ILLINOIS POLLUTION CONTROL BOARD

September

29, 1975

PEABODY COAL COMPANY,

)

a Corporation,

Complainant,

v.

)

PCB 75—274

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD (!y Mr. Dumelle):

The Motion to Dismiss filed by Respondent on August 4, 1975

is qranted. Counts I and II are dismissed because of insufficiency

in that Complainant has not included sufficient matter which will

demonstrate that the mine activities will not violate Rule 605(a)

of Chapter 4: Mine Related Pollution and Part 2 of Chapter 3:

Water Pollution Regulations. Complainant’s challenge of the

regulation would better be directed in a regulatory amendment

proceeding.

Count III is dismissed because the Board lacks jurisdiction

in a permit appeal case to hear appeals concerning certification

of National Pollution Discharge Elimination System (NPDES) permits

by Respondent (see Chrysler v. EPA, PCB 74—366 and 74—466).

Count IV is dismissed without prejudice as an inadequate

enforcement complaint. In dismissing, we do not hold that an

appropriate enforcement case could not be heard. Respondent by

misapplying the rules and regulations might be found in violation

of an appropriate sect.ion of the Act or the rules and regulations.

Peabody is free to appeal the determination by the Agency

that permit applications should be denied because Water Quality

Standards of Chapter Three and Rule 605(a) of Chapter Four would

be violated by the activity for which the permit is sought.

The Board is cognizant of Peabody’s plight in regards to

State and Federal permit programs. However, until Illinois

has been delegated the NPDES permit program, the Board has no

direct jurisdiction to review the actions of the Agency in

certifying NPDES permits.

18—638

---

—2—

A petitioner can request a variance from the State

rule in question. Should the Board grant the variance, such

petitioner could request that the Agency modify the certifi-

cation, or request the U.S. EPA to modify the NPDES permit

to reflect the variance. If the Agency has erred in

applying the State £tandards in the certification process,

the Board could conceivably hold that petitioner did not need

a variance because it was not subject to such a condition.

Presumably, the hgency would then modify the certification,

or the U.S. EPA \could modify the NPDES permit if it has been

issued with the erroneously applied State requirements.

The above captioned case is dismissed without prejudice.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Order was adopted on the

~q”

day

of September, 1975 by a vote of

£/~c~

Illinois Pollution

trol Board

18

—

639