ILLINOIS POLLUTION CONTROL BOARD
    December 18, 2003
    DES PLAINES RIVER WATERSHED
    ALLIANCE, LIVABLE COMMUNITIES
    ALLIANCE, PRAIRIE RIVERS NETWORK,
    and SIERRA CLUB,
    Petitioners,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and VILLAGE OF
    NEW LENOX,
    Respondents.
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    PCB 04-88
    (Third Party NPDES Permit Appeal)
    ORDER OF THE BOARD (by J.P. Novak):
    On December 2, 2003, Des Plaines River Watershed Alliance, Livable Communities
    Alliance, Prairie Rivers Network, and Sierra Club (petitioners) timely filed a petition asking the
    Board to review the issuance of a National Pollutant Discharge Elimination System (NPDES)
    permit issued pursuant to Section 40(e) of the Illinois Environmental Protection Act (Act).
    See
    415 ILCS 5/40(e) (2002); 35 Ill. Adm. Code 105.206(a). The permit was issued by the Illinois
    Environmental Protection Agency (Agency) on October 31, 2003, to the Village of New Lenox
    for its wastewater treatment plant facility in New Lenox, Will County, Illinois. The petitioners
    appeal on the grounds that the discharges will impair the stream water quality of the receiving
    stream. The petition meets the content requirements of 35 Ill. Adm. Code 105.210. The Board
    accepts the petition for hearing.
    A third-party appeal of an NPDES permit is authorized by Section 40(e) of the Act. 415
    ILCS 5/40(e) (1998). The Board’s procedural rules state that “[i]f the Agency grants or denies a
    permit under subsection (b) of Section 39 of the Act, a third party, other than the permit
    applicant or Agency, may petition the Board for a hearing to contest the decision of the Agency
    (415 ILCS 5/40(e)(1).” 35 Ill. Adm. Code 105.204(b).
    Section 40(e)(2) requires that the petition contains “a demonstration that the petitioner
    raised the issues contained within the petition during the public notice period or during the public
    hearing of the NPDES permit application, if a public hearing was held, and a demonstration that
    the petitioner is so situated as to be affected by the permitted facility.” 415 ILCS 5/40(e)(2).
    Further, Section 40(e)(3) provides that if the Board determines that the petition is not duplicitous
    or frivolous and contains a satisfactory demonstration under Section 40(e)(2), the Board shall
    “hear the petition.” 415 ILCS 5/40(e)(3). Petitioners appeared at and gave testimony on the
    permit at a public hearing held on April 24, 2003, at the New Lenox Council Chambers and
    presented written comments. Petitioners raised legal and scientific issues regarding flaws in the
    draft permit. The petition also states that petitioners will be affected adversely when pollution
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    discharged under the permit causes or contributes to diminished stream water quality and the
    creation of offensive conditions in the Hickory Creek.
    The Board finds that the petition is neither duplicitous nor frivolous and that the petition
    contains a satisfactory demonstration under Section 40(e)(2) of the Act. This matter is accepted
    for hearing. The hearing in this matter must be scheduled and completed in a timely manner,
    consistent with Board practices, and the applicable statutory decision deadline (set out in Section
    40(a)(3) of the Act), or the decision deadline as extended by a waiver.
    As the Board noted in
    McHenry County Defenders, Inc. v. IEPA (Aug. 6, 1998), PCB
    98-173, slip op. at 4-5, the Board has construed the Act and Section 40(e) as giving the person
    who had requested the permit: (1) the right to a decision within the applicable statutory time
    frame (now 120 days); and (2) the right to waive (extend) the decision period. The Village of
    New Lenox, the permit applicant, is the party with the right to a decision within 120 days and is
    the only party with the right to waive the decision deadline. The result is that failure of this
    Board to act within the 120 days would allow the permit applicant, the Village of New Lenox, to
    pursue an appellate court order as detailed in Section 40(a)(3) of the Act.
    The Board will assign a hearing officer to conduct hearings consistent with this order and
    the Clerk of the Board will promptly issue appropriate directions to that assigned hearing officer.
    The assigned hearing officer must inform the Clerk of the Board of the time and location of the
    hearing at least 40 days in advance of hearing so that a 30-day public notice of hearing may be
    published. After hearing, the hearing officer must submit an exhibit list, a statement regarding
    credibility of witnesses, and all actual exhibits to the Board within five days after the hearing.
    Any briefing schedule must provide for final filings as expeditiously as possible. Absent
    any future waivers of the decision deadline, the statutory decision deadline is now March 31,
    2004, (120 days from December 2, 2003). The Board meeting immediately preceding the
    decision deadline is scheduled for March 18, 2004.
    If, after appropriate consultation with the parties, the parties fail to provide an acceptable
    hearing date or if, after an attempt the hearing officer is unable to consult with all of the parties,
    the hearing officer shall unilaterally set a hearing date. The hearing officer and the parties are
    encouraged to expedite this proceeding as much as possible. The Board notes that Board rules
    (35 Ill. Adm. Code 105.102) require the Agency to file the entire Agency record of the permit
    application within 14 days of notice of the petition.
    IT IS SO ORDERED.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on December 18, 2003, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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