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