ILLINOIS POLLUTION CONTROL BOARD
May 7, 2009
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-25
(Permit Appeal - Water)
DISSENTING OPINION (by T.E. Johnson):
I respectfully dissent from today’s majority opinion. I agree with the holding on the
Memorandum of Agreement. The denial letter’s deficiencies, however, do not end there. The
letter provides no specific reason why the City of Joliet purportedly failed to prove that permit
issuance would not violate Section 12 of the Environmental Protection Act (415 ILCS 5/12
(2006)). Therefore, the decision of the Illinois Environmental Protection Agency does not
comport with Section 39(a)(iv) of the Act, which requires that a denial letter include:
a
statement of specific reasons why
the Act and the regulations might not be met
if the permit were granted. 415 ILCS 5/39(a)(iv) (2006) (emphasis added).
Absent this required statement, the majority chose to sift through the record in an
apparent effort to divine IEPA’s reasoning. Whether the reasons arrived at by the majority were
IEPA’s reasons is unknown. The majority opinion is the first articulation of reasons why Section
12 might not be met, and this comes on review, after hearing and briefing. The majority’s
approach, I believe, is inconsistent with fundamental fairness and strays beyond the Board’s
authority.
See
Bradd v. IEPA
, PCB 90-173, slip op. at 3 (Jan. 18, 1991); Centralia
Environmental Services, Inc. v. IEPA, PCB 89-170, slip op. at 7 (May 10, 1990). I would
overturn IEPA’s decision and remand the matter to IEPA with instructions to either grant or deny
Joliet’s permit application in compliance with Section 39(a) and to do so within 30 days.
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Thomas E. Johnson
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I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the above dissenting opinion was submitted on May 7, 2009.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
