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

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