ILLINOIS POLLUTION CONTROL BOARD
June 17,
1993
CITIZENS UTILITIES COMPANY
)
OF ILLINOIS
AND
VILLAGE OF
)
PLAINFIELD,
Petitioner,
PCB 93—101
v.
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
AND
VILLAGE
)
OF BOLINGBROOK,
Respondent.
ORDER OF THE BOARD
(by G.
T. Girard):
On May 13,
1993, Citizens Utilities Company of Illinois and
Village of Plainfield filed a petition for review of the issuance
of an NPDES permit to the Village of Bolingbrook.
On May 26,
1993, Bolingbrook filed
a “Response of the Village of Bolingbrook
to the Joint Petition for Review” and on May 28,
1993,
the Agency
filed a motion to dismiss for lack of subject matter
jurisdiction.
On June 2,
1993, petitioners filed an objection to
the motion to dismiss.
The petition for review sets out eleven reasons for
objecting to the issuance of the permit as well as asserting that
both petitioners participated in the proceeding before the Agency
by filing comments and objections to the permit application.
(Pet. at
3.)
The petition also asserts that the petitioners
requested a hearing on the issuance of the NPDES permit, which
the Agency denied.
(Pet.
at 3.)
Those eleven reasons are:
a.
The Agency erroneously denied the separate
requests by Citizens and the Village of
Plainfield for
a public hearing before the
Agency regarding Bolingbrook’s request for
the subject permit.
Both requests
demonstrated a substantial public interest
which justified a hearing.
The failure to
hold a hearing prevented the Agency from
having an evidentiary record which would show
that the proposed permit is not necessary,
proper or in the public interest.
b.
There is no need for the proposed Bolingbrook
STP #3 because Plainfield together with
Citizens have available plant capacity to
serve the alleged service area of the
proposed plant.
UI
!4~3733
2
c.
Plainfield and Citizens have a cost-effective
regional plan for the disputed area, which
would render Bolingbrook’s proposed STP #3
unreasonable, unnecessary, not cost—
effective,
and moot.
d.
Bolingbrook’s proposed STP #3
is contrary to
the public interest, because it contributes
to the proliferation of small,
inefficient
wastewater treatment plants and fails to
provide for the utilization of existing
available plant capacity or the phase-out of
smaller plants.
e.
Bolingbrook’s proposed STP #3 would be
contrary to sound regional planning.
f.
Bolingbrook’s proposed STP #3 will not be
cost—effective.
g.
There is no legal authority or factual
justification for the subject permit, or
construction and operation of the proposed
STP #3, because there has been no final
adjudication that the proposed service area
of the plant properly should be within the
Bolingbrook FPA and that the proposed plant
properly should be included in Bolingbrook’s
facility plan.
h.
The proposed Bolingbrook STP #3 is not
properly within Bolingbrook’s FPA and
is not
within a properly approved facility plan for
Bolingbrook.
i.
A substantial portion of the proposed
Bolingbrook STP #3
is to be physically
located within the FPA of Plainfield and is
contrary to the facility plan of Plainfield.
j.
The proceedings before the Northeastern
Illinois Planning Commission and the Agency
respecting Bolingbrook’s proposed STP #3,
including the request to include the plant
within Bolingbrook’s facility plan and to
include the proposed service area of the
plant within Bolingbrook’s FPA were~
defective, invalid and contrary to law.
k.
The proposed location for Bolingbrook’s
proposed STP #3
is not appropriate and is
contrary to sound regional planning.
0
L~.3-O23Li.
3
(Pet. at 5—6.)
The May 26 filing by Bolingbrook asserts that the parties,
including the petitioners, were given adequate opportunity to
state their positions before the Agency.
Bolingbrook also
asserts that the Agency, after full consideration, made its
decision.
(May 26 at 1-2.)
Bolingbrook also asserts that the
Board does not have jurisdiction on this matter as third party
appeals of a permit are improper under Landfill. Inc.
v. PCB,
74
Ill.2d 541, 387 N.E.2d 258,
25 Ill.Dec 602
(1978).
(May 26 at
—
23.)
The May 28 filing by the Agency asserts that the only issues
raised by the petitioners in the petition are related to the fact
that the Agency approved in part Bolingbrook’s application to
revise the Illinois Water Quality Management Plan
(WQMP) and that
the arguments put forth do not challenge the validity of the
permit.
(May 28 at 3.)
The Agency further asserts that the
Board does not have the authority to review decisions by the
Agency on the Illinois WQMP and that the proper forum is before
the USEPA.
(May 28 at 4-5.)
The June 2,
1993,
filing by petitioners asserts that there
is no basis
in law for the Agency’s motion to dismiss.
(June
2
at 2.)
Petitioners deny that they are challenging the Agency’s
decision regarding Bolingbrook’s request to revise its facilities
planning area
(FPA)
and maintain that they are challenging the
“Agency’s decision to issue the disputed NPDES permitt1.
(June
2
at 3.)
Petitioners further maintain that there is no appeal to
the USEPA and that the Board does have jurisdiction to review the
FPA under the decision in Jurcak v.
IEPA,
161 Ill.App.3d 48,
513
N.E.2d 1007,
112 Ill.Dec.
398,
(1st Dist.
1987).
The Board notes that it has previously decided similar
issues as those raised in this proceeding.
In the Village of
Gilberts v. Holiday Park Corporation and the IEPA,
65 PCB 283,
PCB 85-96
(August
15, 1985), the Board dismissed a third party
appeal of an NPDES permit.
In that case the Board upheld the
rights of third parties to appeal a NPDES permit; however, the
Board held that it “lacks jurisdiction under the Act” to review
the Illinois WQMP.
(65 PCB 284,
286.)
In the Village of Sauget and Monsanto v.
IEPA,
71 PCB 38,
PCB 86-57 and 86—62,
(July 11,
1986), the Board set forth a two-
prong test to determine whether Monsanto had standing to appeal
the Agency decision on a NPDES permit for the Village of Sauget.
The first prong of the test was whether 35 Ill. Adm. Code
105.102(b) (3) was invalid pursuant to Landfill.
Inc..
(71 PCB
38.)
The Board found that the third party appeal was valid under
the NPDES provisions in the rules and statute.
The Board
distinguished NPDES third party permit appeals from third party
permit appeals discussed in Landfill,
Inc..
(71 PCB 40-41.)
01
Li.3-0235
4
The second prong,
enunciated in Saucret/Monsanto was whether
“Monsanto has fulfilled the preconditions to acquire standing
pursuant to the rule’s terms”.
(71 PCB 38.)
Specifically, the
Board looked to the level of participation in the proceeding
before the Agency as no hearing was held or requested by
Monsanto.
The Board found that the level of participation of
Monsanto did give Monsanto standing to appeal the NPDES permit.
Therefore,
the Board finds that third party appeals in NPDES
permit proceedings are proper under the provisions of the Board’s
rules and the Act.
Further,
in this case the parties appealing
the decision did request a hearing before the Agency and
therefore have standing to appeal.
This leads to the issue as to whether or not the subject
matter of the petition is proper for the Board’s review.
As
stated above, the Board agrees that it lacks jurisdiction to
review provisions of the Illinois WQMP.
The Board notes that the
issue
in the Jurcak case cited by petitioners was whether the
Board could review a condition of
a permit which contained
provisions of the plan.
In the instant matter, the petitioners
have not specifically stated which conditions of the permit the
petitioners are contesting.
Nor have the petitioners stated what
portions of the Act or Board regulations will be violated if the
permit is issued.
Thus,
the Board finds that the subject matter
of this petition relates solely to the Agency’s decision on the
Illinois WQMP.
Therefore, the Board dismisses the petition as
the Board lacks jurisdiction to review the Illinois WQMP.
IT IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
do hereby certif
that the above order was adopted on the
/7t~
day of
____________,
1993, by a vote of
~
Control Board
U
I ~430236