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Nat'l Marine Service Inc. v. Epa

OPINION FILED DECEMBER 20, 1983.

NATIONAL MARINE SERVICE INCORPORATED, PLAINTIFF-APPELLANT,

v.

THE ENVIRONMENTAL PROTECTION AGENCY ET AL., DEFENDANTS-APPELLEES — (ILLINOIS-AMERICAN WATER COMPANY, INTERVENOR-APPELLEE).



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding. PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Barge fleet.

Certification by the Illinois EPA sought.

It was denied.

Circuit court held it had no jurisdiction.

We cannot agree.

We reverse and remand.

A complaint was filed against the Illinois Environmental Protection Agency seeking a declaratory judgment, injunctive relief, and writ of certiorari. The suit challenged the Illinois Environmental Protection Agency's (IEPA) denial of Federal Clear Water Act, section 401, certification pertaining to plaintiff's proposed barge fleeting facility. IEPA then filed a motion to dismiss based on lack of subject-matter jurisdiction and was joined in the motion by intervenor. The motion to dismiss was granted by the circuit court and this appeal follows.

I. THE FACTS

On March 20, 1981, National Marine Service Incorporated applied to the United States Army Corps of Engineers for a dredge and fill permit pursuant to section 404 of the Federal Water Pollution Control Act amendments of 1972 (33 U.S.C. § 1344 (Supp. I 1977)). Plaintiff sought this permit in order to construct a barge fleeting facility on Chouteau Island in the Mississippi River. As part of the permit process, the plaintiff also applied for certification from the IEPA. The IEPA denied certification on April 28, 1982, and on October 20, 1982, plaintiff filed a complaint for declaratory judgment, injunctive relief, and writ of certiorari in the circuit court alleging that the IEPA had misinterpreted Federal law and had misapplied State law in denying certification. On January 4, 1983, the IEPA filed a motion to dismiss, alleging that the circuit court lacked subject matter jurisdiction. Then on February 17, 1983, Illinois-American Water Company filed a petition to intervene. The motion was allowed and intervenor joined in the motion to dismiss for lack of subject matter jurisdiction.

On March 8, 1983, the trial court issued a memorandum opinion allowing the motion to dismiss, stating:

"The court finds that review of decisions by the Illinois Environmental Protection Agency taken under section 4(m) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1004(m)), to determine whether or not to certify compliance with the provisions of the Federal Clean Water Act, (33 U.S.C. § 1251, et seq.), are reviewable under the Illinois Administrative Review Act, (Ill. Rev. Stat. 1981, ch. 110, pars. 3-101, et seq.), and that such decisions to certify vel non must be reviewed according to the procedure set forth therein as modified by and in accordance with Sec. 41 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 41), and that this court is without jurisdiction of the instant cause."

This appeal challenges that judgment.

II. THE STATUTES

Seldom does a term of court pass but that we are called upon to supply a missing rafter, joist, or east wall of the house of IEPA. The blueprints for the repair here are found among several State and Federal statutes which we will now discuss.

Section 404 of the Federal Clean Water Act (33 U.S.C. § 1344 (Supp. I 1977)) (FCWA) requires that prior to discharging dredge or fill material into navigable waters, companies must procure a dredge and fill permit from the United States Army Corps of Engineers. Section 401 of the FCWA (33 U.S.C. § 1341 (Supp. I 1977)) (section 401 certification) provides that no permit may be issued by the Corps unless the State where the construction is to take place first certifies that any discharge which may emit from the site is within tolerances set by various sections of the FCWA and any other appropriate requirements of State law. Section 4(m) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1004(m)) (Act) designates the IEPA as the water pollution agency for all purposes of the FCWA. It also empowers the IEPA to take all appropriate actions to properly integrate State and Federal efforts at pollution control. Section 41 of the Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1041) adopts the provisions of the Administration Review Law as controlling judicial review:

"Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of, pursuant to the provisions of the `Administrative Review Act,' approved May 8, 1945, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the ...


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