ILLINOIS POLLUTION CONTROL BOARD
    September
    8,
    1988
    SIMKINS INDUSTRIES,
    INC.,
    Petitioner,
    v.
    )
    PCB 87—181
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by R.
    C.
    Flemal):
    This matter comes before the Board upon
    a Motion
    to Stay the
    Time
    for Filing
    a Certificate
    of Acceptance filed
    by Simkins
    Industries,
    Inc.
    (~Simkins”) on August
    18,
    1988.
    By Order
    of June 16,
    1988 the Board granted Simkins
    a one—
    year variance from
    35 Ill.
    Adm.
    Code 215.245.
    The grant
    of
    variance
    is conditioned
    to
    terminate on May 31, 1989,
    the date at
    which Simkins contended
    it would
    be
    in compliance with Section
    215.245.
    On July 21,
    1988 Simkins moved
    the Board
    to modify
    its June
    16,
    1988 Order
    by adding four
    additional years
    to the May 31,
    1989 compliance date.
    By Order
    of August
    4,
    1988
    the Board
    denied Simkiris’ modification motion,
    noting
    inter alia that
    Simkins had previously presented
    no evidence which would allow
    the Board
    to weigh the merits of the longer—term variance.
    The
    Board additionally noted
    that
    if Simkins wished
    to provide the
    information necessary
    to support
    the longer—term variance,
    it
    need do
    so
    in
    a new proceeding
    such
    as
    to allow the Illinois
    Environmental Protection Agency (“Agency”)
    and other participants
    opportunity
    to assess the new information through the prOcedures
    provided for
    in the standard comment,
    recommendation,
    and hearing
    process.
    To allow Simkins to pursue the longer—term variance,
    the Board
    redocketed Simkins’ July 21,
    1988 motion as
    a petition
    for variance
    in
    a new proceeding, PCB 88—121.
    Additionally,
    in
    its August
    4,
    1988 Order the Board
    on
    its
    own motion extended by 45 days the time limit
    for Simkins’
    submission
    of
    a signed Certificate
    of Acceptance
    for the one—year
    variance.
    Simkins’ instant motion
    is
    to further extend the time
    limit until
    a final decision
    is rendered
    in PCB 88—121.
    During the pendency
    of the
    instant proceeding,
    Simkins was
    afforded an automatic stay of
    the effectiveness of Section
    215.245 because
    it had timely
    filed
    its variance petition
    92—65
    —2—
    pursuant to Section 38(b)
    of the Environmental Protection Act
    (“Act”)
    (Ill.
    Rev.
    Stat.
    1987,
    ch.
    lll1h,
    par.
    1038).
    In
    pertinent part,
    Section
    38(b)
    reads:
    If any person files
    a petition for variance from
    a
    rule or
    regulation within
    20 days after
    the effective
    date of such rule or regulation,
    the operation of such
    rule or
    regulation shall be stayed
    as to such person
    pending
    the disposition of
    the petition.
    Simkins avowed desire
    is
    to preserve the Section 38(b)
    stay
    for the additional
    time required for disposition
    of
    the PCB 88—
    121 proceeding.
    Furthermore,
    it
    is Simkins’ apparent belief that
    the stay would remain
    in force
    as long as Simkins’
    filing of the
    Certificate of Acceptance
    is pending.
    The Board finds
    that this
    is
    an unsupported construction of Section 38(b).
    The controlling language of Section 38(b)
    is that the stay
    shall
    be
    in effect
    “pending the disposition of
    the petition”.
    The “disposition” referred
    to
    is clearly the final adjudicative
    action taken by the Board, or by
    a higher court
    if the matter
    is
    appealed.
    The Board,
    in
    fact,
    has taken final action on Simkins’
    petition with
    its grant
    of Simkins’ requested variance.
    As the Board noted
    in
    its June 16,
    1988 Opinion,
    a variance
    is not binding until petitioner accepts the variance upon the
    terms
    imposed,
    an action which
    is accomplished by filing of
    the
    Certificate of Acceptance
    (Slip op.
    at
    6).
    That Simkins may now
    wish to accept
    or not to accept
    the Board’s final action by
    filing or
    not filing
    the Certificate of Acceptance
    is immaterial
    to the fact that the statutory “disposition” has taken place and
    that the automatic stay has thereby terminated.
    The Board sees
    no merit
    in further extension of
    the filing
    date
    for
    the Certificate
    of Acceptance.
    The motion for
    stay of
    the filing deadline
    is therefore denied.
    IT
    IS SO ORDERED.
    I, Dorothy M.
    Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify tha
    the
    ove Order was
    adopted on
    the
    ~
    day of
    ___________________,
    1988,
    by a vote
    I
    s Pal
    Control Board
    92—66

    Back to top