ILLINOIS POLLUTION CONTROL BOARD

July 2,

1986

FRED E.

JURCAK,

Petitioner,

v.

)

PCB 85—137

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by

3.

D. Dumelle):

This matter comes before

the Board upon

a June

6,

1986,

Motion

for Reconsideration of the Board’s Opinion and Order

in

this proceeding

dated December

20,

1985 filed on behalf of Fred

E.

Jurcak

(Jurcak).

The Illinois Environmental Protection Agency

(Agency)

filed

its

response

on June

30, 1986,

requesting the

Board

to deny Jurcak’s motion.

For

the following reasons,

Jurcak’s Motion for Reconsideration

is hereby denied.

On December

20, 1985,

the Board affirmed

the Agency’s

imposition of Special Condition Nos.

8

&

9

in Jurcak’s NPDES

permit.

Special Condition No.

8

at issue here incorporates

an

amendment

to Illinois’ Water Quality Management Plan

(IWQMP).

The Board

found

that

it lacked

jurisdiction to review Special

Condition No.

8, citing Vil1a~eofGilbertsv.Ho1ida~Park

Cor~orationand the I11i~oisEnvironmental Protection A9ency,

PCB

8~—96,August

15,

1985 and National Mafl:ne Ser’~Thev.

Illinois

Environmental Protection A~encyTT~0Ill.

App. 3dTh8,

458 N.E.2d

551

(1983).

Jurcak sought review of the IWQMP amendment in the

circuit court which dismissed Jurcak’s complaint for lack of

jurisdiction. The court,

in dicta,

indicated that the Board

in

fact had jurisdiction

to consider the propriety

of the IWQMP

amendment at

issue.,*

The circuit court appears

to have rnisapprehended the limited

authority granted

to the Board.

Nothing

in th~Environmental

*

The Board notes

that the issue

of whether the Board has

jurisdiction over the Agency’s amendments

of the IWQMP was not

fully argued before

the circuit court.

The only issue

before

the

circuit court was whether

it had jurisdiction

to rule on Jurcak’s

complaint.

The court held that it lacked such jurisdiction.

Consequently, any statement by the circuit court regarding the

Board’s jurisdiction over Agency amendments of

the IWQMP was

dicta and,

therefore,

not binding on the Board.

—2—

Protection Act provides for Board review

of Agency decisions

concerning revisions

to the IWQMP.

Furthermore, Agency and

United States Environmental Protection Agency

(USEPA)

rules vest

that authority solely

in the Regional Administrator

or the

circuit court.

35

Ill. Adm. Code 351.403

and

40 C.F.R.

35.1517(c).

The Board

notes that contrary

to the circuit

court’s conclusion,

a revision of the IWQMP

is not

“like a simple

building permit case”

in which

“the Board can merely say that

the

conditions imposed are unreasonable,

and allow

the permit

to

be

issued

...

and allow

the Agency

to clean up the plan

IWQMP

and

modify

it

according

to the

Board’s

decision.”

If the

Board

were

to accept this reasoning,

it would enable the Board

to

exercise jurisdiction over the IWQMP which

it clearly lacks

The

Board

is not evading any responsibility but believes that the

only available routes

of

review are

to USEPA or the circuit

court, not

to the Board.

For these reasons,

the Board hereby

denies Jurcak’s Motion

for Reconsideration.

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

____

day of

~

1986

by

a

vote

of

-7-

~:9

/

/~_

~

/~7~

/

Dorothy

M. dunn,

Clerk

Illinois Pollution Control Board

70-405