ILLINOIS POLLUTION CONTROL BOARD

April

8,

1976

WINNETKANS

INTERESTED

IN PROTECTING

THE ENVIRONMENT

(WIPE),

)

Petitioner,

v.

)

PCB 75—363

VILLAGE OF WINNETKA,

Respondent.

ORDER OF THE BOARD

(by Mr. Young):

This matter comes before the Board on Respondent’s

Motion

for Reconsideration

of our Order entered February

19,

1975.

In that Order the Board dismissed an enforcement

action against Respondent which alleged violation of Rule

203(g) (1) of Chapter

2, but refused

to dismiss that portion

of the Complaint which alleged violation of Rule

103(b) (2)

and Section

9(b)

of the Act.

Subsequent

to our Order,

Respondent filed

a Petition for Review in the Illinois

Appellate Court, First District.

In view of this action,

Respondent also requests

a Stay of Proceedings and a Certi-

ficate of Importance concerning issues involved herein.

As

a basis for the Motion, Respondent contends that

it has a complete defense to the alleged permit violation

because

the grounds

for denial of Respondent’s application

were failure

to show compliance with Rule 203(g) (1).

Taken

one step further,

the position of

the Respondent seems

to

be that since Rule 203(g) (1) was held to be invalidly adopted,

a permit previously denied would issue by operation of law

and that the Agency and this Board are forever precluded from

any further inquiry concerning the effect of Respondent’s

particulate emissions upon the public health and welfare and

upon the attainment and maintenance of ambient air quality

standards prior

to issuance of the permit irrespective of

the policy set forth by

the General Assembly in Section

8 of

the Act;

and compliance with the remaining regulations of

Chapter

2 of our Rules

and. Regulations and the substantive

provisions

of Sections

9 and

39 of the Act.

Respondent contends that our position exalts form over

substance

in

a manner contrary to applicable

court orders.

No authority is cited by Respondent for this contention and

the Board has likewise been unable to find such authority;

21

73

---

—2—

we rather believe our position exactly opposite.

An examina-

tion of the opinions of both the Illinois Supreme Court and

the Appellate Court

for the First District Commonwealth

Edison v.

PCB,

Ill.

Sup. Ct. Docket 47352

(January 20,

1976);

Commonwealth Edison v. PCB,

25

Iii. App.

3d 271;

323 N.E.

2d

84

(1st Dist.

1974)

will disclose that neither court found

that effective removal technology for control of particulates

was unavailable nor suggested that particulate emissions be

uncontrolled until new regulations were adopted by the Board.

In order to receive a permit,

an applicant must prove

to the Agency that the operation of the facility will not

cause

a violation of the Act or Regulations.

Section 39 of

the Act gives the Agency authority to withhold permits

if

the application does not contain such proof.

When the Agency

denied the permit in this case,

it cited as grounds a regulation

which

then assured compliance both with the Act,

the Regulations

and ambient air quality standards.

Since that regulation has

been subsequently held invalid, Respondent

is not entitled to

a permit without any further action on his part, but must re-

submit an application with proof that the facility will comply

with the provisions of the Act and any other regulations.

Our

concept of justice and fair play requires this procedure.

If

the Board were to accept Respondent’s position, any future

judicial ruling holding a regulation invalid

would

result in

a de facto issuance of permits

to parties who had not challenged

an Agency permit denial.

This result will not be permitted and

a resubmission of

a permit application will be required to en-

sure compliance with the Act and any applicable Regulations.

In situations of this nature,

it seems fair and equitable

for all parties concerned to allow for a resubmission of a

permit application for Agency consideration hereof.

The Board

would be willing to entertain a motion of Respondent staying

these proceedings pending such a permit reconsideration.

In view of the foregoing, Respondent’s Motion for Recon-

sideration and Alternative Motion are denied.

IT IS SO ORDERED.

I, Christan

L. Moffett,

Clerk of the Illinois Pollution

Control 33oard, hereby certify the above Order was adopted on

the

~

~

day of

*

,

1976 by a vote

of

~

~

Illinois Pollution Co

ol Board