ILLINOIS POLLUTION CONTROL BOARD

September

11,

1986

FRITZ

ENTERPRISES,

INC,

)

Petitioner

)

PCB 86—76

vs..

ILLINOIS ENVIRON~4ENTAL

)

PROTECTION AGENCY

Respondent

)

DISSENTING OPINION

(by R.

C..

Flemal):

I dissent for reasons that the facts

in this matter

require

an outcome different from that ordered by the majority..

Although the Board has reached

its conclusion

based

on the

argument that the alleged opacity violation

is an improper basis

for permit denial,

I believe that the fundamental

issue

in this

matter

is what would or would not have been shown by a mass

emissions

test..

The central matter

is that Petitioner has

a right

to assert

an affirmative defense

to

an alleged opacity violation by showing

that mass emission limitations

are met.

Petitioner was not

afforded this right.

It would appear that the principal control

is

the Agency’s inability within statuatory deadlines

to gather,

review, and otherwise process

the extensive information which is

necesary to review

a permit application and also have sufficient

time left over to allow Petitioner

to prepare and present

its

affirmative defense.

Given

its time limitations,

the Agency

therefore did what

it had

to do.

It acted on the information

it

had available,

which

in this case caused

it

to deny the permit at

issue.

This action was entirely appropriate..

However, Petitioner also rightly identifies that

it could

not defend itself under

these circumstances:

Petitioner was not

able

to present

its defense

to the Agency*,

nor was

it able

to

*

It might be argued that Petitioner could have foreseen the

possibility of a denial,

and therefore prepared its affirmative

defense during

the time of the permit review and

in advance of

the Agency’s

action..

However, given the expense associated with

a mass emissions test and

the fact that Petitioner had previously

been awarded a similar permit,

it

is unreasonable to expect

Petitioner

to have taken this action..

Also, Petitioner was not

aware, prior to the Agency site inspection related

to the permit

application, that the Agency was even going

to conduct an opacity

test at the facility.

—2—

present its defense

to the Board because the Board can review

only information available to the Agency..

This

is

an obviously

absurd situation in which statutory time limits

and conditions of

review conflict with

a statutory right.

Further,

I imagine the following scenario.

Consider that

I

a~nan egregious polluter*.

I apply to the Agency for

a

permit..

The Agency acts timely, gathers information including an opacity

test, and,

recognizing me thereby for what

I am, denies me a

permit..

I, however, have not been presented

a reasonable

opportunity

to assert my right

to an affirmative defense..

The

Board must agree with me

in this matter, and thereby orders the

Agency to issue

a permit to

me..

I,

for all my polluting ways,

thereby get my permit.

This

is a further absurdity.

There are

at least two possible resolutions

to these

absurdities.

The most appropriate would seem to be

a revision of

the time limits imposed upon the Agency such

as

to allow

sufficient time

to review

a permit application and,

in the event

that this indicates grounds

for

a denial,

also sufficient time

for the petitioner

to prepare and present its affirmative defense

to the Agency.

While revision of the time limits

is

the best remedy

in the

long run,

in the instant matter

I believe that the Board could

have exercised another

option..

It could have returned the permit

to the Agency to review

its determination

in light

of such

affirmation defense

as Petitioner might present.

The majority of the Board would

appear to believe that there

are only two possible outcomes

that can be ordered

by the Board

in a permit appeal: affirmation of the Agency or ordering that

the permit be

issued.

I am not willing

to accept this narrow

all—or—nothing interpretation,

nor can

I believe that it serves

either justice or environmental protection.

The position of

the majority is

at least in part based on an

interpretation of the Illinois Appelate Court,

Third District’s

Opinion

in

Ill..

Power

Co.

v..

Ill. Pollution Control Bd,

Ill.

App..

426 N.E.2d

1258.

In IPC a permit appeal proceeding was remanded

to the Board because,

inter alia,

the Board left

to the Agency’s

discretion a determination of appropriate monitoring

standards..

The Court held that the Board can not

so delegate

its

responsibility for making

a final determination in

a permit

appeal.

From this the Board has appeared to conclude that the

only determination which can

be made

in

a permit appeal

is a

final determination.

However,

I do not see any reading of

IPC

which so requires.

I believe that there

is latitude for the

*

This

is an entirely hypothetical situation,

and

is not meant

in

any way

to characterize the specific circumstances of Fritz

Enterprises..

72-316

---

—3—

Board to make what

in effect is an interim determination by

sending

the matter back to the Agency as suggested above.

Should

the Agency decide that the new information does not offer reason

to

issue

the permit,

the Board would still have jurisdiction

to

make

a final determination.

Alternatively, should the Agency

decide that the new information warrants

issuance of the permit,

the petition could be withdrawn or dismissed as moot.

The problem that

I myself see in the Board adopting

a

posture of allowing interim determinations in permit appeals

is

that the Board also has deadlines for making

its determination.

I do not know quite how this might be resolved, but

I do believe

that

it should be explored

in depth because

of the substantial

good that would result

in the Board

being able

to make interim

determinations..

In summary,

I believe that the instant matter

has

revealed

a

fault

in the system by which some permit reviews and appeals

proceed.

I believe that these faults are

rectifiable,

and could

have been addressed

in the instant matter.

I therefore can not

agree with the Or3er of the majority.

Ronald

C.

Flemal

Board Member

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the abov~Di~sentingOpinion was

submitted on the

J’~~

day of

~

,

1986.

~.

/~

Dorothy

M. G7nn, Clerk

Illinois Pollution Control Board

72-317