ILLINOIS POLLUTION CONTROL BOARD

December 13,

1973

IN THE

MATTER

OF THE MOTION FOR STAY

OF SHELL OIL COMPANY

)

R72-2

DISSENTING OPINION OF MR. HENSS AND MR. SEAMAN:

On September 26,

1973,

Shell Oil Company filed

its Motion

seeking

a Stay

as to Petitioner of

the effective date of this

Board’s Noise Regulations

(R72—2)

,

adopted July

26,

1973.

Shell

Oil is currently

a petitioner

in a proceeding entitled Shell Oil

Company v.

Illinois Pollution Control Board, No. 59460,

now

pending before the Appellate Court of

Illinois, First District,

and in a second proceeding entitled Amoco Oil Company,

et al v.

Illinois Pollution Control Board,

No. 73-279, now pending before

the Appellate Court of Illinois, Fifth District, which proceedings

were brought pursuant to the Illinois Administrative Review Act,

Chapter 110, Section 264,

et.

seq.,

seeking judicial review of the

Noise Regulation as that Regulation applies to the Petitioner’s

Wood River facility.

Petitioner alleges that it will be subjected to a potential

cost of $17,000,000 if it attempts to bring its Wood River refinery

into compliance with the standards imposed by the Noise Regulation,

and that causing Petitioner

to incur some of the costs of compliance

while the Regulation

is pending on review would impose an unreasonable

and excessive burden upon Petitioner and would effectively deny

Petitioner its remedy of challenging the Regulation.

Petitioner further alleges that it does not plan the installation

of new equipment or the modification of existing equipment so as to

increase noise levels while this cause is pending and that,

based

upon the lack of complaints received at the Wood River refinery,

Petitioner believes the present noise emitted from the refinery is

not disturbing the adjacent community.

While

a majority of the Board

is not convinced that a stay is

warranted in this cause, we would grant the stay as requested.

We

note that the Appellate Court addressed this issue in an action

involving a somewhat analogous situation in A.

E. Staley Manufacturing

Company v. Environmental Protection Agency,

8

Ill. App.

3d

1018,

290

N.E.

2d

892.

There, the Court held that the Pollution Control Board’s

refusal to stay the application of certain Regulations pending appeal

10— 383

---

—2—

by one adversely affected by the Regulations,

impinged on the

aggrieved party’s right

to its day in court.

The issue here is whether the possible expense and injury

which Petitioner might incur during

the

period for which the

stay is sought would outweigh the potential harm to others.

Petitioner is adversely affected by the Noise Regulation and has

actively participated in the public hearings held prior to adoption

of

the Regulation.

We are of the opinion that Petitioner’s Motion

is neither frivolous nor dilatory and should be granted.

Finally,

we

stress that our Opinion has been reached by an

analysis of the particular fact situation presented by the Shell

Motion and we do not suggest that there be an automatic

stay where

Petitioners have appeals pending.

Accordingly,

this minority

would grant the Motion to Stay as requested by the Petitioner.

I, Christan

L.

Moffett,

Clerk of the Illinois Pollution Control

Board, h~rebycertif

the above Dissenting Opinion was submitted

this

~7 ~

day

of

____________,

1974.

10

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384