Appeal from the Circuit Court of Madison County; the Hon. P.J.
O'Neill, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
On October 30, 1981, the circuit court of Madison County granted summary judgment for plaintiff, Illinois Power Company, finding that its petition for permit review had concluded by operation of law for failure of the defendant, Illinois Pollution Control Board (Board), to take final action within 90 days as provided in section 40(a) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1040(a)) and enjoining the Board from taking any action inconsistent with this determination. From this decision the Board appeals.
The facts are not in dispute. Illinois Power Company (IPC) operates the Wood River steam-electric power plant located in East Alton, Illinois. IPC was originally issued a permit to discharge pollutants from the plant into Illinois waters pursuant to State regulations. When the Illinois permit expired, Illinois had been given the authority to administer the Federal water pollution control permit program, the National Pollutant Discharge Elimination System (NPDES). Therefore, IPC made application with the Illinois Environmental Protection Agency (IEPA) for a NPDES permit and it was issued on October 24, 1979.
On November 21, 1979, IPC petitioned the Board for review of certain conditions in the permit imposed by the IEPA pursuant to section 40(a) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1040(a)). At the same time, IPC filed a motion for stay requesting that the contested conditions be stayed until disposition of the review. The motion for stay was denied and on January 11, 1980, IPC filed a motion for rehearing. This motion was discussed at the Board's January 24, 1980, meeting but because several questions were raised concerning the motion, action was continued until February 7, 1980. At the February 7 meeting, the motion for rehearing was denied. Subsequently, a hearing officer was appointed to preside over a hearing on IPC's original petition for review. The hearing was set for October 2, 1980.
IPC then sought a declaratory judgment in the trial court that the review of the permit had concluded, that the Board was without jurisdiction to hold the October 2 hearing and that the permit as issued and appealed be deemed in effect. IPC relies on section 40(a) of the Act, which reads in part:
"If the Agency refuses to grant a permit under Section 39 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency. * * * If there is no final action by the Board within 90 days, petitioner may deem the permit issued under this Act * * *." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1040(a).)
Inasmuch as the Board did not act within the 90-day period, IPC claims the permit issues as a matter of law. See Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App.3d 434, 439, 405 N.E.2d 512, 516.
Here, the Agency did not "refuse to grant a permit" to IPC; rather, a permit was granted with certain conditions that IPC found unacceptable. In the trial court, the Board contested the applicability of the procedural requirements of section 40(a) to permit reviews where the Agency had not denied a permit but only attached conditions which an applicant found unacceptable. On this appeal, the Board has conceded the applicability of section 40(a) to this permit review but has requested that we not address this question in a precedential manner in our opinion. IPC has declined to accept this concession and has argued that the court should decide this important question. We agree.
• 1 We believe that it is apparent that the IEPA could effectively deny a permit to an applicant by attaching conditions to the grant of the permit that the applicant could not possibly satisfy. Only section 40 of the Act deals with the subject of permit reviews before the Board, and we are satisfied that the General Assembly intended the procedural time requirements to apply to all permit actions taken by the IEPA, otherwise the review of permit conditions would be outside the Board's jurisdiction, a result we believe could not be intended considering the comprehensive nature of the Act and the quasi-judicial function of the Pollution Control board. (See Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 554, 387 N.E.2d 258, 262.) The use of the wording "refuses to grant a permit" in section 40(a) of the Act is, in our opinion, equivalent to "denies a permit application as requested by the applicant." This is the view taken by the first chairman of the Board, Professor David P. Currie. Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 477 n. 435 (1975).
The Board admits no final action was taken within the 90 days but contends that section 40(a) does not apply to NPDES permit reviews; although, the wording of section 40(a) does not distinguish between permits issued under section 39(a) of the Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039(a)) and NPDES permits issued under section 39(b) of the Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039(b)), the latter section being drafted to insure that any such permit shall be in compliance with both Illinois law and regulations and the Clean Water Act of 1977 (33 U.S.C. § 1251 et seq. (Supp. 1978)) and regulations pursuant thereto. Because of the relationship between State and Federal law in the issuance of NPDES permits, the IEPA need not act on NPDES permit applications within 90 days. The United States Environmental Protection Agency has 90 days to object before a NPDES permit may issue (33 U.S.C. § 1342(d) (Supp. 1978)). But once the IEPA has acted, the permit review provisions of section 40 make no distinction between NPDES permits and other permits issued under the Act.
Instead, the Board asserts that section 13(b)(1) of the Act is controlling. That section provides:
"(b) Notwithstanding other provisions of this Act and for purposes of implementing an NPDES program, the Board shall adopt:
(1) Requirements, standards, and procedures which, together with other regulations adopted pursuant to this Section 13, are necessary or appropriate to enable the State of Illinois to implement and participate in the National Pollutant Discharge Elimination System * * *." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1013(b)(1).)
Under this section all regulations adopted were to be consistent with Federal law and otherwise ...