ILLINOIS POLLUTION CONTROL BOARD
September
8,
1983
FRINK’S INDUSTRIAL WASTE,
INC.,
Petitioner,
v.
)
PCB 83—10
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J.
Anderson):
On August
5,
1983 the Agency moved for reconsideration or,
alternatively,
rehearing of the Board’s June
30,
1983 Opinion
and Order in this matter.
In that action, the Board reversed the
Agency’s denial of an operating permit to Frink’s Pecatonica
liquid waste storage and treatment facility.
Frink’s
filed
its
objections
to the Agency’s motion on August 19, 1983.
On
September
1,
1983,
the Agency moved
for leave to file a response
instanter, which motion is hereby granted.
Frink’s argues that the Agency~s alternative motions should
be denied on the grounds of lack of jurisdiction.
Frink’s
contention is that,
since the Board took final action on this
matter on the last day of the Section 40 statutory decision period
as extended by Frinkts waivers, absent an additional waiver,
the
Board has no authority to take further action.
In Hamman
v. IEPAetal.,
PCB 80-153,
44 PCB 73, November
19,
1981 the Board rejected this contention in the context of another
Section 40 permit denial appeal,
“While there
is no case directly on point concerning the
Board’s authority to hold a rehearing and issue a decision
after the 90th day pursuant to Section 40,
in Modine
Manuafacturin9~~~v.PCB,40 Ill.App.3d 498
(2dDist.
1976),
the Board was held to have authority to so do in the context
of a Section
38 variance petition.
As Section 38 contains
a similar 90-day deadline, also running to petitioner’s
benefit, the Board sees no reason why its authority under
Section 40 should be differently construed.
In addition,
if
it were determined that the
90 day clock continued to run
during the pendancy of a rehearing,
a petitioner who had
received a ruling affirming the permit denial could petition
for rehearing, and by virtue of a not unlikely combination
of delay and administrative inadvertence, have the permit
issue by operation of
law.
Adherence
to the Modine
rationale prevents this absurd result.”
(44 PCB at 78.)
54-25
2
As the Third District Appellate Court
round it unnecessary to
reach this issue in its review of the Hamman
case in
Mathers
et al.v. PCBetal.,
No. 81-741
(June 28,
1982),
slip op.
at
13, there is still
a lack of directly controling
authority.
The Board notes that the Modine case, albiet
in the Section
38 variance context,
is factually on all
fours with this one.
The Board had rendered its decision on the last day of the
decision period as extended by Moc3inc’s waivers, and granted an
Agency motion for reconsideration.
The court held that “sections
5(d)
and 26 of
the
Environmental Protection Act,
when read
together, provide the necessary authority for the respondent to
hold rehearings
as
a procedure to correct any error,
omission,
or oversight found in its
first consideration”.
The Board sees
no reason to retreat from its holding
in Hamman that
it has
authority to conduct rehearings and reconsiderations
in Section
40 permit denial appeal actions.
The Agency’s motion for reconsideration is granted.
It
raises several points,
only some of which the Board will address,
the other arguments therefore being rejected without comment.
The Agency’s first point of argument concerns the Board’s
holding that Chapter
7,
regulatory “solid waste management sites”,
is by its terms inapplicable to Frink~sliquid waste storage and
treatment facility.
The Board must reject
the
contention that
the question of applicability of the Chapter was untimely raised,
and hence waived,
by Frink’s
in its reply to the Agency brief
cf.
Supreme Court Rules 341(e)(7) and 341(g).
The Agency
itself assumed the applicability of the Chapter in arguing
the
applicability of certain rules thereof
in its own brief.
The Agency suggests that the Board may have been
insufficiently aware of the consequences of its Chapter
7 ruling,
as the Agency did not argue the effect upon itself and permittees
of pinpointing a regulatory gap.
The Agency states that it has
been left “without clear standards in
issuing permits”, which
requires a case—by—case approach
to permit issuance.
The Agency
notes that “s)uch
a situation obviously acts to lessen public
confidence in the permit system and could well lead to needless
disputes between th~Agency and permit applicants”
(Motion,
p.
3).
The Board has long been aware that Chapter
7 has not kept
pace with the changes
in the field of waste disposal since the
Chapter’s adoption in 1973.
This was most recently acknowledged
in the Board’s June
16, 1983 Order in R82—21 and R82—22, dismis-
sing Chapters
7 and
¶) updating dockets upon Agency withdrawal of
its proposal.
While accepting the Agency’s assessment that the
rulemaking could not and should not effectively be pursued until
January,
1984 because of various technical, drafting, and
budgetary problems,
the Board stated that
it felt “an urgent need
to promulgate regulations to revise existing Chapters
7 and
9,
54-26
3
which continue to prove themselves
to bc sadly out-of—date,
under—comprehensive,
and under—specific”.
The Board finds no
“clear
standards”
in
Chapter
7
applicable
to
the
Frink’s
facility.
Maintenance
of
a
polite fiction that the Chapter contains
standards
governing
a facility not contemplated at the time of
the
Chapter’s
passage would serve only to maintain false public
confidence.
Concerning the integrity of Tanks
1 through
4,
the Agency
has
requested
that
the
Board
consider
new
evidence
contained in
a
discovery
deposition
given
by
Frink’s
consulting
engineer
Erwin
Toerber.
The
deposition
was
given
July
11,
1983
in
an
enforcement
action
pending
in
Winnebago
County,
Pç~p~e
V.
Olson
and Frink’s Industrial Waste,
Inc.,
No.
82-CH-26.
Frink’s
argues that such would constitute an improper use of a discovery
deposition under the Illinois evidence rules.
The Board need
not reach that issue.
Since
1972,
the
Board
has
consistently
held that “the issue
is,
in
a Section 40 hearing, whether the
Agency erred in denying
a permit, and not whether new material
that was not before the Agency persuades the Board” the Agency
was right or wrong,
Soil Enrichment Materia~~~p.v.
IEPA,
PCB 72—364,
October 17,
1972.
The Board’s view of its role in
Section 40 actions has been confirmed by reviewing courts e.g.
Mathers,
supra,
slip op. at
8—10.
The Board therefore cannot
properly consider the Toerber deposition.
Upon reconsideration,
the Board reaffirms its June
30,
1983 Opinion and Order
in this matter.
The Agency shall
issue a
permit consistent with that Opinion and Order within 15 days of
the date of this Order,
if no permit has been issued due to the
pendency
of
the
reconsideration
motion.
No
stay
of
the
instant
Order
will
be
granted
by
the
Board
pending
pursuit
of
any
appellate
review
of
this
matter,
IT IS SO ORDERED,
Board
Member
D.
Anderson
concurred.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
cer~ify
that
the
above
Order
was
ad,~pted
on
the
~“
day
of
~
1983
by
a
vote
of
~
Christan
L.
Moffe
,~lerk
Illinois Pollution
ontrol Board
54-27