ILLINOIS POLLUTION CONTROL BOARD
May 18,
1995
ESG WATTS,
INC.,
Petitioner,
)
v.
)
PCB 95—133
(Permit Appeal-Land)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by G.
T. Girard):
This matter is before the Board on a April 28,
1995, motion
by petitioner for stay.
On May 5, 1995, the Board received a
response filed by the Illinois Environmental Protection Agency
(Agency) objecting to a stay.
Petitioner
is asking that the
Board stay the effect of the Agency’s denial of petitioner’s
permit application for a permit to receive calcium sulfite cake
waste from American Xyrofin,
Inc..
(Not. at
2.)
The petitioner points out that it has been permitted to
accept calcium sulfite since at least 1987.
(Not.
at 2.)
Petitioner filed its permit renewal application on or about
December 23,
1994.
(Not. at 3.)
The permit under which
petitioner was then receiving waste was set to expire on March
16,
1995.
(Id.)
The Agency denied the permit renewal on March
23,
1995, citing two denial points.
(Id.)
The two denial points
were Petitioner’s “history of repeated
violations” and that
petitioner failed to designate an appropriate “Land Disposal
Restricted Waste Code” on the permit renewal application.
(Mot.
at 3.)
On April
19,
1995,
the petitioner filed this instant
appeal.
The Board’s regulations provide that the existing permit
shall continue in full force and effect pending an appeal to the
Board provided that a timely permit renewal application was made
to the Agency.
(35 Ill. Adm. Code 813.302.)
The appropriate
Board rule defines timely,
in this case,
as 90 days prior to the
expiration of the original permit.
(35 Ill.
Adm.
Code 813.301;
Hot. at 4.)
Petitioner did not file the application for permit
renewal 90 days prior to the expiration of the original permit
and therefore is asking the Board to stay the permit denial by
order of the Board.
The petitioner cites to two cases
in which the Board has
considered granting a discretionary stay.
Those cases
are:
Interstate Pollution Control,
Inc.
v. IEPA,
(Interstate)
PCB 86-
16,
68 PCB 547
(March 27,
1986)
and Motor Oils Refining Co.
v.
IEPA,
(Motor Oils)
PCB 89—116
102 PCB 249,
(August
31,
1989)
.
In
2
Interstate the Board granted
a stay determining that the economic
hardship that could be caused if a stay were not granted out-
weighed the environmental harm.
Also of importance to the Board
was the likelihood of the petitioner prevailing on the merits.
(Interstate at 4-5.)
The Board found in Motor Oils that the
potential environmental harm warranted a denial of a stay.
(Motor Oils at 2.)
Petitioner argues that the Agency has
“routinely granted permits” to accept calcium sulfite cake waste
to the petitioner for the past eight years.
(Not.
at 5.)
Further, the petitioner maintains that the denial
is not “based
upon any legitimate technical grounds”.
(Mot.
at 5.)
Finally,
petitioner asserts that the denial will “have a devastating
effect upon Petitioner’s financial status”.
(Mot.
at
5..)
The Agency objects to the Board granting a stay in this
proceeding.
The Agency maintains that the instant matter is
distinguishable from other cases where the Board has granted a
discretionary stay.
(Res. at 3.)
The Agency argues that the
representations by petitioner do not “show the petitioner is
likely to prevail”
in this matter and the stay should be denied.
(Res. at 3.)
The Board first notes that the petitioner has created this
issue by its failure to timely file the application for permit
renewal.
However, the application was mailed only five days late
and this is
a request for renewal of a permit which has been held
by petitioner for at least eight years.
Further, calcium sulfite
cake waste is not a hazardous waste according to the petitioner.
Therefore, the Board is convinced that,
at this time,
the
continued acceptance of this waste poses no threat of additional
environmental harm while the financial implications are
potentially significant to petitioner.
The Board makes no
findings on the merits of the case as a whole at this time.
Based on the above, the Board will grant the requested stay.
IT IS SO ORDERED.
Chairman Claire A. Manning dissents.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Boa
hereby certify that the above order was adopted on the
_____
day of
__________________,
1995,
by a vote of
~
~
Dorothy N. ,~unn, Clerk
Illinois Pf~1lutionControl Board