ILLINOIS POLLUTION CONTROL BOARD

October

14, 1976

PALOS

 CONSERVATION

COMMITTEE,

)

ED R. MICLLEF, WILBUR W. MARTIN,

)

MERVYN

C.

 PHILLIPS,

THE

 LIEUTENANT

)

JOSEPH

•

KENNEDY

SCHOOL

FOR

)

EXCEPTIONAL

CHILDREN,

THE

HOLY

FAMILY

)

VILLA,

THE

SOUTH

COOK

COUNTY

GIRL

)

SCOUTS, INC.,

)

)

Complainants,

)

and

)

PEOPLE

 THE STATE OF ILLINOIS,

)

)

 PCB 76—191

Intervenor—Complainant,

)

v.

)

LANDFILL, INC., WASTE MANAGEMENT OF

)

ILLINOIS, INC., and the ILLINOIS

)

ENVIRONMENTAL PROTECTION AGENCY,

)

)

Respondents.

INTERIM OPINION AND ORDER OF THE BOARD

 (by Mr. Zeitlin):

Pursuant to an Interim Order entered August 5,

 1976, this

matter is before the Board for decision on several Motions filed

by Respondents.

 All parties have submitted extensive briefs on

those Motions under a schedule set up in that Interim Order, as

modified in a further Interim Order entered September 15, 1976.

In addition, we now decide a Motion to Strike certain pleadings,

filed by Intervenor-Complainant People of the State of Illinois

(“People”)

Auqust

26,

1976.

The

arguments

raised

and

briefed

the

parties

support

 opposition to the various Motions are complex and present

several questions worthy of Board consideration.

 For clarity, the

outstanding Motions are listed:

1.

 Motion for Judgement on the Pleadings or in

the Alternative, Motion for Summary Judgement,

 filed by

Respondent Environmental Protection Agency (“Agency”) on

July 30,

 1976.

2.

 Motion to Limit the Scope of Review,

 filed by

Respondents Landfill, Inc

•,

and

Waste Management of

Illinois

 (hereinafter, collectively, “Landfill”) on

August

 2, 1976.

24-83

3.

 Motion to Strike Record,

 filed by the People

on August

26,

 1976, asking that the Agency’s “Record

for Complaint for Permit Review,”

 filed July

30,

 1976,

he stricken.

The Complaint

 in this matter,

 filed July

9,

 1976,

 alleges

in

essence that on July

2,

 1976 the Agency wrongfully

 in violation

of the Illinois Environmental Protection Act

 (“Act”)

 and this

Board’s Regulations thereunder

 issued Landfill

 a development

permit for a sanitary landfill site

 in Palos Township,

 Cook County,

Illinois,

 and that Landfill’s operations under that permit will

cause environmental harm.

 Complainants allege that Landfill began

site preparation activities on or about July

6,

 1976, although it

is agreed that any further activities on the site have ceased during

the pendency of this case.

 The relief asked

 is revocation

 of the

permit.

The parties agree

 in their pleadings that the Agency’s permit

issuance followed two days of hearings held by the Agency,

 and the

Agency’s receipt of considerable written submissions from both the

original Complainants herein

 (Palos Conservation Committee,

 et al.,

hereinafter, collectively,

 “Palos”) and Landfill.

 Several previous

permit applications by Landfill had been denied by the Agency, and

this Board ruled, on a limited aspect of the sufficiency of one such

application last year in Landfill, Inc.,_v,EPA,

PCB

 75-440,

20 PCB

 (February 11,

 1976)

DISCUSSION

All of the Motions here for decision

have

 certain issues of

law in common.

 We shall first discuss the

~c

 issues generally and

then apply our findings on those issues

to

Lhe

individual Motions.

I.

 TYPE OF CASE

Respondents argue,

 for both Judgement on the P1eadings and a

1

 i mi ~at i on of

ih~

sCOj)’

1 h

h(

‘

r(’\J

I (W

I

Ii

(‘~1

constitutes

“permit

review”

under

 Procedural

Rule

 503.

 Respondents

cite

 Soil Enrichment Materials Corp.

v.EPA,

 PCB 72—364,

 5 PCB 715

(1972)

(Preliminary

Order)

(“SEMCO”),

support

their

contention

that the Board in this case is

 limited to a review of the permit

application “record” compiled by the Agency.

 Without looking beyond

the materials available

 to the Agency

 in that “record,” Respondents

 claim,

 the Board can determine

 in a “permit review” whether,

1.

 That “record” contained sufficient information

to support the permit issuance by the Agency; and

2.

 That

 “record” does support the Agency’s

decision to issue the permit.

Respondents argue that the Board need not,

and

 in a “permit review”

may not,

 go beyond these factors in deciding the case.

—

84

—3-,

Complainants,

 on the other hand, claim that this is an enforce—

ment case,

 and that they must be permitted at

 a hearing to introduce

whatever evidence

 is necessary

 (whether or not included in the “record”

filed by the Agency)

 to prove the violations alleged

 in their enforce—

ment

Complaint.

It was this Board’s intent that our “review” of permit situations,

where the allegedly aggrieved party is not a permit applicant,

be

handled under the

provisions

 of §30 et seq.

 of the Act and Rules 300

et seq.

 of our Procedural Rules.

 Although the change

 to Procedural

Rule 503

is

 in effect, that change does not affect our finding that

this case

 is of an enforcement nature.

 Complainants have chosen to

pursue the matter as an enforcement case, and we agree that this

 is not only allowed,

 but required as the only appropriate forum

created under the Act,

II.

 NECESSITY OF A HEARING

The Board’s Interim Order of August

5,

1976

 specifically directed

the parties

 to discuss as an issue the authority of this Board to

enter a summary judgement,

 or a judgement on the pleadings.

The

facts of this case would preclude the entry of such

 a judgement,

irrespective of whether the matter is considered an enforcement

case,

 or a “permit review.”

On the pleadings before us,

 we cannot say

——

as

 a matter of law

——

that the Agency’s

 “record” is adequate to support the permit.

 Nor,

even assuming the truth of all pleadings before us,

 including the

Agency “record,~can we say that there are no contested issues of

fact,

 Whether the “record” before the Agency was insufficient,

as

a matter of

 law,

 to support the permit,

 is not before us.

Complainants plead the existence

 of facts not in the Agency’s

“record” which are necessary to the decision on Landfill’s permit.

Complainants also plead that the manner

 in which those facts are

weighed

the

Agency

 was incorrect;

it

 is also claimed that the

Record

date

fails

adequately

show

the

manner

which

the

Agency

i ghod

vdrious

fac

 and po1

 .icics

Wi

 t honI ml lug

 on the

correctness

these

contentions,

find

that

hearing

is

neces-

sary

 allow

proofs

 concerning

them

 introduced

 by Complainants,

within

 the normal enforcement framework.

There is no requirement,

 in the Act or our Rules,

 that any

person or member of the public participate in the Agency’s permit

evaluation

process

that

hearings

held

all

 by the Agency.

The

fact

that

the

Agency

has

allowed

such

participation

cannot

now

limit

further

challenge

the

facts

and

processes

used

that

evaluation,

24

—

—4—

The Agency’s election to hold a hearing on this matter

is

laudable.

 Public input into the environmental decision-making

process

 is a cornerstone of the Act,

 The theories urged by the

Agency and Landfill, however, are not sufficient to guarantee such

input,

 and we decline

 to interpret the Act or our Regulations

in

any manner which might limit such public participation.

 The Act

and our Regulations provide for due process guarantees and full

public participation in enforcement hearings before the Board.

III.

 LIMITATIONS OF SCOPE OF REVIEW

Respondents argue at great length, for essentially the same

reasons and citing generally the same authorities as were argued

on the issue of the necessity of a hearing, that the Board must

severely limit the scope of its review of the permit issuance

process.

 For the same reasons discussed above, we hold the contrary.

An enforcement hearing,

 limited only insofar as any other enforce-

ment case

 is limited, provides the only assured and adequate forum

for Complainants here or in similar cases.

 Citizens to Preserve

Overton Park,

 Inc.

 v. Volpe,

 401 U.S.

402

 (1971);

 cf. R73-1l

&

12,

14 PCB 661,

665

 (Dec.

 5, 1974).

CONCLUSIONS

Respondents’ Motions for Summary Judgement or in the Alternative

Judgement on the Pleadings and to Limit the Scope of Review must be

denied.

Inasmuch as we determine that the amendments

 to the Board’s

Procedural Rules which accompanied adoption of the NPDES Regulations

are effective now,

 the Agency’s filing of its “record” was required.

Such filing and acceptance by the Board does

 ~ct, however, speak

to

that “record’s” evidentiary weight;

 that weight

 is governed by

normal evidentiary rules under Part III of Chapter

I:

 Procedural

Rules.

 The People’s Motion

 is denied.

This matter shall be set for hearing.

IT

 IS SO OBDERED.

Mr. James Young dissented.

I,

 Christan

 L. Moffett, Clerk of the Illinois Pollution

Control Board,

 hereby certif~he above Ir~te,~rimOpinion and

Order were adopted on the

_____

 day of

 1976,

 by a

vote of

4.j

Christan

 L. Moffé~y)Clerk

Illinois Pollutith~-’ControlBoard

—