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09/08/87 Fred E. Jurcak, v. the Environmental

September 8, 1987

FRED E. JURCAK, PETITIONER-APPELLANT

v.

THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

513 N.E.2d 1007, 161 Ill. App. 3d 48, 112 Ill. Dec. 398

Petition for review of order of Pollution Control Board.

Rehearing denied October 16, 1987 1987.IL.1307

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Petitioner Fred B. Jurcak appeals from an opinion and order of the Illinois Pollution Control Board (the Board) finding that it lacked jurisdiction to review the terms and conditions of the Illinois Water Quality Management Plan. The issues raised on appeal are: (1) whether the Illinois Pollution Control Board has jurisdiction to review a condition imposed on a National Pollutant Discharge Elimination System permit when the condition is also part of the Illinois Water Quality Management Plan; and (2) whether the Illinois Environmental Protection Agency's preference for large sewage treatment plants is a sufficient reason to require the proposed plant to be abandoned at some future date.

This matter concerns a dispute over an amendment to the Illinois Water Quality Management Plan (the plan), and a condition imposed in petitioner Jurcak's National Pollutant Discharge permit to build a sewage treatment plant as a consequence of this amendment.

The plan and the permit program are administrated by the Illinois Environmental Protection Agency (the Agency) pursuant to the Federal Water Pollution Control Act (the Clean Water Act) (33 U.S.C. sec. 1251 et seq. (1982)) and the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.) (the Act). The permit system prohibits any discharge to a navigable water in the absence of a permit and the permit defines the conditions, such as effluent levels, under which the discharge may be made.

The plan is required because each State must have a continuing planning process approved by the United States Environmental Protection Agency, and each plan must incorporate the elements of an areawide waste water management plan. (33 U.S.C. secs. 1288, 1313 (1982).) No permit may be issued for a discharge (point source) unless the point source is authorized by the plan. 35 Ill. Adm. Code 309.105(d) (1985); 33 U.S.C. sec. 1288(e) (1982).

Petitioner Jurcak is a land developer who is in the process of developing The Gateway Development project, a mobile home park in Frankfort, Illinois. In order to do so, he needs a permit that would allow him to operate a sewage treatment plant to service the development. Jurcak's first application for a permit to build a sewage treatment plant was denied by the Agency on the ground that he lacked a permit for the plant's discharge. Jurcak then filed an application with the Agency for the permit, which was denied as the point source was not authorized by the plan.

In response to this denial, Jurcak filed a petition for conflict resolution with the Agency pursuant to 35 Ill. Adm. Code 351.101 et seq. (1985), seeking the needed amendment of the plan to allow a new point source. On July 1, 1985, the Agency amended the plan to allow a new point source at the location requested by Jurcak. The amendment included four conditions, including the condition at issue here (condition 8):

"The Gateway Development project shall, at the condominium association expense, connect to the Village of Frankfort's sewage treatment plant within one year after operation of said Village of Frankfort's STP's expansion, and Gateway's STP shall cease discharging within said year. This shall be a condition of Gateway's NPDES permit."

On July 31, 1985, the Agency issued Jurcak a permit for the sewage treatment project which included the ...


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