ILLINOIS
    POLLUTION CONTROL BOARD
    October
    19, 1983
    CATERPILLAR TRACTOR CO.
    )
    Petitioner,
    V.
    )
    PCB
    83—86
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY
    Respondent.
    ORDER OF THE BOARD
    (by J.
    Theodore Meyer)
    On September 28,
    1983 the Illinois Environmental Protection
    Agency (Agency)
    filed
    a Motion
    to Dismiss this permit appeal.
    Petitioner filed a Response on October
    14,
    1983.
    This appeal was filed July
    5,
    1983 contesting certain
    conditions of permit issued by the Agency on June
    7,
    1983.
    On
    June 30,
    1983, prior to this appeal being
    filed, Petitioner
    formally requested the Agency by letter that the application
    for the operating permit issued on June 7,
    1983 be reconsidered.
    (Ex.
    C of Respondent~sMotion)
    In that letter,
    Petitioner also
    stated that an appeal
    of the permit may be filed.
    In its Motion
    the Agency states that pursuant to the letter the application
    was reopened and decision on the same is pending.
    The Respondent
    argues that this was not the intent of the letter,
    hut rather
    intended to encourage agreement before the time
    to appeal expired.
    This factual sequence
    is just the reverse of the sequence
    in Abbott Laboratories
    v. Illinois Environmental Protection
    Agency PCB 81-33.
    (c.f.
    41 PCB 119)
    Therein the Agency reopened
    the permit application after appeal had been filed,
    The Board
    ruled that action on the reapplication by the Agency,
    i.e. reissu-
    ance, could not affect the existing permit appeal.
    In dismissing
    the second permit appeal
    filed to contest the reissued permit,
    the Board noted that
    if reopening had occurred prior to the appeal
    by Petitioner,
    there would have been no final Agency action
    to be reviewed by the Board.
    Although Petitioner requested reconsideration,
    and stated an
    intent to appeal
    in the June 30,
    1983
    letter, the Agency was
    correct in accepting the formal request of reconsideration as a
    permit reapplication.
    To do otherwise could mean that the Agency
    fails
    in its statutory duty to deny or issue
    a permit based
    on
    the reapplication within ninety days and the disputed permit would
    54~259
    —2—
    issue by operation of
    law,
    Since the same permit is the subject
    of
    a pending permit application and this appeal,
    there was no
    final action by the Agency on July
    5,
    1983 for the Board to re-
    view under Section 40 of the Act.
    This appeal
    is dismissed.
    IT IS SO ORDERED.
    I,
    Christan
    L.
    Moffett,
    Clerk of the Illinois Pollution
    Control B9ard, hereb
    c rtify that the above Order ~as adopted
    on the
    J~’
    day of
    ,
    1983 by
    a vote of
    ~
    Illinois Pollution
    Board
    54-260

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