ILLINOIS POLLUTION CONTROL BOARD

February 21, 1980

NICHOLS HOMESHIELD, INC.,

Petitioner,

PCB 79~66

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by

Mr. Goodman):

Respondent Illinois Environmental Protection Agency (Agency)

on January 9, 1980 requested a ruling on the applicability of the

90-~day decision period in §40 of the Illinois Environmental

Protection

Act

(Act) to NPDES permit appeals.

Neither Respondent nor Petitioner “must” waive the date by

which the Board must decide this NPDES permit appeal case. A

waiver is a known and voluntary relinquishment of rights; as such

the

Board does not require it.

The Board previously announced the applicability of the

90~day decision period provision to cases involving NPDES permit

appeals. Environmental Register, *205, p,3 (November 27, 1979).

To hold that the 90~dayprovision applies in the

federally~~-delegatedNPDES permit program would permit violations

of §301, §302, §306~308, §318, and §405 of the Federal Water

Pollution Control Act (FWPCA), For example, to the extent that

permits granted by operation of law under §40 of the Act would

contain effluent limitations less strict than the federal

limitations required under §301(b) of the FWPCA, the continued

authority of Illinois to administer the NPDES program would be

jeopardized. FWPCA, §402(b), Such permits issued inconsistently

with the minimum federal requirements expressed in the

above~cited sections of the FWPCA would be voidable. §309(a)(1),

FWPCA

,

Such

permits would jeopardize Illinois~ authority to

administer the NPDES program, FWPCA, §309(a)(2), Such a result

is clearly inconsistent with the findings of the Legislature in

§11(a)(3) of the Act.

Finally, §38 of the Act is inapplicable to the extent that a

variance from regulations promulgated pursuant to the FWPCA

similarly jeopardizes Illinois authority to administer the NPDES

program.

37—391

---

The Board therefore holds that the 90-day decision period

provision of §40 of the Act is inapplicable to NPDES permit

appeals,

Petitioner and Respondent are ordered to proceed with the

hearing requested, Petitioner’s waiver to April 15, 1980 is

hereby made moot.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify tIre above Order was adopted by the

Board on the

_________

day of

~

1980, by a

vote of 4~/Ø

Illinois Pollution Control Board

3 7—392