ILLINOIS POLLUTION CONTROL BOARD
    October
    5,
    1989
    IBP,
    INC.,
    Petitioner,
    V.
    )
    PCB 89—128
    (Permit)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by J. Marlin):
    On August
    21,
    1989,
    the Illinois Environmental Protection
    Agency (Agency)
    filed a Motion to Dismiss.
    IBP,
    Inc.
    (IBP)
    filed
    a Response
    to the Agency’s Motion
    to Dismiss on August
    25, 1989.
    The Agency requests that the Board dismiss IEP’s permit
    appeal because the time to appeal has elapsed or,
    in the
    alternative, because the Agency did not make
    a final decision in
    this matter and therefore the issue
    is not
    ripe for appeal.
    The
    Agency also suggests that the instant appeal
    is moot due
    to a
    recently issued permit.
    By its Order of August
    31, 1989,
    the Board ordered the
    parties to make additional
    filings verifying factual statements
    asserted
    in previous filings and address Caterpillar Tractor Co.
    v.
    Illinois Environmental Protection Agençy,
    PCB 83—86
    (October
    18, 1983).
    IBP filed
    its response
    to the Board’s Order
    on September 21,
    1989.
    The Agency filed its response on September
    28,
    1989 with a
    Motion to File Instanter.
    That motion is granted.
    On October
    3,
    1989,
    the Agency filed
    a Motion
    to Amend
    its Motion to Dismiss.
    The amendment is hereby allowed.
    The factual assertions made by the recent filings have been
    verified by accompanying affidavits.
    As
    a result
    it appears that
    the following
    represents an accurate chronology of events.
    March
    16,
    1989
    -
    The
    Agency
    received
    IBP’s
    application
    for
    a
    renewal
    of
    its
    permit
    to
    spread
    paunch manure.
    April
    13,
    1989
    —
    The
    Agency
    attempted
    to
    send
    to
    IBP
    a
    letter,
    dated
    April
    12,
    1989,
    entitled
    1O4~-O5
    2
    Notice
    of
    Incompleteness.
    July
    21, 1989
    —
    IBP received a copy of
    the
    April
    12th kgency
    letter.
    August
    7,
    1989
    —
    The Agency
    received
    a
    second application
    for
    the
    renewal
    of
    the
    permit
    to
    spread
    paunch manure.
    August
    10,
    1989
    —
    IBP
    filed
    a
    Petition
    for Review challenging
    the Agency’s April
    12,
    1989 decision.
    September
    22,
    1989
    —
    The Agency
    issued
    ISP
    a
    permit
    to
    spread
    paunch manure.
    The Agency asserts that the above
    facts are analogous
    to
    those presented in Caterpillar and Reichold Chemicals,
    Inc.
    v.
    Illinois Environmental Protection Agency, PCB 89—94
    (June
    8,
    1989).
    As a result,
    the Agency states that those decisions
    should be followed and IBP’s August 10th petition should be
    dismissed.
    Additionally,
    the Agency states that since IBP now
    has
    a permit the instant appeal
    is moot.
    ISP seems
    to be concerned with the impact a dismissal will
    have on
    the effectiveness of
    the permit which
    it
    sought
    to
    renew.
    Specifically,
    IBP
    raises
    the issue as
    to the
    timing of
    its renewal application.
    In
    its response to the Board’s Order,
    ISP states:
    If
    the
    Board
    determines
    that
    the
    effective
    date
    of
    the
    reapplication,
    if
    any,
    relates
    back
    to the date
    of initial application,
    then
    Petitioner
    will
    concede
    that
    the
    issues
    raised on appeal
    are moot.
    However,
    if
    the
    effective
    date
    is
    the
    date
    of
    submission
    of
    additional
    information
    to
    the
    Agency,
    the
    appeal
    is not moot....
    (ISP
    Response
    to
    Order,
    p.2).
    While
    not expressly mentioning
    it,
    IBP
    is likely referring
    to the
    issue of
    a stay under
    the Administrative Procedure Act
    (APA).
    Section 16(b)
    of
    the APA provides:
    When
    a
    licensee
    has
    made
    a
    timely
    and
    sufficient
    application
    for
    the
    renewal
    of
    a
    in4.~r)6
    3
    license
    ...
    the
    existing
    license
    shall
    continue
    in
    full
    force and
    effect
    until
    the
    final
    agency decision on
    the application
    has
    been made....
    Ill. Rev.
    Stat.
    1989,
    ch.
    127, par. 1016(b).
    The Board
    is persuaded by the Agency that Caterpillar and
    Reichold Chemicals are controlling.
    Here,
    ISP re-opened its
    application
    for
    a permit
    renewal subsequent
    to the Agency’s April
    12th decision yet prior
    to filing an appeal of that decision with
    the Board.
    The same relative timing
    of events occurred in
    Caterpillar and Reichold Chemicals.
    In both those
    cases,
    the
    Board dismissed the pending permit appeal.
    The outcome does not change even though the Agency did issue
    a permit on September
    22,
    1989.
    While
    ISP may now file an appeal
    with respect
    to the September 22nd permit,
    the instant appeal was
    improperly filed;
    the April 12th decision was
    not final,
    since
    ISP pursued its application further with the Agency.
    An analogous situation occurs when the Board makes
    a
    decision.
    After
    a decision by the Board,
    a party may either file
    a motion for reconsideration with the Board or file an appeal
    with the Illinois Appellate Court.
    If the former option
    is
    chosen,
    the Board’s
    initial decision is not considered final for
    the purposes of appeal to the appellate court, and any such
    appeal, prior
    to the Board’s action on reconsideration,
    is
    improper and subject
    to dismissal.
    Clean Air Coordinating
    Committee
    v. Environmental Protection Agency,
    42
    Ill. App.
    3d
    124,
    355 N.E.
    2d 573
    (1st Dist.
    1976).
    However,
    the situation at hand
    is different from one where
    the Agency issues
    a permit subsequent to the proper filing
    of a
    permit appeal.
    In such a situation the subsequently issued
    permit
    is considered “voidable”.
    The pending permit appeal must
    be dismissed before the new permit may become effective.
    Joliet
    Sand and Gravel Company
    v.
    Illinois Environmental Protection
    Agency, PCB
    87—55,
    78 PCS 400
    (June 10,
    1987).
    Finally,
    if ISP were entitled to an automatic stay under
    Section
    16(b) of the APA,
    such a stay would certainly oe
    effective until the Board renders
    a decision with respect to
    a
    properly filed permit appeal.
    See Borg—Warner
    Corp.
    v. Mauzy,
    100
    Ill.
    App.
    3d 862,
    427 N.E.
    2d 415
    (1981).
    It must
    be
    remembered
    that the permit appeal process
    is an administrative
    continuum involving the Agency and the Board.
    It
    is only
    complete after
    the Board
    rules.
    Illinois Environmental
    Protection Agency
    v.
    Illinois Pollution Control Board,
    138 Ill.
    App.
    3d
    550,
    486 N.E.
    2d
    293,
    294
    (3rd Dist.
    1985)
    aff’d,
    Environmental Protection Agency
    v. Pollution Control Board,
    115
    Ill.
    2d
    65,
    503 N.E.
    2d 343
    (1986).
    1
    q/1.~1)7
    4
    For the above reasons,
    the Agency’s motion
    is granted, and
    this matter
    is hereby dismissed.
    Section
    41
    of
    the
    Environmental
    Protection
    Act,
    Ill.
    Rev.
    Stat. 1987
    ch.
    ill ~
    par.
    1041, provides for appeal of final
    Orders
    of
    the
    Board
    within
    35
    days.
    The
    Rules
    of
    the
    Supreme
    Court
    of
    Illinois
    establish
    filing
    requirements.
    IT
    IS
    SO
    ORDERED.
    I, Dorothy M.
    Gunn, Clerk of the Illinois Pollution Control
    Board,
    hereby certify
    th,at the above Order was adopted on
    the
    ~Z
    day of
    ______________,
    1989,
    by
    a
    vote
    of
    __________________.
    -
    :7
    ~
    /A
    /i~~
    ‘Dorothy M,/Gunn,
    Clerk
    Illinois;Pollution Control Board
    1fl/~118

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