ILLINOIS POLLUTION CONTROL BOARD
    October
    20, 1988
    JEFFERSON SMURFIT CORPORATION,
    Petitioner,
    v.
    )
    PCB 87—84
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    On August
    19,
    1988,
    the Illinois Environmental Protection
    Agency (“Agency”)
    filed
    a motion
    to dismiss.
    On August
    24,
    1988,
    Jefferson Smurfit Corporation
    (“Smurfit”)
    filed
    a
    response
    in
    opposition
    to the Agency’s motion.
    On September
    8,
    1988,
    the
    Board ordered,
    in this Docket and
    in the related docket, PCB 88—
    112,
    that the parties
    simultaneously brief
    the following
    issues
    in this matter:
    1.
    Whether
    the
    proceeding
    Alton
    Packaging
    Corporation
    v.
    IEPA,
    PCB
    85—146,
    currently
    pending
    in
    the
    United
    States
    Supreme
    Court,
    has
    sufficient
    nexus
    with
    the
    instant
    proceeding
    to
    remove
    the Board’s
    jurisdiction
    to act here?;
    and
    2.
    If
    the
    Board
    does
    have
    jurisdiction
    to
    act,
    whether
    the theory articulated
    in Caterpillar
    Tractor
    Co.
    v.
    IEPA,
    PCR 79—180,
    July
    14,
    1983
    citing
    Album,
    Inc.
    v.
    IEPA,
    P08
    81—231
    requires
    the
    Board
    to
    dismiss
    the
    permit
    appeal filed
    in P08 88—112?
    On September
    22,
    1988,
    the Agency filed
    its “Response To
    Board Order” contending,
    in effect,
    that
    the Board’s September
    8
    Order requiring briefs
    is not necessary under
    its view of
    the
    case and that the Agency’s Motion
    to Dismiss
    is not factually
    related
    to the
    issues for which briefing was ordered.
    The
    Agency’s response did not,
    therefore,
    attempt
    to respond
    to the
    Board’s Order
    in the form of
    a brief of
    the respective issues.
    On October
    17,
    1988,
    Smurfit
    filed
    a Motion
    to Suspend
    Further Briefing
    on Jurisdiction; Smurfit essentially argues that
    the issues raised
    in the Board’s September
    8 Order.are now moot,
    93—173
    —2—
    insofar as
    the United States Supreme court on October
    11,
    1988
    denied Smurfit’s petition for
    a writ of certiorari
    from the
    Board’s decision in Alton Packaging Corporation
    v. Environmental
    Protection Agency, P08 85—145 (“Alton case”).
    The Board
    notes
    that the denial
    of the writ of Certiorari
    in
    the Alton case appears,
    indeed,
    to remove the need for briefing
    of the first enumerated issue
    identified
    in the Board’s September
    8 Order.
    It
    is
    not clear, however,
    that,
    as Smurfit contends,
    the denial of
    the petition for writ of certiorari necessarily
    renders briefing of
    the Board’s second enumerated
    issue
    a
    “wasted” effort.
    Even Smurfit acknowledges
    (at page
    4)
    that “a
    full examination
    of these issues would take considerable
    time and
    resources”.
    This being
    the case,
    it can hardly
    be argued
    that
    resolution of
    the issues are either self—evident or are
    adequately addressed by
    a single page
    (page
    3)
    of the
    Petitioner’s October
    17, Motion, particularly where
    the Agency
    has not directly addressed
    the
    issue
    at all.
    The Board notes
    that
    on October
    11, 1988,
    the Agency,
    in related docket POE 88—
    112 did file
    a responsive brief; however,
    this brief could
    not
    and did not anticipate the denial of
    a writ of certiorari
    in the
    lton case.
    For the
    reasons stated above,
    the Motion by Smurfit is
    granted
    in part and denied
    in part:
    the Board’s Order
    of
    September
    8,
    1988
    is hereby amended
    to delete reference
    to the
    first enumerated
    issue.
    The parties
    are directed
    to file their
    respective briefs not later than November
    14, 1988.
    Any reply
    shall be filed not later than November
    28,
    1988.
    Today’s Order
    is not intended to impair the obligations for expeditious hearing
    in any way.
    The Board notes that
    no hearing date has been set by
    the Hearing Officer
    in Docket 87—84 although
    a hearing has been
    scheduled
    for December
    7,
    1988,
    in Docket 88—112.
    The Board will
    rule
    on the Agency’s Motion
    to Dismiss
    by separate Order
    at
    a
    later date.
    IT
    IS SO ORDERED.
    I,
    Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify
    that the above Order was adopted
    on
    the :~‘~(dayof
    ~
    ,
    1988,
    by
    a vote of
    7~0
    ~
    /~
    Dorothy M~Gunn, Clerk
    Illinois Pollution Control Board
    93—174

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