ILLINOIS POLLUTION CONTROL BOARD
July
23,
1981
CATERPILLAR TRACTOR CO.,
)
Petitioner
)
)
v.
)
PCB
80—3
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
)
Respondent.
CONCURRING OPINION
(by J. Anderson):
I concur with the Board’s decision of July
23,
1981 to
clarify that it was not intending to direct the Agency
to include
verbatim a condition in an earlier Caterpillar permit.
However,
I believe the Board might have made clear that it was not, by
implication, agreeing with the Agency’s arguments
(Motion to
Reconsider and a supporting memorandum)
filed on July
14,
1981.
As an overall
statement, when the Board sustains a petitioner
on a permit appeal,
it inevitably causes an alteration of the
permit,
directly or indirectly,
and thus quite lawfully “infringes
upon” the Agency’s discretion.
It seems
to me that the controlling
issue
is whether the Board, under Section 40, has directed the
Agency to respond in a manner that
is justified by the evidence.
If precise words are really necessary for an adequate remedy,
failure by the Board
to directly
so determine can lead to a costly,
time wasting,
“back and forth” situation, thus frustrating the
appeal process itself.
Neither the Board nor the Agency can
construe their responsibilities in the Act in isolation from each
other’s provisions.
While the Board might only rarely conclude
that ordering precise alterations
in a permit was necessary for a
just remedy,
I believe that both the Act and its Procedural Rules
empower
it to do so.
The Agency appears to argue that the Board is precluded from
making
a
precise
determination
as
to
how
a
permit
must
be
altered
so as to comply with the Board’s legal interpretation of its own
rules.
Instead,
the Agency appears to assert that only the Agency
has the power under the Act and Rule 502(b)(10) to interpret the
Board’s legal interpretation before the Agency alters a permit.
The Agency appears to accept the key language in Rule
502(b)(1O)
by quoting
it as follows:
“Clearly, the Board
...
may remand the proceeding to the
Agency
for
the
taking
of
further
evidence,
or
may
direct
the
issuance
of
the
permit
in
such
form
as
it
deems
just,
based
upon
the
law
and
the
evidence.”
(emphasis
added)
43—57
2
However, the Agency then goes on to state,
“an attempt by
the Board to specify the form of the condition itself,
i.e.,
to
actually write or rewrite the condition,* would be tantamount
to the Board’s usurping “the authority of the Agency
to exercise
its decision making process” granted to it under the Act.
(Memorandum p.
4).
How can the Agency reason that the Board may
direct the form of the whole permit issuance but not the form of
a separable part of the permit?
The Agency relies primarily on Landfill, Inc.
v.
Pollution
Control Board,
74 Ill.2d 541,
387 N.E2d 258,
(1978).
I fail to
understand the Agency’s reasoning as to its applicability here.
The Court,
in Landfill,
Inc., voided a Board rule that permitted
affected citizens to file for permit revocation proceedings,
because the statutes did not authorize third party appeals of such
permits issued by the Agency.
Here,
however, we are dealing with
a valid procedural
rule,
the statutorily proper parties are the
perniittee and the Agency,
and the Board is exercising its power
to provide relief to a permit applicant under Section 40 of the
Act.
Because the Court found that the Board,
in authorizing third
party permit appeals, was interfering with the Agency’s power to
administer permits,
I feel it is incorrect reasoning to argue that
it then follows that the Court was also stating that the Board
itself cannot direct permit issuance in precisely altered form.
Nowhere did the Court imply that the Agency’s permit discretion
was absolute and,
indeed,
it could not so state or there would be
no meaningful appeals process at all.
Also,
I cannot understand why the Agency feels “ministerial”
in being directed to include a precise number or sentence and yet
logically can accept the Board’s power to direct that specific
conditions be rejected outright (Memorandum
p.
4).
“Omission” has
no rewriting effect but “commission” does?
Next,
the Agency compares the Act’s language concerning Board
“conditions” in variances and the non—use of the word “conditions”
in permit appeals, concluding that the legislature ha~failed
“...
to provide for Board authority to impose conditions
in permit
appeal proceedings...”
(Memorandum, p.5) by negative inference.
However, we are talking about apples and oranges here in a statu-
tory context,
The variance “conditions” language is necessary
so the Board can use its regulatory powers to establish a special,
short term, regulatory package as an alternative to regulations
adopted under Title VII of the Act.
Surely the Agency is not
arguing that its permit “conditions” have the same statutory
meaning in the Act.
In a variance proceeding,
the Board does not
directly address the Agency’s permits.
In a permit appeal
it
does, conditions and all.
Again,
if the Board were not authorized
to address the language of permit conditions,
there would be no
meaningful appeals process at
all.
*Actually, the condition at issue here was not written by
the Board but,
rather, by the USEPA when issuing an earlier permit.
3
Next,
the Agency asserts that the Board addressed this issue
in Illinois Power Company v. Environmental Protection Agen~,
PCB 79—243,
December 18,
1980.
(Memorandum p.
5)
The Agency
is
focused on the wrong
side of the coin.
The Board was asserting
its authority not to direct the Agency to use “verbatim”
language.
Finally, the excerpt of the Board’s December
19,
1980
discussion
(Memorandum, p.7) was not reflected in the final
opinion, except
for affirming that the Agency issues permits.
.~1)
Joan G.
Anderson
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify that the above Concurring Opinion
was filed on the
~
‘day of
~
,
1981.
.-v’~~
(‘~
~/1
h/7/.
Christan L. Mo~,tt, Clerk
Illinois Pollutton Control Board
43—59