ILLINOIS

POLLUTION

CONTROL

BOARD

October

12,

1984

ILLINOIS

POWEP~CONPANY

(vERM:~.LLIoN

UNITS

I

AND 2),

)

Petitioner,

)

PCB

84—89

PCB 84—90

ILL INO

:t~

ENVIRONMENTAL

)

(Consolidated)

PRO~~:CT

IOU

AGENCY,

Respondent.

DISSENTiNG

OPINION

(by

J.

Anderson

and

B.

Forcade):

~1edisagree completely with the majority action and in part

with

the

supporting opinion.

We believe the Board should have

issues

an

Opinion

only,

acknowledging

the

fundamental

defect

in

this

proceeding

and

allowing

Illinois

Power

Company

(IPC)

to

deem

the

conditions

contested

in

the

permit

in

PCB

8 4-89

deleted,

and

the

permit

denied

in

PCB

84—90

granted,

all

by

operation

of

law.

In

so

doing ~

however,

we

would

have

had

the

Board

remind

the

parties

that

existence

of

those

permits

would

insulate

IPC

only

from

enforcement

based

on

allegations

of

operation

without

a

permit~

We

would

also

have

reminded

them

that

an

operation

of

law

permit

does

not.

insulate

IPC

from

full

and

total compliance

with

the

Act

and

Board

regulations,

nor

does

it

insulate

IPC

from

enforcement actions claiming violatons of the Act or Board

regulations:

if

any

person

believes IPC’s operations cause or

threaten

pollution

they

may file

an

action

seeking

a

Board

Order

to

remedy

the

situation

Landfill

Inc.

v.

IPCB

387 N.E.

2d 258,

74

Ill,

2c1

541

(1978),

While

dicussed in the majority opinion,

some recapitulation

of

the

statutory

requirements

and

factual

events

involved

in

this

matter

is

in

order,

Section

40(a)(1)

of

the

Act provides

“If

the

Agency

refuses

to

grant

or

grants

with

conditions a permit under Section

39

of

this

Act,

the

applicant

may,

within

35

days,

petition for

a

hearing

before

the

Board

to

contest

the

decision

of

the

Agency.

The

Board

shall

give

21

day

notice

to

any person

in

the

county

where

is

located

the

facility

in

issue

who has requested notice of

enforcement proceedings and to each

member

of the

General Assembly

in whose legislative district

that

installation

or property is located;

and

shall

p.iblish

that

21

day

notice

in

a

newspaper

of

60-265

---

~‘~l~rcuiation

in

that

county..

The

Agency

~

appear

as

respondent

in

such

hearing.

At

-

:~ ~r~nq

~he

rules

prescribed

in

Sections

32

of

this

act

shall

apply,

and

the

burden

~‘-c:~f

~halI

be

on

the

petitioner.~

-~

~

¶2)

of

the

Act

requires

decision

in

these

matters

~

e

~

of

the

date

of

filing.

Computing

the

decision

p~ric-~i w:ic’ant

to

~

Il1~

Mm~ Code

1OL 106,

decision

is

due

L.

IPC

~as

consistently

declined

to

waive,

or

extend,

or~

d ~e

(R

18)

Y~:1

on

~

Monday

October

15

due

date,

and

allowing

the

~

~:he

weekend

of

October

12—13

to

receive

transcripts

cnd

evifince

and

review

them,

hearing

would

have

to

have

been

~

October

12.

To

give

appropriate

newspaper

and

other

~ce~m:Lnq

hand

rather

than

even

express

mail

delivery,

the

:~

have

been

required

to

dispatch

such

notices

on

•

Se~teTnber 21~

e

~o

administrative

oversight

no

hearing

officer

was

~:onta’.

:ec

hy

the

Board

until

September

19

or

20,

which

was

done

i~ean-’of

telephone

(R0

13)

The

Board

dispatched

the

filings

t~.th~

case

on

September

21.

These

were

received

by

Mr~ Todd

I:~ikh~c

~t

on

September

24.

Mr.

Parkhurst

formally

accepted

the

case

Leptember

25

(11.0,

Exh,

1).

While questioning his

ability

~o

ceo

a

hearing

because

of

statutory

notice requirements

(Ibid.

rcA

~

Mr.

Parkhurst

did

so at

the

direction of the Board.

ry

of

September

28,

hearing

was

set

for

October

3,

to

allow

~hekarF

cime

to

review

the

transcript.

The

parties

stipalate

-chct

caoy

received

notice

of

hearing

on

September

28

(R.

8-9).

No

~‘c~aper

notice

of

this hearing was published,

and no notice

wac

riaii~d

or

otherwise

given

to

legislators

or

other

persons

as

specified

in

Section

40(a)(1)

of

the

Act.

EAs

noted

at

hearing,

~ie

o~:~,id~ng

of

these

notices

is

not

a

duty

of

the

hearing

officer

~R,

19-20).

No members of the public appeared at hearing.

~:ven

absent

the

administrative

“slippage~

which

occurred

here,

the

90

day

decision

period

of

Section

40(a)(2)

has

proven

ucoorA

c-tably

tight

in

a

number

of

circumstances

(e0q.,

Waste

Ma&aca~ent Inc.

v.

IPCB,

83—45,

61,

68

(consolidat~~7

O~t~r

1,

~984)

As

noted

in

the

majority opinion,

in one case overruling

1- ~xe Board

and

holding

that

the default provision existing at the

t:~me

a;~pltsd

to

NPDES

permits,

the Appellate Court found that

~the

~

day

requirement

in Section 40(a) evinces legislative

-~onceca

with

bureaucratic

delay.

It

was not the intent

of

the

.;ene;rii.

Assembly

to

create

a license to pollute,~e

Illinois

Power

~ov.iPCB,

N.E.

2d

,

112 Ill. App~3d 457 (5th

b~sti983).

Recog~T~Tng,however, that such

may

be perceived as

~ pr~:fia1

effect

of

the default provision,

the Board makes

every

effort

to

avoid

default.

---

—3—

In

this

case,

we

must

reluetant,ly

agree

with IPC that the

I3oard~s efforts

to

allow

the

Board

to

reach

the

merits

of these

appeals

were

insufficient.

This

is

not

a

case

where

delay

was

attributable

to

petitioner,

potentially excusing deficiencies

Tc,f.

Marcuetta

Cement

Mf

Co. v,__IPCB,

N.E.

2d

___,

84

~

case

w~the

form

of

written

notice.

to

the

piblic

and

legislators

is

at

issue,

and

where

the

Board

could find

that

statutory

requirements

had

been

met,

see

Hammanv._IEPA,

PCB 80—153,

44

PCB

73 at p.

80,

appealed

sub.

nom.

~erse~l.v.IPCB,

438

N.E. 2d 213,

107

:11.

~

,3d

729

(1982),

Ibsent

a

showing

of

actual

prejudice,

we

give

little

weight

to

IPC~s arguments

concerning Section 103,125 of the

Board’s

procedural

rules.

However,

given the

~

lack

of

newspaper

and

other

notice

to

the

particular

persons

specified

in

Section

40(a)

1),

we

cannot

find that the Board’s belated

scheduling of

a

hearing

constitutes

substantial compliance with the statute,

and

hence

oon—prejudiciai

error,

The

hearing

was therefore fatally

defective;

even

had

IPC

presented

the merits of its case, which

it

did

:rtot~

under

these

unique

circumstances

we believe the Board

would

lack

statutory

authority

to

adjudicate

the

merits of the

controver

cv,

F:Lnally,

we

wish

to

emphasize

that

this

dissent

should

not

be

construed

as

inordinate

criticism

of

the

Board’

s administrative

oversight.

Even

without

such

accidental

oversight,

the

90

day

decision

deadline

is

too short now for usually

complex

permit

appeals.

There

is

little

room

for

any

slippage.

Also,

we

question

whether

the

default

mechanism

may

be

an

‘~overkill’1

remedy

where

there

is

no

intent

to

delay.

The

Board

notes

that

at

USEPA

insistence

the

default

sanction

no

longer applies to RCRA,

UIC

and

NPDES

permits;

the

decision

period

now

is

120

days,

and

the

remedy

for exceeding this deadline

is

an

Appellate Court Order

process (see Sec.

40

(a)(3)

of

the

Act).

We would prefer to

see

the

caine

process

applied

to

all

permit

appeals

for

consistency

alone:

since

it

can

be

an

issue

as to what kind of

permit

is

required

in

a

particular

situation,

the Board could

have

difficulty

in

determining beforehand

whether

a

90

day

default,

or

instead

a

:L20

day

appellate action,

statutory

deadline applies.

However,

to

achieve

such

results

a

legislative

change

would be necessary.

We

would

rather

see the legislature directly address these problems,

than to see the Board strain to prevent a default.

For

these reasons we dissent.

~

~

Joan~

Ander son

---

4—

I,

Dorothy

M.

Gunn,

Clerk

of

the

Illinois

Pollution Control

Board,

hereby

certify

that

the

above

Dissentino Opinion

was

filed

the

/day

~

1984.

~

#7

YYbrothy M~Gunn,

Clerk

Illinois

Pollution

Control

Board