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)
)
PCBNo.03-146
)
(Permit
Appeal)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
)
NOTICE
To:
Dorothy
Gunn,
Clerk
Fred
C.
Prillaman
Illinois Pollution
Control Board
Mohan,
Alewelt,
Prillaman &
Adami
James
R.
Thompson
Center
1
North
Old
Capital
Plaza,
Suite
325
100
West
Randolph Street
Springfield,
Illinois
6270
1-1323
Suite
11-500
Chicago,
Illinois
60601
V
Bradley
P.
Halloran
V
Hearing
Officer
V
James
R.
Thompson
Center
V
100
West
Randolph
Street,
Suite
11-500
Chicago,
illinois
60601
V
PLEASE TAKE
NOTICE
that
I
have
today
filed
with
the
Office
of
the
Clerk
of
the
Illinois
Pollution Confrol
Board
an
original
(1)
and
eleven
(11)
copies
of
an
APPEARANCE
and
MOTION
IN
OPPOSTION
TO
PETITIONER’S
EMERGENCY
MOTION
FOR
STAY
of the
Respondent,
illinois
Environmental
Protection
Agency,
a
copy
of
which
is
herewith
served
upon
the
attorney
for
the
Petitioner,
North
Shore
Sanitary
District,
Respectfully
submitted
by,
V
V
Robb
H.
Layman
V
Special
Assitant
Attorney
General
Dated:
March
14,
2003
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
PO.Box
19276
V
Springfield,
Illinois
62794-9276
(217)524-9137
BEFORE
OF
THE
STATE
OF
ILLINOIS
NORTH
SHORE
SANITARY
DISTRICT,
)
Petitioner,
V.
Respondent.
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
OF
THE
STATE
OF
ILLINOIS
V-oz!t1O:
ord
NORTH
SHORE
SANITARY
DISTRICT,
)
)
V
Petitioner,
)
)
PCB
No.
03-146
v.
)
(Permit
Appeal)
)
ILLiNOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
V
)
Respondent.
)
APPEARANCE
NOW
COMES
Robb
Layman,
as
a
Special
Assistant
Attorney
General,
and
enters
his
appearance
on
behalf
of
the
Respondent,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
in
the above-captioned
matter.
Res ectfully
submitte.by,
RobbH.
Layman
V
Special
Assistant
Attorney
General
Dated:
March
14,
2003
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
P.O.
Box 19276
Springfield,
Illinois
62794-9276
(217)524-9137
DZ’DU(
F.J4
Ht
L4.UYJJ
I::’
;-4
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
OF
THE STATE
OF
ILLINOIS
NORTH
SHORE
SANITARY
DISTRICT>
)
)
Petitioner,
)
•
)
PCBNo.03-146
v.
)
(Permit
Appeal)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
MOTION
IN
OPPOSITION
TO
PETITIONER’S
EMERGENCY
MOTION
FOR
STAY
NOW
COMES
the
Respondent,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
(“Illinois
EPA”),
by
and through
its
attorneys,
and moves
the
Illinois
Pollution
Control
Board
(“Board”)
to
deny the
Petitioner’s,
NORTH
SHORE
SANITARY
DISTRICT
(“NSSD”),
Emergency
Motion
for
Stay
filed
in
the
above-captioned
matter.
1.
NSSD
submitted
a
permit
application
to
the
Illinois
EPA
on
or
about
February
12,
2003,
seeking
to
modify
a
condition
of
a
construction
permit,
Permit
No.
01040045,
that
was
previously
issued
by
the
Illinois
EPA
on
March
11,
2002.
2.
The
Illinois
EPA subsequently
sent
a
Request
for
Additional
Information
to
NSSD
on
March
3,
2003,
which
identified
several
facets
of
information
that
were
deemed
necessary
by
the
Illinois
EPA
to
evaluate
the
permitting
request.
3.
NSSD
filed
a Petition
for Permit
Review
(“Petition”)
with
the
Board
on
March
7.
2003,
challenging
the
Illinois
EPA’s
March
3,
20023
permitting
decision.
The
Illinois
EPA
received
a
copy
of
the
pleadings
on
March
10,
2003.
4.
In
conjunction
with
the
filing
of
the
Petition,
NSSD
also
filed
an
Emergency
Motion
for
Stay
(“Motion”).
In
its
Motion,
NSSD
seeks
a
stay
of
the
“force
and
effect
of
Standard
Condition
1”
of
the
construction
permit.
See,
Motion
at
page
1.
Standard
Condition
1
of
Permit
No.
01040045
generally
provides
that
the
construction
permit,
in
the
absence
of
a
permit
extension
or
new
permit,
will
expire
within
one
(1)
year
of
the
date
of
permit
issuance
unless
the
perrnittee
has
started
construction
by
such
time,
5.
By
way
of
historical
background,
NSSD
contends
that
third-party
litigation
and
a
judicial
restraining
order
have
precluded
the
timely
commencement
of
construction
of
the
permitted
sludge
dryer/melter.
As
a
result,
NSSD
has
sought
to
suspend
the
legal
effect
of
Standard
Condition
1
in
at
least
two
ways:
first,
by
seeking
provisional
variance
relief
from
the
Illinois
EPA,
and
secondly,
by
seeking
its
present
motion
for
stay.
6.
NSSD
submitted
a
request
for
provisional
variance
with
the
illinois
EPA
on
or
about
February
11,
2003.
and,
according
to
NSSD
at
the
time
of
its
filing
of
the
permit
appeal,
the
illinois
EPA
has
never
responded
to
the
request.
In
fact,
the
illinois
EPA
is
authorized
a
period
of
thfrty
(30)
days
in
which
to
review
provisional
variance
requests
under
the
Illinois
Enviromnental
Protection
Act
(“Act”).
415
ILCS
5/37(b)(2002).
Having
only
recently
completed
its
review
ofNSSD’s
request
for
provisional
variance,
the
Illinois
EPA
has
formally
notified
NSSD,
as
of
March
13,
2003,
that
said
request
does
not
satisfi
the
applicable
criteria
of
35111.
Adm.
Code
Part
180301
and
therefore
cannot
be
recommended.
Notice
of
the
Illinois
EPA’s
recommendation
was
forwarded,
by
letter,to
the
Board
on
March
13,
2003.
2
•
JC
CL1
1
ooJr
7.
Tn
the
context
of
this
proceeding,
NSSD
argues
that
an
arbitrary
and
unreasonable
hardship
will
be
suffered
if
the
construction
permit
is
allowed,
by
operation
of
law,
to
expire
in
accordance
with
Standard
Condition
1.
In
NSSD’s
view,
the
expiration
of
the
permit
will
render
the
issues
in
this
permit
appeal
moot,
thus
making
the
Board’s
power
to
review
permitting
decisions
illusory.
Sec.
Petition
at
page
4.
Apart
from
a
passing
reference
to
the
lack
of
environmental
harm,
NSSD
offers
little
else
in
terms
of
factual
evidence
to
support
its
Motion.
8.
Both
the
Administrative
Procedure
Act
and
the
Act
recognize
circumstances
in
which
a
pennittee
is
entitled
to
an
automatic
stay.
See,
5
JLCS
100/10-
65(b)(2002);
5
ILCS
5/9.1
(f)(2002).
An
automatic
stay
protects
a
petitioner
from
the
consequences
of
the
permitting
decision
while
judicial
or
administrative
review
is
pending
and,
in
essence>
allows
the
prior
existing
permit
to
remain
in
force
and
effect
so
long
as
a
renewal
of
said
permit
is
timely
sought.
In
this
instance,
NSSD’s
request
for
stay
does
not
fall
within
the
ambit
of
the
automatic
stay
provisions.
9.
The
Board
has
also
recognized
its
inherent
authority
to
grant
discretionary
stays
in
certain
cases.
In
doing
so,
the
Board
frequently
evaluates
whether
the
requested
stay
will
result
in
any
potential
environmental
harm.
Bridgestone/Firestone,
PCB
02-31
(November
1,
2001);
Community
Landfill
Company
and
City
of
Morris
v.
Illinois
EPA,
PCB
01-48
and
PCB
01-49
(October
19,
2000).
The
Board
has
deemed
this
issue
of
particular
importance.
See,
Motor
Oils
Refining
Company,
Inc.,
v
IEPA,
PCB
89-116
(August
31,1989).
10.
No
issue
of
environmental
harm
is
presented
here.
Because
NSSD.
has
yet
to
commence
coristruetion
of
the
permitted
source,
no
environmental
harm
will
result
in
3
maintaining
the
status
quo.
Even
assuming
that
NSSD
will
be
freed
from
constraints
of
third-party
litigation
anytime
soon,
the
prior
issuance
of
the
underlying
construction
permit
was
premised
upon
the
recognition
that
the
sludge
dryer/melter,
as
proposed,
would
not
violate
the
Act
or
Board
regulations.
As
such,
a
stay
that
would,
in
essence,
allow
NSSD
to
commence
construction
of
the
permitted
facility
during
the
pending
review
of
the
appeal
could
not
be
expected
to
cause
environmental
harm
under
the
present
circumstances.
11.
The
mere
absence
of
environmental
harm,
however,
should
not
be
the
determinative
factor
in
the
Board’s
evaluation
of
NSSD’s
request.
First
and
foremost,
the
exercise
of
the
Board’s
discretion
to
grant
stays
should
be
premised
upon
a
showing
of
some
necessity.
If
any
party
to
a
Board
proceeding
can
obtain
a
discretionary
stay
without
demonstrating
the
need
for
such
relief,
then
the
object
and
protection
afforded
by
such
relief
might
become
a
mere
pretext
for
seeking
Board
review
in
the
first
instance.
This
is
especially
true
in
this
type
of
case,
where
the
Petitioner
has
not
demonstrated
a
probability
of
success
on
the
merits
of
its
permit
appeal
and
where,
judging
from
the
totality
of
facts,
the
pleadings
may
have
only
been
filed
for
the
purpose
of
avoiding
the
legal
consequences
of
a
lapsed
permit.
12.
The
Board’s
approach
in
reviewing
other
stay
requests
is
consistent
with
the
aforementioned
framework
for
analysis.
The
Board
has
oftenlooked
to
the
factors
established
by
Illinois
courts
in
reviewing
common
law
injunctions:
(1)
a
certain
and
clearly
ascertainable
right
that
requires
protection.
(2)
irreparable
injuryoccurring
in
the
absence
of
injunctive
relief;
(3)
no
existence
of
an
adequate
remedy
at
law
and.
(4)
a
probability
of
success
on
the
merits.
See,
Bridgestone/Ffrestone
Off-road
Tire
Company
4
v.
Illinois
EPA,
PCB
02-31
Q’slovember
1,
2001)(emphasizing
the
existence
ofa
right
deserving
of
protection
and
the
potential
for
irreparable
harm),
citing
Junkrrnc
v.
S.J
Advanced
Technology
&
Manufacturing,
498
N.E.2d
1179
(Ist
Dist.
1986);
Community
Landfill
Company
and
City
of
Morris
v,
IE.PA,
PCB
01-48
and
01-49
(October
19,
2000)(granting
stay
to
protect
right
of
appeal
and
prevent
hardships
“too
onerous”
to
be
justified);
ESG
Watts,
Inc.,
v.
IEPA,
PCB
95-133
(May
18,
1995)(financial
implications,
together
with
lack
of
environmental
harm
and
short-term
delay
in
filing
renewal
application,
were
sufficient
reasons
to
grant
stay).
13.
NSSD
has
failed
to
account
for
any
of
the
relevant
factors.
For
example,
NSSE)
has
not
demonstrated
that
the
continuation
of
the
construction
permit
beyond
its
specified,
oneyear
term
warrants
the
legal
protection
of
a
stay.
While
theinterest
acquired
by
a
perrnittee
in
a
construction
permit
may
be
important,
representing
a
cognizable,
legal
right
to
commence
construction
in
accordance
with
the
terms
of
the
permit,
it
is
not
tantamount
to
a
fundamental
property
right.
Cf.
People
v.
Eck,
664
N.E.2d
1147,
1l49(5Dist.
1996),
citingPeople
v.
Dvorak,
658
N.E.2d.869,
875(111.
1995)
(driver’s
license
may
be
subject
to
due
process
limitations,
but
it
is
not
a
“fundamental
property
zight
in
the
constitutional
sense”).
14.
Moreover,
an
examination
of
this
issue
requires
that
construdtion
pennits
be
distinguished
from
renewal
or
operating
permits.
The
interest
arising
from
a
construction
permit
is
much
less
of
a
perfected
or
ascertainable
right
than
that
which
exists
in
an
operating
permit,
the
latter
being
recognized
by
courts
as
requiring
the
observance
of
certain
due
process
rights
prior
to
the
government’s
denial
or
revocation.
Wells
Manufacturing
v.
IEPA,
552
N,E.2d
1074
(
5
th
Dist,
1990);
Martell
v.
Mauzy,
511
P.
5
J__:.
J_
I
IU
Supp.
729
(ND.
111.
1981);
cf.
Wesr
Suburban
Recycling
and
Energy
center
L.P.,
v.
IEPA,
PCB
95-119
and
95-125
(October
17,
1996)(no
property
interest
exists
at
the
“development
permit
stage”
such
that
due
process
rights
are
implicated).
Any
such
right
in
the
continuation
of
a
construction
permit
is
also
significantly
more
diminished
by
the
relative
position
of
the
permittee
at
the
time
of
the
requested
renewal.
In
this
case,
NSSD,
in
the
waning
days
of
a
permit’s
effective
duration,
has
yet
to
commence
construction
and,
further,
cannot
even
chance
a
prediction
as
to
when
such
efforts
might
ensue.
At
best,
NSSD
has
possessed
merely
an
expectation
to
a
property
interest.
15.
Similarly,
NSSJ)
has
not
demonstrated
that
a
stay
is
necessary
to
prevent
irreparable
harm.
In
contrast
to
other
stay
requests
granted
by
the
Board,
NSSD
does
not
allege
that
the
expiration
of
the
construction
permit
will
cause
a
financial
burden
or
otherwise
impede
its
other
pennitted
operations.
Cf,
ESG
Watts,
Inc.,
v.
JEPA,
PCB
95-.
133
(May
18,
1
995)(significant
financial
implications
were
posed
if
petitioner
could
not
operate
under
prior
permits).
Because
the
construction
of
thepermitted
sludge
dryer/melter
has
not
been
Commenced,
it
seems
obvious
that
NSSD
will
not
suffer
any
economic
consequences
caused
by
the
loss
of
an
on-going
concern.
The
one
legal
case
authority
cited
by
NSSD
in
its
Motion
is
inapposite
for
these
very
reasons.
See
,AThurn,
inc.,
v.
Illinois
EPA,
PCB
80-189
and
80-190
(February
17,
1982)(findIng
that
lifting
of
stay
would
cause
“great
economic
hann,”
citing
earlier
Board
orders
from
June
10,
July
15
and
November
5,
1981).
16.
NSSD
generally
argues
that
the
expiration
of
the
construction
permit
will
cause
hardship
because
it
will
moot
the
issues
in
the
permit
appeal.
This
rationale
is
evidentlyderived
from
prior
Board
cases
involving
challenges
to
permit
conditions
from
6
F
.
I
.1.V_J
IL-..JI
a
permit
issuance.
See,
Bridgestone/Firestone
Of
road
Tire
Company
v.
lilinois
EPA,
PCB
02-31
(November
1
2001);
Community
Landfill
company
and
City
of
Morris
v.
ZEPA,
PCB
01-48
and
01-49
(October
19,
2000).
In
those
i:nstances,
petitioners
faced
substantial
costs
in
complying
with
contested
permit
conditions.
The
Board
reasoned
that
if
the
petitioners
were
compelled
to
achieve
compliance
under
those
circumstances,
the
integrity
of
theappeals
process
could
be
undermined,
as
subsequent
efforts
to
litigate
the
challenged
conditions
would
be
altogether
pointless.
NSSD,
on
the
other
hand,
does
not
find
itself
in
any
comparable
“catch-22”
Despite
any
expiration
of
the
construction
permit,
NSSD
remains
free
to
challenge
the
merits
of
the
Illinois
EPA’s
decision
to
require
additional
information
without
the
imposition
of
substantial
compliance
costs.
17.
NSSD
also
has
not
demonstrated
that
it
is
likely
to
prevail
in
its
permit
appeal
or
that
it
lacks
an
adequate
remedy
at
law.
18.
On
the
whole,
NSSI)
is
not
forfeiting
any
kind
of
fundamental
right
or
lost
opportunity
by
virtue
of
the
expiration
of
the
construction
permit.
NSSD
need
only
seek
a
new
construction
permit
from
the
Illinois
EPA
in
order
to
remedy
its
situation.
Such
recourse
is
not
likely
to
be
costly
or
burdensome.
While
the
illinois
EPA
understands
that
third-party
litigation
may
have
precluded
construction
during
the
permit’s
term,
this
and
other
chain
of
events
are
not
uncommon.
Although
NSSD
maybe
forced
to
experience
inconvenience
or
added
delays,
these
circumstances
are
an
unavoidable
part
of
the
permitting
process
and
do
not
warrant
the
exercise
of
the
Board’s
discretionary
•
stay
authority
on
this
occasion.
7
H.”
—i’4—kiUS
-
WHEREFORE,
the
illinois
EPA
respectfully
requests
that
the
Board
deny
NSSD’s
Emergency
Motion
for
Stay
or,
in
the
alternative,
order
such
relief
as
may
be
deemed
appropriate.
Respectfully
submitted
by,
ILLiNOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
V
Robb
H.
Layman
/
Special
Assistant
Attorney
General
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
(217)524-9137
V
5
.L
7
Ct_!t.J-
.L
.-
-
CERTIFICATE
OF
SERVICE
s
Po!krien
-o;o
£orc
I
hereby
certii
that
on
the
14
th
day
of
March,
2003,
I
did
send,
by
a
non-U.S.
Postal
Service
carrier
for
delivery
on
Monday,
March
17,
2003,
one
(1)
original
and
eleven
(11)
copies
of
the
following
instruments
entitled
APPEARANCE
and
MOTION
IN
OPPOSITION
TO
PETITIONER’S
EMERGENCY
MOTION
FOR
STAY
to:
Dorothy
Guun,
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street,
Suite
11-500
Chicago,
flhinois
60601
and
a
true
and
correct
copy
of
thesame
foregoing
instruments,
by
First
Class
Mail
with
postage
thereon
fully
paid
and
deposited
into
the
possession
of
the
United
States
Postal
Service,
to:
This
filing
is
submitted
on
recycled
paper,.
Fred
C.
Prillaman
Bradley
P
Halloran
Mohan,
Alewelt,
Prillaman
&
Adami
Hearing
Officer
I
North
Old
Capital
Plaza,
Suite
325
James
R.
Thompson
Center
Springfield,
Illinois
62701-1323
100
West
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
By
leave
of
Mr.
Bradley
Halloran,
Hearing
Officer
for
the
Board,
the
Illinois
EPA
has
also
faxed
a
true
and
correct
copy
of
the
same
on
this
date
to
Dorothy
Gunn,
Clerk
of
the
Board,
for
immediate
filing
in
accordance
with
35
III.
Adm.
Code
101.302(d).
Robb
H.
Layman
Special
Assistant
Attorney
General
TOTAL
P.12
I[HhiUU
D’
D.)
cJTr’bbJ
P.
t1
ILLINOIS
ENVmOrfNTAL
PROT
ECTION
AGENCY
DIVISION
OF
LEGAL
COUNSEL
1021
NORTH
GRAND
AVENUE
EAST,
POST
OFFICE
BOX
19276
SPRINGFIELD,
ILLINOIS
62794-9276
TELEPHONE (21
7)782-5544’FACSIMILE
(217)782.9807
DATE:
/2ve
/
2J
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TRANSMITTAL
SifEET
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DELIVER
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TO:
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NO.:
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//Lq7
(‘4
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