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Borg-Warner Corp. v. Mauzy

Citation: 12 ELR 20599
No. No. 81-13, 427 N.E.2d 415/100 Ill. App. 862, (Ill. App. Ct., 10/08/1981)

The court rules that the Illinois Environmental Protection Agency (EPA) is not required to hold an adjudicatory hearing before issuing a modified national pollutant discharge elimination system (NPDES) permit. The Illinois EPA had issued defendant a new permit that included more stringent conditions than the original permit issued by the United States EPA in 1974. The court rules that while the Illinois Administrative Procedure Act (APA) applies to NPDES permit procedings, §16 of the APA does not itself require an adjudicatory hearing prior to the issuance of the NPDES permit. Section 16(a) governs adjudicatory hearings in contested cases only where they are otherwise legally required. Both §909 of the Illinois EPA's Water Rules and Regulations and §402 of the Federal Water Pollution Control Act leave the decision to hold a hearing to the discretion of the agency. Nor do due process considerations require a hearing before the permit is issued since under §16(b) of the APA, defendant is entitled to a stay of the effectiveness of the permit until after its appeal of the decision. In addition, the United States Supreme Court has upheld §402 regulations which allow hearings to be held after a permit decision. The state's regulations, which are essentially the same as the federal regulations, are therefore valid.

Counsel for Appellants
Nancy J. Bennett; Tyrone C. Fahner, Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Counsel for Appellee
Johnnine Brown Hazard, James T. Harrington
Rooks, Pitts, Fullagar & Poust
Suite 1500, Xerox Ctr., 55 W. Monroe St., Chicago IL 60603
(312) 372-5600

Michael T. Reagan
Hupp, Irion & Reagan
207 Central Life Bldg., Ottawa IL 61350
(815) 433-0486

SCOTT, P.J., and HEIPLE, J., concur.