ILLINOIS POLLUTION CONTROL

BOARD

October

1,

1984

WASTE

M7~NAGEMENT, INC.,

)

Petitioner,

v.

)

PCB 84—45

)

84—61

ILLINOIS ENVIRONMENTAL

)

84-68

‘PROTECTION

AGENCY,

)

(Consolidated)

Respondent.

OPINION,

CONCURRING

IN

PART,

DISSENTING

IN

PART

(by

B.

Forcade):

While

generally

in

agreement

with

the

majority,

I

must

dissent

from

section

three

of

today’s

order

concerning

the

inter-

vention

issue.

While

I

am

concerned

about

the

potential

impact

that

Landfill,

Inc.

has

on

our

current

procedural

rules

regarding

citizen

intervention,

I

strongly

disagree

with

the

Board~s decision

to

vacate

the

hearing

officer’s

order

granting

intervention.

The

practical

effect

of

today’s

order

is

to

repeal

a

Board

proc~dura1

rule, without going through the proper rulemaking procedure and

without specific direction from a

higher

court.

The majority correctly points

out

that

there

is

no

right

of

intervention

expressly

provided

in

Part

105, governing Permit

Appeals.

However, Section 105.102(a)(6) does incorporate

the

rules of

Part

103

(enforcement proceedings) for use

in

permit

appeals.

These Part 103 rules are the only procedural

rules

that

exist for permit appeal proceedings.

They provide a right of

intervention denied by today’s Board action.

The majority concedes

that the citizens provided

a sufficient

showing of adverse effect

through potential impact on their groundwater and property values.

The

majority concedes that notice is not an issue.

There±ore,

until

the

Board

repeals these regulations through

a proper rule-

making proceeding that will incorporate statewide public partici-

pation or until

a higher judical authority specifically invalidates

the

rule

in

question, this

Board

should uphold rights created

under

its

own

rules,

The

Board

has

had

almost

six

years

since

the

Landfill,

Inc.

decision

to

modify

its

“invalid”

procedural

rules,

It

is

unfair,

at

this

late

date,

to

deny

the

rights

created under these regulations.

I

also

wish

to

concur

with

certain

portions

of

the

majority

opinion

concerning

the

Agency’s

authority

to

write

permit

conditions.

While

I

agree

with

the

majority’s

ultimate

disposition

of

the

challenged

permit

conditions,

I

do

not

endorse

all

of

the

reasoning.

I

believe that Section 39(a)

of the Act grants the

Agency

broader

authority

to

impose

permit

conditions

than

is implied by

60-171

---

2

the majority opinion in the last paragraph on page

36.

The

implication of this paragraph is that the power exercised by the

Agency in the context of permit conditions is severely limited.

This narrow interpretation of Agency authority is incorrect and

unnecessary to today’s decision.

The majority recognizes authority

specifically delegated by the Board

and the Legislature

in certain

limited circumstances.

I believe that Section 39(a) provides the

Agency with a reasonable sphere of authority in the context

of

permit

conditions,

independent

of

other

provisions

of

the

Act.

The Agency has been granted, by the terms of Section 39(a),

the authority to “impose such conditions as may be necessary to

accomplish the purposes of the Act,

and are not inconsistent with

the regulations promulgated by the Board hereunder.”

Consequently,

I would analyze the validity of the challenged permit conditions

by the limitations imposed by this section of the Act and by due

process limitations.

Permit conditions should be affirmed by this

Board where the purposes of the Act are enhanced, where there

is

rio conflict or inconsistency with Board regulations,

and where

conditions are not

so subjective or overreaching as to violate

principles of due process.

The majority improperly finds a lack

of Agency authority to issue certain permit conditions,

I believe

the conditions that are reversed today are invalid solely because

they eIther directly conflict with current Board regulations

or

violate due process.

Agency authority to impose permit conditions

is not at issue.

I am concerned that the majority’s rationale

will

eventually

result in stripping the Agency of its rightful

sphere of discretion

and authority to write permit conditions.

In

so limiting the

Agency’s discretion, the Board may be relegating the Agency’s

permit condition authority to a ministerial function,

This is an

undesirable result and

is contrary to the intent and design of

the Act.

Permit conditions act as a “safety net” in the overall

scheme of environmental regulation and protection.

I agree with the result that the majority reaches today, but

disagree with some of the reasons.

Board Member

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Concurring

and Dissenting

Opinion was submitted on the

______________

day of

~2!L~e~

1984.

‘/~L~L

)22.

Dorothy M. Gunr~, Clerk

Illinois Pollu?ion Control

Board

60-172