ILLINOIS POLLUTION CONTROL

BO.kR!)

August

15, 1985

VILLAGE

OF GILBERTS,       

)

)

Petitioner,

)

v.

)

PCB 85-96

)

FIOLIDAY PARK CORPORATION and   

)

LLINOIS

ENVIRONMENTAL      

)

NOTECT ION

AGENCY,        

)

Respondents.

)

ORDER

OF THE BOARD (by J. Anderson):

This petition, filed by the Village 

Cilberts JuLy 

L985, requests that the Board “review and rescind... a 

deClS-tC)n

of the IEPA amending the Water Quality Management Plan and

granting Holiday Park Corp. a point source discharge to Tyler

Creek.” (Pet. p. 8). Motions to dismiss for lack of subject

matter jurisdiction were filed by Holiday on 

July 16,

and by the

Agency on

July 17, 1985. Verified responses concerning issuance

of an NPDES permit were filed by the Village and the Agency on

August 9; the Agency also presented new arguments for

dismissal.

On August 12, Holiday moved for leave to file an

unverified pleading, including a second motion to dismiss.

Fhe

motion for leave was mooted by the August 14 filing of a verified

pleading. A response 

in opposition to dismissal was filed by the

Village August

13”. The Village filed a response thereto on

August 15.

Holiday Park sought an NPDES permit for a point source

discharge from a proposed sewage treatment plant to treat

wastewater from a mobil home park proposed to be constructed in

the Village. Issuance of this permit apparently would have been

inconsistent with the Illinois Water Quality Management Plan

(IWQMP, also known as the Section 208 plan) (Pet. p. L-2).

On June 1, 1984, Holiday filed a Petition For Conflict

Resolution with the Agency pursuant to 35 Ill. Administrative

Code, Subtitle C, Chapter II, Section 351.101 et seq. (Agency

File #7240). (These are rules adopted by the Agency pursuant to

the Illinois Administrative Procedures Act, but not the

Environmental Protection Act; they are not Board Regulations.)

Holiday’s Petition For Conflict Resolution requested an amendment

to the Illinois Water Quality Management Plan to reflect 

the

addition of a new point source.

65-283

-2-

During the month of August, 1983 and prior to filing its

Petition For Conflict Resolution with the Agency, Holiday Park

filed its requested amendment of the IWQMP with the Northeastern

Illinois Planning Commission (NIPC). On September 18, 1984 and

on October 3, 1984, the Agency conducted a hearing on Holiday’s

Petition For Conflict Resolution pursuant to 35 Ill. Adm. Code,

Section 351.101 et seq.. (Holiday motion, p. 1-2). A draft

NPDES permit was also apparently a subject of discussion. The

Village asserts that NIPC, Kane-DuPage Counties Solid and Water

Conservation District, Kane County, and the Kane County Forest

Preserve District all appeared at the hearing and objected to an

NPDES permit and amendment of the IWQMP. (Pet. p. 5).

On May 28~ 1985, the Agency rendered its Final Decision,

which provides in pertinent part:

“It is the Decision of the Agency that the Areawide Water

Quality Management Plan for Northeastern Illinois be amended to

allow the inclusion of a point source discharge to be located

North of Illinois Route 72 at a retention lake which would be

tributary to Tyler Creek, Village of Gilberts, Kane County,

Illinois, to allow the construction of the sewage treatment

plant proposed by Petitioner Holiday Park, and to identify

Petitioner Holiday Part as the Designated Management Agency for

its facility, subject to the following conditions...” (Holiday

Motion, p. 2).

An NPDES permit was issued to Holiday on July 22, 1985 

20

days after the filing of this action. The Agency and Holiday

assert that the Board lacks jurisdiction to review IWQMP

decisions under Section 40 of the Act, and no other provision of

the Act confers jurisdiction. The Agency states that the

procedure for review of its decision is provided for in its

rules, specifically, that any party may request that the

Regional Administrator, United States Environmental Protection

Agency, Region V, review the decision of the Agency pursuant to

40 C.F.R 35 1517(c).” (35 Iii. Adm. Code 

351.403).

The Board agrees with the Agency that the Board lacks

jurisdiction under the Act, although other avenues of review may

be available pursuant to state law. This position is consistent

with the holding in National Marine Service v. IEPA, 120 Ill.

App. 3d 198, 458 N.E.2d 551 (4th Dist. 1983), finding that appeal

lies to the circuit court, and not the Board, from an Agency

decision not to issue a state certification for a dredge and fill

permit pursuant to Section 404 of the Federal Clean Water Act

(FCWA), 33 USC 1251 et seq. Citing Peabody Coal Co. v. PCB, 49

Ill. App. 3d 252, 364 N.E.2d 929 (1977) (concerning state

certifications review of Agency decisions under Section 402 of

the FCWA), the court stated that

“We read Peabody as holding that where a Federal

permit system is at hand, the PCB, absent a statutory

grant of 

power,

is without authority to become

65-284

-3-

involved in reviewing the state certification process

which must be followed before a Federal permit may

issue. This reading is consistent with the

restrictive view of the PCB’s authority to oversee

the IEPA’s activities which was noted by our supreme

court in Landfill, Inc. v. Pollution Control Board

1978, 74 Ill, 2d 541, 387 N.E.2d 258.**~~In light

of Landfill, Peabody is properly read as holding that

the PCB is without authority to hear an appeal from a

denial of section 401 certification.”

The Board believes that this analysis is equally applicable

Lo the Agency’s actions pursuant to Section 208 of the FCWA.

The Board’s rules governing NPDES permit appeals allow ‘any

person other than the applicant who has been a party to or

participant at an ~  hearing ‘~iithrespect to the issuance or

denial of an NPDES permit by the Agency” to file a petition for

review of such action. 35 Ill. Adm, Code 105.102 (b)(3) 

“The

petition shall be filed and notice issued within 30 days from the

date the Agency’s final decision has been mailed to the applicant

and all other persons who have right

of appeal. The method of

Filing shall be in accordance with Sections 103.122 and

103.123.” 35 Iii. Adm.. Code 105.102 (b)(4). “The petition shall

contain a statement of the decision or part thereof to be

reviewed.” 35 Iii. Adm. Code 102.105 (b)(7).

The Agency asserts that, to the extent that the petition may

he construed as a challenge of an NPDES permit, that the action

should be 

dismissed because a) the Village lacks standing to

pursue the action, b) the petition was untimely, since there was

no permit in existence at the time of its filing, and c) the

petition is insufficient, in that it does not specify which

portion or portions of the permit are to be reviewed. Floliday

Park also asserts that the petition was untimely, but on the

basis that the 30 day appeal time should run from May 28, the

date of the Agency’s IWQMP decision, rather than July 

22,

~985

the date of issuance of the NPDES permit; this argument is

summarily rejected.

The Agency’s lack of standing argument is premised 

the

position that Section 40 of the Act does not explicitly authorize

third party appeals of NPDES permits, and thus to the extent

Section 105.102 (b)(3) asserts such jurisdiction, the rule is

invalid pursuant to the holding of Landfill, Inc., supra.

However, this argument does not take into account Section 

of the Act. Section 11(a) recites the legislative findings of

the desirability

of Illinois’

securement of NPDES

enforcement

primacy.

Section 11(b) “authorize(s),

empower(s), and direct(s)

the Board to adopt such regulations

...

as will enable 

the State

to secure federal approval to issue NPDES permits

...“.

The

question then becomes one of whether third party appeals of NJPDES

p~?rmits is federally required.

65-285

—

4

The regulations

at issue were adopted in Docket R73-11 and

12, In The Matter of: National Pollutant Discharge Elimination

System Regulations Orders of August 29

and

September 5, 1974, and

Opinion of December 5, 1974.

In summary, the Opinion does not:

note that the third party appeal is federally required,

although

it does note at some length that the opportunity for pubLic

hearing at the Agency level is required prior to issuance or

denial of a permit.

(See esp. pp.

1,

4-7).

The Board has ~uis~

reviewed the October 20, 1977, USEPA/lilinois

Memorandum of

Agreement giving the State NPDES enforcement primacy; it does not

specifically

reference permit appeal procedures, although these

procedures were part of the package submitted to secure the NPDES

program for the state.

40 CFR Part 123 sets forth state program requirements

for

~4PDES, RCRA and other programs, and Part 124, set out procedures

for decisionmaking by USEPA,

Section 124.91 provides that third

parties may appeal NPDES permit decisions;

this is not a

requirement which has been made specifically

applicable to State

programs in Part 123.

However, it should also be noted that Section 124,19, ~Lving

third party appeal rights concerning RCRA and UIC permits, is

also not specifically

applicable to state programs pursuant to

the terms of Part 123.

Notwithstanding, LJSEPA interpreted third

party appeals

as being 

an essential portion of the state RCRA

authorization package, so the Board adopted rules giving such

rights,

see R84-1O, In The Matter of RCRA and IJIC Procedural

Rules, Order of December 20, 1984, Opinion of January 10, 1985.

On this basis, the Board believes (JSEFA, if asked, would

conclude

that third party appeal rights are an essential

part of the NPDES

package.

If the Board does not allow appeals of NPDES permit;s to

proceed, the State’s NPDES primacy could be jeopardized.

However, the Board does believe the Agency’s arguments

concerning timeliness and sufficiency of the Village’s petit~on

have merit, and dismisses the action on these grounds. The Board

notes, however, that this does not preclude the Village From

initiating a new action by the timely filing of a sufficient

petition for review of the July 22, 1985 permit, specifying the

portion of the permit for which review is sought.

Finally, to the extent that the Village’s petition

may

charge violations of the Act, they have been made in a

procedurally improper manner.

If the Village’s intent is to

File

an enforcement action pursuant to Section 31(b)

of the Act, cf.

Landfill,

supra, a proper complaint should be filed and served i~n

accordance with 35 Ill, Adm, Code Part 1039 the Board’s

procedural rules governing enforcement cases

Accordingly, for all of the

foregoing reasons, this action

is dismissed.

—5—

IT S SO ORDERED.

Theordore Meyer dissented.

I, Dorothy M. Gunn, Clerk of the Illinois 

Pollution Control

Board, hereby certify that the above Order was adopted on

the

day of _________________________, 1985, by a 

vote

of

•

II)

Dorothy

/~‘~

M./Gunn,

i2~.

Clerk

Illinois Pollution Control Board

85-287