ILLINOIS POLLUTION CONTROL BOARD
March 19, 1998
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ESG WATTS, INC.,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 96-107
(Enforcement - Air - Land - Water)
ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on three motions filed by ESG Watts, Inc. (ESG
Watts), and one motion filed by complainant. On February 23, 1998, ESG Watts filed a
motion for stay. Complainant filed its response on February 25, 1998. ESG Watts filed a
motion to file a reply and its reply on March 4, 1998. On March 2, 1998, ESG Watts filed
two motions: (1) a motion to vacate or modify the February 5, 1998, Board order, or in the
alternative, motion for rehearing, and (2) a motion to reset order of pending motions, or in the
alternative, to consolidate motions for purposes of hearing. Complainant filed its response on
February 27, 1998.
1
ESG Watts filed a memorandum of law in support of its motion to vacate
or modify on March 3, 1998, and ESG Watts further filed the last exhibit (Exhibit D) to its
motion to vacate or modify on March 5, 1998. Complainant filed a motion to strike ESG
Watts’ memorandum of law on March 13, 1998.
The Board will first address the procedural motions filed by the parties: (1) the motion
to reset order of pending motions filed by ESG Watts, and (2) the motion to strike filed by
complainant. ESG Watts argues in its motion to reset order of pending motions, or alternative
motion to consolidate for purposes of hearing, that procedurally, the relief sought in the
motion to vacate should be determined first since the motion to stay is only relevant in the
event the Board denies the motion to vacate. The Board notes that complainant did not
respond to the motion to reset and therefore waives objection to the granting of the motion
pursuant to the Board’s procedural rules (see 35 Ill. Adm. Code 101.241; 103.140). In
finding that no material or undue prejudice would result if the Board addresses the motion to
vacate prior to addressing the motion to stay, the Board will, as ESG Watts requests, address
the motion to vacate first. The Board grants ESG Watts’ motion to reset order of pending
motions and addresses both motions in this order.
Complainant asserts in its motion to strike ESG Watts’ memorandum of law in support
of the motion to vacate that Section 103.240 does not allow for the subsequent filing of a
memorandum of law after a motion has been filed. Complainant believes that material
1
Prior to receiving ESG Watts’ motions on March 2, 1998, the Board received complainant’s
response.
2
prejudice would result to complainant if the memorandum is not stricken since complainant
states it cannot file a reply which addresses new grounds that are inconsistent with the initially
pleaded arguments. Complainant argues that the memorandum is inconsistent with the
originally filed motion.
The Board denies the motion to strike the memorandum in support of the motion to
vacate. ESG Watts’ motion originally stated that its memorandum would be filed with the
Board within 14 days of the filing of its motion to vacate. However, the Board received the
memorandum one day after the filing of the motion to vacate. Additionally, the Board
received the last exhibit to the memorandum two days later. All of these pleadings were filed
with the Board during the 35 days within which ESG Watts could file any motion for
reconsideration (35 Ill. Adm. Code 101.246) or motion subsequent to entry of final order (35
Ill. Adm. Code 103.240). The Board notes that its procedural rules do not specifically bar the
filing of a memorandum subsequent to the filing of a motion. The Board further notes that
complainant could have filed a response to the memorandum; therefore no undue prejudice has
resulted in this matter. While not encouraging “piecemeal” filings, the Board will allow the
memorandum of law to be filed and, accordingly, the motion to strike is denied.
The Board will now turn to the more substantive motions filed by ESG Watts: (1) the
motion to vacate and (2) the motion to stay.
MOTION TO VACATE OR MODIFY THE FEBRUARY 5, 1998, BOARD ORDER, OR
IN THE ALTERNATIVE, MOTION FOR REHEARING
On February 5, 1998, the Board adopted a final opinion and order in this matter. The
Board sent, by certified mail, a copy of the opinion and order to each of the parties. Pursuant
to 35 Ill. Adm. Code 103.240, ESG Watts filed its motion to vacate or modify or motion for
rehearing
2
within 35 days after service of the order. In essence, this motion is a motion for
reconsideration of the Board’s final opinion and order which is similar to a motion filed under
Section 101.246, Motions for Reconsideration (35 Ill. Adm. Code 101.246).
ESG Watts asserts that the Board’s February 5, 1998, final opinion and order should be
vacated or modified, or that the Board should hold a new hearing, since the facts that the
Board relied on in making its decision have substantially changed. Mot. to Vac. at 1; Watts
Memo at 1. ESG Watts argues that the alleged violations have been remedied or have been
substantially remedied. Mot. to Vac. at 1; Watts Memo at 1. In support of this argument,
ESG Watts states that the Board should have considered the amount of financial assurance,
which became effective just days before the Board adopted the opinion and order in this
matter, on January 26, 1998 (see Watts Memo at 3; see Watts Memo, Exhibit B). ESG Watts
further asserts that the Board should now consider that ESG Watts has implemented a system
to control leachate and a program for stormwater runoff control. Watts Memo at 4. All
2
Citations to ESG Watts’ motion to vacate will hereinafter be referred to as “Mot. to Vac. at
___.” ESG Watts’ memorandum of law in support of such motion will be cited to as “Watts
Memo at ___.” Complainant’s response to the motion will be referred to as “Resp. to Vac. at
___.”
3
problems with regard to the National Pollutant Discharge Elimination System (NPDES) permit
have been resolved, ESG Watts argues. With regard to the gas collection system, ESG Watts
maintains that the system continues to be completed, but that the gas emissions are being
controlled. Watts Memo at 5-6.
ESG Watts believes that the Board should take into consideration these new factual
changes because Section 33(c) of the Environmental Protection Act (Act) (415 ILCS 5/33(c)
(1996)) requires the Board to do so. Watts Memo at 6-9. ESG Watts requests that the Board
either vacate the February 5, 1998, opinion and order, or in the alternative, modify the order
to reflect that the operating permit is not revoked and the $100,000 penalty is removed. ESG
Watts requests a rehearing so the Board can hear the complete facts when deciding whether a
penalty is appropriate. Watts Memo at 11.
Complainant responds by stating that ESG Watts has filed the present motion to vacate
or modify “for the primary purpose of obtaining an ‘automatic’ stay [pursuant to Section
103.240].” Resp. to Vac. at 1. Complainant argues that Section 103.240 of the Board’s
procedural rules (35 Ill. Adm. Code 103.240), which allows for an automatic stay once a
motion is filed under that section and until the Board rules on the motion, is in conflict with
Illinois Supreme Court Rule 335(g) (172 Ill. 2d R. 335(g)), which is followed when a party
files a motion to stay pursuant to Section 101.303 (35 Ill. Adm. Code 101.303). Resp. to
Vac. at 2. Complainant further asserts that none of the facts in this case have changed, nor
have any of the alleged violations been corrected. Resp. to Vac. at 3. Because ESG Watts
filed its memorandum after it filed this motion, complainant believes that the memorandum of
law should not be allowed since Section 103.240 does not provide for such subsequent filings.
Resp. to Vac. at 3. Last, complainant argues that the motion fails to identify any facts
overlooked, evidence not available at hearing, any change in the law, or any error in the
application of the existing law. Resp. to Vac. at 4. Accordingly, complainant desires that the
Board deny the motion to vacate, modify, or alternative motion for rehearing.
A motion filed subsequent to the entry of a final order under Part 103 (“Enforcement
Proceedings”) is similar to a motion filed under Part 101 (“General Provisions”) in that they
both must be filed within 35 days, they both stay the effect of a final order, and the time for
appeal from the final order in both types of motions runs anew after the Board rules on the
motion. See 35 Ill. Adm. Code 101.246, 103.240. In ruling upon a motion for
reconsideration, or in this case a motion to vacate a final order, the Board is to consider, but is
not limited to, error in the previous decision and facts in the record which may have been
overlooked. 35 Ill. Adm. Code 101.246(d). In Citizens Against Regional Landfill v. County
Board of Whiteside County (March 11, 1993), PCB 93-156, the Board stated that “[t]he
intended purpose of a motion for reconsideration is to bring to the court’s attention newly-
discovered evidence which was not available at the time of the hearing, changes in the law, or
errors in the court’s previous application of the existing law.” Korogluyan v. Chicago Title &
Trust Co. (1st Dist. 1992), 213 Ill. App. 3d 622, 572 N.E.2d 1154.
The Board finds that the arguments presented in complainant’s motion do not present
the Board with any new evidence, a change in the law, or any other reason to conclude that the
Board’s decision was in error. ESG Watts has not shown that the facts which the Board used
4
in determining the outcome of this matter were different during the alleged time period of the
violations covered by the complaint. The fact is that ESG Watts remained underfunded in its
financial assurance trust fund during the timeframe which the Board used in determining the
violations up through and including the hearing dates. ESG Watts had not properly addressed
or alleviated the leachate, cover, or stormwater runoff problems during the time of the alleged
violations. Further, ESG Watts was clearly in violation of the requirements of its NPDES
permit during the time period alleged by complainant. With regard to the air odor problems,
there are no new facts before the Board now which show that ESG Watts controlled gas
emissions during the time of the alleged violations. The Board used the substantiated evidence
in the record to find that ESG Watts’ Taylor Ridge landfill operating permit should, as a
penalty, be revoked and the Board will not move to vacate or modify its order. The Board
sees no reason to hold a rehearing on this matter.
Although ESG Watts argues that the Board is required to address these “substantially
changed facts” because Section 33(c)(v) (415 ILCS 5/33(c)(v) (1996)) requires the Board to
consider “any subsequent compliance,” the Board has already addressed Section 33(c)(v) in its
February 5, 1998, opinion. See People v. ESG Watts, Inc. (February 5, 1998), PCB 96-107,
slip op. at 50. There, the Board stated that, “compliance is sporadic at best.” The Board will
not now consider new facts as part of its earlier deliberations over Section 33(c)(v) since such
facts will not now lessen the severity of violations which have already occurred.
The Board disagrees with complainant’s argument that ESG Watts has no automatic
stay from the point the motion to vacate was filed pursuant to Section 103.240. Despite
complainant’s belief that no automatic stay occurred in this instance since ESG Watts had
previously filed a motion to stay pursuant to Section 101.303, the plain language of Section
103.240 does, indeed, automatically stay the Board’s order. Because the Board granted the
motion to reset order of pending motions (see above discussion), the Board need not address
whether Rule 335 became in direct conflict with Section 103.240. Pursuant to Section
103.240, from the time that ESG Watts filed its motion to vacate with the Board on March 2,
1998, until today, ESG Watts had an automatic stay.
Because the Board denies the motion to vacate, the Board will now address the motion
to stay below.
MOTION TO STAY
ESG Watts requests a motion to stay
3
pursuant to 35 Ill. Adm. Code 101.303. Section
101.303 states that “[t]he procedure for stay of any Board order during appeal shall be as
provided in Rule 335 of the Rules of the Supreme Court of Illinois.” 35 Ill. Adm. 101.303.
Rule 335 of the Rules of the Supreme Court of Illinois provide that the “[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.
3
ESG Watts’ motion to stay will be cited to as “Mot. to Stay at ___.” Complainant’s
response will be cited to as “Resp. at ___.” ESG Watts’ reply will be cited to as “Reply at
___.”
5
ESG Watts argues that a stay is necessary to “secure the fruits of a meritorious appeal
where otherwise they may be lost.” Mot. to Stay at 4. ESG Watts asserts that failure to grant
this stay will result in extreme economic hardship to it. Specifically, ESG Watts states that if
its operating permit were revoked, it would suffer a loss of business, damage to the hauling
business, and a loss of customers while the appeal is pending. Mot. to Stay at 5. ESG Watts
believes that if it had to cease accepting waste, it would have to begin closure within 30 days
and such action would impose a “significant and unnecessary hardship on respondent.” Mot.
to Stay at 5. ESG Watts argues that because the Board acted inconsistently by revoking ESG
Watts’ operating permit as a “sanction of first impression,” ESG Watts will be successful on
its appeal before the Illinois Appellate Court. Mot. to Stay at 5-7. Additionally, ESG Watts
argues that the Board should stay this matter, and the requirement of ESG Watts to pay the
$100,000 penalty amount, because the funds could be better used for site management, among
other things. Mot. to Stay at 7-8.
Complainant objects to the request for stay. Complainant argues that ESG Watts has
misstated the facts in this matter. Complainant further argues that because ESG Watts failed to
file an affidavit in support of its motion as required by Illinois Supreme Court Rule 335(g)
when “facts are subject to dispute,” this motion should be denied based on procedural
inaptitude. Resp. at 1-2. Complainant asserts that the Board should not stay the pending
permit revocation and $100,000 penalty amount since a stay is discretionary and the Board
should not suspend the intent of its order. Resp. at 8-9.
ESG Watts replies to complainant’s response with a motion to file a reply instanter,
which the Board grants, and the reply. In its reply, ESG Watts states that it does not need an
affidavit because the facts it raises in its motion are not in dispute. Reply at 3-5.
The Board denies the motion to stay filed by ESG Watts.
The Board uses its discretion
when deciding whether to grant a motion to stay of a final Board order. The Board has, on
several occasions, denied such motions. See Alice Zeman v. Village of Summit,
et al
. (April
8, 1993) PCB 92-174, PCB 92-177; Village of Mattson v. World Music Theatre
et al
. (March
25, 1993), PCB 90-146; Citizens Against Regional Landfill v. County Board of Whiteside
County
et al.
(May 20, 1993), PCB 92-156. In denying these motions, the Board believes the
effect of a stay in its entirety would harm the environment. See IEPA v. Pielet Brothers
Trading, Inc. (February 4, 1982) PCB 80-185. The Board has previously stated and continues
to believe that the suspension of a cease and desist order would allow the very harm which an
order was meant to prevent and any delay would be injurious to public interest. See IEPA v.
Incinerator, Inc. (October 14, 1971), PCB 71-69.
The Board has found that the evidence clearly demonstrates that ESG Watts’ violations
have occurred and that the provisions of the final order are necessary to prevent any further
violations. Because the Board ordered ESG Watts not to accept any more waste at the Taylor
Ridge landfill, to cease and desist from any further violations, and to pay a specific penalty
amount and attorney fees, the Board would be acting adverse to the immediate effects of its
February 5, 1998, opinion and order if it stayed any ruling imposed on ESG Watts. The
Board maintains that its February 5, 1998, order should be timely executed by ESG Watts so
as to ensure proper compliance with the Environmental Protection Act and the Board’s
6
regulations. The Board notes that ESG Watts can file a motion to stay for consideration by the
appellate court.
In conclusion, the motion to reset order of pending motions is granted. The motion to
vacate, the motion to stay, and the motion to strike are all denied.
IT IS SO ORDERED.
Board Member K.M. Hennessey abstained.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
Rule 335.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 19th day of March 1998 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
