ILLINOIS POLLUTION CONTROL BOARD

February 10,

1983

PHILLIPS PIPE LINE COMPANY,

)

Petitioner,

)

v.

)

PCB 82-451

tLLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

ORDER OF THE BOARD

(by I.

G.

Goodman):

On January

10,

1983 the Illinois Environmental Protection

Agency (Agency) filed a Motion to Dismiss the permit appeal filed

by Phillips Pipe Line Company

(Phillips) on December 27,

1982.

Phillips filed a Motion to File Instanter and

a Response on

January

25,

1983.

Motion to File Instanter is granted.

In support of its Motion, the Agency cites Abbott Laboratories

v.

Illinois Environmental Protection Agency, PCB 81—33

(March 19,

1981);

41 PCB

119).

Dicta contained

in the Abbott decision states

that should a permit be ~reopened” by the Agency prior to a permit

appeal being filed with the Board the appeal would be moot since

there would be no final action by the Agency for purposes of such

a review.

On this premise,

the Agency argues that since the permit

appeal and permit reapplication were filed simultaneously, the

former should be dismissed.

However,

in this instance, the permit

appeal

is not mooted,

The Agency has not rescinded its decision

to include the contested conditions on the permit issued, or in

the alternative,

issued the requested Malfunction and Breakdown

permits.

Thus,

the Agency’s decision is properly appealed by

Phillips under Section 40 of the Act,

Neither the Agency (other

than by rescinding

its prior decision) nor the Board can deny

Petitioner that statutory right.

The Motion to Dismiss is denied.

In its Motion the Agency raises the legitimate concern that,

within the concurrent ninety—day periods, conflicting actions

could be taken by the Agency,

in its permitting capacity, and

the Board, within its adjudicatory posture.

However, pursuant to

the decision in ~

V.

Illinois Environmental Protection

Agency, PCB 81—23 and PCB

81—24

(March

19,

1981;

41 PCB 113) this

conflict cannot arise,

The Board stated therein that once permits

are issued and appealed to the Board,

they cannot be nullified by

Agency modification or reissuance until the appeal

is determined.

51-139

---

The Board’s rat’oraie

cess or

equipment a~id

cannot have

sirul~nn~

the

Act,

the

Agei

application

no’~ befc a

Album

decision

b~

cannot be

modi’~ia

Board in

thi~ie~

proceeding,

a

o~

~

period is

impl cJ~

~n r~

cover~ng

the

same

pro—

o

~e

same legal

authority

u

er Section

39(a)

of

~d.

~ decision on the

permit

Pursuant to

the

sarre matters

at issue

-

ion

taken

by the

-iore~controls

this

s rinety-’day

decision

In

Album

settlements

are

Phillips’

Respor’e

i

accompanying

six y

period, to

facilltE

with the

understanar~

proceed

expeditioks

f

egotiations and

~e process.

The

-v

days, with

an

ninety—day

decision

~ stay

is

granted

-n the

appeal will

IT IS

SO ORD~R~

I,

Christan

t~

Control Board,

here~

c :~r~

on the

‘b~

day

O~

~.

~1~uois

Pollution

~

~a’e

Order

was adopted

~83byavoteof

/

/

f’~et~,

Clerk

~or Control Board