IEPA,

PCB 79—180,

July 14, 1983 is misplaced.

Each of these

cases involved purported Agency issuance of a second permit while

appeal of condition of a prior

issued permit was pending before

the Board;

the policy and practical considerations involved

in

this case involving two permit denials are dissimilar.

And

I

further believe that the Board’s decision

is not beneficial

to

the environment.

As background

for my dissent, there are several observations

drawn from my experience as

a member of this Board that might

78-406

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serve

to place

the issues

in perspective.

It

is beneficial

to

the environment as well as to a

facility operator

to have

operating permits renewed

as quickly as possible.

The benefit to

the environment

is that the renewal permit contains conditions

for the facility’s operation which are based

on current data.

The benefit to the operator

is that the facility

is insulated

from enforcement for failure

to have a valid permit.

‘Where the

Agency has either denied a permit or where the permit has been

issued with conditions which are deemed objectionable, it

is not

uncommon for the applicant to reapply

to the Agency as well as

to

file an appeal with the Board.

In addition to preserving

the

right of review of substantive disagreements,

the appeal

to the

Board may also protect the facility’s operating status.

Where

the permit is denied, and the applicant has timely filed

for

renewal of a permit,

the Board

has consistently held that the

facility may lawfully continue its operations pursuant to

the

expired permit, which

is deemed

to continue

in effect during the

pendancy of any appeal.

If the appeal

is dismissed prior

to

issuance of

a permit,

the facility cannot operate lawfully.

Where the conditions of an issued renewal permit are the subject

of challenge,

the facility operates pursuant

to the renewal

permit whose objectionable conditions may be stayed by the Board.

The Act contains

a detailed system for processing permits

and

resolving disputes.

Section 40 of the Illinois Environmental

Protection Act (“Act”)

allows a petitioner

to appeal to the Board

any final permit determination of the Agency, and to appeal

to

the Appellate

Court any final determination of the Board.

This

right of appeal must be exercised within 35 days.

It must be

emphasized

that,

once an application

is filed ‘with

the Agency or

an appeal

is filed with the Board, Sections 39(a)

and 40 of the

Act impose decision deadlines on the Agency and the Board

respectively.

Failure by the Agency or the Board

to timely

decide results

in a deemed approved permit.

There

is nothing

in

the Act that requires the petitioner

to waive these deadlines.

It

is also important to note that Section

39 requires the

Agency to give specific reasons for its denial of a permit.

Agency failure to state a reason

in the denial letter constitutes

a waiver of the right

to rely on the unstated reason; on appeal

the Board may not consider

reasons for denial which were

unstated, even

if those reasons would be valid.

In this instance, all parties had followed their mandates or

exercized their

rights.

The Agency had timely denied

a permit;

the petitioner

had timely appealed

to the Board,

the Board timely

upheld the Agency’s denial and the petitioner had timely appealed

to the appellate court, where jurisdiction of the August, 1986

decision now rests.

Following

the Board’s affirmation of the

Agency’s denial, the petitioner

also reapplied

to the Agency for

a permit.

The Agency again timely denied the permit in March,

1987 for

reasons different from those given

for its denial of the

78-407

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earlier permit application.

The petitioner timely appealed this

denial

to the Board.

As the majority Order

notes,

in Album

the Board held that

where

a permit had been issued,

the Agency lacks authority

to

modify that permit while

it

is the

subject of an appeal.

The

Board’s reasoning was that “two permits covering the same process

or

equipment and

issued pursuant

to the same legal authority

cannot have simultaneous legal effect”,

and went on to conclude

that the earliest issued permits have “primacy and that the later

permits, assuming they exist, did not nullify the legal effect of

the prior permits”.

The Album

reasoning was subsequently

refined

in the Caterpillar case,

in response to arguments made by

the litigants regarding practical difficulties encountered

in an

attempt to settle

the appeal.

In Caterpillar,

the Board went on

to state

that the Agency could consider new information and

“issue”

a voidable permit, which could be ratified by the

permittee

to become effective upon dismissal

of the prior

action.

This procedure accommodates the petitioner’s right to

review of issues and affords protection

to its operating status,

while

still fostering problem resolution with the Agency.

Before today’s Order,

the Board had not considered the

ability of the Agency to issue a permit while a denial appeal was

pending before

the Board,

let alone while

a denial appeal was

pending before

an appellate court.

where no permit exists,

as

is the case here, there cannot be

a transfer of jurisdiction of any existing permit from the Agency

to

the Board

tq the Appellate Court.

While

I would agree that

the Appellate Court now has jurisdiction over the Board’s Order

affirming the August,

1986 permit denial,

I fail

to see how

pendancy of that appeal vests any jurisdiction of

a subsequent

application in that Court,

or how the Agency is precluded or

absolved from its statutory duty to issue or deny a permit upon

the basis of the subsequent application.

In short, the Album

and Caterpillar decisions do not apply

to the facts

in this case.

Moreover, this Board decision

violates the rationale

for

the Caterpillar case, which preserved

all

appeal

rights and benefits while allowing

for exercise of the

right of the filing of an application and timely Agency decision

thereon.

Here, the majority would require

an applicant to

abandon some rights in favor

of others.

It

is unclear from the

majority opinion whether

the majority considers that the pendancy

of the court appeal bars one or both of the following acts during

the pendancy of an appeal:

1)

the permitee’s filing

of

a

subsequent application,

or

2)

the Agency’s action on that

application within

the statutory time period.

Caterpillar

assumes that the applicant may file the application, and the

Agency may issue

a “voidable” permit before the applicant

dismisses its prior

appeal.

Ironically,

the rights the Board

78~408

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sought

to preserve pursuant to Caterpillar are now lost

if the

Agency denies the permit.

Whether one or both acts are barred,

it

is clear

that an applicant

is being forced

to choose between

the right of judicial review of a previous administrative action

concerning

a permit application, and the right

to have either one

or both administrative agencies

(i.e. the Agency and/or

the

Board) make timely decisions concerning

the changed factual

situation which

a subsequent application presents.

~hi1e the effect of

the majority holding

is to

reduce

the

number of appeals pending before

the Board and the Courts~an

additional effect may be

to delay bringing

a facility into

the

permit system.

In this case,

for

instance,

if Joliet does not

choose

to dismiss its earlier appeal,

it cannot safely reapply

for

a permit until

that appeal

is finally decided some months

hence.

If the Board’s decision

is upheld, the application

process must begin

again.

Whereas

if a simultaneous appeal and

permit reapplication procedure is allowed to function,

as

I think

it practically and legally must, a permit could issue well before

a final appellate decision

is reached.

I appreciate the Board’s concern about potential for abuse

of

the permitting system through the filing of successive appeals

by an applicant who has filed successive deficient

applications.

However, even assuming that there are several

applicants who choose

to expend the not—inconsiderable monetary

and other

resources necessary to prosecute several simultaneous

appeals

in the courts and before the Board rather than

in

developing data,

the device chosen

by the majority to curtail one

perceived abuse can serve

to foster another.

For example, as aforementioned,

Section 39(a)

of the Act

requires the Agency,

in a permit denial letter, to give

“specific, detailed statements as

to the reasons”.

Thus,

the

Agency cannot later, on a re—review of the same information,

alter or

add

to those reasons.

Notwithstanding,

in a system

where permit applications and reapplications may be processed by

multiple and differing Agency permit reviewers over

time,

it

is

natural that new “afterthought” objections are or can be raised,

in good faith as well

as

in bad.

(See, e.g.,

Illinois Power

Co.

v. IEPA,

PCB 86—154, April

1,

1987,

a third appeal of issues

arising from an application filed

in 1979.)

This tendency to

raise new objections

to previously submitted information could be

encouraged by the majority holding, to the detriment of

the

permit system and the environment.

The Act’s fast—track appeal system was designed

to give

quick answers to all disputes arising between the Agency and the

regulated community,

in the interest of protection and

enhancement of the environment.

I believe that the majority’s

holding

frustrates the intent of this system.

78-409

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—5—

For all

of the foregoing reasons,

I respectfully dissent.

~i4~J

~

Aoan G. Anderson

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was

submitted on the

2Z~

day of

_______________,

1987.

Dorothy M. Gunn,

Clerk

Illinois Pollution Control Board