i~~Li0OISPOLLUTION CONTROL BOARD

October

12,

1984

ILLiN~L P0 ~l

UH?~NY

(vEE~iI

i~

I

L

N. I

S

I

AND

2),

PCB 84—89

PCB 84—90

_L1

~Z~i

~

L\TAL

)

(Consolidated)

pp

r~

~

‘~iCi

re~p~ndent.

)

SHELDuN A LABEL

(SfH1FF, HARDIN ~D

WAITE)

APPEARED

ON

BEHALF

OF

PETIrIOPER;

GREG

R~t~IJRAfthLAED ON BEHALF OF

RESPONDENTO

ORDER Of ~

BOARD (~yJ~D

Dumelle):

On July

13, 13~4,the

petitioner,

Illinois Power Company

(IPC)

~~led a p~tit~on

captioned

Petition to Appeal

Conditions

of Air Operating PerMit” and

another petition captioned

~Petition

to Appeal Eeni~lof ~ir

Operating Permit.”

These petitions

were

acceptccl

and coneolidated for hearing

on

July 19,

1984,

On

August 9,

1984,

the AJeney filed

the record of

its decision in

these cases with the Clerk of the Board,

‘~.

~t~tg

&~

~cld on October

3,

1983,

at which

time,

IPC

entered

gnat It cnaracterized

as a “special

appearance”

for

the

purpose of objecting to the

holding of the hearing as “illegal

and wit~ioute±tect~”(R~

5.)

The 40 page transcript of this

hearin9 eonta~nstie

arguments of

IPC

and

the respondent, the

Illinois Environi~ental

Protection Agency

(Agency),

as to the

effect

of

a deficiency

in

the

notice of hearing in a permit

appeal

Beyond this

transcript,

the record in this proceeding

contains only th~oii.jinal

petitions and the Agency~srecord of

decis~on~.Both parties declined to file

briefs,

(R.

35~39.)

Given

the un~sual

posture

of

this

proceeding,

the

Board

cannot rea~hthe ~stance

of

these

appeals

without

first

addres~ingth~fLoced~ralissue

raised

by

the

petitioner0

First,

the

position taken by

IPC

at

hearing

requires

the

Board

to

con-

sider

whethei

rEcite

was

a

deficiency

in

the

notice

of

the

hearing

and,

it s~,~hat cffect

this

deficiency has on the proceeding.

Second,

the Board must

decide who carries the burden of

proof

in

the

abse~u~~fe~iyargument or

evidence

on the merits at

hearings

---

Del Ic~

he No ice o~He

era

a Deficien~yinthe Notice of He~~

I

tEat beth Section

40

of

the

Illinois

Environ—

men ~l

~

icr Pet ~Act) and Section

105.102(a)

(5)

of the

Bo~:

rn

Pules require that notice

of

hearing

in

a

per

b~~,:v~nat least 21 days

prior

to

the

date

of

hca:~~

tse,

an error

in

the

Board~s

Clerk~s Office

teen

~

-card only becoming aware that a hearing

h~

not

~n Sep~ember21, 1984~ ~nowing

that

a

decision

~S, 1984*

per suant to the 90 day

limitation

in

Sec~ c

I

i

u e act,

the Board immediately appointed a

Hearing

f~r~c

red hit to schedule

a

hearing

and

inform

the

~

date0

The Hearing Off

icer~s

order

setting

this

~r

ng

was

issued

on

September

28,

1984

and

the

leer

rena

en

October

3,

1984.

The

21

day

notice require—

tent

~f

e~icable,was not met.

I

c

ny

points

out,

and

IPC

admits,

that

the

notice

prnar

Sectior

40 of the Act

is

notice

directed

to

any

perso~ L

thi county where

the

facility

in

question

is

located

wh~ a

~

ared to be placed on

a

notice

list

and

to

members

of

the ~a

~~biy**

IPO also

admits

that

it

had

actual

nnti~ -I tre hearing on September

28,

1984.

IPC,

nonetheless,

con

tar is

t

rat it is the right

of

the

parties

in

a

permit

appeal

to r~

/

or

this

21

day notice

of

hearing

to

the

public.

The

Boar~c ~saur~es,

Contrary to IPC~s

contention,

the

statutory

e~ly intended this

notice

for

the

benefit

of

the

~ib nc

~ho might wish to attend

and

participate

in

the

hearir

tr~eant to Section 32

of the Act.

IPC

lacks

standing to

raiar

~t~s i~sueas it

alleges

no

“injury

in

fact,”

the

test

for

stand

~ required by

both

Illinois

and

Federal

Courts.

Association

of

Dc

~

397 0.5.

150

(197C

,

Ilso see

Davis,

Administrative

Law

Text~ SS22,05

(1972),

In a

r ice involving a

challenge

to

an

administrative

requirement

assert~dto be

unauthorized

by

statute,

the

U.S.

Supreme

Court

‘Respondents to have

standing

in

court,

must

show

an

injury

o

threat to a particular

right

of

their

own,

as

distinguished

I

a the public’s

interest

in

the

administration

of

law,”

~~an’sv.

Lukens Steel

Co.,

306

U.S.

118,

at

137—38

(1937).

u

date is the 90th day after

the

filing

of

the

petition

ca1~~1~c~

unitsuant

to

35

Ill.

71dm. Code

101.105.

~Thtan

are no persons who

have

requested

to

be

placed

on

a noun.

ll.~

tot this proceeding.

60~258

---

—3—

Fai1ui~ ~u

r

tply with these provisions may

be

raised

by

members

e~~a. puka5c ~ho~e legafly protected interest is at

stake,

towe~

E

u

nether

of

the

pebl Ic

has

raised

this

is~ie,

and

IPC

i~ not

purr orthng

to

represent

the

public

interest by doing

so,

TE~n;r’

nor

~rnet

be relied upon as legal

notice

to

a

party

i~hc

it

~.

~

f~

U ~ of

the hearing.

In a

permit

appeal,

the

~

~

the proceeding and thus

has

constructive

Priow1~q~

~

it

a c

cy one that a hearing will

be

held

within

90

t

yn.

~ar~r

here also received

a

hand-delivered

notice

ci

a.

6

days

in

advance

of

hearing.

n

I

a.Ua

~rra, .~ectn.or

105.102(a)(5)

references

the

Part

~.

r

r~

rning

provision,

Section

103,125,

which

specifi—

at

ne Itaring Officer

to

give

notice

of

the

hearing

it

as

a.

least 21 days before

the

hearing.

The

Board

a

a

noli

e of the

date

of

the

hearing

in

this

ease

~

rct

toil

z

th Section 103.125(c)

of

the

Board~s Procedural

a

tao

a.

fect

Daticienc

in

the Notice of

He arin

Alt oug r

re notice of the date

of

the

hearing

did

not

comp

w th Sectnon

103.125(c),

it

does

not

necessarily

follow

he

Ac

~

as

illegal ~11dwithout

effect”

as

IPC

argues.

in leon

subsection

(e)

of that same Procedural Rule

explicitly

id&e~’sc~the effect of

a failure to comply with

the

notice

of

nearing

OTOViClOfl5

and prescribes

a

remedy for

persons

who

can

3amonatat’

that they were

prejudiced

by

non-compliance

with

the

rv to,

a

tao Hear

ii

~ Officer

is

authorized

to

postpone

the

hearn ~n

a.

s

case

the Hearing Officer repeatedly asked

IPC

to

exp~ir how it net been prejudiced by this deficiency in

the

not4cc,

(H,

11,

i~4, 16,)

IPC consistently

refused to cite any

actual pre~judice.

Instead,

IPC relied on the arguments,

alter-

natively, that the question of prejucice is

“irrelevant”

and

that

prejudice must he presumed from the

failure

of

the

notice

to

comply with the rule

In regard to this first argument,

a

showing of prejudice is clearly relevant.

Both

the

explicit

langung

~f the rule on which IPC relies and

the

dictates

of

coranun sense require that some actual harm or disadvantage

resultina from a procedural error be shown before the

government

arid the patties are put to the expense of additional hearings.

~C’s

a1I~rnativeargument,

i.e. that prejudice must

be presumed,

also eanegaras the language of the rule itself.

Section

103,125(e)

makes

it clear that technIcal errors in the notice of hearing

in

and

o~

t

r~nseIves,are

not

intended

to

be dispositive of the

case

Rctt

ncr, upon a showing of prejudice,

such

errors

may

warrant to

arheduling of

an additional hearing.

a.

a

jane irvoiving a similar

question,

the

Third

District

Appe. lac.~’burt upheld the validity of

a permit

appeal

hearing

60~259

---

desp~t~

a’~.c~en~y

in the

Environmental

Protection

Act

notice

requin ear

In I4athers v.

Illinois Pollution Control Board,

439

N

~

c~

I

‘19 62),

the

Court

said:

U

,onrd

~ound,and we agree,

that

any

deficiency in

a

~ tar Ncvcither hearing was cured

during

the

rot a

~j

~rouess” at p.218

li~

~

~

ac

reheriring

took

place

after

the

90

day

period had

1

~

a

was aembers

of

the

public

and

the

General

Assembly

~

the ~nb ic notice procedures were

defective; yet

a

~re prejudicial circumstances

the

Court

rejected

a.

.hat the cure was

defective,

Although

the

facts

ne

iewnat different, this ruling

indicates an

n~.

oy

tune Court that where

a procedural defect

can

vent

d

c

wo need not reach the extreme result

of

irremediably

han

hr

t

e hearing.

oaec

any error to the detriment

of

the

petitioner

was cc r otabLC~

he Hearing Officer

hypothetically offered the

optior a~ osteonlng the hearing.

IPC

replied that this would

either ~c ~noffective because the 90 days would expire,

or

C

~er~a

ly,

it w

Id

require

IPC

to

waive

its

right to a

a. a.,

.c

n

a.

aay~.

‘R.

29-30,)

The

Board

notes that the

h~.arinc

oua. Esue been postponed for

as much

as

a week,

if IPC

had

m

requested, without jeopardizing

the

90

day

decision

coar U

.

tmnn’s,

the

postponement of the hearing

could

have

a

~.

etfecLive remedy to any actual

prejudice

in

regard

to

Cent a

I

an

e; yet IPC chose not to take up the Hearing

OjIU

~

~er

o

tars point.

r

3nortening

of

a

notice

period,

whether

purposeful

or

,lnadvcr’..ant,

can

be

prejudicial

error in certain cases,

However,

tniot aar~ateris net presented here,

Rather, IPC~sposition

on

tItan potht has forced the Board to confront

this question in its

te~dest~

a e.

Does administrative error resulting

in a

Ia.lu

a to comply with the precise language

of

the

procedural

rules

require

an irremediable invalidation of the

hearing

regard can of any indication of prejudice to the public

or

p’ia.e.~?

In

affirmative answer to this question

would

encourage

la.a

aeaesmansnap and frustrate the Board~sability to

provide

~ar~

,..eview envisioned by the Act in numerous

cases.

Furthermore,

in a situation such as this

where

a

party

seeks

to

~elv on a orocedural error to obtain a permit

by

operation

of

ii

~i

atctar~tivereasons for rejecting IPC~shighly

technical

arguma;rt.

are

all the more forceful,

rinere

is no support in the

legislative

history

of the Act

for

t.

e~vtion that non—prejudical

procedural

error can be

ieliec

a

1

n

‘0

tr gger the default issuance

of

a permit,

Rather,

~s the

rr District Appellate Court noted in

Illinois Power

C,.

~

LlIar.ois

Pollution Con

trol

Board

U

ITApp.3d

457

60~260

---

—5—

(1983),

“the

90

day

requirement in Section

40(a)

evinces

legislative concern with bureaucratic delay.

It

was not the

intent of the General

Assembly

to create

a

license to

pollute.”

The

Board’s

aetions

in

this

case

in

scheduling a hearing

and

being

prepared

to

make

its

decision within 90

days

demonstrate

that

this

is

not a case

of

“bureaucratic delay.”

Rather,

it is

simply

a

case

of

the

rare

administrative

error that will

inevitably

occur when an agency handles a large volume of

cases.

This

situation

is

clearly

distinguishable from

the

“90—day”

situat:ions

previously reviewed by the Appellate Courts.

In

~

Control

Board,

84

III.

App,

3d 434

(1980) the

petitioner

was

denied

its

statutory right in a hearing within the 90 day

statutory

period,

The Court found that the petitioner had

a

right

to

both

a hearing and a decision within

90

days

by statute,

and

could

not

be forced to waive the decision period in

order to

get

a

hearing,

The lack

of

a hearing was clearly

prejudicial

to

the

petitioner.

In

contrast

this case does not involve an

attempt

to

circumvent

either the hearing,

the decision period,

or

any

other

statutory

right

of

the petitioner,

In fact, upon dis-

covering

that an

administrative

error

had

occurred

in

scheduling

the

hearing,

the Board did everything within its power

to

accomplish

the purposes

of

the

Act while preserving the

rights

of

the

petitioner

by

making an effective remedy available

consistent

with

the

statute and the Procedural Rules.

Petitioner

has

rejected this remedy.

~nois

Powe

r

Corn an

v.

Illinois Environment

a?

Prctection

A enc

and Illinois Pollution Control Board,

112

Ill.

App.

3d

457

(1983)

also presented a dif erent

act situation.

In

that

case,

the Board failed to make

a decision within 90 days

on

an

NPDES

permit because it interpreted

the

statutory

decision

period

as being inapplicable to these permits

which comply with

the

federal

Clean Water Act,

The Court

disagreed

with the Board

on

this

interpretation and found that the

failure

to

act

within

90

days had triggered default permit issuance.

This case

does

not

involve

a

failure to act within 90 days

and thus

the

Illinois

Power

decision has no bearing on

it,

II.

Who

Bears the Burden of

Proof?

The

Board’s substantive record in this case consists

solely

of

the Petition

and

the record of the Agency’s decision.

This

places

the

Board

in the position of having to

review the

questions

posed in the Petition with very little guidance

from

the

parties

as to the nature of the factual

and

legal

dispute

and

with

no

probing of the allegations.

This is something

the Board

has

neither the staff nor the authority to do,

Nor

would

this

be

fair

to

the

parties.

These cases involve the

review

of

Agency

decisions,

not the remaking of the decisions

on

the

basis of a

“cold”

and

unprobed record,

---

6—

To

determine

how

to

proceed

in

this

situation~

reference must

be

made

to

the

statutory

framework

for

Board

review of permit

appeals

as

prescribed

in

Section

40(a)

of

the Act.

Section

40(a)(i)

states

that

the

Agency

is

to

appear

as

a respondent at

the

hearing

and

that

the

burden

of proof

is on the

petitioner.

The

question

presented

is

what

is

IPC’s

burden

of

proof

and

has

it

carried

it

in

this

proceeding.

The

Agency

argues that it has

not,

stating

that

IPC

bears

the

“burden

of

going

forward” and

demonstrating

why

the

permit

decisions

made

by

the Agency were

invalid.

(R~

37.)

Although

involving

a

significantly

different

procedural pos-

ture,

Mar~

teCement

(~p~)offers some

guidance

on the ~irden

of

proof

in

permit

appeals.

That

case involved a question

of the

sufficiency

of

the

petition

under

what was then

Section 502(a)(2)(iv)

of

the

Board’s

Procedural

Rules

(35

Ill.

Mm.

Code

105,102(a)(2)(D)).

The

Court

found

that

the

Petition

contained

supporting material

sufficient

to

satisfy

Marquette’s

initial

burden of production.

However,

once

the

Agency

had

submitted

additional

information

indicating

possible

violations,

the

burden shifted

back to the

Petitioner

to

challenge

the

accuracy

and

reliability of that

information.

The

rule

that

the

burden

shifts

back to the

petitioner

once

the

respondent

has

submitted

its

initial case is

supported

by

both

the

case

law

and

legal

authorities,

Mathews

v.Christoff,

162 N.E.

2d

587

(1959);

~

He!rIntern.~2r.,

333

N.E.

2d

50

(1975);

Jones On Evidence,

Gard

(1972),

Section 5,2.

In

the

~

tte

Cement

case, the

Petitioner

did not

have

an

opportunity

for

a hearing

to carry its

ultimate

burden

(within

the

90

days),

and,

thus,

the

Court

found

the

Board

could

not

properly

rule

on

the

merits.

In

this

case

an

opportunity

for hearing was provided within

90 days and the petitioner appeared at that

hearing.

But, pur-

porting

to appear specially*,

the petitioner

declined

to

present

any argument or evidence on the merits.

In

contrast, the Agency

submitted

its record

of decision, consisting

of facts

and

figures

which demonstrate the possibility that violations

may occur,

Following the reasoning

in ~

the Board must

*The

Board

finds

that

a special appearance

was

not

available

to

the

petitioner who

itself

initiated the

proceeding before the

Board

by

the filing

of

the petition

and

therefore is

not

in

a

position

to

object

to~the

jurisdiction

of the Board,

Section

2-301(a)

of

the Illinois

Code

of

Civil

Procedure (Ill.

Rev.

Stat.

1983,

ch,

110,

par,

2-301)

provides

that a special

appearance

may

be

made

only prior

to

filing

any

other

pleading or motion

and

only

to object to the

jurisdiction

of the court,

It

also pro-

vides

that

every appearance not in compliance with

the

requirements

of

a

special

appearance

is

a

general

appearance.

The Board has

no

other

mechanism

for

allowing

special

appearances.

60~2$2

---

—7—

conclude

that while

IPC may have

carried its

initial

burden

of

production~

it

failed

to

carry

its

ultimate

burden

of

demon-

strating

the invalidity

of

the

Agency’s

decision.

Therefore,

the

Agency! s

determinations

on

both

permits

must

stand.

This

Opinion

constitutes

the

Board’s

findings

of

fact

and

conclus:~.orLsof

:1a~

a.

this

uroceeding.

ORE)

ER

1.

The

Illinois

Nnuironmental

Protection

Agencyt s

June

8,

1984

of P~r

i

U

aep~

acation No

73020063 for

IPC’ s

Vermillion

~Lotaons

—

~1nit

No.

2

is

hereby

affirmed.

(PCB 84—90.)

2.

The

:cllino:Ls Ervironmental

Protection Agency’s June 8,

1984

arant

of

Permit

No,

183814AAA with conditions for IPC’s

Vermillion Power

Plant

—

Unit

No.

1 is hereby affirmed.

(PCB

34—89J

IT

IS SO

ORDERED,

I,

Dorothy

H.

~Iinn,

Clerk

of

the

Illinois

Pollution

Control~

Board,

hereby certify

that

the

above

Order

was

adopted

on

thefl

day

1984

by

a

vote

of

4-2,

Board

Members

3.

Anderson

and

B,

Forcade

dissenting.

~thy~i~nn,Clerk

Illinois

Pollution

Control

Board