ILLINOIS POLLUTION CONTROL BOARD

July 14,

1983

CATERPILLAR TRACTOR CO.,

Petitioner,

)

PCB 79—180

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by 3.

Anderson):

On June

2,

1983 the Board issued an Interim Order in

response to Caterpillar’s May 6,

1983 motion to dismiss this

NPDES permit appeal on the grounds that on April

18, 1983 the

Agency had issued a permit resolving the issues here in dispute.

In its Order, the Board found that the Agency had no jurisdiction

to “issue” subsequent permits while a permit appeal

for the same

operation at the same facility was still pending, based on its

holding

in Album,

Inc.

v.

IEPA,

PCB 81—23,

24

(March 19 and

May 1,

1981),

The Order invited the parties

to file supplementary

arguments;

Caterpillar filed a supplement June 21, as did the

A~encyJune

22.

Caterpillar~sprimary argument is that the April

18,

1983

permit should be considered a voidable permit,

rather than a void

one.

The argument is premised on the fact that since the Agency

has the legal power to issue permit modifications according to

Illinois contract law, any unauthorized use of that power by the

Agency would result in a permit which could be voided or validated

by the permittee,

but which could not be repudiated by the Agency.

See Litchfield

v. Litchfield Water Supply Co.,

95 Ill. App.

647

(1901), and Corbin on Contracts §6

(1952).

Caterpillar argues

that its Motion to Dismiss amounts to a satisfaction of the

modified permit,

which would be upheld by a Board Order dismissing

the appeal.

The Agency argues that Album

is distinguishable from this

situation because the permittee has accepted the conditions of

the instant permit,

as Album

did not, and because of the

differences between the state’s own air permitting program

involved in Album, and the federally delegated NPDES permit

program here involved.

53-01

---

The

Agency

not~s

that

the

August

30,

1979

NPDES

permit

here

appealed

expired

by

its

terirs

June

30,

i981,~

pursuant

to

federal

regu~

di

ion

The

pe

niancy

of

this

appeal

continued

the

effect

of

this

NPI)ES

~ermit

heiced

i

t~

terms

until

final

Board

action

in

the

matter,

corls:Lsrent

wIth

the

determination

in

Bo~~cirnerCorr,v~

Maui

y,

)0

1

App

3d

8

h

2

2

1

‘1

~

2

a

4L

(

i

98

of

the

app?

i

cabil

it

y

of

ti~e Sect

ron

16

(

a)

111 inois

Administrative

Procedures

Act

(AP~)

to

NPDEr~ pexm~t

appear

S

However,

prior

to

the

rendering

of

that

decision,

Caterpillar

filed

an

application

for

renewal

of

the

contestea

permIt

180

days

before

its

expiration

in

~L9Ri,

The

permit

purportedly

issued

April

18,

1983

was

in

apparent

response

to

tiLLS

application

An

effective

date

of

May

18,

i983

was

a~s~qraedto

~:he

permit

The

Agency

therefore

argues

that

the

permit

which

is

at

issue

here

ceased

to

cont:nue

a

~rre

and

effect

on

May

17,

1983,

since

the

“issuance~

of

the

1~pr.rl

t8,

198:3

permit

constituted

final

Agency

administrative

action

on

the

1981

permit

renewal

application

which

served

to

extinguL~h

rae

extended

life

of

the

1979

permit

pursuant

to

Section

:

6

~f

the

APA,

The

Agency

argues

that

if

the

April, 1983 permit

:ts

not.

giver,

effect,

that

Caterpillar

would

be

found

to

have

been

drscl

arging

w~.

thout

a

permit

s:Lnce

May.

The

Agency

additionally

argues

that

the

situation

is

complicated

by

the

fact

that

CSEPA

has

a right

to object to

State—

proposed

NPDES

permits.

In

the

Agency’s

words,

“Requiring

dismissal

of

an

NPDES

permit

review

prior

Le

i.ssuance

of

a

new

ypgy~’ iermia

~onl

i

very

we~.

I

place

the

AgerLr~’ and

diac

r

~ger

in

Ithe

untenable

~OSi

t~1~)nci

bar

::n~

~c

Jr

iss

I spa:

proree:thnqs

concerning

inrert

:retatioi

ci:

an

existing

permit

at

a

point

wher

the

unities

wouth

not

know

whether

USEPA

would

Jr ~

rho

nix

NPDES

permit

to

be

issued.’

(

Supp.

p

F

I

As

to

the

Aqency~

assertion

that

the

1979

permit’s

APA—

extended

life

was

eatinquished

by

ihe

passing

of

the

time

for

aopeal

of

the

peirrli:

“issued’

April.

t8,

1983,

Borq~~qar~er

clearly

states

that

“A

final

~adrrin_strutivej

decisron,

,

.will

not

he

forthcoming

until

the

PCFI

rul?.s

or

rho

permit

application.

Ihue,

urtul

that

time,

under

Section

16

(b)

of

tire

APA

,

the

mrffect~.veuess

od

the

renewed

permit

issued

by

tire

EPA

is

its

yed

.

While

the

Borg~~Warri’rrrourt

was

speaking

of

tao

eftectiveness

of

the permit

which was the subject of the appeal,

the logic would

apply to any later “issued” permit as well,

However,

the

Caterp:Lllar

“vordable hut not void” permit

argument,

as

buttressed

by the Agency’s “draft permit

subject

to

USEPA review”

argument,

is

persuasive.

The Board

finds that the

53-02

---

3

permit “issued” April

18,

1983 is

a

voidable permit,

having no

effect until the dismissal of the instant permit appeal.

Caterpillar’s May

6,

1983 motion to dismiss

is

hereby granted.

In reaching this result, the Board expresses no judgment

on

the conditions contained

in

the April

18, 1983 permit, which has

not been submitted to it,

The Board additionally comments that,

had Caterpillar determined one or more conditions of that permit

to be objectionable, no appeal of that permit could have been

pursued until dismissal of this action,

This is in

line both with

the Album

holding and the ruling on the voidability

question made

here,

IT IS SO ORDERED.

I, Christan

L. Moffett,

Clerk of the Illinois Pollution

Control Bo’d, hereby certify that the

above Order was ad pted

on

the

_____

day of

_____

1983 by a vote of

_____

Christan

L.

Moffe&~)

Clerk

Illinois Pollution Control

Board

53-03