March 22, 1985

WILLIAM H.

CLARKE

and

PIONEER PROCESSING, INC.,

Petitioner,

V.

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

THOMAS

J. IMMEL (BURDITT & IMI4EL), RICHARD J. KISSEL

(MARTIN,

CRAIG,

CHESTER & SONNENSCHEIN), AND WILLIAM A. SPEARY, JR.

Procedural History

This matter comes before the Board on the October 4, 1984

petition of William H. Clarke and Pioneer Processing, Inc.

(hereinafter collectively “Pioneer”) for review of the August 30,

1984 denial by the IEPA (“Agency”) of Pioneer’s application to

develop a 177 acre special and hazardous waste disposal site near

the Village of Naplate, LaSalle County, Illinois.

The Agency filed a “Summary of Agency Record” on November 5,

1984 listing 49 documents “submitted as the Agency record in this

matter.”* Following denial by the Board of various petitions to

join necessary parties and to allow intervention, the Board held

a hearing in this matter on February 7, 1985. At hearing, the

only testimony presented was that of Michael W. Rapps on behalf

of Pioneer, although arguments were presented by Pioneer and the

Agency, while LaSalle County renewed its motion to intervene.

Pioneer filed its brief February 8, and the Agency filed its

*Documents listed in this Summary will be referred to as

“Agency Record, Exhibit

_________.“

The Board notes that the

Agency record in this case consists of a 2 1/2 inch stack of

rubberbanded documents which are not numbered, either in

correspondence with the Summary or in ahy other respect, and

which are also often illegible, making reference to these

63-219

---

—2—

brief March 1. On March 13, Pioneer filed a reply brief a motion

for leave to file instanter, which motion is granted,*

This site, commonly referred to as “Brockman II”, was the

subject of a previous permit appeal before the Board, County of

LaSalle ex rel, Gary Peterlin, State’s Attorney of LaSalle

County, the Village of Naplate, the City of Ottawa, the City of

Utica, Ottawa Township Boad of Trustees ex rel, the Town of

Ottawa, Residents Against Polluted Environment, Rosemary Sinon;

Marie Madden, and Joan Benya Bernabei v. IEPA, Williams Clarke,

Pioneer Development, Pioneer Processing, Inc., and Wilmer and

Edith Brockman, PCB 81—10, Order February 16, 1982, Opinion

March 4, 1982. That

third

party appeal sought reversal of the

Agency’s December 22, 1980 issuance of a development permit (No.

1980—1944—DE) for the site, The Board had sustained the Agency’s

issuance of the permit, which Board decision was itself sustained

by the appellate court in State of Illinois v. Pollution Control

Board, 113 Iii. App. 3d 282, 446 N.E. 2d 915 (3rd Dist. 1982).

*On March 21, 1985, the Board received a “Statement of the

Illinois Manufacturers’ Association in Support of Petitioner’s

Permit Appeal.”

This “Statement” has been made a part of the

record in this case, to avoid any questions concerning its

receipt in the event of any appeal of this matter. However, the

Board has not considered the “Statement” in its review of this

case, for the reasons that the submittal is not allowed for in

the Board’s rules and is in any event untimely.

The Board has no specific procedural rules concerning

acceptance of public comments in permit appeals. Section

40(a)(1), cross—referencing Section 32 concerning enforcement

cases, arguably requires the Board to accept written statements

presented to the Board by any person at the time of hearing.

This statutory requirement is discussed in Procedural Rule

103.203(a), providing that such written statements tendered at

hearing “shall be subject to cross—examination”, and are subject

to being stricken from the record if the writer “is not available

for cross—examination on timely request”. The Board notes that

in rulemaking proceedings, where

the time of submittal of

post—hearing written submissions is expressly provided for, the

time is limited to “within 14 days of the close of the hearing

• . .

unless otherwise specified

. . .

by the Hearing Officer.”

No such specification was made by the Hearing Officer in this

case.

The “Statement” was received on Thursday, March 21, well

after the Monday, March 18, 5:00 p.m. cut—off date for filings to

be considered on the agenda for this

week’s Board meeting (see,

Environmental Register No. 304, March 8, 1985, p. 8—9.

“There

simply have been too many last minute filings for thorough

consideration by Board Members and staff prior to decision.”).

The IMA, of course, may participate in the APA hearing to be

held by the Agency (see infra, p. 6).

63-220

---

3—

However, these decisions were reversed by the Illinois

Supreme Court in Pioneer Processing, Inc. v. Environmental

Protection Agency, 102 Ill. 2d 119, 464 N.E. 2d 238 (1984). The

Court found that “that the permit which the Agency issued to

Pioneer is void for failure to comply with the contested case

provisions of the APA

Illinois Administrative Procedure Act,

Ill. Rev. Stat, oh, 127g par. 1016(a)

, . .“

As to issues not

disposed of in

its Op:inion1~ the Court’s

instructions were that

“(s)ince we have determined that Pioneer’s

permit is

void, the issue

of

the possible

location of the hazardous—waste—disposal site

within 1,000 feet of a private

well must be

considered on remand during a properly

conducted hearing where all the parties can

present evidence regarding whether the permit

should issue. These

causes are

remanded to

the

. .

Agency for a new hearing which is to

be conducted according

to the

contested—case

provisions of the APAO’~

The Supreme Court issued its mandate in this matter on

June 11, 1984.

The

Agency permit denial letter was issued on

August 30, 1984 (Agency

Rec. Exh.

1). The substance of that

letter was that the Supreme Court’s holding of March 23, 1984 was

based on an interpretation of Section 39(c) of the Environmental

Protection Act (Act) Ill. Rev. Stat., ch 111 1/2, par. 1001

et seq., as Section 39 (c) existed

on

December 22, 1980. The

Agency noted that the language of “old” Section 39 (c) of the Act

had been deleted from the

statutE,.

effective November 12,

1981

with the adoption of P.A.

82~~682(also

known as SB 172), which

created local site location suitability procedures and

requirements for new regional pollution control facilities

(hereinafter RPCF) (see current Section 39(c) and 39.2. The

Agency also noted the addition of a new Section 39.3 to the Act

effective January 5, 1984, adopting various new notice and

hearing procedures for applications for Agency permits to develop

new RPCF’s for the disposal of hazardous waste”, or to modify

existing sites to “allow the disposal of hazardous waste for the

first time.”

The Agency

stated that as a result of the Supreme Court’s

decision and remand,

“The Agency has determined that the

application is incomplete under the

requirements applicable to this permit

application at this time.

As such the above

referenced permit application is hereby

denied,

Once the deficiencies specified

. .

have

been corrected and a complete application

submitted

.

the

Agei~uywill provide notice

and hearing,

if

requested

.

63~~22i

---

—4—

The reasons specified for denial were that:

1. Pioneer was proposing

to develop a

new RPCF, and the

application did not contain proof of LaSalle County approval

pursuant to SB

172;

2. Pioneer was seeking

a permit to

allow for disposal of

hazardous waste

for

the first

time, and the application did

not

contain

proof that Section 39.3(b) notice

requirements

had been met; and

3. Since plans and

specifi tions

~ere more than four years old,

the Agency would not have assurance that no violation of the

Act or regulations

would occur

absent submission of a new

permit application.

Pioneer requests that

the Board reverse the Agency’s 1984

denial of the permit,

asserting

six

“points of error” made by the

Agency:

1. Brockman

II is not a ‘~ew~RPCF

subject to Section

39.2, because

it had been

previously permitted

to

dispose of special and hazardous wastes;

2. Since Brockman II

is not

“new,”

Section 39.3 does

not a~p1y;

3. Section 39(c)

as

it existed in 1980

governs this

remand;

4. The Agency

improperly failed

to consider the

application because

of

its ~‘age”;

5. The Agency’s denial

is a nullity because of its

failure to conduct a

new

hearing;

6. The permit has issued

by operation of law,

The Agency disagrees with each contention.

The Resolution

The Board will

not address the parties’ arguments on various

points in detail, as the Board finds

it

clear that the Agency’s

decision to deny this permit is void, since it has failed to

conduct an APA hearing pursuant to the direction of the Supreme

Court. The Court’s ruling

in this matter did not void Pioneer’s

1980 application; rathere

it voided

the Agency’s 1980 permit

decision. The Court’s decicion

did

not expunge any of the

written record which

had been

previously developed, “expunging”

only Agency reliance on

“information

which was never publicly

disclosed, and which was ~e’~c

euhjected

to adversarial testing

or scrutiny.”

83-222

---

—5—

The Board notes that petitioners do not stipulate to the

completeness of the Agency record as here certified (Pet. Brief,

p. 3 note), and notes that the record

here is considerably

smaller than the which the Agency certified as providing the

basis for its grant in 1980

of

permit No. 1980—l944—DE (see

generally the Board’s references to the Agency’s November, 1980

public hearings, and factual findings in

County of LaSalle,

supra, PCB 81—10).

As

no hearing was held on remand, no persons

have had an opportunity

to question or comment upon the Agency’s

expurgation of the record.

In its denial

letter,

the

Agency expresses its belief that

Section 39.3 applies to this application, states its opinion that

the application is incomrlete for failure to give the notices

required, and concludes that

it

therefore need not hold an APA

hearing. The Board notes that current Section 39.3 was in effect

at the time of the Supreme C~’urt’svoiding of the Agency’s 1980

decision to issue permit No, :~980—l944—DE. The Court did not

direct the applicant to file a new application pursuant to

Section

39.3.

It instead directed the Agency to hold a new

hearing on the application wh:ich was the subject of its review.

While the

Agency arguably

may have had an option to reject a

newly filed application as incomplete under new Section 39.3

without a hearing, it has none under the mandate issued by the

Supreme Court.

One of the obvious purposes of the APA hearing requirement

articulated by the Supreme Court and by the legislature in

Section

39.3

is to allow for the inclusion and proper alignment

of parties in the debate concerning hazardous waste permit

issuance. Agency failure to hold a hearing has frustrated that

intent here, since there has been no mechanism by which

interested members of the public have been able to participate as

parties in this permit denial action at the Board level (see

Orders of December 20, 1984, January 24, 1984, and February 7,

1985.)

Another purpose of the APA hearing requirement is to allow

for full articulation of and debate concerning the basis for the

Agency’s permitting decisions, be those decisions positive or

negative. Much of the discussion in the parties’ briefs concerns

whether the site is a new RPCF within the meaning of either or

both Section 39.2 and 39,3 of the Act, arguments being made by

both parties concerning implications of the Agency’s actual

implementation of the development/operating/supplemental

permitting systems.

The Attorney General has objected to

introduction of testimony

of then—Agency personnel concerning the

meaning of notations on a p~ritii:. application which is a document

of record (see R. 16—27

and Resp.

Brief, p. 26—27). The Board

finds introduction of such evidence here concerning

interpretation of the Agency record proper; what is improper is

argument concerning what the unrebutted witness “had to know”

(see Reap. Brief, p.

27,

n~ IL). In any event, this is the type

of factual dispute which. would be properly and more fully

addressed within the context of an APA hearing,

---

—6—

In conclusion, then, the Board finds the Agency’s denial of

this permit application void for failure to comply with the terms

of the Supreme Court’s mandate in Pioneer Processing. The Board

will make no disposition of the legal conclusions urged by the

parties, since they are based on an incomplete record. This

matter is remanded to the Agency for a new hearing to be held

prior to any final decision on this permit. While the Board has

not ruled on the applicability of Section 39.3 to this matter,

the Board would suggest that Agency adherence to the procedures

specified in Section 39.3(c—f) would likely constitute compliance

with the Supreme Court’s mandate in this matter, since such

procedures appear compatible with procedures under “old” Section

39(c) and the APA.

The Board additionally notes that the Agency has here

asserted as reasons for denial only failure on Pioneer’s part to

comply with certain statutory pre—conditions to the Agency’s

authority to issue a permit. In so doing, the Agency has

arguably waived any technical objections it might otherwise have

to the site, although as previously noted the extent of the

technical record upon which the Agency now relies is at best

unclear. To insure a full arid adequate record for review and

action by the Board and any subsequent reviewing court, on remand

the Agency is encouraged to fully articulate its reasons for its

legal conclusions and technical determinations.

This Opinion constitutes the Board’s findings of fact and

conclusion of law in this matter.

ORDER

This permit application is remanded to the Agency for an APA

Illinois Administrative Procedure Act, Ill. Rev. Stat. ch. 127,

par. 1016(a) hearing consistent with the above Opinion.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board hereby certify that the above Opinion and Order were

adopted on the ~

day of

*.‘i-..I.

,

1985 by a

vote of

________________

~

~.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

83-224