ILLINOIS POLLUTION CONTROL BOARD
    September 18, 1997
    DEPARTMENT OF THE NAVY, NAVAL
    TRAINING CENTER GREAT LAKES,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and
    R. LAVIN & SONS, INC., an Illinois
    corporation,
    Respondents.
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    PCB 97-194
    (Permit Appeal - NPDES)
    ORDER OF THE BOARD (by C.A. Manning):
    The Board denies an August 13, 1997 motion for reconsideration of a final Board order
    filed by Department of the Navy, acting through the Naval Training Center Great Lakes (the
    Navy). The Navy requests that the Board reconsider its July 10, 1997 order which dismissed a
    third-party National Pollutant Discharge Elimination System (NPDES) permit appeal due to
    the lack of statutory authority under Section 105.102(b)(3) of the Board’s present procedural
    rules.
    In support of its motion to reconsider (Mot. to Reconsider), the Navy argues that
    because Senate Bill 814 became effective on July 30, 1997, allowing third-party appeal rights,
    the Board should now allow this NPDES third-party appeal. The Navy asserts that “[t]he
    [t]hird [p]arty [a]ppeal [l]aw applies to this case because (1) this proceeding was pending at the
    time the amendment became effective and (2) the third party appeal statute intended to clarify
    what the law should have been all along and, since it does not change any existing law, it is by
    definition retroactive and applicable to this action.” Mot. to Reconsider at 2. The Navy
    argues that since the Board order was not yet final due to the pending expiration of the 35-day
    period to file a motion to reconsider pursuant to Section 101.246 of the Board’s procedural
    rules (35 Ill. Adm. Code 101.246), the “[p]ermit (issued to Lavin) continued to be vulnerable
    to challenge” up through and including 35 days after issuance of the Board’s July 10, 1997
    order. Mot. to Reconsider at 6. The Navy further believes that because Senate Bill 814 was
    enacted to “clarify” the law rather than “change” the law, retroactive effect is permissible.
    Mot. to Reconsider at 10.
    Respondents, the Illinois Environmental Protection Agency (Agency) and R. Lavin &
    Sons, Inc. (Lavin), responded separately to the motion to reconsider (Agency Response and
    Lavin Response) by arguing, among other reasons, that Senate Bill 814 would have an
    impermissible retroactive impact on both Lavin and the Agency, and should only be applied
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    prospectively. The Agency asserts that the third party appeal law was not designated by the
    General Assembly to have retroactive effect. Agency Response at 3. Additionally, the
    respondents argue that because Lavin’s right to the NPDES permit had already vested,
    retroactive application of the third party appeal law would interfere with such vested right.
    Lavin Response at 4-6; Agency Response at 7. The Agency argues that the third party appeal
    law was not adopted to clarify a misinterpretation of the Environmental Protection Act
    occurring in Citizens Utilities Co. of Illinois and Village of Plainfield v. Pollution Control
    Board, 265 Ill. App. 3d 773, 780, 639 N.E.2d 1306, 1312 (3rd Dist. 1994),
    cert. denied
    , 158
    Ill. 2d 550, 645 N.E.2d 1356 (1994), but rather was enacted to comply with a directive by the
    United States Environmental Protection Agency (USEPA) requiring that states adopt rights for
    third party appeals of NPDES permits. Agency Resp. at 9-10. Lavin argues alternatively that
    the Navy lacks standing to appeal the Agency’s decision to issue the NPDES permit due to the
    standing requirements of Senate Bill 814. Lavin Resp. at 10.
    The Navy filed a motion to file a reply and a reply to the responses raised by the
    respondents which the Board allows. In the Navy’s reply (Reply), it asserts that the
    respondents have not identified a vested interest which would be impaired if the third party
    appeal law were applied retroactively. Reply at 2-4. Further, the Navy argues that the
    USEPA directed the third party appeal law to be adopted by the states in order to correct state
    court decisions which limited third party rights. Reply at 5-6. The Navy also states that it had
    standing pursuant to the requirements of Senate Bill 814. Reply at 8.
    In ruling upon a motion for reconsideration, the Board is to consider factors including,
    but not limited to, error in the previous decision and facts in the record which are overlooked.
    35 Ill. Adm. Code 101.246(d). In
     
    Citizens Against Regional Landfill v. County Board of
    Whiteside County (March 11, 1993), PCB 93-156, the Board stated that “[t]he intended
    purpose of a motion for reconsideration is to bring to the court’s attention newly-discovered
    evidence which was not available at the time of the hearing, changes in the law, or errors in
    the court’s previous application of the existing law.” Korogluyan v. Chicago Title & Trust
    Co., 213 Ill. App.3d 622, 572 N.E.2d 1154 (1st Dist. 1992).
    The Board denies the Navy’s motion to reconsider the Board’s July 10, 1997 order.
    The Navy has not demonstrated that any newly-discovered evidence, a change in the law
    (applicable to a previous action), or any other reason to conclude that the Board’s decision was
    in error which would require the Board to reconsider its July 10, 1997 order. In making its
    decision to dismiss this third-party NPDES permit appeal on July 10, 1997, prior to the
    adoption of Senate Bill 814 on July 30, 1997, the Board reasoned that, at the time that Lavin’s
    permit was issued, no statutory authority existed to allow for third-party NPDES permit
    appeals. See Navy v. Lavin (July 10, 1997), PCB 97-134, slip op. at 4. The same holds true
    on this date: at the time that Lavin’s permit was issued, no statutory authority existed to allow
    for third-party NPDES permit appeals.
    Although the Navy argues that “the [p]ermit continued to be vulnerable to challenge”
    during the timeframe upon which to file a motion to reconsideration (Mot. to Reconsider at 6),
    only the Board’s July 10, 1997 decision could be challenged during this timeframe, rather than
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    Lavin’s NPDES permit. The Board’s order was a final and appealable order as of July 10,
    1997, upon which date the docket was closed. As the Illinois Supreme Court decided in
    Sepmeyer v. Holman, 162 Ill. 2d 249, 254, 642 N.E.2d 1242, 1244 (1994), the legislature
    lacks the power to reach back and breathe life into a time-barred claim. The Board agrees that
    as of July 30, 1997, there has been a change in the law to allow for prospective third-party
    permit appeals; however, this change in the law cannot be retroactively applied to an NPDES
    permit previously issued by the Agency. The legislative intent of Senate Bill 814 does not
    require retroactive application of an NPDES appeal. A general rule of statutory construction
    is that an amendment will be construed as prospective, absent express language to the contrary.
    See People v. Fiorini, 143 Ill. 2d 318, 333, 574 N.E.2d 612, 617 (1991). The legislature
    enacted Senate Bill 814 because it was required by federal law, rather than to reverse the
    holding of Citizens Utilities. See 90th Ill.Gen. Assem., Senate Proceedings, March 18, 1997,
    at 117-18; 90th Ill. Gen. Assem., House Proceedings, May 8, 1997, at 1-2.
    The Board need not address the issue of standing as required by Senate Bill 814 since
    Senate Bill 814 does not apply to the instant case.
    Accordingly, the Navy’s motion to reconsider is denied.
    Board Member K.M. Hennessey abstained.
    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 18th day of September 1997, by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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