ILLINOIS POLLUTION CONTROL BOARD

March

25,

1993

OLIN CORPORATION,

)

Petitioner,

)

 PCB 89-30

)

 (Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

 (by J.

C.

 Marlin):

This matter is before the Board on a January

15,

 1993,

motion to dismiss filed by the Illinois Environmental Protection

Agency (Agency).

 On January 19,

 1993, Olin filed an objection to

the Agency’s motion and a motion to vacate closure plan approval

and remand consideration of the pending permit modification or

other relief.

 On February 23,

 1993, the Agency filed a motion

for extension of time in which to reply to Olin.

 The extension

of time was granted by Board order on March 11,

 1993.

 On March

16,

 1993, the Agency filed an objection to Olin’s motion to

vacate.

 On March 24,

 1993, Olin filed a motion to strike or

motion for leave to file a reply to the Agency’s response.’

The Board grants Olin’s motion for leave to file a reply.

BACKGROUND

The underlying permit appeal in this case was filed on

February 10,

 1989.

 It was an appeal from the Agency’s grant of

Resource Conservation and Recovery Act (RCRA)

 Part B closure plan

approval for what

 is known as the Zone

 6 Emergency Wastewater

Holding Lagoon

 (Lagoon) subject to several conditions.

 (Pet.

at

1-3.)

 On November 20,

 1990, Olin petitioned the Board for an

adjusted standard for its Lagoon.

 The permit appeal in the

instant case is directly related to the adjusted standard.

The Board granted Olin’s request for an adjusted standard on

February 27,

 1992.

 In the Matter of:

 Petition of Olin

Corporation for an Adjusted Standard from 35 Ill. Adm. Code 724

and 725 Related to Closure and Post Closure of RCRA Regulated

Surface Impoundments,

 (February 27,

 1992)

 130 PCB 130, AS 90-8,

‘The motion and response by the Agency will be cited as

(Mot.) and (Resp.)

 the motion and reply by Olin will be cited as

(0. Not.)

and

 (Rep.).

173

2

(adjusted standard).

 The adjusted standard allows Olin to

operate the Lagoon for the receipt of non—hazardous wastewater

until the year 2039 subject to certain conditions.

ISSUE

The Agency argues in its motion that the adjusted standard

proceeding has rendered this case moot because all issues were

resolved by the Board’s order in the adjusted standard

proceeding.

 (Not.

 at 3.)

 The Agency also argues that it has

asked Olin to submit

 a request for Class II modification of its

Part B Permit “in order to enable the Agency to issue the

adjusted standard as part of the permit modification.”

 (Not.

at

2.)

 According to the Agency, Olin has not responded to this

request.

 (Mot.

 at 2.)

 Additionally, the Agency requests that

the Board order Olin

 to submit a request for Class II

modification of its Part B Permit.

 (Not.

at

3.)

Olin in its objection moves to vacate and remand the closure

plan approval under review in this proceeding or in the

alternative to stay this proceeding.

(0.

 Not. at 1.)

 Olin

represents that it requested a modification of the existing

permit at the time it submitted the request for the adjusted

standard.

 (0. Mot.

 at 2.)

 Olin also argues that it has

requested the Agency to process the Amended Plan for Delayed

Closure as a permit modification.

 (0. Mot.

at

3.)

 Additionally,

Olin states that all issues relative to the Lagoon have been

resolved by the adjusted standard proceeding.

 (0. Not. at 2.)

Olin also argues that the Board’s action in the adjusted standard

proceeding eliminates the basis for the Agency’s authority to

issue the permit conditions which were originally appealed.

In its response, the Agency argues, that the information

 given to the Agency pursuant to the adjusted standard is not

part of the record in this proceeding.

 (Resp.

 at 2.)

 The Agency

also states that vacation of the closure plan approval, the

relief sought by Olin,

 is not available.

 (Resp. at 2.)

Additionally, the Agency argues that Olin has never submitted a

request for Class II Part B Permit modification to the Agency as

a means to resolve this proceeding.

 (Resp. at 2.)

 The Agency

also asks that the Board dismiss this action with prejudice and

order Olin to submit a permit modification request within thirty

days of the Board’s decision date.

 (Resp.

 at 3.)

Olin in its reply argues that when it requested that the

Agency participate in the adjusted standard proceeding it asked

the Agency to consider permit requirements.

 (Rep. at 1-2.)

Additionally, Olin argues that it has requested the Agency

consider the adjusted standard as a permit modification request.

(Rep. at 2.)

 Olin also argues that the closure plan which was

the subject of this appeal is no longer applicable and should not

I ~4O-O

7t&

3

Agency’s assertions that the adjusted standard is not before the

Board in this proceeding are inaccurate.

 Olin states that the

parties are the same and requests that the Board take notice of

the adjusted standard proceeding.

 (Rep.

 at 3.)

 Olin also states

that it has no objection to proceeding in a timely and

expeditious manner through the Agency’s permit review process.

(Rep.

 at 3.)

 However, Olin does not wish this proceeding to be

dismissed because Olin believes the closure plan under review in

this case might then be deemed enforceable.

 (Rep.

at

3.)

DISCUSSION

This 1989 appeal is complicated in that it involves the same

issues as the 1992 adjusted standard.

 However, the Board can not

vacate a 1989 decision of the Agency based upon a 1992 action.

The Board instead must review this appeal based upon what

information was before the Agency at the time of its decision.

Additionally,

 if the Board were to grant Olin’s motion and vacate

the original closure plan under appeal

 in this case,

 Olin would

have no permit for the time periods involved.

Therefore, the Board grants Olin’s motion for stay in this

matter for 120 days until July 23,

 1993,

 in the hope that the

parties will come to an agreement and be able to dismiss this

appeal.

 If the parties can not reach an agreement this case will

be set for hearing.

The parties are ordered to file a status report with the

Board on or before June 1,

 1993.

 Olin’s motion to vacate and the

Agency’s motion to dismiss are denied.

IT IS SO ORDERED.

J. Anderson concurred.

I, Dorothy N.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

 day of ________________________,

 1993, bv~a vote of

_______________

rn, Clerk

lution Control Board

t4O0 175