RECEIVED
r
CLERK’S
OFFICE
LOU
IS E.
COSTA
PFI
?I°od
(618) 242-3120
STATE
OF
ILLINOIS
APPELLATE
COURT
FIFTH
DISTRICT
14TH
&
MAIN
STREETS
P.O.
Box
867
MT.
VERNON,
IL
62864-0018
September
5,
2008
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
State
of
Illinois
Center
100
West
Randolph
St.,
Suite
11-500
Chicago,
IL 60606
RE:
United
States
Steel
Corporation
v. Illinois
Environmental
Protection
Agency,
et
at.
PCBNo.
06-171
Gen. No.:
5-07-0285
Dear
Clerk:
Enclosed
please
find
the
Mandate
of
the
Appellate
Court
in
the
above
cause.
Under
separate
cover,
the Record
on Appeal
is
being
returned
to your
office
in
the
above
cause.
Please
sign
the
receipt
which
is
enclosed
with
the
record
and
return
the
receipt
to this
office.
Yours
very
truly,
Louis
E. Costa,
Clerk
LEC/sr
Enclo.
cc:
David
T.
Ballard
Rachel
Murphy
Marie
E. Tipsord
Maxine
I.
Lipeles
Gale
W.
NewtOn
NO. 5-07-0285
Term,
2008
PIc
STATE
OF
ILL[NOIS,
APPELLATE
COURT
FIFTH
DISTRICT,
ss.
EP
082008
Si-A
¶
IL..LlNoj
AT AN
APPELLATE
COURT,
begun
and
held
at
Mt.
Vernon,
on
the
First
WedI’nWrie
month
of
January,
in
the
year
of
our
Lord,
two
thousand
eight,
the
same
being
the
2nd
day
of
January
in
the
year
of
our
Lord, two
thousand
eight.
Hon.
THOMAS
M.
WELCH,
Justice.
Hon.
STEPHEN
L.
SPOMER,
Justice.
Hon.
JAMES
M.
WEXSTTEN,
Justice.
Hon.
LOUIS
E.
COSTA,
Clerk.
BE
IT
REMEMBERED
that
on
the
22nd
day
of
July, 2008,
the
final
judgment
of
the
Appellate
Court
was
entered
of
record
as
fOllows:
UNITED
STATES
STEEL
CORPORATION,
)
Petition
on
Review
of
the
)
Order of
the
Illinois
Petitioner,
)
Pollution
Control
Board.
v.
)
)
PCBO6-171
ILLiNOIS
POLLUTION
CONTROL
BOARD,)
)
BOTTOMPROTECTION
ILLINOIS
ENVIRONMENTALCONSERVANCY,AGENCY,
and
AMERICAN
)
)
)
Respondents.
))
It
is
the
decision
of
this
Court
that
the
judgment
on
appeal
be
ORDER
VACATED;
cause
REMANDED
to
the
Pollution
Control
Board
for
such
other
proceedings
as
required
by
the
order of
this
Court,
a copy
of
which
is
attached
hereto.
And
it
is
further
considered
by
the
Court,
that
the
costs
of
appeal
shall
be
taxed
as
provided
by
law.
As
Clerk of
the
Appellate
Court,
Fifth
District
of
the
State
of
illinois
and
keeper
of
the
records,
files
and Seal
thereof,
I certify
that
the
foregoing
is
a
true
copy
of
the
final
order of
the
said
Appellate
Court,
in
the
above
entitled
cause
of
record
in
my
office.
EN
WITNESS
WHEREOF,
I
have
hereunto
subscribed
my
name
and
affixed
the
Seal
of
said
Court,
this 5th
dayof
Septe
er
2008.
Clerk
L
of
the
Appellate
Court.
NOTICE
The
taxt
of
th
opinion
may
be
changd
or
corrected
prior
to
the
time
for
filing
of
a
F
Rehearing
or
the
dispoiNon
of
NO.
5-07-0285
JUL
2
2
INTHE
Cu74
APPELLATE
COURT
OF
ILLINOlS
APPELLTECV1JT
D1s
FIFTH
DISTRICT
UNITED
STATES
STEEL CORPORATION,
)
Petition
on
Review
of
the
Order
)
of
the
Illinois
Pollution
Control
Petitioner,
)
Board.
)
v.
)
PCBO6-171
)
ILLINOIS
POLLUTION
CONTROL
BOARD,)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
and
AMERiCAN
)
BOTTOM
CONSERVANCY,
)
)
Respondents.
)
JUSTICE
WELCH
delivered
the
opinion
of
the
court:
This
is
a direct
administrative
review
of
a
decision
of
the
Illinois
Pollution
Control
Board
(Board)
that
invalidated
a
renewed
National
Pollutant
Discharge
Elimination
System
(NPDES)
pennit
issued
to
United
States
Steel
Corp.
(U.S. Steel)
by
the
Illinois
Environmental
Protection
Agency (Agency).
The
Board
invalidated
the
permit
solely
on
the
basis
that
despite
a
“significant
degree
of
public
interest in
the
proposed
permit”
the
Agency
had failed
to
hold
a
public
hearing
on
the
issuance
of
the
perinit. For
reasons
that
follow,
we
vacate
the
decision
of
the
Board
and
remand
this
cause
to
the
Board
for
further
proceedings.
On
October
17,
2002,
the
Agency
received
an
application
from
National
Steel
Corp.
for
the
renewal
of its
permit
for
its
Granite
City
steel-making
facility
to
discharge
industrial
process
wastewater
into
Horseshoe
Lake,
which
is
a
part
of Horseshoe
Lake
State
Park.
The
application
was
subsequently
amended
to
reflect
U.S.
Steel’s acquisition
of
the
Granite
City
facility.
On
December
14,
2002, the
Agency
issued
a
public
notice
soliciting
public
comment
on
the
proposed
permit.
The
Agency
received
only
three
comment
letters,
one
from
U.S.
Steel,
which
did
not
request
a
public
hearing
on the
proposed
permit.
The
second
comment
letter
was
from
an
organization
entitled
Health
&
Environmental
Justice—St. Louis,
which
requested
a
public
hearing
on
the
proposed
permit.
A
third
comment
letter
was
received
from
American
Bottom
Conservancy,
Health
&
Environmental
Justice—St.
Louis,
Neighborhood
Law
Office
of East
St.
Louis,
the
Sierra
Club,
and
the Webster
Groves
Nature
Study
Society.
This
letter
also
requested
a
public
hearing.
The
Agency
considered
the
matters
raised
in
the
comment
letters,
declined
to
hold
a
public
hearing, sent
written
responses
to
the
organizations
that
had
sent
the
comment
letters,
and
issued
a
final
permit
to
U.S.
Steel
on March
31,
2006.
On
May
8,
2006,
American
Bottom
Conservancy
(ABC)
filed
with
the
Board
a
third-
party
petition
for
review
ofthe
permit,
properly
raising
only
the
issue
ofwhether
the
Agency
had
improperly
denied
the request
for
a
public
hearing.
After
hearing
evidence
and
receiving
posthearing
briefs,
the
Board
held
that
the
Agency
had
improperly
denied
the
request
for
a
public
hearing
and
that
the
Agency’s
decision
not to
hold
a public
hearing
invalidated
the
issued
permit.
The
Board
concluded
that
the
Agency’s
decision
not
to hold
a
public
hearing
prior
to the
issuance
of
the
U.S.
Steel
permit
violated
section
309.115(a)
of the
Board’s
regulations
(35
Iii.
Adrn.
Code
§309.115(a)
(1996)).
Accordingly,
the
Board
ruled
that
the
permit
as
issued
violated
the
Environmental
Protection
Act
(415
ILCS
5/1
et
seq.
(West
2006))
and
the
regulations
and
was
invalid.
The
Board
invalidated
the permit
solely
on
the
basis
that
the
Agency
had erred
in failing
to
hold
a
public
hearing
on
the proposed
penriit,
and
it did
not
otherwise
address
any issues
relating
to
the proposed
permit.
The
Agency
and
U.S.
Steel
filed
motions
for
reconsideration,
which
were
denied
by
the
Board.
The
Agency
and
U.S.
Steel
(hereinafter
referred
to
as
the
appellants)
seek
the
direct
administrative
review
of
the Board’s
decision
in
this
court
pursuant
to
section
41
of
the
2
Environmental
Protection
Act
(Act)
(415
1LCS
5/41
(West
2006))
and
Illinois
Supreme
Court
Rule
335 (155
111.
2d R.
335).
We
review
pursuant
to
the Administrative
Review
Law
(735
ILCS
5/3-101
et
seq.
(West
2006)).
The
Board
and
ABC
filed
answer
briefs,
and
an
amicus
curiae
brief
was
filed
in
support
of
the appellants’
position
by
the
Illinois
Environmental
Regulatory
Group,
a
not-for-profit
corporation
affiliated
with
the
Illinois
State
Chamber
of
Commerce.
We
have
ordered
taken
with
the
case
the
Agency’s
motion
for
leave
to
cite
supplemental
authority
and
the
objections
thereto
of
the
Board
and
ABC.
We
hereby
grant
the
motion
to
cite
supplemental
authority.
The
appellants
argue
on
appeal
that
the
Board
applied
the
wrong
standard
of
review
in
determining
whether
the
Agency
erred
in
deciding
not
to
hold
a
public
hearing
on
the
proposed
permit.
While
in
its
analysis
the
Board
acknowledged,
“[T]he
Agency
has
discretion
in
determining
whether
or
not
to
hold
a
public
hearing
prior
to
the
issuance
of
an
NPDES
permit,”
it
also
held
as
follows:
“In
reviewing
the
Agency’s
decision
not
to
hold
a
public
hearing,
the
Board
applies
the
standard
applicable
to
all
reviews
of
an
Agency’s
pennit
decision—whether
or
not
the
issuance
of
the
penhlit
violated
the Act
or
Board
regulations.
Thus,
the
Board
does
not
apply
an
‘abuse
of
discretion’
standard.”
The
appellants
argue
that
the
Board
elTed
as
a
matter
of
law
in
applying
a
de
novo
standard
of
review
to
the
Agency’s
decision
not
to
hold
a
public
hearing
instead
of
reviewing
the
Agency’s
decision
for
an
abuse
of
discretion.
We
agree
and
vacate
the
Board’s
decision.
Noting
that
the
parties
do
not
agree
on
the
standard
of
review
which
this
court
should
apply
to
its
review
of
the
Board’s
decision,
and
because
the
issue
presented
to
us
for
review
concerns
the
appropriate
standard
of
review
applicable
by
the
Board
to
the
Agency’s
decision
not
to
hold
a
public
hearing,
we
begin
with
a
general
discussion
of
standards
of
review.
In
our view,
the
determination
of
the
appropriate
standard
of
review
turns primarily
upon
the
3
type of
question
or
issue presented
for
review.
See Joel
R.
v. Board
of
Education
of
Mannheim
School
District
83,
292 III. App.
3d
607,
612
(1997).
This
is
equally
true
when
reviewing
the
decision
of
an administrative
agency.
LaSalle
National
Bank
v.
City
of
1-ugh/and
Park,
344
III.
App.
3d
259, 265-66
(2003).
When
we
review
a lower
tribunal’s
factual
determinations,
those
determinations
will
not
be
reversed
on
appeal
unless they
are contrary
to the
manifest
weight
of
the evidence.
JoelR.,
292
111. App.
3d at 613.
A factual
finding
is
contrary
to the
manifest
weight
of
the
evidence
when,
upon a
review
ofall the evidence
in the
light most
favorable
to the prevailing•
party,
the opposite
conclusion
is
clearly apparent
or
the fact
finder’s
finding
is
palpably
erroneous
and wholly
unwarranted,
is clearly
the result
of passion
or
prejudice,
or
appears
to
be arbitrary
and
unsubstantiated
by the
evidence.
Joel
R., 292
III. App.
3d at 613.
The
manifest-weight-of-the-evidence
standard
of
review
applies
only to factual
determinations
of the
lower tribunal.
When
we review
a
lower tribunal’s
exercise
of its
discretion,
the lower
tribunal’s
determination
will
not
be
reversed
unless
that
tribunal
has clearly
abused
its
discretion.
A
tribunal
abuses
its
discretion
when
it makes
an
arbitrary
decision,
without
using
conscientious
judgment,
or
when,
in
view of
all
the
circumstances,
the lower
tribunal
oversteps
the bounds
of reason,
ignores
the
law,
and thereby
causes
substantial
prejudice.
In re
Marriage
ofMunger,
339
111. App.
3d
1104, 1107
(2003).
The
question
is not
whether
the reviewing
court
would
have
made the same
decision
if it were
the
lower
tribunal.
In
re
Marriage
ofMunger,
339 Ill. App.
3d at
1107.
This standard
of
review is
traditionally
used
in
reviewing
decisions
made
by a
trial
judge
overseeing
his
courtroom
or in
maintaining
the
progress
of
a
trial.
In reD.
T.,
212
Ill. 2d
347,
356
(2004).
If
a
lower
tribunal’s
ruling
is a
matter
ofjudicial
discretion,
then it
is
reviewable
only for an
abuse of
that
discretion.
In re
D.T., 212
111.
2d at 356.
4
Finally,
when
reviewing
a
lower
tribunal’s
disposition
of
a question
of
law,
our
review
of
the
lower
tribunal’s
decision
is
tie
novo.
Arthurv
Carour,
216
111.
2d
72.78
(2005);
Joel
R.,
292
111.
App.
3d
at
613.
This
standard
of review
is
completely
independent
of
the
lower
tribunal’s
judgment.
Arthur.
216
111.
2d
at
78.
Of
these
standards
of
review.
de
novo
review
is
the
least deferential
to
the
lower
tribunal
Arthur.
21
6
Ill.
2d
at
78),
while
the
abuse-of-discretion
standard
is
the
most
deferential
to
the
lower
tribunal.
In
re
D.T., 212
Ill.
2d
at
356.
The
issue
presented
to
us
for
our
review
is
whether
the
Board applied
the
correct
standard
of
review
in
reviewing
the
Agency’s
decision
not
to
hold
a
public hearing
on
the
proposed
permit.
The
Agency’s
obligation
to
hold
a
public
hearing
is
governed
by
section
309.115(a)
of
Title
35
of
the
Illinois
Administrative
Code,
which
provides
as
follows:
“(1)
The
Agency
shall
hold
a
public
hearing
on
the
issuance
or
denial
of
the
an
[sic]
NPDES
Permit
or
group
of
permits
whenever
the
Agency
determines
that
there
exists
a
significant
degree
of
public
interest
in the
proposed
permit
or
group
of
permits
(instances
of
doubt
shall
be
resolved
in
favor
of
holding the
hearing),
to
warrant
the
holding
of
such
a
hearing.
(2)
Any
person,
including
the
applicant,
may
submit
to
the
Agency
a
request
for
a
public
hearing
or
a
request
to
be
a
party
at
such
a
hearing
to
consider
the
proposed
pennit
or
group
of
permits.
Any
such
request
for
public
hearing
shall
be
filed
with
[sic]
the
30-day
public
comment
period
and
shall
indicate
the
interest of
the
part
[sic]
filing
such
a
request
and the
reasons
why
a
hearing
is
warranted.”
35
Ill.
Adm.
Code
§309.115(a)
(1996).
The
correct
interpretation
of
this
regulatory
provision
is a
question
of
law,
which
we
review
de
novo. Elernentwy
School
District
159
v.
Schiller,
221
Ill.
2d
130,
144
(2006).
The
Board
argues
that
the
Act
itself
provides
that
this
court’s review
of
the
Board’s
5
decision use
the
manifest-weight-of-the-evidence
standard
(415
ILCS
5/41
(West
2006))
and
that
the
Illinois
Supreme
Court
has
adopted
this
standard of
review
in
Environmental
Protection
Agency
v.
Pollution
Control
Board,
115
III. 2d
65.
70-7
1
(1986).
As
we
have
stated,
the
manifest-weight-of-the-evidence
standard of
review
applies
to
factual
determinations
and
is the
correct
standard
of
review
when
the
Board
invalidates
the
permit
on
the
basis
of
facts
in
evidence.
Our
review
of
an
administrative
agency’s
findings of
fact
is
performed
under
a
manifest-weight-of-the-evidence
standard
of
review.
Christian
County
Board
ofRei’iew
v.
Property
Tax
AppealBoard,
368111.
App.
3d
792,794(2006).
But
where
the
issue
before
us
is
whether
the
Board
erred
as
a
matter
of
law,
we
review
the
issue
de
nova.
The
only
issue
before
us
on
appeal
is
whether
the
Board
erred
as
a
matter
of law
in
applying
the
incorrect
standard
of
review
in
deciding
that
the
Agency
erred
in
failing
to hold
a
public
hearing.
This
presents
a question
of
law,
which
we
review
de
nova.
Arthur,
216
III.
2d
at
78.
Rules
and
regulations
promulgated
by
the Board have
the
force
and
effect
of
law
and
will
be
construed
by
the
same
standards
used
to
construe
statutes.
Granite City
Division
qf
National
Steel
Co.
v.
illinois
Pollution
Z’ontrol
Board,
155
111.
2d
149,
162
(1993).
We
give
statutory language
its
plain
and
ordinary
meaning,
and
where
a
statute
is clear
and
unambiguous,
it
must
be
enforced
as
written
without
resort
to
further
aids
of
statutory
construction.
Town
&
country
Utilities,
Inc.
v. Illinois
Pollution
Control
Board,
225
Ill.
2d
103,
117
(2007).
This
court
may
not
depart
from
the
statute’s
plain
language
by
reading
into
it
exceptions,
limitations,
or
conditions
not
expressed
therein. Town
&
Country
Utilities,
Inc..
225
Ill.
2d
at
117.
The
unambiguous
and
plain
language
of
section
309.115(a)
vests
discretion in
the
Agency
to
hold
a
public
hearing whenever
it
determines
that
there
exists
a
significant
degree
of
public
interest
in the
proposed
permit.
The
regulation does
not
state
that
the
Agency
must
6
hold
a
hearing
whenever
there
is
a
sign
/icant
degree
of
public interest.
It
states that
the
Agency
must
hold
a
public
hearing
whenever
it
determines
that
there
is
a
significant
degree
of
public
interest
in
the
permit.
This
language
can
be
read
no
way
other than vesting
discretion
in
the
Agency
to
determine
when
and
if
there
is
a
significant
degree
of
public
interest in
a
proposed
permit.
If
the
Agency
determines,
in
its
discretion,
that
there
is
a
significant
degree
of
public
interest
in
a
proposed
permit,
based
on
requests
for
a
public
hearing
that
are
filed within
the
public
comment
period
and
that
indicate
the
party’s
interest
and
why
a
hearing
is
warranted,
then
a
public
hearing
must
be
held.
Indeed,
the
Board
acknowledged
this
in
its
order
invalidating
the
permit,
when
it
stated, “[T]he Agency
has
discretion
in
determining
whether
or
not
to
hold
a
public
hearing
prior
to
the
issuance
of
an
NPDES
permit.”
Furthermore,
in
a
case
involving
language
equivalent
to
that
in
section 309.115,
the
appellate
court
has
recognized
that
the
decision
of
whether
to
hold
a
public
hearing
is
a
discretionary
one
to
be
made
by
the
Agency.
Borg-
Warner
corp.
i
Mauzy, 100111.
App.
3d
862,
867
(1981).
The
party
requesting
the
hearing
has
the
burden
of
showing
why
it
is
warranted.
Borg-Warner
C’orp.,
100
111.
App.
3d
at
867.
As
the
appellate
court
stated,
“Certainly,
Agency
action
on
a
decision
[whether
to hold
a
public
hearing]
is
reviewable,
subject to
an
abuse
of
discretion
standard,
but
the
availability
of
review
over
the
determination
does
not
alter
the
essentially
discretionary
nature
of
the
determination)’
Borg-
Warner
corp.,
ioo
Iii.
App.
3d
at
867.
That
a
public
hearing
on
a
proposed
NPDES
permit
is
discretionary
with
the
Agency
was
also
recognized
in
Village
of
Sauget v.
Pollution
Control
Boa,-d,
207
Ill.
App.
3d
974,
981
(1990).
Finally,
the
Board
itself
has
ruled
that
it
caimot
order
the
Agency
to
hold
a
public
hearing
on
an
NPDES
permit
application
in
the
absence
of
the
Agency’s
abuse of
its
discretion
in
failing
to
hold
one. In
its
own
decision
in
Marathon
Oil
Co.
v.
Illinois
7
Emironmenta/
Protection
Agency,
Illinois
Pollution
Control Bd.
op.
92-
166,
opinion
&
order
at
10 (March
3 1,
1994),
the
Board
held
as follows:
“Whether
an
Agency hearing
is
to
beheld
in
an
NPDES
permit
review
is
discretionary
with
the
Agency
***
Marathon
presents
no
argument
that
would
allow
this
Board
to conclude
that
the
Agency
abused
this
discretion
***“
As
we
have
stated,
if
the
decision
of
a
lower
tribunal,
in
this
case
the
Agency,
is
a
matter
of
discretion,
then
it is
reviewable
only
for
an
abuse
of
that
discretion.
See
In
reD.
T.,
212
Ill.
2d
at
356.
Despite
this
clear
grant
of discretion
to
the
Agency
to
determine
whether
there
is
sufficient
public
interest
in
a
proposed
permit
to
warrant
a
public
hearing
thereon,
the
Board
did
not
review
the
Agency’s
decision
on
whether
to
hold
a
public hearing
to
determine
whether
the
Agency
had
abused
its
discretion,
but
the
Board
reviewed
the
Agency’s
decision
not
to
hold
the
hearing
using
a
de
novo
standard
of
review.
The
Board
examined
the
public
comment
letters
received
and
concluded
that
they
evidenced
a
significant
degree
of public
interest in
the
proposed
permit.
The
Board
gave
no
deference
to
the
Agency’s
decision
but
reviewed
the
public
comments
independently
and
made
its
own
determination
that
there
was
significant
public
interest
to
warrant
a
public
hearing.
The
Board
argues
that
it
need
not
give
deference
to
the
Agency’s
decision on
whether
to
issue
the
permit
because
the
procedures
before
the
Agency
do
not
include
hearing
requirements
and
have
none
of
the
characteristics
of
an
adversary
proceeding.
While
this
may
be
true
with
regard
to
factual
or
evidentiary
issues
before the
Agency,
it
is
not
true
where
the
Agency’s
determination
is
discretionary
and
relates
to
a
procedural
issue,
as
in the
case
at
bar.
Where
the
regulation
clearly
grants the
Agency
discretion
to
determine
when
a
public
hearing
is
required,
its
determination
in
this
regard
must
be
reviewed
only
for
an
abuse
of
that
discretion.
In
reD.T.,
212
Ui.
2d
at
356.
Under
the
Act,
the
Board
has
the
power
to
invalidate
a permit that
violates
the
Act
or
8
regulations
promulgated
thereunder.
Frau-ic
Rivers
Network
1’.
Illinois Pollution
Control
Board.
335
Ill.
App.
3d
391,
401
(2002).
Section
309.115(a)
of
the
regulations
gives
the
Agency
discretion
to
determine
when
to
hold
a
public
hearing.
Therefore,
a
permit
that
is
issued
without
a
public
hearing
violates
section
309.
11
5(a)—and is
invalid—only
when
the
Agency
abuses its
discretion
in
deciding
not
to
hold
a
hearing.
But
if
the
Agency
properly
exercises
its
discretion,
then
the
permit
does
not
violate
section
309.115(a),
even
if
the
Board
might
have
made
a different
decision
in
the
first
instance.
The
Board
erred
as
a
matter
of
law
in
applying
the
incorrect
standard
of
review
to
the
Agency’s
decision
not
to
hold
a
public
hearing.
Accordingly,
we
vacate
the
final
order
of
the
Board
invalidating
the
NPDES
permit
issued
to
U.S.
Steel
and
remand
this
cause
to
the
Board
for
review
using
the
correct
standard
of
review.
In
determining
whether
the
permit
as
issued
violates
the
Act
or
regulations
because
the
Agency
did
not
hold
a public
hearing,
the
Board
must
use
an
abuse-of-discretion
standard.
It
must
review
the
Agencys
decision
not
to
hold
a public
hearing
to
determine
whether
the
agency
made
an
arbitrary
decision,
without using
conscientious
judgment,
or
if,
in
view
of
all
the
circumstances,
the
Agency
overstepped
the
bounds of
reason,
ignored
the
law,
and
thereby
caused
substantial
prejudice.
In
reMarriage
ofMunger,
339
Ill.
App.
3d
1104,
1107
(2003).
Only
if
the
Agency
abused
its discretion
in
failing
to hold
a
public
hearing
would
the
permit
as
issued violate
the
Act
or
regulations.
For
the
foregoing
reasons,
the
final
order
of
the
Board
is
vacated,
and
this
cause is
remanded
to
the
Board
for
further
proceedings
not
inconsistent
with
this
opinion.
Motion
granted;
order
vacated;
cause
remanded.
SPOMER
and
WEXSTTEN,
JJ.,
concur.
9