ILLINOIS POLLUTION CONTROL BOARD
    February 6, 1986
    OLIN CORPORATION,
    Petitioner,
    v.
    )
    PCB 84—77
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD (by B. Forcade):
    On December 5, 1985, the Illinois Environmental Protection
    Agency (“Agency”) and Olin Corporation (“Olin”) filed a
    “Stipulation of Fact and Recommended Settlement”. That document
    recites certain factual and procedural matters and prays “that
    this Board adopt and accept the foregoing Stipulation and
    Settlement as written and order the Agency to act in accordance
    with the settlement terms contained herein.” The Board hereby
    rejects the settlement.
    The Board has previously rejected settlement agreements in
    permit appeals. The rationale and history was recently
    articulated in Electric Energy v. IEPA, PCB 85—14 (June 13,
    1985):
    The Board has had difficulty in dealing with
    settlements in permit appeal cases which
    involve Agency issuance of negotiated permits
    containing conditions for which no record
    exists “setting out sufficient technical facts
    and legal assertions to allow the Board to
    exercise its independent judgment and to make
    proper findings of fact and conclusions of
    law.” Caterpillar Tractor Co. v. IEPA, PCB 79—
    180, Interim Order, June 2, 1983, p. 1—2. The
    Board has not issued Orders incorporating the
    terms of such stipulations as the Board does in
    enforcement cases. The Board has issued Orders
    dismissing the appeal and allowing ratification
    of a “voidable permit”; e.g., Caterpillar,
    supra, Final Order, June 14, 1982; an Order
    simply dismissing~the appeal, Village of Sauget
    v. IEPA, PCB 79—87, July 19, 1984; and an Order
    remanding the permit to the Agency, Caterpillar
    Tractor Co. v. IEPA, PCB 83—58, March 7, 1985.
    —2—
    Additionally, the Board has legal concerns with disposing of
    permit appeals by settlement. In many cases, including the
    instant case, the parties request that the Board “order” the
    Agency to issue a new permit containing agreed conditions and
    terms. In addition to the problems associated with having an
    inadequate factual basis for “issuing” a permit, this approach
    seems to violate the principles of Landfill, Inc. v. PCB et al.,
    387 N.E.2d 258, 262 (Ill. S. Ct. 1978).
    The Issue for Board resolution in a permit appeal is a
    matter of well—settled state law. In IEPA v. PCB and Album,
    Inc., 455 N.E.2d 188 (1st Dist., 1983), the court stated:
    “
    The sole question before the Board in a
    review of the Agency’s denial of a permit is
    whether the petitioner can prove that its
    permit application as submitted to the Agency
    establishes that the facility will not cause a
    violation of the Act. (Ill.Rev.Stat. 1979, ch
    111—1/2, par. 1040.) If the Agency has granted
    the permit with conditions to which the
    petitioner objects, the petitioner must prove
    that the conditions are not necessary to
    accomplish the purposes of the Act and
    therefore were imposed unreasonably. The Board
    may not be persuaded by new material not before
    the Agency that the permit should be granted.
    (Soil Enrichment Materials Corp. v.
    Environmental Protection Agency (1972), 5
    I11.P.C.B.Op. 715.)
    When reviewing the
    Agency’s denial of a permit or imposition of
    any conditions, “the decision of the Board
    shall be based exclusively on the record before
    the Agency including the record of the hearing,
    if any
    ~
    Ill.Rev.Stat. 1979, ch. 111—1/2,
    par. 1040; Peabody Coal Co. v. Environmental
    Protection Agency (1979), 35 Ill.P.C.B.Op.
    380.” Id. at 194.
    The parties, by their proposed settlement, request that the
    Board resolve the conflict by inappropriately applying the law.
    As previously noted, parties are at liberty to settle conflicts
    by the petitioner voluntarily dismissing the permit appeal and
    the Agency issuing the agreed permit.
    The Board notes that the hearing record indicates the
    parties’ intention to proceed in the following manner:
    So, we ask that the Board take that
    ——
    make
    note of that, and the way that the Agency and
    Olin intend to proceed, as I previously stated,
    is that the Agency will issue a permit to Olin,
    effective upon dismissal of the appeal, and
    that if the conditions of that permit are
    —3—
    acceptable to Olin in all respects, they will
    then so notify the hearing officer and the
    Board, and ask that the appeal be dismissed.
    (R. 18—19)
    As no motion to dismiss has been filed, the Board must order
    this matter expeditiously to hearing on the merits. Hearing must
    be scheduled within 14 days of the date of this Order and
    completed within 60 days of the date of this Order. The hearing
    officer shall inform the Clerk of the Board of the time and
    location of the hearing at least 40 days in advance of hearing so
    that public notice of hearing may be published. After hearing,
    the hearing officer shall submit an exhibit list, written
    schedule for submission of briefs if any and all actual exhibits
    to the Board within 5 days of the hearing. Any briefing schedule
    shall provide for final filings as expeditiously as possible and
    in no event later than 70 days from the date of this Order.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after an
    attempt the hearing officer is unable to consult with the
    parties, the hearing officer shall unilaterally set a hearing
    date in conformance with the schedule above. This schedule will
    only provide the Board a very short time period to deliberate and
    reach a decision before the due date. The hearing officer and
    the parties are encouraged to expedite this proceeding as much as
    possible.
    The hearing officer may extend this schedule only on a
    waiver of the decision deadline by the petitioner and only for
    the equivalent or fewer number of days that the decision deadline
    is waived. Such waivers must be provided in writing to the Clerk
    of the Board. Any waiver must be an “open waiver” or a waiver of
    decision until a date certain.
    Because of requirements regarding the publication of notice
    of hearing, no scheduled hearing may be canceled unless the
    petitioner provides an open waiver or a waiver to a date at least
    75 days beyond the date of the motion to cancel hearing. This
    should allow ample time for the Board to republish notice of
    hearing and receive transcripts from the hearing before the due
    date. Any order by the hearing officer granting cancellation of
    hearing shall include a new hearing date at least 40 days in the
    future and at least 30 days prior to the new due date and the
    Clerk of the Board shall be promptly informed of the new
    schedule.
    Because this proceeding is the type for which the Illinois
    Environmental Protection Act sets a very short statutory deadline
    for decisionmaking, absent a waiver, the Board will grant
    extensions or modifications only in unusual circumstances. Any
    such motion must set forth an a1te~nativeschedule for notice,
    hearing, and final submissions, as well as the deadline for
    decision, including response time to such a motion. However, no
    —4—
    such motion shall negate the obligation of the hearing officer to
    set a date pursuant to this Order.
    IT IS SO ORDERED
    Board Member J. Anderson concurred.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board hereby certify that the above Order was adopted on
    the
    ______
    day of _______________________, 1986, by a vote
    of -7-0
    .
    //LJ
    ~
    Dorothy M. G nn, Clerk
    Illinois Pollution Control Board

    Back to top