ILLINOIS POLLUTION CONTROL BOARD
    October
    20,, 1988
    JEFFERSON SMURFIT CORPORATION,
    )
    Petitioner,
    v
    )
    PCB 88—112
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by 3.
    Anderson):
    On August
    19, 1988,
    the Illinois Environmental Protection
    Agency
    (“Agency”)
    filed
    a motion
    to strike.
    Petitioner,
    Jefferson Smurfit Corporation
    (“Smurfit”)
    filed no response
    in
    opposition to the Agency’s motion.
    On September
    8’,
    1988,
    the
    Board
    in this proceeding and in proceedings under docket PCB 87—
    84,
    ordered that
    the parties simultaneously brief the following
    issues
    in this matter:
    1.
    Whether
    the
    proceeding
    Alton
    Packaging
    Corporation
    v.
    IEPA,
    PCB
    85—146,
    “Alton
    case”)
    currently pending
    in the United States
    Supreme
    Court,
    has
    sufficient
    nexus with
    the
    instant
    proceeding
    to
    remove
    the
    Board’s
    jurisdiction to act here?;
    and
    2.
    If
    the
    Board
    does
    have
    jurisdiction
    to
    act,
    whether
    the
    theory
    articulated
    in Caterpillar
    Tractor Co.
    v.
    IEPA, PCB 79—180, July 14, 1983
    citing
    7~lburn,
    Inc.
    v.
    IEPA,
    PCB
    81—23
    requires
    the
    Board
    to
    dismiss
    the
    permit
    appeal
    filed
    in PCB 88—112?
    On September
    22,
    1988,
    in docket PCB 87—84,
    the Agency filed
    its “Response To Board Order” contending,
    in effect,
    that the
    Board’s September
    8 Order requiring briefs is not necessary under
    its view
    of the case and that the Agency’s Motion to Dismiss
    in
    docket PCB 87—84
    is not factually related
    to the issues for which
    briefing was ordered.
    The Agency’s response did not,
    therefore,
    attempt
    to respond to the Board’s Order
    in the form of
    a brief of
    the respective
    issues.
    However, on October
    11,
    1988,
    in
    this
    Docket,
    the Agency filed
    its Brief
    in Response
    to Board Order.
    In its brief,
    the Agency contends that the Board does not have
    jurisdiction, citing
    the Board’s decision in Joliet Sand and
    Gravel Co.
    v. IEPA (PCB 87—55)
    and the then—currently—pending
    Alton case.
    93—223
    —2—
    On October
    17,
    1988,
    Smurfit filed
    a Motion to Suspend
    Further Briefing on Jurisdiction
    in both dockets PCB 87—84 and
    PCB 88—112;
    Smurfit essentially argues
    that the issues raised
    in
    the Board’s September
    8 Order are now moot,
    insofar
    as the United
    States Supreme court on October
    11,
    1988
    (the same day that
    the
    Agency filed
    its brief),
    denied Smurfit’s petition for
    a writ of
    certiorari
    from the Board’s decision
    in Altori Packaging
    Corporation
    v.
    Environmental Protection Agency, PCB 85—145
    (“Alton case”).
    The Board notes that the denial of the writ of Certiorari
    in
    the Alton case appears,
    indeed,
    to remove the need for briefing
    of the first enumerated
    issue identified
    in the Board’s
    September
    8 Order.
    It
    is not clear,
    however,
    that, as Smurfit contends,
    the denial
    of the petition for writ of certiorari necessarily
    renders briefing of the Board’s second enumerated issue
    a
    “wasted”
    effort.
    Even Smurfit acknowledges
    (at page
    4)
    that
    “a
    full examination of these issues would take considerable time and
    resources”.
    This being
    the case,
    it can hardly be argued that
    resolution of the
    issues are either self—evident or are
    adequately addressed by a single page
    (page
    3)
    of
    the
    Petitioner’s October
    17,
    Motion, particularly where the Agency
    has not directly addressed
    the issue
    at allin Docket PCB87—84 and
    where the Agency’s brief
    in this docket could not and did not
    anticipate denial of certiorari
    in the Alton case.
    For the reasons stated
    above,
    the Motion by Smurfit
    is
    granted
    in part and denied
    in part:
    the Board’s Order of
    September
    8, 1988
    is hereby amended
    to delete reference
    to the
    first enumerated
    issue.
    The parties are directed
    to file their
    respective briefs not later than November
    14,
    1988.
    Any reply
    shall be filed not later than November
    28, 1988.
    Today’s Order
    is not intended
    to impair
    the obligations
    for expeditious hearing
    in any way.
    The Board
    notes that no hearing date has been set by
    the Hearing Officer
    in Docket 87—84 although
    a hearing has been
    scheduled for December
    7, 1988,
    in Docket 88—112.
    The Board will
    rule on the Agency’s Motion to Strike by separate Order
    at
    a
    later date.
    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~c’~-~day
    of
    ~
    ,
    1988,
    by
    a vote
    of
    7~
    Dorothy M.
    ~y~nn,Clerk
    Illinois P61’lution Control Board
    93—224

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