ILLINOIS POLLUTION CONTROL BOARD
    September 16, 2004
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    JOHN PRIOR d/b/a PRIOR OIL COMPANY
    and JAMES MEZO d/b/a MEZO OIL
    COMPANY,
     
    Respondents.
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    PCB 02-177
    (Enforcement – Land, Water)
     
    ORDER OF THE BOARD (by A.S. Moore):
     
    On August 20, 2004, respondent John Prior d/b/a Prior Oil Company (Prior) filed a
    motion to stay the Board’s final order pending direct review in the Fifth District Appellate Court.
    In the Board’s final order, issued July 8, 2004, the Board found that Prior violated the
    Environmental Protection Act (415 ILCS 5 (2002)) and Board regulations. The Board also
    ordered Prior to pay a civil penalty of $300,000 and to pay the attorney fees of complainant, the
    Office of the Attorney General for the People of the State of Illinois (People), in the amount of
    $6,600.
     
    In the motion for stay, Prior asserts that a stay of the Board’s final order is needed to
    prevent irreparable harm to Prior and to protect Prior’s certain and clearly ascertainable right to
    appeal the Board’s final decision. Motion at 2. The motion provides that Prior will be filing a
    petition for review with the Fifth District Appellate Court to preserve Prior’s right to appeal in
    this case.
    Id
    . at 1. The Board takes notice that Prior has since filed a petition for review with the
    court.
    See
    35 Ill. Adm. Code 101.630 (matters of which the Board may take official notice).
     
    Prior notes in the motion for stay that the Board’s final order “only required Prior to pay
    a substantial civil penalty and the attorney fees of the People . . . and did not contain a
    requirement to cease and desist from any actions or perform any actions other than the payment
    of the civil penalty and attorney fees.” Motion at 2. According to Prior, the “People . . . and the
    environment will not be harmed if a stay is granted.”
    Id
    . The People filed a response to the
    motion for stay on September 13, 2004. In the response, the People state that they do not object
    to the stay, noting that the motion “seeks merely to stay the payment of civil penalties and
    attorney’s fees pending appeal.” Response at 1. Prior’s co-respondent, James Mezo d/b/a Mezo
    Oil Company (Mezo), has not responded to Prior’s motion for stay. Mezo therefore waives any
    objection to the Board granting Prior’s motion.
    See
    35 Ill. Adm. Code 101.500(d).
     
    The Board’s procedural rules provide that the “procedure for stay of any final Board
    order during appeal will be as provided in Rule 335 of the Rules of the Supreme Court of Illinois
    (Ill. S. Ct. Rule 335).” 35 Ill. Adm. Code 101.906(c). In turn, Supreme Court Rule 335(g) states
     
    2
    that “[a]pplication for a stay of a decision or order of an agency pending direct review in the
    Appellate Court shall ordinarily be made in the first instance to the agency.” 172 Ill. 2d R.
    335(g).
     
     
    The decision to grant or deny a motion for stay is “vested in the sound discretion of the
    Board.”
    See
    People v. State Oil Co., PCB 97-103 (May 15, 2003) (granting motion for stay after
    petition for review filed with Appellate Court),
    aff’d sub nom
    State Oil Co. v. PCB, 2004 Ill.
    App. Lexis 968 (2d Dist., Aug. 18, 2004). The Board has been reluctant to stay its orders when a
    stay may result in harm to the public or the environment.
    See
    ,
    e.g.
    , Panhandle Eastern Pipe Line
    Co. v. IEPA, PCB 98-102 (July 8, 1999) (denying motion for stay where movant sought to delay
    meeting requirements designed to prevent significant deterioration in air quality),
    aff’d sub nom
     
    Panhandle Eastern Pipe Line Co. v. PCB and IEPA, 314 Ill. App. 3d 296, 734 N.E.2d 18 (4th
    Dist. 2000). The Board has granted stays of its orders with respect to the payment of penalties.
    See
    ,
    e.g.
    , IEPA v. Pielet Bros. Trading, Inc., PCB 80-185 (Feb. 4, 1982) (granting motion for
    stay of order’s provision requiring penalty payment, but denying motion for stay of order’s
    provision requiring respondent to cease and desist from violations),
    aff’d sub nom
    Pielet Bros.
    Trading, Inc. v. PCB, 110 Ill. App. 3d 752, 442 N.E.2d 1374 (5th Dist. 1982). Consistent with
    this precedent and Illinois Supreme Court Rule 335(g), the Board grants Prior’s motion for stay.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on September 16, 2004, by a vote of 5-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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