ILLINOIS POLLUTION CONTROL BOARD
June
21,
1990
CAIJVAR~TEMPLE CHURCH,
Petitioner,
v.
)
PCB 90-3
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by
R.
C. Flemal):
This matter comes before
the Board upon
a Motion
to
Reconsider filed May
30,
1990
by the Illinois Envircnmental
Protection Agency.
A response was filed
by Calvary
Teraple Church
(“Calvary”)
on June
14,
1990.
The Board today grants
reconsideration, and upon reconsideration declines
to change its
decision,
standing on the reasoning contained
in
its Opinion and
Order of April
26, 1990.
This matter originally came before the Board upon
a petition
for review of a denial of a permit to construct and operate a
wastewater
land treatment system filed by Calvary Temple Church
(“Calvary”).
On April
26,
1990 the Board remanded the matter
to
the Agency for consideration and evaluation
of whether or
not
Petitioner’s wastewater land treatment system would cause
a
violation of the Act and applicable Board
regulations.
In
its
Opinion,
the Board found that
the Agency failed
to afford the
applicant a full technical
review.
The Agency asks the Board
to reconsider
its decision,
alleging that the permit was not consistent with State and
Federal
law,
and that Calvary had not demonstrated
that
its
wastewater
land treatment
system would
not violate Section
4(m)
of
the Act
or Section
208
of
the Clean Water Act
(33 U.S.C.
§1251
et seq.).
The Agency also argues that
it
is precluded from
issuing
a permit to Calvary because
the Agency made
a finding
that an inconsistency with the
Illinois Water Quality Management
Plan (“IWQMP”)
exists.
The Agency argues that the Board
has
no
jurisdiction
to revie-~this oermit denial essentially because
the
Agency found an inconsistency ~ith the IWQMP.
The Agency further
alleges that the Board
has no jurisdiction
in this permit denial
because Calvary has
not exhausted
its administrative
remedies.
The Agency also submits
that
the Board’s reliance on the First
District Appellate Court Opinion Jurcák
v.
Illinois Environmental
Protection Agency
(112
Ill.
Dec.
:398,
513 N.E.
2d
1007
(1987));
is misplaced.
The Board ;~il1address each of
these arguments
in
turn.
112~3S5
—2—
The first two Agency arguments,
those regarding consistency
with State and Federal
law and Board jurisdiction, were addressed
by the Board
in its April
26 Opinion.
The Board finds nothing
convincing
in the Agency’s arguments which would change the
findings made
in that Opinion.
However,
the Board notes
that
the
Agency is alleging
that the Board remand somehow places the
Agency
in a position to do something which
is contrary to the
Act,
Board regulations,
or Federal
law.
The Board
does not
believe
this
is
true.
The Board emphasizes
that
in its Opinion
it found
that the Section 208 planning requirements apply to a
land treatment system such as Calvary’s.
The Board agrees with
the Agency that permits,
if granted, should be consistent with
all applicable State and Federal
laws.
The Board notes,
however,
that the requirement
that the Agency deny
a permit
if
an
inconsistency exists
is contained
in the Agency’s Section
351
rules.
The Board made
no finding whether
the Section
351 rules
apply to Calvary’s land treatment system.
The Board also did not
order
the Agency to issue
the permit.
Furthermore,
in
its denial
letter,
the Agency stated that
Section
4(m)
of the Act may be
violated.
The Board reiterates
that Section
4(m)
does
not
require an applicant
to secure concurrences
of the planning
agencies under
the IWQMP prior
to full Agency technical
review.
The Board also emphasizes, as Calvary states
its its
reply,
the Board has jurisdiction
to review permit denials when
an
applicant
files a review pursuant to Section
40 of
the Act.
In
this regard,
the Board
is not convinced that
its reliance on the
Jurcak opinion
is misplaced.
The Agency points to apparent
factual differences between the instant appeal and the Jurcak
appeal.
The Agency appears to be arguing that the reason the
Board had jursidiction
in the Jurcak case
is due
to the fact that
the Agency issued a permit with conditions,
giving the Board
something
to review.
The Board believes
that there is an obvious
flaw
in this reasoning,
as, taken
to its logical conclusion,
the
Agency
is arguing
that the Board would never have
jursidiction
in
any permit denial.
This
is clearly contrary to Section
40 of
the
Act.
The Board realizes
that there are factual differences
between the instant case and the Jurcak appeal.
These
distinctions are mainly
that Jurcak elected
to go through
the
Agency’s conflict resolution procedures
under
the Agency’s
Section
351 rules,
prior
to
review by the Board,
where the
applicant here did not.
The Board believes
that these
differences do not affect the application of
the reasoning
of
the
Jurcak Opinion
to this matter.
The Agency also argues
that since Calvary did not go through
the Section
351 conflict resolution procedures,
or appeal
the
Agency’s decision to
the circuit court, Calvary has failed
to
exhaust
its administrative
remedies,
leaving
the Board without
jurisdiction.
The Board
finds
that there
is
no requirement that
all other options be
exhausted before an applicant may appeal
a
112—38~
—3—
permit denial
to the Board.
Although the Board’s role
in permit
denials
is quasi—judicial, Board review
is an administrative
remedy.
Section 40 of the Act provides a clear
right
to an
applicant to appeal a permit denial to the Board and the Board
has clear
jurisdiction to review such denials under
the Act.
To
hold otherwise could also be interpreted as stating that
applicants must request that the Agency reconsider a permit
denial prior
to any appeal to the Board—-a situation which has
never been required.
For the reasons stated above and in the April 26,
1990
Opinion,
the Board declines
to change its determination.
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
~7/~i~
day of
__________________
,
1990,
by
a vote
of
•7—~:::)
~.
~
Dorothy M.
nn,
Clerk
Illinois Pollution Control Board
112—387