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11/30/87 Joliet Sand and Gravel v. the Pollution Control

November 30, 1987

JOLIET SAND AND GRAVEL COMPANY, PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

516 N.E.2d 955, 163 Ill. App. 3d 830, 114 Ill. Dec. 800 1987.IL.1757

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY, P.J., and STOUDER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This case comes on appeal for direct review of a final order entered by the Illinois Pollution Control Board (Board) which upheld a decision by the Illinois Environmental Protection Agency (Agency) to deny an application for renewal of an operating permit submitted by Joliet Sand and Gravel Company (Joliet).

Joliet's initial operating permit was issued December 30, 1980, to expire on December 21, 1985. The original permit, as issued, allowed for the operation of a primary jaw crusher identified as Pioneer Model 3042, a secondary roll crusher identified as Pioneer Model 2454, and a Pioneer Model 526 F. Screen. Joliet applied for renewal of the permit on December 16, 1985. The Agency denied the renewal on March 7, 1986, listing the following reasons for denial: (1) particulate emissions in excess of 30% opacity limitation of section 212.123 (35 Ill. Adm. Code 212.123 (1985)) based on field inspections; (2-3) particulate emissions in excess of those allowed by section 212.321 (35 Ill. Adm. Code 212.321 (1985)) for both the "Steadman" and "Spokane" crushers based on calculated emission levels since actual emission levels had not been provided; (4) violations of fugitive particulate limitations of section 212.301 (35 Ill. Adm. Code 212.301 (1985)) based on field observations; and (5) failure to provide information of compliance with special condition No. 3 of the 1980 operating permit, requiring 10% moisture in raw materials. The letter stated that the Agency would reevaluate the application upon receipt of written information and additional documentation.

In response to the denial, on June 16, 1986, Joliet's engineer submitted a letter requesting issuance of a renewal permit. The letter proposed that the current Steadman and Spokane crushers, which together have a rated capacity of 575 tons per hour , would be replaced with a new Spokane crusher with a rated capacity of 600 TPH. The letter indicated that emissions for the new crusher, as calculated pursuant to the 1985 AP -- 42, were within the allowable rate. Also, deletion of the 10% moisture condition was requested on the basis that the raw materials used by Joliet were classified as "wet material" by virtue of a 2% moisture content according to AP -- 42. Lastly, a new well had been drilled to supply water to spray bars on the process line to control excess opacity and particulate emissions and to spray roads to control those fugitive emissions.

By letter dated August 26, 1986, the Agency again denied Joliet's application for permit renewal, citing potential violations of sections 201.142, 201.157, 212.321, 203.201, and 203.770 (35 Ill. Adm. Code 201.142, 201.157, 212.321, 203.201, 203.770 (1986)). The letter additionally stated that the application failed to contain the minimum information required by Board rules to allow the Agency to determine compliance with the Act and regulations, and more specifically, that (1) the informational requirements of section 230.770 regarding compliance of the new crusher and any new conveyors with respective 10% and 15% opacity limits were not met, (2) calculations of particulate emissions for the primary and secondary crushers indicated that particulate emissions limitations would be exceeded, based on a calculated 50% effectiveness rate for use of water in the spray bars rather than a surfactant, and (3) that construction of the new crusher would involve a major modification of a major particulate emission source located in a nonattainment area, requiring a submission of various information required by section 200 et seq. (35 Ill. Adm. Code 200 et seq. (1986)).

On September 30, 1986, Joliet filed its petition for hearing to contest permit denial with the Board. Under section 40(a)(1) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040(a)(1)), if a permit is denied by the Agency, the applicant must petition the Board for a hearing within 35 days to contest the Agency decision. If there is no decision by the Board within 120 days from the date the petition was filed, "the petitioner may deem the permit issued under this Act." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040(a)(1).

Numerous discovery, continuance and other motions were made during the pendency of Joliet's appeal to the Board. The hearing officer, pursuant to powers granted by sections 103.140 and 103.161 (35 Ill. Adm. Code 103.140, 103.161 (1986)), ruled on the various motions made. Without specifically mentioning each and every motion and ruling, we have reviewed the motions and are of the opinion that the hearing officer and the Board acted within the discretionary power granted by the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.) when ruling on motions regarding discovery, continuances and other matters.

The first public hearing was set for November 25, 1986. The hearing was later continued to December 8 and December 15, 1986. Neither of those scheduled dates produced a hearing. The hearing officer then reset the hearing for January 13, 1987, and stated that all testimony presented by Joliet would have to be completed by noon January 14 and that the hearing would terminate at the end of that day. On the morning of January 14, Joliet's counsel stated that Joliet waived its right to a Board decision for an additional period of 8 days, or from January 28, 1987 (the 120-day limit), until February 5, 1987, and additionally moved for a continuance of the hearing to present further evidence. The motion was denied. Following the January 14, 1987, hearing, Joliet again moved the Board for additional time and filed waivers to allow additional time for such hearings. The motions were denied.

The Board rendered an opinion and order adverse to Joliet on February 5, 1987, and the instant petition for review was filed on March 12, 1987.

At a hearing before the Board to contest a denial of a permit application, the sole question before the Board is whether the applicant proves that the application, as submitted to the Agency, demonstrated that no violation of the Environmental Protection Act would have occurred if the requested permit had been issued. Environmental Protection Agency v. Pollution Control Board (1983), 118 Ill. App. 3d 772, 455 N.E.2d 189.

The Board, in affirming the Agency decision, found that the permit was correctly denied on "the basis of Joliet's failure to provide sufficient information to demonstrate that its facility would not cause violations of Sections 201.142, 201.157, and 203.770 . . . [and] . . . incorrectly denied . . . on the basis of Sections 212.321 and 203.201."

Joliet asserts that the Agency and the Board wrongfully denied renewal of its operating permit for two reasons: (1) that Joliet was denied a full and fair hearing because it was not allowed to examine Agency witnesses regarding factual information before the Agency at the time of the permit denial; and (2) that Joliet met its burden of proof to obtain a renewal operating permit.

The proper standard of review is whether the decision of the Board, in denying Joliet's operating permit, is against the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1985), 138 Ill. App. 3d 550, 486 N.E.2d 293; Environmental Protection Agency v. Pollution Control Board (1983), 118 Ill. App. 3d 772, 455 N.E.2d 188.) Thus, a different Conclusion than that reached by the Board must be evident, ...


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