ILLINOIS POLLUTION CONTROL BOARD

June 7, 1990

THE tJNO-VEN COMPANY,

Petitioner,

V.

)

PCB 90—99

(Permit—Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by B. Forcade):

On June 4, 1990, the Agency filed a motion, supported by

affidavit, to dismiss this permit appeal filed on May 14, 1990.

The Agency seeks dismissal on the grounds that on May 1, 1990

petitioner had requested the Agency to reconsider its April 25,

1990 denial, and that the denial is in fact under reconsideration

by the Agency. On June 4, petitioner filed a response indicating

uncertainty as to the effect of dismissal of this action.

If this matter is under reconsideration by the Agency, the

Board must decline to accept this matter for hearing. Otherwise,

the question of how the laws of the State of Illinois apply to

the facts in this permit application would be pending before both

the Agency and the Board at the same time. The Board would

dismiss such a matter for want of jurisdiction. This is

consistent with earlier decisions in which the Board found that

it lacked jurisdiction to hear an appeal where the Agency had the

matter under reconsideration. See, e.g., Reichhold Chemicals,

Inc. v. IEPA, PCB 89—94, June 8, 1989; Reichhold Chemicals, Inc.

v. IEPA, PCB 89—148, November 8, 1989. See, also, Album, Inc.

V.

IEPA, PCB 81—23, March 19, 1981; Caterpillar Tractor Company

V.

IEPA, PCB 79—180, July 14, 1983; Joliet Sand and Gravel Co. v.

IEPA, PCB 87—55, June 10, 1987; and IBP, Inc. v. IEPA, PCB 88—98,

September 13, 1989.

Concerning the effects of dismissal, in response to

petitioner’s query, the Board observes that dismissal of this

prematurely filed action for want of jurisdiction does not

prejudice petitioner’s ability to timely appeal the Agency’s

final decision on its permit application. Petitioner also seeks

a declaration that “the continued operation off the subject

emission source places the Petitioner in no greater jeopardy for

operating an air pollution source without a permit”; the Board is

unclear as to exactly what information Petitioner is seeking.

112—41

---

—2—

Accordingly, the Board makes rio findings/holdings on this

question.

For the foregoing reasons, the Agency’s motion to dismiss

this action for want of jurisdiction is hereby granted.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify hat the above Order was adopted on

the ~

day of

________________

,

1990, by a vote of

_____

Dorothy MAlGunn, C’lemk

Illinois(,Pollution Control Board

112—42