ILLINOIS POLLUTION CONTROL BOARD
August
31, 1989
MOTOR OILS REFINING COMPANY,
INC.,
)
Petitioner,
)
V.
)
PCB 89—116
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by R.
C. Flemal):
On July
14,
1989, Motor Oils Refining Company,
Inc.,
(“MORCO”) filed an appeal of the decision of the Illinois
Environmental Protection Agency
(“Agency”) denying its
application for
a supplemental permit for its waste streams,
permits 000044 through 000051
(“the permits”).
In its permit
appeal,
MORCO requested the Board grant
it a stay of the effect
of the Agency’s decision,
thereby allowing
it
to continue to
receive
its waste streams, pending the outcome of this
proceeding.
On July 25,
the Agency
filed a Motion in Opposition
to Stay.
On August
10,
1989,
the Board
found that the automatic
stay provision of Section 16(b)
of the Illinois Administrative
Procedure Act
is inapplicable to MORCO’s appeal.
However,
the
Board ordered the parties to address the issue of whether
a
discretionary stay
is appropriate, such consideration to
include
the potential for environmental harm in light
of certain
statements made in the Agency’s June 15,
1989 denial letter.
The
Board ordered that such filings be received no later than August
23,
1989.
On August
23,
1989, MORCO filed its response to the Board
Order.
The Agency’s response was
received by the Board on August
24,
1989 with a motion to file instanter.
Although received one
day later than that ordered by the Board,
service on MORCO was
had on August
23,
1989 and the Board
finds no prejudice resulted
from the one—day delay.
The motion
to file instanter is granted.
The Agency,
in its response entitled Motion
in Opposition to
Discretionary Stay,
states that although there are no specific
standards set by the Board for
issuing stays,
Illinois law
provides
for standards under which such equitable relief
is
appropriate.
These are:
1)
a certain and clearly ascertainable right needs
protection
102—249
2)
irreparable injury will occur without the
injunction;
3)
no adequate remedy at law exists; and
4)
there
is a probability of success on the merits.
Junkunc
v.
S.J. Advanced Technology
& Mfg., 101 Iii.
Dec. 671,
498 N.E.2d 1179
(Ill. App.
1 Dist.
1986).
MORCO’s response addresses only one of the four, alleging
that a discretionary stay should be granted for reasons
of
irreparable injury to its business.
Although the Board may look
to these factors in making its determination of whether
to grant
a discretionary stay, the liklihood of environmental harm should
a stay be granted is of particular concern
for
the Board.
(See,
Album,
Inc.
v.
Illinois Environmental Protection Agency,
41 PCB
323
(May 1,
1981).
The Agency states
in its response that the permit denial
letter discusses various matters,
including alleged unpermitted
receipt of hazardous waste and the alleged existence of soil
contamination at the site.
MORCO generally denies the statements
made in the Agency’s permit denial letter,
and further points
to
the fact that no enforcement actions have been filed
for the
allegations stated in the Agency’s letter.
Both MORCO and the
Agency have attached documents
to
their responses in support of
their positions.
Upon review of the responses and attached
documents,
the Board finds that it
is not persuaded that
continued operation under the terms of the expired permits
pending outcome of this appeal would not result
in environmental
harm.
MORCO’s motion for stay
is accordingly denied.
In so
ruling,
the Board makes no findings on the merits of the permit
appeal,
nor does
it make any finding on the bearing which any of
the filed documents may or may not have on the issues
in this
appeal.
IT
IS SO ORDERED.
I,
Dorothy
M.
Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify
thffi,t
the above Order was adopted on
the
j/~-~ day of
/~/t~
~
,
1989, by
a vote
of
~
~.
~~t1~7A~&
Dorothy M.
G
n,
Clerk
Illinois Pollution Control Board
102—250