ILLINOIS POLLUTION CONTROL BOARD

September

17,

1987

PIKE COUNTY SAND AND GRAVEL,

Petitioner,

PCB 87—50

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by J. Anderson):

On August 24,

1987

the Agency filed a motion for

reconsideration of

the Board’s Order

of August

6,

1987 denying

the Agency’s motion to dismiss

the first count

of this permit

appeal.

No response has been filed.

The motion

for reconsideration

is granted.

Upon

reconsideration,

the motion

to dismiss for lack of subject matter

jurisdiction

is denied.

The Agency alternatively requests the Board

to determine

either that

a)

the withdrawal here of

a Section 404.103(c)

permit exemption

is not reviewable,

or

(b)

if the September

26,

1986 withdrawal was reviewable,

that the petition

for review

should have been filed within

35 days of that date.

The Board

notes

that while the Agency has presented arguments against

reviewability,

the Agency also stated

its belief that the

“substantially better view”

is

to find

in favor

of

reviewability.

The Board agrees with the Agency’s arguments

in

favor

of

a finding that an Agency determination of withdrawal

is

reviewable

(see August

4 motion

to dismiss

at

P.

4—5), and finds

that such determinations

are reviewable.

The issue

then becomes one of

the timeliness

of the petition

for review.

The Agency’s letter withdrawing the exemption and advising

Pike County of

the need for

a permit

(Agency Rec.,

Exh..

54)

states:

“Please

be

advised

that

the

permit

exemption

granted

April

16,

1982

shall

continue

for

forty—

five

(45)

days

from

the

date

of

this

letter

and

pending

the period during which

the required permit

application

is under

review by this Agency.”

81—279

---

—2—

By

its terms, the letter indicates that

the Agency did not

consider its determination final

until

it had acted upon

a permit

application filed within 45 days of September

26,

1986.

Pike County filed

its permit application on October

27,

1986.

The Agency’s March 26,

1987 denial

of that application

is

the subject of

this appeal, which

the Board has ruled was timely

filed within

35 days.

Accordingly,

the Board finds

that

it has jurisdiction

to

hear both counts of Pike County’s petition.

IT IS SO ORDERED.

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certi~ythat the above Order was adopted

on

the

/7tiday

of ~

,

1987,

by

a vote of

________

(

c~CZ1

~.

~

Dorothy M.

c~unn,Clerk

Illinois Pollution Control Board

81—280