ILLINOIS POLLUTION CONTROL BOARD
    April 23, 1992
    CWM
    CHEMICAL SERVICES,
    INC.,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 89—177
    )
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY and
    )
    PEOPLE OF THE STATE
    )
    OF ILLINOIS,
    )
    Respondents.
    ORDER OF THE BOARD
    (by 3. Theodore Meyer):
    This matter is before the Board on
    CWN
    Chemical Services’s
    (CWM) March 23,
    1992 motion to stay proceedings.
    After an
    extension of time to respond to the motion was granted by the
    hearing officer, the Attorney General, on behalf of the Illinois
    Environmental Protection Agency (Agency)
    and the People of the
    State of Illinois
    (collectively, the Attorney General)
    filed its
    response on April
    13, 1992.
    On April
    16,
    1992,
    aiuicus curiae the
    35th District Environmental Task Force (Task Force)
    filed its
    response, with a motion for leave to file the response instanter.
    The Task Force states that the April
    13,
    1992 flood of the
    Chicago River into the underground system of downtown Chicago
    forced the evacuation of the offices of its attorneys, and that
    its attorneys could not return to their offices until April 16,
    1992.
    The motion to file instanter is granted.
    This case involves CWM’s appeal of the Agency’s September
    1989 denial of CWM’s requested
    RCRA
    Part B permit for CWM’s
    Chicago incinerator.
    CWM now seeks a stay of the hearings in
    this matter, pending an Agency decision on a new RCRA Part B
    permit application filed by
    CWM
    in November 1991.
    CWM contends
    that most of the Agency’s 96 reasons for denying the 1989 permit
    have been mooted by changed circumstances or new operating
    procedures used at the incinerator. Although it maintains that
    many issues are moot, CWM admits that the facility’s need to
    maintain RCRA interim status “effectively precludes an agreed
    resolution of this appeal on .any basis that would have the effect
    of affirming the propriety of any part of (the Agency’s
    1989
    permit denial.”
    (Motion at 3.)
    Thus,
    CWM
    asks that hear.ings be
    stayed,
    on the basis of its stipulation not to operate the
    incinerator unless and until a Part B permit is issued by the
    Agency.
    CWN
    asserts that cessation of operation is all that the
    Attorney General or the Task Force can expect from the conclusion
    of this proceeding,
    that the Board will not have to devote any
    133—119
    2
    further resources to this matter, that the parties will no longer
    be locked in adversarial proceedings, and that the parties’
    resources can then be more efficiently applied to the 1991 Part B
    permit application review process.
    In response, the Attorney General states that it has two
    options:
    to support the motion to stay, or to commit to a
    minimum of an additional six months of effort and resources to
    bring this appeal to a close.
    Given these options, the Attorney
    General believes that it has only one “reasonable” choice:
    “to
    support the stay, but,
    in doing so,
    to require an irrevocable
    commitment made by
    CWM
    which is subject to specific
    performance.”
    (Response at 3.)
    Attached to the response is a
    stipulation,
    in which CWM agrees, among other things, to cease
    all operations at the Chicago incinerator, to bring no additional
    waste material of any kind to the facility, to remove existing
    on—site waste, to dismiss this appeal when the “final
    administrative decision”
    is made on the 1991 Part B application,
    and to dismiss this appeal
    if, at any time prior to issuance of a
    final RCRA Part B operating permit, there
    is any operation of the
    incinerator or storage of waste at the facility.
    (Response, Exh.
    A.)1
    The Attorney General states that its support of the
    requested stay is expressly conditioned on CWM’s agreement to and
    the Board’s approval of the stipulation.
    If there is any breach
    of the stipulation, the Attorney General intends to enforce the
    stipulation in circuit court.
    The Task Force also filed a response to the motion to stay.
    The Task Force opposes the stay,
    contending that the motion is
    the latest in a series of attempts by
    CWM
    to prevent the Board
    from ruling on the merits of this 2
    1/2 year old appeal, thus
    endangering CWM’s interim status.2
    The Task Force notes that
    the hearings in this proceeding have indeed required a
    considerable investment of resources, but maintains that
    CWN
    has
    only itself to blame.
    The Task Force argues that CWM’s
    examination of witnesses has been lengthy and redundant,
    and its
    several motions have unnecessarily burdened the Board and t.he
    parties.
    The Task Force also expresses concern that,
    should
    hearings in this case have to resume at some point in the future,
    the Agency’s case could be severely prejudiced by the possible
    unavailability of witnesses.
    Thus, the Task Force opposes the
    requested stay.
    If the stay is granted, however, the Task Force
    suggests that the parties be required to submit regular status
    1
    The Attorney General
    filed
    a
    fully executed copy
    of the
    stipulation, signed by representatives of CWM, the Agency, and the
    Attorney General, on April 20,
    1992.
    2
    The Task Force believes that CWM’s interim status terminated
    when the Agency denied its first Part B application in September
    1989.
    133—120
    3
    reports so that the Board can maintain some control over the
    proceeding and reinstate the hearings if circumstances warrant
    it.
    After consideration of the arguments of the parties and the
    aniicus, and of the history of this proceeding,
    the Board
    reluctantly grants the requested stay of hearings.
    This
    proceeding is
    2 1/2 years old, and many of the resources needed
    for the conduct of the appeal, about which CWM seems to be so
    concerned, have already been expended.
    However, the Board agrees
    with the Attorney General that a final Board decision on this
    appeal could take another six months.
    The stipulation that CWN
    will not operate its Chicago incinerator, and will not store
    waste at the facility, will ensure that no further operation of
    the facility occurs until a RCRA Part B permit is obtained.
    As
    the Task Force states in its response, it entered this case
    because of its concerns about “the consequences of a hazardous
    waste incinerator operating in its members’ neighborhood not only
    without a permit
    (reason enough for concern), but long after its
    permit was denied.”
    (Task Force response at 1—2.)
    By granting
    the requested stay, on the basis of the stipulation that no
    further operation will occur at the facility, the Board is able
    address those concerns.
    The facility simply will not operate
    without a Part B permit.
    The Board stresses that its grant of the stay is based
    solely on the stipulation, which is hereby incorporated by
    reference.
    In addition to requiring that CWM.conform with all
    aspects of the stipulation, the Board orders
    CWM
    to file status
    reports with the Board every 90 days.
    The status reports shall
    summarize the activity on the 1991 application.
    Failure to file
    these reports,
    or any indication that there is intentional delay
    in the review process, will result in further Board action on
    this case.
    IT IS SO ORDERED.
    I, Dorothy H.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    ~3~-~-~—
    day of
    ______________,
    1992, by a vote of~
    7~
    2
    ~
    ~.
    ~Dorothy M.4~unn,Clerk
    Illinois ~llution
    Control Board
    133—12 1

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