ILLINOIS POLLUTION CONTROL BOARD

Nay 7,

1992

SHEREX CHEMICAL CO.,

INC.

)

Petitioner,

)

v.

)

PCB 91—202

)

(Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by J. Anderson):

On April

20,

1992, the Agency filed a motion for partial

summary judgment.

Sherex filed its response on April 28,

1992.

Each motion was supported by affidavit.

The basis for the motion is Sherex’ asserted failure to

timely submit written comments on the inclusion of certain

provisions in its Draft RCRA permit.

Section 705.212(a)

of the

RCRA rules provides in pertinent part that:

If the applicant failed to file comments or failed to

participate in the public hearing on the draft permit he or

she may petition for administrative review only to the

extent of the change from the draft to the final permit

decision...

The Agency asserts that “no question of fact exists” regarding

Sherex’ asserted failure to comment.

In response, among other things,

Sherex contests the

accuracy of the Agency’s statement of facts, as well as its

interpretation of Section 705.212(a).

Sherex contends that it

was not allowed full access to the administrative record until

August 28,

1991, after the August

9,

1991 date for closure of the

record established by the Agency.

Summary judgment is appropriate only where there is no

genuine issue of material fact. Caruthers v.

B.C. Christopher

&

Co.,

57 Ill.

2d 376,

313 N.E.

2d 457

(1974).

The Board finds

that the factual questions raised by Sherex are material to the

Board’s disposition of this case.

Accordingly, the Agency’s

motion for partial judgment is denied.

IT IS SO ORDERED.

133—239

---

2

I, Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board

hereby certify that the above order was adopted on the

_______

day of _________________________,

1992, by a vote of

7—c.

9’

~Dorothy

N. Gi,~,Clerk’

Illinois Po4ütion

Control Board

133—240