ILLINOIS POLLUTION CONTROL BOARD

October 17, 1972

SOIL ENRICHMENT MATERIALS CORP. et al.

v.

)

#72—364

ENVIRONMENTAL PROTECTION AGENCY

Preliminary Order of the Board (by Mr. Currie):

We scheduled a hearing on

this

appeal from a permit

denial. The Agency filed with us the

materials that had

been before

it

in denying the permit and asked that the

hearing be cancelled since the only material the Board

should consider was that which had been before the Agency.

SEMCO responds that the statute and rules require a hearing.

We heard oral argument on this novel question.

The statute does require a hearing (Environmental

Protection Act, section 40), but the crucial question

is what is the scope of the hearing. Clearly the issue

is whether the Agency erred in denying the permit, not

whether new material that was not before the Agency per-

suades the Board that a permit should be granted. To allow

an applicant to bypass the Agency by presenting its case

for a permit only before the Board on appeal would under-

mine the Agency’s authority to make permit decisions in

the first instance.

SEMCO acknowledged this on oral argument but main—

tains that the hearing must afford an opportunity to examine

materials or persons on whom the Agency relied apart from

the matter submitted by the applicant. The Agency does

not dispute this but contends the appellant must first

show such outside matter was relied on before a hearing

is called for. We think the appellant is entitled to a

hearing to determine whether or not such material was relied

upon and further to explore what- it discovers.

The hearing will therefore proceed. We cannot delineate

in advance exactly what may be admitted at such a hearing;

the Hearing Officer should bear in mind that

the issue is

only whether the Agency erred on the basis of what

was be-

fore it.

5 715

---

—2--

SEMCO in oral argument raised for the first time the

question whether a permit was required at all for the ac-

tivity in question, asking that we decide that issue and

avoid the need for a hearing. Since the Agency needs time

to respond and since SEMCO maintains there is some urgency

about the case, we think the most expeditious disposition

is to hold the hearing now and consider this issue with the

others at the close of the case.

It is so ordered.

I, Christan Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Preliminary Order

this 17th day of October, 1972, by a vote of ~

a