ILLINOIS POLLUTION CONTROL
    BOARD
    January
    11,
    1990
    FRED E. JURCAK,
    )
    Petitioner,
    v.
    )
    PCB 85—137
    )
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD BY
    (M.
    Nardulli):
    This matter comes before the Board upon
    a
    “Motion to Modify
    Permit”
    filed
    December
    4,
    1989
    by
    petitioner
    Fred
    E.
    Jurcak
    (“Jurcak”).
    By
    this
    motion,
    Jurcak
    seeks
    clarification
    of the
    Board’s Order
    of September 28,
    1989 regarding the time period
    of
    Jurcak’s NPDES per~it.
    By Order
    of December
    6,
    1989,
    this
    Board
    directed the Illinois Environmental Protection Agency
    (“Agency”)
    to respond to Jurcak’s motion no later than December 20, 1989.
    The
    Agency
    failed to
    file
    its response.
    As
    directed by the
    Board,
    Jurcak
    filed his reply on December 27,
    1989.
    The Board will summarize the extensive procedural history of
    this
    case.
    On July
    31,
    1985,
    the Agency
    issued Jurcak a NPDES
    permit with conditions.
    Jurcak sought the Board’s
    review of the
    imposition
    of condition No.
    8.
    On
    December 20,
    1985,
    the Board
    entered
    its Opinion
    and Order
    concluding
    that
    it
    did not
    have
    jurisdiction to
    review a condition
    in
    a
    NPDES
    permit
    which
    was
    required by the Illinois Water Quality Management Plan
    (“IWQMP”).
    Jurcak
    appealed
    the
    Board’s
    decision
    and
    the
    appellate
    court
    reversed
    and remanded
    the cause to
    the
    Board,
    holding
    that
    the
    Board had the authority to review condition
    No.
    8.
    On September
    28,
    1989,
    th.is
    Board
    entered
    its decision
    concluding
    that
    the
    Agency improperly imposed condition No.
    8 and ordering the Agency
    to
    “strike
    condition
    No.
    8
    from
    the
    NPDES
    permit
    issued
    to
    petitioner on July 31, 1985.”
    On
    October
    27,
    1989,
    the Agency
    issued
    a “modified”
    NPDES
    permit striking condition No.
    8, but
    not4~g~
    that Jurcak’s, NPDES
    permit expires on July 31,
    1990.
    On November 29,
    1989, the Agency
    issued
    a second modification
    of the NPDES
    permit requiring
    that
    “development
    and use
    of the property which will be serviced by
    the permitted facility shall be in accordance with the Condominium
    Property Act.”
    By
    his
    instant
    motion,
    Jurcak
    argues
    that
    the
    Agency
    has
    incorrectly calculated
    the five-year NPDES permit time period as
    l(~7-~1

    2
    running from July
    31,
    1985 rather than
    from September
    28,
    1989,
    the
    date
    the
    Board
    ruled
    upon
    the
    propriety
    of
    the
    Agency’s
    imposition
    of
    condition
    No.
    8.
    Jurcak
    also
    alleges
    that
    the
    Agency’s imposition of the new condition requiring him to use his
    property as condominiums
    is improper.
    This matter raises
    the
    issue
    of
    when
    does
    a permit
    become
    effective where an applicant for an
    initial1 NPDES permit pursues
    his right to appeal
    the Agency’s imposition of conditions to the
    Board.
    Although
    directed
    by
    the
    Board to
    respond
    to
    Jurcak’s
    motion, the Agency has declined from providing any guidance on this
    matter.
    The
    Board’s
    Order
    of
    September
    28,
    1989
    does
    not
    specifically state that the five-year permit period begins to run
    from the date the Board enters its final decision.
    However,
    it was
    the Board’s intent to affirm the five-year permit period,
    rather
    than the specific dates
    of that permit.
    (See Testor
    V.
    IEPA,
    PCB
    88-191
    (January
    11,
    1990).)
    For the following reasons,
    the Board
    concludes the five-year time period of Jurcak’s NPDES permit did
    not begin to run until
    this Board reached
    its decision that the
    imposition of condition No.
    8 was improper and the Agency reissues
    the permit.
    The permitting process
    is an administrative continuum which
    becomes
    complete
    only
    after
    the Board
    has
    entered
    its
    ruling.
    (IEPA v.
    PCB,
    138 Ill. App.
    3d
    550,
    486 N.E.2d 293,
    294
    (3d Dist.
    1985), aff’d 503 N.E.2d 343
    (1986).)
    Therefore, where an applicant
    pursues
    his
    right
    to
    Board
    review
    of
    the Agency’s
    permitting
    decision,
    the permit
    does
    not become effective until
    the Board
    reaches
    its
    final
    decision.
    Section
    12(f)
    of
    the
    Illinois
    Environmental
    Protection
    Act
    (“Act”)
    supports
    this
    conclusion.
    Section
    12(f)
    of the Act provides that:
    “in
    any case
    where
    a permit has been
    timely applied for pursuant to
    section
    39(b)
    of
    this
    Act
    but
    final
    administrative
    disposition of such application
    has not been
    made,
    it
    shall
    not
    be
    a violation
    of
    this
    subsection
    to discharge without such permit,
    unless
    the
    complainant
    proves
    that
    final
    administrative disposition
    has not been made
    because
    of
    the
    failure
    of
    the
    applicant
    to
    furnish
    information
    reasonably
    required
    or
    requested
    in
    order
    to
    process
    the
    application.”
    (Ill.Rev.Stat.
    1987,
    ch.
    111½,
    par.
    1012(f).)
    1This
    matter
    concerns
    an
    initial
    application
    for
    a
    NPDES
    permit rather than a renewal of an existing permit.
    Therefore, the
    automatic
    stay
    provisions
    of
    section
    16
    of the
    Administrative
    Procedure Act are inapplicable.
    (Ill.Rev.
    Stat.
    1987,
    ch.
    127,
    par.
    1016.)
    I
    C7--12

    3
    Pursuant to section 12(f)
    of the Act, until this Board reaches
    its decision in a permit appeal, the applicant who timely applies
    for
    a
    permit
    and
    who
    does
    not
    unduly
    delay
    the
    “final
    administrative disposition” is not subject to an enforcement action
    for discharging
    without
    a
    permit.
    Consequently,
    section
    12(f)
    provides
    protection
    to
    the
    applicant
    who
    chooses
    to
    pursue
    discharge activities while appealing the Agency’s decision to the
    Board.
    Certainly,
    Jurcak should not be penalized for pursuing his
    right to appeal the Agency’s imposition of permit conditions.
    To
    hold that Jurcak’s NPDES permit became effective in July of 1985,
    even though Jurcak appealed the Agency’s decision,
    would lead to
    the absurd result that Jurcak’s permit will expire six months from
    the date that he
    is finally able to utilize the permit.
    An even
    more absurd result could occur where the review process of a five—
    year NPDES permit takes five years
    or more to become
    final.
    In
    that situation the final decision would be made after the permit
    has expired rendering moot a determination that the condition was
    improperly
    imposed.
    The Board
    finds
    that
    the
    Acts
    permitting
    provisions
    cannot
    be
    interpreted
    as
    mandating
    such
    absurd
    consequences.
    Rather, the Board concludes that
    a permit does not
    become effective until the Board renders
    its
    final decision in
    a
    permit appeal and the Agency reissues the permit.
    The Board also finds the Agency’s unilateral imposition of the
    condition that Jurcak develop and use the subject property which
    will be serviced by the permitted facility in accordance with the
    Condominium Property Act to be inconsistent with this Board’s Order
    of September 28,
    1989.
    By its September 28, 1989 Order, the Board
    directed that the Agency strike condition No.
    8.
    The Agency was
    not instructed to impose any additional
    conditions upon remand.
    Therefore,
    the Board concludes
    that
    the Agency must
    strike the
    condition imposed on November 29,
    1989.
    The
    Board
    hereby
    directs
    the
    Agency
    to
    reissue
    Jurcak
    a
    permit, with a five-year duration, striking condition No. 8 and the
    “condominium
    condition”
    imposed November
    29,
    1989
    effective
    the
    date of the Agency reissues the NPDES permit.
    IT IS SO ORDERED.
    I,
    Dorothy N.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board hereby certi-f~ythat the above Order was adopted~n the
    //~1~
    day of
    ________________,
    1990 by a vote of
    7C
    /i
    .~/
    ~•
    ~
    Dorothy M. ,G~inn, Clerk
    Illinois Pollution Control Board
    107-’)3

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