ILLINOIS POLLUTION CONTROL BOARD
    April 8, 1993
    ST. LOUIS AUTO SHREDDING,
    Petitioner,
    )
    V.
    )
    PCB 93—45
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ST. LOUIS AUTO SHREDDING,
    Petitioner,
    v.
    )
    PCB 93-46
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    (Consolidated)
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD (by R.C. Flemal):
    This matter comes before the Board on the Illinois
    Environmental Protection Agency’s (Agency) March 22, 1993 motion
    to dismiss a portion of this permit appeal. On March 4, 1993,
    St. Louis Auto Shredding filed two petitions for permit review.
    As part of the petition in PCB 93-45, petitioner asks the Board
    to review the February 1, 1993 Agency denial of its Section 401
    certification in connection with petitioner’s wetlands
    application, in addition to the January 28, 1993 denial of its
    permit application. No response from petitioner to the Agency’s
    motion has been received by the Board.
    The Agency states that on February 1, 1993, it denied
    petitioner’s application for water quality certification pursuant
    to Section 401 of the Clean Water Act (CWA) (33 U.S.C. §1341
    (1992)) for the construction of a landfill in a wetlands. The
    application for the Section 401 certification was part of the
    permit process in the petitioner’s application to the Army Corps
    of Engineers for a Section 404 permit to place fill material into
    waters of the United States. Prior to the issuance of a Section
    404 permit, the CWA requires that the applicant must obtain a
    water quality certification from the state to ensure that the
    proposed activity will comply with state water quality standards.
    The Agency’s authority to so certify derives from Section 4 of
    the Environmental Protection Act (415 ILCS 5/1 et seq.
    OI~ -0133
    2
    (1992) (Act))1, which designates the Agency as the water
    pollution agency for the state for all purposes of the Federal
    Water Pollution Control Act (33 U.S.C. §1251, et seq. (1992)), as
    amended. The Agency makes its determinations in this arena
    pursuant to 35 Ill. Adm. Code 395.401. (Agency motion at
    2-4.)
    The Agency argues that the Board does not have the authority
    to review the Agency’s denial of the water quality certification
    since the Act does not confer such authority upon the Board. The
    Agency cites National Marine Service v. Illinois Environmental
    Protection Agency (1983), 120 Ill. App.3d 198, 458 N.E. 2d 551.
    In that case, the Fourth District found that the Board does not
    have jurisdiction to review Agency certification decisions under
    Section 401 of the CWA, as that authority is not conferred upon
    the Board by statute (458 N.E.2d 556). However, the Board notes
    there is a distinction: where here petitioner was denied a
    permit and has appealed, National Marine Service was neither
    issued nor denied a permit under the Act (See, 458 N.E.2d 557).
    The Board agrees that it lacks statutory authority to review
    the Agency’s denial of the Section 401 water quality
    certification, and therefore will not review the certification
    determination in this appeal. However, the Board does have
    statutory authority to review the entire permit denial pursuant
    to Section 40(a)(1) of the Act. (See, Jurcak v. Illinois
    Environmental Protection Agency (1987), 161 Ill. App. 3d 48, 513
    N.E. 2d 1007; where the court found the Board lacked authority to
    review the Agency’s decision to amend an Illinois Water Quality
    Management Plan, but that the Board did have jurisdiction to
    review a permit condition at issue and related to the Plan.)
    Therefore, the Board grants the Agency’s motion and strikes
    the portion of the permit appeal PCB 93-45 that requests review
    of the Agency’s Section 401 certification. However, the Board
    retains its authority to perform its review of the permit denial
    as requested.
    IT IS SO ORDERED.
    Board Member B. Forcade abstained.
    I Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Bg~ard, hereby certify that the above order was adopted on the
    ~
    day of
    _________________,
    1993, by a vote7~f
    -
    7
    ~orothy M. ~Gy~nn,Clerk
    Illinois Pollution Control Board
    1
    The Act was formerly codified at Ill.Rev.Stat. 1991, ch
    111½, par. 1001 et seq.
    Oi~41-0 13L~

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