ILLINOIS POLLUTION CONTROL BOARD
    June
    21,
    1990
    CAIJVAR~TEMPLE CHURCH,
    Petitioner,
    v.
    )
    PCB 90-3
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by
    R.
    C. Flemal):
    This matter comes before
    the Board upon
    a Motion
    to
    Reconsider filed May
    30,
    1990
    by the Illinois Envircnmental
    Protection Agency.
    A response was filed
    by Calvary
    Teraple Church
    (“Calvary”)
    on June
    14,
    1990.
    The Board today grants
    reconsideration, and upon reconsideration declines
    to change its
    decision,
    standing on the reasoning contained
    in
    its Opinion and
    Order of April
    26, 1990.
    This matter originally came before the Board upon
    a petition
    for review of a denial of a permit to construct and operate a
    wastewater
    land treatment system filed by Calvary Temple Church
    (“Calvary”).
    On April
    26,
    1990 the Board remanded the matter
    to
    the Agency for consideration and evaluation
    of whether or
    not
    Petitioner’s wastewater land treatment system would cause
    a
    violation of the Act and applicable Board
    regulations.
    In
    its
    Opinion,
    the Board found that
    the Agency failed
    to afford the
    applicant a full technical
    review.
    The Agency asks the Board
    to reconsider
    its decision,
    alleging that the permit was not consistent with State and
    Federal
    law,
    and that Calvary had not demonstrated
    that
    its
    wastewater
    land treatment
    system would
    not violate Section
    4(m)
    of
    the Act
    or Section
    208
    of
    the Clean Water Act
    (33 U.S.C.
    §1251
    et seq.).
    The Agency also argues that
    it
    is precluded from
    issuing
    a permit to Calvary because
    the Agency made
    a finding
    that an inconsistency with the
    Illinois Water Quality Management
    Plan (“IWQMP”)
    exists.
    The Agency argues that the Board
    has
    no
    jurisdiction
    to revie-~this oermit denial essentially because
    the
    Agency found an inconsistency ~ith the IWQMP.
    The Agency further
    alleges that the Board
    has no jurisdiction
    in this permit denial
    because Calvary has
    not exhausted
    its administrative
    remedies.
    The Agency also submits
    that
    the Board’s reliance on the First
    District Appellate Court Opinion Jurcák
    v.
    Illinois Environmental
    Protection Agency
    (112
    Ill.
    Dec.
    :398,
    513 N.E.
    2d
    1007
    (1987));
    is misplaced.
    The Board ;~il1address each of
    these arguments
    in
    turn.
    112~3S5

    —2—
    The first two Agency arguments,
    those regarding consistency
    with State and Federal
    law and Board jurisdiction, were addressed
    by the Board
    in its April
    26 Opinion.
    The Board finds nothing
    convincing
    in the Agency’s arguments which would change the
    findings made
    in that Opinion.
    However,
    the Board notes
    that
    the
    Agency is alleging
    that the Board remand somehow places the
    Agency
    in a position to do something which
    is contrary to the
    Act,
    Board regulations,
    or Federal
    law.
    The Board
    does not
    believe
    this
    is
    true.
    The Board emphasizes
    that
    in its Opinion
    it found
    that the Section 208 planning requirements apply to a
    land treatment system such as Calvary’s.
    The Board agrees with
    the Agency that permits,
    if granted, should be consistent with
    all applicable State and Federal
    laws.
    The Board notes,
    however,
    that the requirement
    that the Agency deny
    a permit
    if
    an
    inconsistency exists
    is contained
    in the Agency’s Section
    351
    rules.
    The Board made
    no finding whether
    the Section
    351 rules
    apply to Calvary’s land treatment system.
    The Board also did not
    order
    the Agency to issue
    the permit.
    Furthermore,
    in
    its denial
    letter,
    the Agency stated that
    Section
    4(m)
    of the Act may be
    violated.
    The Board reiterates
    that Section
    4(m)
    does
    not
    require an applicant
    to secure concurrences
    of the planning
    agencies under
    the IWQMP prior
    to full Agency technical
    review.
    The Board also emphasizes, as Calvary states
    its its
    reply,
    the Board has jurisdiction
    to review permit denials when
    an
    applicant
    files a review pursuant to Section
    40 of
    the Act.
    In
    this regard,
    the Board
    is not convinced that
    its reliance on the
    Jurcak opinion
    is misplaced.
    The Agency points to apparent
    factual differences between the instant appeal and the Jurcak
    appeal.
    The Agency appears to be arguing that the reason the
    Board had jursidiction
    in the Jurcak case
    is due
    to the fact that
    the Agency issued a permit with conditions,
    giving the Board
    something
    to review.
    The Board believes
    that there is an obvious
    flaw
    in this reasoning,
    as, taken
    to its logical conclusion,
    the
    Agency
    is arguing
    that the Board would never have
    jursidiction
    in
    any permit denial.
    This
    is clearly contrary to Section
    40 of
    the
    Act.
    The Board realizes
    that there are factual differences
    between the instant case and the Jurcak appeal.
    These
    distinctions are mainly
    that Jurcak elected
    to go through
    the
    Agency’s conflict resolution procedures
    under
    the Agency’s
    Section
    351 rules,
    prior
    to
    review by the Board,
    where the
    applicant here did not.
    The Board believes
    that these
    differences do not affect the application of
    the reasoning
    of
    the
    Jurcak Opinion
    to this matter.
    The Agency also argues
    that since Calvary did not go through
    the Section
    351 conflict resolution procedures,
    or appeal
    the
    Agency’s decision to
    the circuit court, Calvary has failed
    to
    exhaust
    its administrative
    remedies,
    leaving
    the Board without
    jurisdiction.
    The Board
    finds
    that there
    is
    no requirement that
    all other options be
    exhausted before an applicant may appeal
    a
    112—38~

    —3—
    permit denial
    to the Board.
    Although the Board’s role
    in permit
    denials
    is quasi—judicial, Board review
    is an administrative
    remedy.
    Section 40 of the Act provides a clear
    right
    to an
    applicant to appeal a permit denial to the Board and the Board
    has clear
    jurisdiction to review such denials under
    the Act.
    To
    hold otherwise could also be interpreted as stating that
    applicants must request that the Agency reconsider a permit
    denial prior
    to any appeal to the Board—-a situation which has
    never been required.
    For the reasons stated above and in the April 26,
    1990
    Opinion,
    the Board declines
    to change its determination.
    IT
    IS SO ORDERED.
    I, Dorothy
    M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    ~7/~i~
    day of
    __________________
    ,
    1990,
    by
    a vote
    of
    •7—~:::)
    ~.
    ~
    Dorothy M.
    nn,
    Clerk
    Illinois Pollution Control Board
    112—387

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