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08/10/94 CITIZENS UTILITIES COMPANY ILLINOIS AND

August 10, 1994

CITIZENS UTILITIES COMPANY OF ILLINOIS AND VILLAGE OF PLAINFIELD, PETITIONERS,
v.
ILLINOIS POLLUTION CONTROL BOARD, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, AND VILLAGE OF BOLINGBROOK, RESPONDENTS.



Petition for Review of Orders of the Illinois Pollution Control Board. PCB No. 93-101

As Modified September 15, 1994. Rehearing Denied September 16, 1994. Petition for Appeal as a matter of right or Leave to Appeal Denied December 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the modified opinion of the court.

This case comes before this court pursuant to a petition for review of orders of the Illinois Pollution Control Board, which held that the Board lacked jurisdiction over proceedings initiated by petitioners. For the reasons stated below, we affirm the decision of the Board.

I. The Parties

Petitioners in this case are the Citizens Utilities Company of Illinois (Citizens) and the Village of Plainfield (Plainfield). Respondents are the Pollution Control Board (Board), the Illinois Environmental Protection Agency (Agency), and Village of Bolingbrook (Bolingbrook).

The Illinois Environmental Protection Agency possesses the authority to create, revise and administer the Illinois Water Quality Management Plan (WQMP); establish and revise regional wastewater treatment service areas called Facility Planning Areas (FPAs); and issue wastewater plant permits under the federally mandated National Pollution Discharge Elimination System (NPDES).

The procedures for reviewing the decisions of the Agency vary depending upon the nature of the action. Circuit courts possess subject matter jurisdiction to review challenges to Agency decisions regarding WQMPs and FPAs. (See Jurcak v. Environmental Protection Agency (1987), 161 Ill. App. 3d 48, 53, 112 Ill. Dec. 398, 513 N.E.2d 1007.) The Board possesses subject matter jurisdiction to review challenges to the denial of NPDES permits or conditions attached to permits. This court possesses jurisdiction to review decisions of the Board. See section 41(a) of the Environmental Protect Act (Act), 415 ILCS 5/41(a) (West, 1992).

Prior to the commencement of these proceedings, all of Bolingbrook was located within a single FPA, designated the "Bolingbrook FPA." Bolingbrook provided approximately one-third of its own wastewater service, with the remaining two-thirds being provided by petitioner Citizens. Although the Agency had not yet approved a Facility Plan for the Bolingbrook FPA, it had approved the plants being operated by Bolingbrook and Citizens through the issuance of NPDES permits.

To the west of the Bolingbrook FPA sits the "Plainfield FPA." Petitioner Plainfield operates the wastewater treatment facilities that serve the Plainfield FPA. Between the Bolingbrook FPA and the Plainfield FPA sits a tract of land that is the subject of this dispute.

II. Procedure Below

On March 4, 1992, Bolingbrook initiated proceedings before theAgency, requesting that the tract of unincorporated land located between Bolingbrook and Plainfield be added to the Bolingbrook FPA. Citizens and Plainfield intervened in opposition, and Plainfield filed a separated application to include the same tract in the Plainfield FPA. Thereafter, Bolingbrook submitted a proposed Facility Plan for the Bolingbrook FPA. Under this proposal, Bolingbrook would construct, own and operate a new treatment plant to serve the tract and other areas. The Agency then conducted hearings on the FPA and Facility Plan requests. Citizens and Plainfield intervened in opposition, and requested an evidentiary hearing.

On April 13, 1993, the Agency issued a ruling denying Plainfield's request that the disputed land be included within the Plainfield FPA. The Agency also issued a ruling denying Citizens and Plainfield's requests for an evidentiary hearing. The Agency then granted Bolingbrook's requests. The Agency also ordered the creation of three new FPAs, although this had not been requested by any of the parties. Citizens has alleged that the effect of this portion of Agency's decision eliminated portions of Citizens' present and potential service areas.

In a separate proceeding commenced on August 4, 1992, Bolingbrook requested that the Agency issue a NPDES permit for the proposed discharge from the new plant proposed by Bolingbrook. The Agency assigned this permit application to its Permit Section. Citizens and Plainfield filed objections, and requested an evidentiary hearing on the permit application. On April 14, 1993, the Agency issued its permit decision, denying Citizens and Plainfield's requests for a hearing and granting Bolingbrook the requested NPDES permit.

On May 13, 1993, Citizens and Plainfield filed a joint petition with the Board, challenging the Agency's decision to issue an NPDES permit and requesting a de novo evidentiary hearing. The petition set forth eleven reasons to reverse the Agency's decision:

1) The Board improperly denied Citizen and Plainfield's requests for a public hearing, when the public interest justified such a hearing,

2) There exists no need for a new plant, since Plainfield and Citizens have available plant capacity to serve the proposed service area,

3) Plainfield and Citizens have a cost-effective regional plan that would render Bolingbrook's ...


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