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