ILLINOIS POLLUTION CONTROL BOARD
    July 11, 1986
    ILLINOIS POWER COMPANY
    )
    (Hennepin Power Plant),
    )
    Petitioner,
    )
    V.
    )
    PCB 85—119
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J.D. Dumelle):
    This matter comes before the Board upon motions
    for
    reconsideration filed
    on behalf of both the Illinois Power
    Company
    (IPC)
    and
    the Illinois Environmental Protection Agency
    (Agency) on April 30,
    1986, and various subsequent filings.
    On
    May 9,
    1986,
    the Board granted reconsideration and established an
    additional briefing schedule.
    That order was clarified and
    upheld by order of June
    5,
    1986.
    Upon reconsideration,
    the Board affirms
    its Opinion and
    Order
    of March 27,
    1986, except that the Order
    is hereby modified
    to vacate
    the
    reissuance of NPDES Permit No. 1L0001554 only
    insofar
    as
    it includes the conditions contested
    in IPC’s Petition
    for Review
    in this matter.
    The Board understands that
    it has never before held that the
    Agency must respond in writing
    to comments of the permit
    applicant during
    the permitting process.
    For the most part,
    the
    Board has
    in such cases proceeded
    to
    reach
    a decision on the
    merits
    of the permit appeal based upon any prejudice
    to the
    applicant having been cured by the appeal process before the
    Board and administrative efficiency.
    On the other
    hand,
    the
    Board
    is aware of no case
    in which
    it has held that such
    responses were not required, despite some comments,
    in dicta,
    which indicate the contrary.
    If the Board were to continue to reach the merits of cases
    such as
    this,
    there would
    be little impetus for the Agency to
    correct its procedures to fully comply with state and federal
    law.
    The Board has decided that it
    is time to provide that
    impetus.
    The Board realizes that for
    a time there will be some
    administrative inconvenience as
    a result of this holding.
    However,
    in the long run,
    the elimination of this procedural
    issue should more than offset that inconvenience.
    Furthermore,
    now that the Board has held that the failure
    to provide written
    71-9
    —2—
    responses
    is reversible error, permit applicants may not find it
    necessary
    to raise this issue in other pending cases due
    to the
    inconvenience to them of remandment
    to the Agency in the belief
    that the Agency will provide such comments
    in the future.
    The Board offers the
    following responses
    to requests of IPC
    and
    the Agency.
    1.
    The Board has not granted summary judgment:
    it has
    made
    a ruling after hearing
    that procedural errors
    by the Agency constitute reversible error.
    2.
    The Board does not believe that it is appropriate,
    given the procedural errors,
    to resolve the
    substantive
    issues.
    If the Board were
    to proceed
    to consider
    the substantive
    issues,
    it would
    undercut
    the force and effect of the March 27,
    1986, Order, once again relegating
    the holding
    to
    the level
    of dicta.
    IPC cannot
    “have
    its cake and
    eat
    it
    too..”
    It elected
    to take a procedural
    stand
    and must abide by the result of that stand,
    as must
    the Agency.
    3.
    The question
    of whether there was procedural error
    regarding the internal wastestreams is predicated
    upon
    a substantive determination that the
    wastestreams at issue are internal,
    and,
    therefore,
    given the Board’s procedural
    ruling that
    issue will
    not be
    resolved at this time.
    4.
    IPC was not required
    to raise
    the procedural
    issues
    in its petition for review and those issues were
    appropriately raised
    in the motion for summary
    judgment and addressed at hearing.
    Therefore,
    those
    issues were not waived.
    IT
    IS SO ORDERED.
    I,
    Dorothy
    M..
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, h~rebycertif
    that the above Order was adopted on
    the
    /7~4dayof
    _____________,
    1986,
    by
    a vote of
    ___________
    Do~thy M.i~nn,
    ClerT~
    Illinois
    Pollution
    Control
    Board
    71-10

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