ILLINOIS POLLUTION CONTROL
    BOARD
    November 18, 1993
    J & N PLATING, INC.,
    )
    Petitioner,
    )
    v.
    )
    PCB 93—73
    )
    (Permit Appeal)
    ILLINOIS
    ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD (by R. C. Flemal):
    This matter comes before the Board on a motion for summary
    judgment filed in this RCRA closure permit appeal on November 3,
    1993 by J & N Plating, Inc. (J & N). The Illinois Environmental
    Protection Agency filed its response to the motion for summary
    judgment on November 12, 19931.
    In its motion J & N alleges that the Agency did not render a
    timely decision, and that therefore its permit should be deemed
    issued under the Environmental Protection Act at 415 ILCS 5/39.
    The Agency replies that the default provisions of Section 39(a)
    do not apply to RCRA permits, and in the alternative, that its
    decision
    was
    timely and requests the Board deny J & M’s motion.
    The Agency is correct that in Marathon Petroleum Company v.
    IEPA (July 27, 1989), PCB 88-179, 101 PCB 259, the Board found
    that “the default provisions in the last paragraph of Section
    39(a) do not apply to RCRA permits.”
    (~.
    at 265.) The Board
    extensively addressed the reasons for this finding in that
    opinion and the Board today sees no reason to deviate from its
    prior determination on the issue.
    On the alternative argument that the decision is timely, the
    motion for summary judgment indicates that the Agency received J
    & M’s RCRA closure plan application on December 15, 1992.
    According to the computation of time provided in 35 Ill. Adm.
    Code 101.109, the 90th day after receipt of J & M’s RCRA closure
    plan application was March 15, 1993. The Agency’s approval of a
    modified RCRA closure plan for this site is dated March 15, 1993.
    (Exhibit C, motion for summary judgment.) The Agency’s approval
    letter was mailed or delivered on or about March 15, 1993 as
    indicated by J & M’s affidavit which states receipt of the
    Agency’s approval letter occurred on March 16 or 17, 1993.
    The Agency’s response is not accompanied by affidavit.
    Therefore, we will not consider any facts contained therein.
    2
    (Exhibit B, motion for summary judgment.) The Board notes that
    Section 39 of the Act does not require that the applicant be
    notified within 90 days of the Agency’s receipt of the
    application, but rather that the Agency take final action within
    that 90 days.
    Based on the above, the Board finds that the default
    provisions of the last paragraph of Section 39(a) do not apply to
    RCRA permits, and that even if the Marathon decision were not
    controlling here, the Agency rendered a timely decision on J &
    M’s application. Therefore, the Board denies J & M’s motion for
    summary judgment.
    IT IS SO ORDERED.
    .1, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
    Bóar
    hereby certify that the above order was adopted on the
    /~~/-
    day of
    ____________________,
    1993, by a
    vote,~of 5~
    ~Dorothy
    M.,qinn, Clerk
    Illinois R’ojlution Control Board

    Back to top