ILLINOIS POLLUTION CONTROL BOARD
March
23, 1989
FANSTEEL/ESCAST,
INC.,
)
)
Petitioner,
)
)
v.
)
PCB 89—31
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by R.
C. Flemal):
On February 15, 1989 Fansteel/Escast,
Inc.
(“Fansteel”)
filed
a Petition
for Review of permit denial
regarding disposal
of
its sodium hydroxide wastestream at Browning—Ferris
Industries, Inc.’s
(“Browning Ferris”) disposal site
located
in
Waukegan,
Illinois.
On the same day Fansteel filed
a Motion
for
Stay of Agency Denial and Expedited Decision.
Today the Board
addresses Fansteel’s motion.
On March
9,
1989 the Illinois Environmental Protection
Agency (“Agency”)
filed
a response
to Fansteel’s motion,
accompanied by a Motion to File Instanter;
this instanter motion
is granted.
Also on March
9, 1989
the Board, noting that disposition of
the stay portion of Fansteel’s motion may hinge on whether
the
waste
at issue has been previously disposed of pursuant
to the
terms
and conditions
of
a valid permit, ordered Fansteel
to file
a copy of
its prior permit(s).
On March
20,
1989 Fansteel
timely
filed the requested documents.
In the meantime,
on March
10, 1989 the Agency filed
its
record in
the permit appeal,
also accompanied by
a Motion to File
Instanter;
this instanter motion
is also granted.
STAY
The threshold
issue here
is whether
the Illinois
Administrative Procedure Act (“APA”), as
applied
to the
particular
circumstances of
this case,
confers an automatic stay,
and hence renders Fansteel’s motion
for stay moot.
(see Borg—
Warner Corp
v. M~y,
100 Ill. App.
3d
862,
427 N.E.2d
415
(1981);
and City
of
St. Charles
v.
Illinois Environmental
Protection Agency, PCB 88—148 Slip.
Or.
11/17/88).
In pertinent
part,
the APA specifies
at
Ill. Rev.
Stat.
1987, ch.
127,
par.
1016(b):
97—207
—2—
When
a licensee has made timely and sufficient
application
for the
renewal of
a license
or a new
license with reference
to any activity of
a continuing
nature,
the existing license
shall continue
in full
force and effect until
the final agency decision on
the application has been made unless
a later date
is
fixed by order
of
a reviewing court.
It
is uncontested that Browning—Ferris made timely
application for
a license
(permit)
to dispose of Fansteel’s
sodium hydroxide waste
(see Agency Record,
Exhs.
1
and
3).
It
is
likewise uncontested that the application was
for renewal of
a
license
(permit) previously issued
(see Agency Record,
Exh.
2).
In addition,
the courts have held that the Agency—Board review of
permit applications constitutes an “administrative continuum”
in
which
a
final decision
is not rendered until
the Board has taken
its final decision
(IEPA v.
PCB and Waste Management,
Inc.,
138
Ill.
App.
3d 550,
551
(1985); affirmed 503 N.E.2d 343
(1986));
such final Board action has not yet occurred.
On
its
face,
therefore, Section 16(b)
of
the APA would appear
to grant
an
automatic stay by virtue of maintaining
the full
force and
effect
of
the existing license
(permit)
under
which Fansteel has
disposed
of
its sodium hydroxide wastestream.
Nevertheless,
the Agency contends that Fansteel’s reliance
on Section 16(b)
is misplaced.
However,
the Agency does not
address
the matter of why
it believes Section
16(b)
does not
apply.
Rather,
it recites
the text of Section
39(h)
of the
Illinois Environmental Protection Act
(35 Ill.
Rev. Stat.,
Ch.
ll111~J (“Act”).
This section specifies, among
other matters,
that
after January
1,
1987 authorization for disposal of hazardous
waste streams may be granted only if the generator has reasonably
demonstrated that alternatives
to
landfill disposal of the
untreated wastestream are not technologically feasbility and
economically reasonable.
The Agency contends that the
Legislature adopted Section 39(h)
because of
a need to reduce
the
deposit of hazardous wastestreams, that the Legislature
did not
intend
this public policy to
be circumvented by permit appeals,
and that Fansteel has not shown that alternate disposal
arrangements cannot be made.
The Board, frankly,
is at pains to understand the point
of
the Agency’s argument.
Such worth as these arguments may have
is
directed
to the merits of this case, without seeming relevance
to
the instant matter of the applicability of Section 16(b).
The
Board does agree with the Agency that Section 39(h)
establishes
a
public policy intended to reduce
the deposit of hazardous
wastestreams.
However, Section
39(h)
does not either explicitly
or implicitly extinguish an applicant’s
rights under Section
16(b).
Moreover, should
the Agency refuse
to grant
authorization,
Section 39(h)
specifically allows applicants
to
97—208
—3—
appeal pursuant to the permit appeal provisions
of Section 40(a)
of the Act.
Finally,
that Fansteel has
or has not shown that
alternative disposal arrangements cannot be made
is a matter yet
to be determined by this Board,
as the trier
of fact.
The Board therefore finds that Section 16(b) of the APA
applies to the facts of the instant matter,
and renders an
automatic stay.
Accordingly, Fansteel’s Motion
for Stay
is
denied as moot in
so far
as the stay
is conferred
as
a mattet
of
law.
EXPEDITED DECISION
As previously noted
in its order of February
23,
1989
setting this matter
for hearing,
the Board will make every effort
to decide this matter as expeditiously is as possible and
is
consistent with
its case load.
IT IS SO ORDERED.
I,
Dorothy
M. Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that the above Order was adopted
on
the
~
day of
__________________,
1989, by a vote
of
7—~
.
Dorothy
M.
q4/nn, Clerk
Illinois
Pol-’lution Control Board
97—209