ILLINOIS POLLUTION CONTROL BOARD

February 17,

1977

ASHLAND

CHEMICAL COMPANY,

Petitioner,

v.

)

PCB

76~186

ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

CONCURRING OPINION

(by

Mr.

Zeitlin):

While

I concur in

the

decision

of

the

majority

in

this

case,

denying Petitioner’s Permit Appeal,

I

must respectfully disagree

with certain elements of the majority Opinion’s rationale,

I feel that the majority Opinion fails to give adequate weight

to our earlier Opinion and Order in Ashlandv._EPA,

PCB 75-174.

Although the majority is correct in stating that

res judicata cannot

be the basis of our finding

in this case,

its conclusion that

the

doctrine is wholly

inapplicable seems incorrect.

Petitioner has

simply failed

to show that

all the elements

in PCB 75~l74 are

present

in the instant matter,

unchanged.

The majority’s decision on the matter of the Agency’s motives

(i.e.,

‘they are not an issue’), raises serious questions.

The

dates involved in the Agency’s denial of Ashland’s permit with

regard to the expiration of the Variance

in PCB 75~l74,and

certain

testimony at hearing

(e,q,,

N.

~4),

indicate that the Agency may

he

u~ir~j

the

vrIi

~y~Lem

( o ~

eumv(’r1t

etir

~(ljud

i(’dt

ive

deci

ions,

The Agency’s

I3riei makes

the

issue clear:

“Surely

it

does not

follow

the course of good

administrative

logic

when

a

quasi-judicial

Board

requires

a technical

administrative agency to be bound by that

Board’s

decision with regard to a technical

issue,”

(Brief

of Jan.

20, 1977,

pages unnumbered.)

It

is clear at least

to me that the scheme set

up under the Environmental Protection Act envisions just such

a

binding effect for

our decisions.

24

—

794

---

It is

often said thu

n~xI ci

c

be the case here,

Our dec~ion b~uu

holdinq

that res

judicita or

s

adeauately

raised

by PeciL

e~

facts

are

the

same,

We

~t

other

issues

which

a~c~t

ope’

With

these

reser~atac~

I,

Christan L

ho

Con~ro1

Bo~rd,

here

y

11

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