ILLINOIS
POLLUTION
CONTROL
BOARD
December 20,
1995
ALLIEDSIGNAL, INC.,
a Corporation,
Petitioner,
PCB 96—95
v.
)
(Permit Appeal
-
Water)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by M. McFawn):
On November 16,
1995, the Illinois Environmental Protection
Agency
(Agency)
filed a motion to dismiss this permit appeal on
thc grounds
that
it was untimely filed.
On November 27,
1995,
AlliedSignal Inc.
(AlliedSignal)
filed its response.
On December
6, 1995, the Agency filed a motion for leave to reply and its
reply to AlliedSignal’s response.
Leave to reply is granted.
The Agency argues that this NPDES permit appeal was not
timely filed,
and therefore the petition should be dismissed for
lack of jurisdiction.
The Agency’s argument is premised upon the
30 day timeframe within which NPDES permit appeals must be filed
found at 35 Iii. Adm.
Code 105.102(b).
AlliedSignal cites to
Section 40(a)(1)
of the Environmental Protection Act,
415 ILCS
5/1
et seq.
(“Act”) which establishes a 35 day timeframe for
appealing permits denied or conditioned by the Agency pursuant to
Section 39 of the Act, which includes NPDES permits. AlliedSignal
argues that the statutory timeframe is controlling.
In its reply, the Agency recites that the 30 day timeframe
was adopted by the Board at Section 105.102(b)
as part of the
National Pollutant Discharge Elimination System Regulations, R73-
11 &
12,
on August 29 and September 5,
1974 pursuant to the
mandate contained in Section 13(b)
of the Act.
The Agency
believes that the 30 day limitation for filing a petition was
adopted because it parallels the federal regulation which
requires a permittee to request an evidentiary hearing to
reconsider or contest an NPDES permit within 30 days of the
USEPA’s final permit decision.
(Reply at 4).
(See also 40 CFR
124.74.)
The Board has reviewed relevant federal law and its adopting
opinion and finds nothing therein which requires the state
regulations to parallel the federal procedural rules concerning
NPDES evidentiary hearings.
While the Board may very well have
adopted the 30-day deadline for the reason set forth by the
Agency, this portion of Section 105.102(b)
is more stringent than
the 35—day deadline provided at Section 40(a)(l)
of the Act.
Section 13(b)
of the Act provides in pertinent part:
•for the purposes of implementing an NPDES program,
the Board shall adopt:
(1) Requirements,
standards,
and procedures which...are necessary and appropriate to
enable the State of Illinois to implement and
participate
in the National
Pollutant Discharge
Elimination System.
.
.All regulations adopted by the
Board governing the NPDES program shall be consistent
with the applicable provisions of such federal Act and
regulations pursuant thereto,
and otherwise shall be
consistent with all other provisions of this Act,...
(Emphasis added. 415 ILCS 5/13(b))
A rule limiting the appeal time to 30 days is not necessary
for implementing the State’s NPDES program.
Pursuant to Section
13(b) (1)
of the Act, absent a federal mandate the appeal deadline
must be consistent Section 40(a) (1)
of the Act.
The Board
cannot, by rule,
lawfully controvert the appeal rights given by
the Act.
(Landfill,
Inc.
v. Pollution Control Board,
387 N.E.2d
258
(1978).)
Accordingly, the statutory time frame of 35 days is
controlling.
The Agency rendered its final decision concerning the
contested permit on September 29,
1995.
AlliedSignal mailed its
appeal on October 27,
1995; the Board received it by mail on
October 30,
1995 and filed it on November
1,
1995 upon receipt of
the statutory filing fee and requisite number of copies.
Thus,
this appeal was filed within 35 days of the Agency’s final
decision on the contested permit.
The Agency’s motion to dismiss is denied.
IT IS SO ORDERED.
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby cert’fy that the above order was adopted on the
cctOtCdayof
~2C~e-n.4tA~1
,1995, byavotèof
7-0.
~
~U’
Dorothy M7~unn,Clerk
Illinois &llution Control Board
