ILLINOIS POLLUTION CONTROL BOARD
    May 17, 2001
     
    SIERRA CLUB, FRIENDS OF THE FOX
    RIVER and PRAIRIE RIVERS NETWORK,
     
     
    Petitioners,
     
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and FOX RIVER
    WATER RECLAMATION DISTRICT,
     
     
    Respondents.
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    PCB 01-148
    (Permit Appeal – NPDES)
      
          
    ORDER OF THE BOARD (by G.T. Girard):
     
    On May 3, 2001, the Sierra Club, Friends of the Fox River, and Prairie Rivers
    Network filed a petition to contest the issuance of a National Pollutant Discharge Elimination
    System (NPDES) permit pursuant to Section 40(e) of the Environmental Protection Act (Act)
    (415 ILCS 5/40(e) (1998)). The permit in question was issued by the Illinois Environmental
    Protection Agency (Agency) on March 30, 2001, to the Fox River Water Reclamation District
    for its West Sewage Treatment Plant in Elgin, Kane County, Illinois.
     
      
    A third-party appeal of an NPDES permit is authorized by Section 40(e) of the Act.
    415 ILCS 5/40(e) (1998). The Board’s procedural rules state that “[i]f the Agency grants or
    denies a permit under subsection (b) of Section 39 of the Act, a third party, other than the
    permit applicant or Agency, may petition the Board for a hearing to contest the decision of the
    Agency (415 ILCS 5/40(e)(1).” 35 Ill. Adm. Code 105.204(b).
     
    Section 40(e)(2) requires that the petition contains “a demonstration that the petitioner
    raised the issues contained within the petition during the public notice period or during the
    public hearing of the NPDES permit application, if a public hearing was held, and a
    demonstration that the petitioner is so situated as to be affected by the permitted facility.” 415
    ILCS 5/40(e)(2). Further, Section 40(e)(3) provides that if the Board determines that the
    petition is not duplicitous or frivolous and contains a satisfactory demonstration under Section
    40(e)(2), the Board shall “hear the petition.” 415 ILCS 5/40(e)(3).
     
    Petitioners appeared at and gave testimony on the permit at a public hearing held on
    May 16, 2000, at the Elgin City Council Chambers and presented written comments.
    Petitioners raised legal and scientific issues regarding flaws in the draft permit. The petition
    also states that petitioner will be affected adversely when pollution discharged under the permit
    causes or contributes to the creation of offensive conditions in the Fox and Illinois Rivers.
     
      
     
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    The Board finds that the petition is neither duplicitous nor frivolous and that the petition
    contains a satisfactory demonstration under Section 40(e)(2) of the Act. This matter is accepted
    for hearing. The hearing in this matter must be scheduled and completed in a timely manner,
    consistent with Board practices, and the applicable statutory decision deadline (set out in Section
    40(a)(3) of the Act), or the decision deadline as extended by a waiver.
     
     
    As the Board noted in McHenry County Defenders, Inc. v. IEPA (August 6, 1998),
    PCB 98-173, slip op. at 4-5, the Board has construed the Act and Section 40(e) as giving the
    person who had requested the permit: (1) the right to a decision within the applicable statutory
    time frame (now 120 days); and (2) the right to waive (extend) the decision period. Fox River
    Water Reclamation District, the permit applicant, is the party with the right to a decision within
    120 days and is the only party with the right to waive the decision deadline. The result is that
    failure of this Board to act within the 120 days would allow the permit applicant, Fox River
    Water Reclamation District, to pursue an appellate court order as detailed in Section 40(a)(3) of
    the Act.
     
    The Board will assign a hearing officer to conduct hearings consistent with this order
    and the Clerk of the Board will promptly issue appropriate directions to that assigned hearing
    officer. The assigned hearing officer must inform the Clerk of the Board of the time and
    location of the hearing at least 40 days in advance of hearing so that a 30-day public notice of
    hearing may be published. After hearing, the hearing officer must submit an exhibit list, a
    statement regarding credibility of witnesses, and all actual exhibits to the Board within five days
    after the hearing.
     
     
    Any briefing schedule must provide for final filings as expeditiously as possible. Absent
    any future waivers of the decision deadline, the statutory decision deadline is now August 31,
    2001, (120 days from May 3, 2001). The Board meeting immediately preceding the decision
    deadline is scheduled for August 23, 2001.
     
    If, after appropriate consultation with the parties, the parties fail to provide an acceptable
    hearing date or if, after an attempt the hearing officer is unable to consult with all of the parties,
    the hearing officer shall unilaterally set a hearing date. The hearing officer and the parties are
    encouraged to expedite this proceeding as much as possible. The Board notes that Board rules
    (35 Ill. Adm. Code 105.102) require the Agency to file the entire Agency record of the permit
    application within 14 days of notice of the petition.
     
    IT IS SO ORDERED.
     
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 17th day of May 2001 by a vote of 7-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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