ILLINOIS POLLUTION CONTROL BOARD

March 20, 2003

 

NATIONAL CITY ENVIRONMENTAL,

LLC, and NATIONAL CITY RECYCLING

(Log No. 1999-134, Log No. 1999-146, Log

No. 2002-182),

 

Petitioners,

 

v.

 

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

 

Respondent.

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PCB 03-138

PCB 03-139

PCB 03-140

(Permit Appeal - Land)

(Consolidated)

 

     

ORDER OF THE BOARD (by L.P. Padovan):

National City Environmental, LLC (NCE) and National City Recycling, LLC (NCR)

have appealed three Illinois Environmental Protection Agency (Agency) permit denials

concerning their St. Louis Auto Shredding (SLAS) facility in St. Clair County. NCE and NCR

also have moved the Board to consolidate the three appeals. For the reasons below, the Board

accepts the appeals and consolidates them for hearing.

PETITIONS FOR REVIEW

On March 5, 2003, NCE and NCR timely filed three petitions with the Board, each

asking the Board to review a different permit decision of the Agency. Each of the three Agency

decisions was issued and served on January 31, 2003, and in each decision the Agency denied a

permit application of NCE and NCR for the SLAS facility.

See

415 ILCS 5/40(a)(1) (2002); 35

Ill. Adm. Code 101.300(b), 105.206(a).

  

NCE is the owner, and NCR is the operator, of SLAS.

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Pet. 1 at 1. The Board docketed the appeals separately as PCB 03-138, PCB 03-139, and PCB

03-140.

In the appeal docketed as PCB 03-138, the Agency denied the application of NCE and

NCR to renew a permit for their solid waste management site. Pet. 1 at 1, Exh. 1 at 1. Log

number 1999-134 appears on the Agency’s denial letter, which states that NCE and NCR failed

to prove that granting the permit would not result in violations of the Environmental Protection

Act (Act) (415 ILCS 5/1

et seq

. (2002)). Pet. 1, Exh. 1 at 1. The Agency also asserts ten

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The Board cites the petitions as “Pet. 1 at _,” “Pet. 2 at _,” and “Pet. 3 at _,” corresponding to

the petitions docketed as PCB 03-138, PCB 03-139, and PCB 03-140, respectively. The Board

cites exhibits to the petitions as “Pet. _, Exh. _ at _.”

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“specific reasons” for the denial, including issues relating to groundwater monitoring and

impact assessment, financial assurance, and waste placement. Pet. 1, Exh. 1 at 1-3.

In the appeal docketed as PCB 03-139, the Agency denied the permit application of NCE

and NCR to modify their groundwater monitoring program. Pet. 2 at 1, Exh. 1 at 1. Log number

1999-146 appears on the Agency’s denial letter, which again states that NCE and NCR failed to

prove that granting the permit would not result in violations of the Act. Pet. 2, Exh. 1 at 1. The

Agency also claims six “specific reasons” for the denial, including alleged shortcomings in

addressing groundwater contaminant exceedences. Pet. 2, Exh. 1 at 1-4.

In the appeal docketed as PCB 03-140, the Agency denied another permit application of

NCE and NCR to modify their groundwater monitoring program. Pet. 3 at 1, Exh. 1 at 1. Log

number 2002-182 appears on this Agency denial letter, which, like the other two denial letters,

states that NCE and NCR failed to prove that granting the permit would not result in violations

of the Act. Pet. 3, Exh. 1 at 1. The Agency also alleges nine “specific reasons” for the denial,

including purported deficiencies with background concentrations and well placement. Pet. 3,

Exh. 1 at 1-5.

In each petition for review, NCE and NCR claim they demonstrated to the Agency that

their requested permit would not result in a violation of the Act, and therefore the Agency

abused its discretion by denying the requested permit. Pet. 1 at 1-2; Pet. 2 at 1-2; Pet. 3 at 1-2.

The Board finds that each petition meets the content requirements of 35 Ill. Adm. Code 105.210.

The Board therefore accepts each petition for hearing.

NCE and NCR have the burden of proof in each appeal.

See

415 ILCS 5/40(a)(1) (2002);

see also

35 Ill. Adm. Code 105.112(a). Hearings will be based exclusively on the record before

the Agency at the time the Agency issued its permit decision.

See

35 Ill. Adm. Code 105.214(a).

Accordingly, though the Board hearing affords a permit applicant the opportunity to challenge

the Agency’s reasons for denying the permit, information developed after the Agency decision at

issue typically is not admitted at hearing or considered by the Board.

See

Alton Packaging Corp.

v. PCB, 162 Ill. App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987);

see also

Community

Landfill Co. & City of Morris v. IEPA, PCB 01-170 (Dec. 6, 2001),

aff’d sub nom.

331 Ill. App.

3d 1056, 772 N.E.2d 231 (3d Dist. 2002).

Hearings will be scheduled and completed in a timely manner, consistent with the

applicable decision deadline (

see

415 ILCS 5/40(a)(2) (2002)), which only NCE and NCR may

extend by waiver (

see

35 Ill. Adm. Code 101.308). If the Board fails to take final action by the

relevant decision deadline, NCE and NCR “may deem the permit issued.” 415 ILCS 5/40(a)(2)

(2002). Currently, the decision deadline in each of the three appeals is July 3, 2003 (the 120th

day after the March 5, 2003 filing of each petition).

See

35 Ill. Adm. Code 105.114. The Board

meeting immediately before the decision deadline is scheduled for June 19, 2003.

Unless the Board or the hearing officer orders otherwise, the Agency must file the entire

record of each of its three determinations by April 4, 2003, which is 30 days after NCE and NCR

filed the petitions.

See

35 Ill. Adm. Code 105.212(a). If the Agency wishes to seek additional

time to file any of the three records, it must file a request for extension before the date on which

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that record is due to be filed.

See

35 Ill. Adm. Code 105.116. Each record must comply with

the content requirements of 35 Ill. Adm. Code 105.212(b).

 

MOTIONS TO CONSOLIDATE

 

On March 7, 2003, NCE and NCR filed motions to consolidate the three permit appeals.

NCE and NCR state that each permit denial concerns activities at the SLAS facility, that NCE

and NCR are the petitioners in each case, that “the relevant facts for each Petition overlap to

varying degrees,” that consolidation would not materially prejudice any party, and that the

burdens of proof do not vary in the proceedings. Motions to Consolidate at 2.

 

Section 101.406 of the Board procedural rules provides:

 

The Board will consolidate [two or more] proceedings if consolidation is in the

interest of convenient, expeditious, and complete determination of claims, and if

consolidation would not cause material prejudice to any party. The Board will

not consolidate proceedings where the burdens of proof vary. 35 Ill. Adm. Code

101.406.

 

The Agency has not responded to the motions to consolidate. The Agency has 14 days

from service of each motion to respond to the motion.

See

35 Ill. Adm. Code 101.500(d). The

motions were mailed to the Agency on March 7, 2003, and are presumed served four days later.

See

35 Ill. Adm. Code 101.300(c). The 14-day response period therefore has not yet expired.

Nevertheless, the Board may grant a motion within that timeframe to avoid undue delay and in

“deadline driven proceedings where no waiver has been filed.” 35 Ill. Adm. Code 101.500(d).

Such is the case here. The Board agrees with NCE and NCR that consolidation is appropriate

and grants their motions to consolidate the three appeals. The appeals are consolidated for

hearing, but not necessarily for Board decision.

See

35 Ill. Adm. Code 101.406. Future filings

must reflect the amended caption of this order.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on March 20, 2003, by a vote of 7-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board