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04/17/87 Plaintiff- v. Richard J. Carlson

April 17, 1987




507 N.E.2d 213, 154 Ill. App. 3d 890, 107 Ill. Dec. 549 1987.IL.520

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.


Plaintiff, Inland Steel Mortgage Acceptance Corporation, a Delaware corporation, appeals from the order of the circuit court of Du Page County dismissing its three-count complaint for declaratory judgment against defendant, Richard J. Carlson, Director of the Illinois Environmental Protection Agency , because the circuit court did not have subject matter jurisdiction over the action.

Plaintiff raises the following issue for our review: whether the trial court has subject matter jurisdiction to entertain plaintiff's action challenging the IEPA's authority to use void planning boundaries and to create unauthorized rules concerning the granting of sewage permits under the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.).

Plaintiff owns a 57-acre tract of unimproved real estate in Du Page County located entirely within the corporate boundaries of the city of Warrenville and plans to develop the land with single-family homes. Before developing the property, however, it is necessary in Illinois to obtain a permit for the discharge of sewage pursuant to the Act and the National Pollutant Discharge Elimination System of the Federal Clean Water Act (33 U.S.C.A. sec. 1342 (West 1986)). There are two existing sewage-treatment facilities, one located in Naperville and the other located in West Chicago, available to plaintiff to connect to in order to dispose of the sewage from the area.

In Illinois, the IEPA has the authority to grant or deny NPDES permits. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039(b).) The Clean Water Act requires the administering State agency to promulgate a "Water Quality Management Plan" establishing the boundaries for sewage-treatment systems, including treatment facilities and interconnecting sewer systems (33 U.S.C.A. sec. 1288 (West 1986)), and this responsibility has been given to the IEPA (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1004(m)). These boundaries determine to which treatment facility the sewer system of a newly developed property must connect.

In administering the WQMP for northeastern Illinois, the IEPA and its regional administration agency, the Northeastern Illinois Planning Commission , utilize the Facility Planning Areas boundaries originally created by the Pollution Control Board in its 1974 regionalized sewage-treatment program of Du Page County. According to these boundaries, approximately half of plaintiff's tract of land lies in the Naperville-Warrenville FPA, while the other half of the tract lies in the West Chicago FPA. Plaintiff maintains that it would be much more economical to connect to the Naperville treatment plant, as an existing sewer line from that plant extends to within a few hundred feet of the property, rather than to the West Chicago treatment plant, as an extensive amount of sewer line with a pumping facility would be required. Both Warrenville and Naperville have agreed to such a plan.

When plaintiff went before the Du Page County Regional Planning Commission to seek approval of this plan, however, West Chicago requested the county commission to table the issue, and the commission has since refused to consider the matter. The NIPC has also refused to resolve this boundary issue at the request of West Chicago. Plaintiff has also asked the IEPA to clarify the boundary question to avoid any future difficulties when applying for an NPDES permit for its development. In a letter to a representative of plaintiff, an officer of the IEPA stated that the agency encouraged local settlement of conflicts without IEPA involvement whenever possible and that "[t]he cities of Warrenville, Naperville and West Chicago must concur on an intergovernmental service agreement before a sewer permit for [plaintiff] may be granted."

In an attempt to resolve the issue of which treatment plant it would connect to, plaintiff filed a complaint for declaratory relief. After defendant successfully moved to dismiss the complaint, plaintiff filed an amended three-count complaint. Count I requested the court to declare the IEPA's use of the void FPA boundaries in Du Page County unconstitutional, count II requested the court to declare the IEPA's refusal to process an NPDES permit application without the "intergovernmental service agreement" unconstitutional and void, and count III requested the court to declare unconstitutional the IEPA's use of the FPA boundary, which served to bisect plaintiff's property, in determining where sewage must be sent. Each count sought a declaration that the IEPA's use of the FPA boundaries be declared null and void and requested an injunction ordering defendant to review any NPDES applications from plaintiff according to whether plaintiff will comply with effluent standards and without regard to the FPA boundaries.

Defendant moved to dismiss the amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(1)), contending that the circuit court lacked subject matter jurisdiction to consider an alleged wrongful refusal of the IEPA to grant an NPDES permit because the power for such a review was given by the legislature to the PCB under section 40 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040), and pursuant to section 2-615 (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), contending that the complaint is factually insufficient to state a cause of action because plaintiff has never applied for an NPDES permit, thereby prohibiting defendant from wrongfully refusing to review such an application. After the parties submitted memoranda and presented oral arguments, the trial court granted defendant's motion to dismiss because it determined that it lacked subject matter jurisdiction to hear the cause.

While both parties agree that sections 40 and 41 of the Act provide the exclusive remedy to a party who has been denied a permit, they disagree as to the nature of the relief sought in the present action. Plaintiff argues that as it has never applied for a permit, it is not in a position to avail itself of this remedy. It contends that it is not seeking an NPDES permit in this action, but is seeking to have the circuit court declare invalid certain unauthorized standards and conditions created and enforced by the IEPA for the NPDES permit review process involving plaintiff's property.

Specifically, plaintiff maintains that these unauthorized standards and conditions are: (1) the IEPA's continued use of the FPA boundaries established by the PCB and later voided by the Illinois Supreme Court; (2) the IEPA's requirement that plaintiff enter into an intergovernmental service agreement before the IEPA will review any NPDES permit application by plaintiff; and (3) the IEPA's use of the FPA boundaries, which bisect plaintiff's property. Thus, plaintiff contends that the circuit court action attacks the IEPA's authority to enforce the void FPA boundaries and to require an intergovernmental service agreement as a condition to a permit application and, relying on Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258, argues that the exhaustion of administrative remedies is not required in this case and that the circuit court has ...

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