ILLINOIS POLLUTION CONTROL BOARD
    June
    2,
    1988
    VILLAGE OF SAUGET,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    PCB 86—58
    ____________________________________
    (Consolidated with
    PCB 86—63)
    MONSANTO COMPANY,
    Petitioner,
    ‘1.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    INTERIM ORDER OF THE BOARD
    (by R.
    C. Flemal):
    On April
    28,
    1988 the Village of Sauget
    (“Sauget”)
    filed
    a
    Motion
    to Extend Stay,
    requesting
    that enforcement
    of the
    conditions of Sauget’s NPDES permit #IL00655145
    for
    its American
    Bottoms Regional Wastewater Treatment plant
    (“AB plant”)
    be
    stayed until
    a final determination
    is made by the Board
    in the
    instant matter
    or until September
    19, 1988.
    Alternatively,
    Sauget requests that the Board determine that
    an automatic stay
    is
    in place pursuant
    to Section 16(b)
    of the Illinois
    Administrative Procedure Act
    (“APA”).
    On May 13,
    1988 the Illinois Environmental Protection Agency
    (“Agency”) filed
    an Objection
    (“Objection”)
    to Sauget’s motion,
    and on May 17,
    1988 Sauget filed
    a Reply (“Reply”)
    to the
    Agency’s Objection.
    Both Objection and Reply were filed with an
    accompanying Motion for Leave
    to File.
    Filing of neither
    the
    Objection or Reply was made pursuant
    to the Board’s procedural
    rules governing such matters.
    However,
    in view of the substance
    of the issues which the Board
    is here asked
    to address,
    the Board
    hereby grants both Motions for Leave
    to File and thereby accepts
    both Objection and Reply.
    90—05

    —2—
    FACTS
    On April
    18, 1986
    Sauget filed
    an appeal of certain
    conditions of NPDES Permit #IL00655145 dated March 21,
    1986
    relating
    to the AB plant.
    At
    that time the AB plant was under
    construction and not yet operational.
    Permit *1L00655145 was the
    first NPDES permit issued to the AB plant.
    The AB plant was designed
    to replace
    two primary treatment
    plants,
    the East St. Louis and Metro East Sanitary District
    (Cahokia)
    treatment plants, plus
    to receive and further treat the
    effluent produced
    by Sauget’s physical/chemical plant
    (“P/C
    plant”).
    The AB plant first received complete diversion
    of all
    flows on November
    4,
    1987.
    On July
    11, 1986
    Sauget filed
    a motion to stay enforcement
    of the contested conditions
    of NPDES Permit #ILD0655l45,
    similar
    to that of
    the instant request.
    That motion was granted by Board
    Order
    of July 31,
    1986, with grant
    of stay effective through
    January
    21,
    1987.
    No request
    to extend the stay beyond January
    21,
    1987,
    other
    than
    the instant request, has been filed.
    In granting the initial stay (to January 21,
    1987),
    the
    Board weighed Sauget’s assertion that grant of the stay would
    have minimal environmental impact because the AB plant would not
    be operational
    until
    after expiration of
    the stay.
    The Board
    also specifically noted that the Agency had made no response to
    Sauget’s motion for
    the stay.
    AUTOMATIC STAY
    The threshold issue here present
    is whether the APA,
    as
    applied
    to the particular circumstances of this case,
    confers an
    automatic
    stay.
    Should such prove
    to be the case,
    the remaining
    arguments
    regarding the merits of granting Sauget’s request are
    moot.
    In pertinent part, the APA specifies at 127 Ill.
    Rev.
    Stat.
    Section 1016(b):
    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 the licensee, Sauget,
    has made timely
    and sufficient application for
    a license
    (i.e.,
    the NPDES
    90—06

    —3—
    permit).
    It
    is contested,
    however,
    (a) whether Sauget’s
    application
    is
    for “renewal”
    of
    a
    license;
    (b) whether
    the sought
    after
    license
    is
    for
    an “activity of
    a continuing nature”; and
    (c) what,
    if
    any,
    constitutes the “existing license”?
    Sauget contends that because
    it has held prior NPDES permits
    for operation of
    a waste treatment facility (albeit, not the same
    facility as the
    AB plant and not the identical influent waste
    stream), Sauget’s application constitutes
    a renewal action as
    well
    as an application for
    an activity of
    a continuing
    nature.
    Under
    this
    interpretation,
    Sauget contends that
    the prior NPDES
    permits constitute
    the existing license.
    Conversely,
    the Agency contends that because
    the AB plant
    has held no prior permit,
    Sauget’s application can not properly
    be considered to be
    a license renewal
    or
    to refer
    to an activity
    of
    a continuing
    nature.
    Under
    this interpretation,
    there
    is no
    “existing license”.
    Central
    to the resolution
    of each of
    these issues
    is the
    matter
    of who or what
    is licensed
    in the NPDES process.
    The
    Board
    believes that
    it
    is patently apparent that it
    is the
    discharges
    of
    a particular facility which are licensed.
    As
    illustration thereto,
    an NPDES permit
    is defined
    as
    a permit
    which
    is issued
    to a treatment works pursuant
    to section
    402 of
    the Clean Water Act (EPA Effluent Limitations Guidelines,
    40 CFR
    403.3(1)
    (1987)) and the Environmental Protection Act refers to
    NPDES permits
    in such phrases as
    “...
    a facility for which an
    NPDES permit has been
    issued
    ...“
    (Ill.
    Rev.
    Stat. 111—1/2,
    Section 1013(b)).
    Inherent
    in this interpretation
    is that
    it
    is
    not the operator of the facility who
    is licensed,
    and that
    therefore
    it
    is of
    no weight in the matter
    at hand that Sauget
    has held,
    and even continues
    to hold,
    an NPDES permit for another
    and separate wastewater
    treatment facility (i.e., Sauget P/C).
    The Board notes
    that,
    although an NPDES permit may be issued
    to
    a
    person,
    it
    is nonetheless
    a permit particular
    to,
    and a licensing
    of,
    a facility.
    It
    is the capabilities
    of the particular
    facility upon which the decision to grant
    a license must
    turn.
    Similarly,
    there
    is no basis
    in the NPDES permitting process
    to allow an interpretation
    that an NPDES permit attaches
    to
    a
    particular influent waste stream.
    Thus,
    the fact that Sauget may
    have held
    responsibility for treating a portion of the AB plant’s
    influent
    at times previous
    is of no weight.
    In fact,
    the
    influent received
    by the AB plant
    is not the same influent
    received at any previous time or place either by Sauget or by any
    other previous
    or prior holder
    of any NPDES permit.
    Neither
    is
    the AB plant’s treatment process
    the same
    as that practiced
    at
    Sauget’s P/C plant or
    any of the predecessor plants.
    It
    is thus
    difficult
    to conceive of
    the AB plant’s treatment process as
    constituting
    a
    “continuing activity”
    in other
    than the simplest
    generic sense of
    it being
    a sewage treatment process.
    90—07

    —4—
    Based on the above,
    the Board
    finds that .Sauget’s
    application for NPDES permit #1L00655145 does
    not constitute
    application
    for
    renewal of
    a license
    in the context of Section
    1016(b)
    of the APA;
    that Sauget’s application for NPDES permit
    #IL00655l45 does not constitute
    an application
    for
    a new license
    for
    an activity of
    a continuing nature
    in the context
    of Section
    1016(b)
    of the APA; and that
    a consequence of the foregoing,
    there exists
    no license which
    is currently
    in force and effect
    in
    the context of Section 1016(b)
    of the
    PA.
    Accordingly,
    the
    Board
    finds
    that the APA does not confer an automatic stay under
    the circumstances at hand.
    DISCRETIONARY STAY
    In granting the earlier stay
    (to January 21,
    1987), Sauget
    argued and the Board accepted that minimum or
    no environmental
    harm would be caused because the stay would
    be
    in effect only
    prior
    to the time
    the AB plant was operational.
    The Board was
    further persuaded
    to grant
    the earlier stay based on Sauget’s
    assertions that resolution of the contested permit conditions was
    imminent.
    Although Sauget contends that
    the instant stay request
    should be granted
    for the same reasons that the prior stay was
    granted
    (Motion
    at par.
    2),
    the Board notes
    that
    the reasons for
    granting the prior stay no longer apply.
    Not only has resolution
    of the contested conditions not proven imminent,
    but the AB plant
    is now operational and
    the Agency strongly contests whether
    it
    is
    operating without environmental harm.
    Sauget further
    identifies
    its purpose
    for seeking
    the stay
    as “to protect itself from prosecution for violations of permit
    conditions where such conditions have been improperly imposed”
    (Reply at par.
    2).
    At the same time Sauget has not taken full
    steps
    to demonstrate before this Board that the conditions
    actually have
    in fact been “improperly imposed” as
    is
    its burden
    under
    the permit appeal process.
    In spite of the vintage of this
    matter, the parties have yet to come
    to hearing;
    neither have the
    parties presented
    the Board with any evidence that they have come
    to an understanding on any of the
    issues
    in this matter.
    Accordingly,
    the Board believes that there has been
    presented no sufficient justification for grant of the requested
    stay.
    The Motion for Stay is denied.
    DIRECTIVE TO HEARING OFFICER
    In the reading of
    the full record
    in this matter occasioned
    by the instant motion,
    the Board cannot help but have its
    attention recalled to the slow pace of
    this proceeding.
    The
    original filing
    in this matter
    is over
    two years old.
    Nevertheless,
    despite repeated assertions
    by both parties that
    90—08

    —5--
    they desire rapid resolution
    of this matter,
    there
    is nothing
    in
    the record which convinces
    the Board that the parties are
    3iligently pursuing
    a resolution.
    The Board further
    observes
    that the Illinois Environmental Protection Act
    (“Act”)
    contemplates
    rapid disposition
    of permit appeals pursuant
    to
    concomitant needs to expeditiously resolve disputes and assure
    environmental protection.
    Moreover,
    the Board notes
    that certain portions of the
    pleadings filed with the instant motion raise reasonable question
    as
    to whether
    the AB plant
    is being operated
    in accordance with
    the Illinois Environmental Protection Act.
    The Board
    is not
    certain what light may be cast on these circumstances by
    resolution of the permit appeal issues.
    However,
    it
    is clear
    that progress towards
    unraveling
    this entire matter must be made
    somewhere,
    and that resolution of
    the permit matters
    is
    a logical
    point.
    For
    these reasons
    the Board believes that the public good
    requires expeditious resolution
    of
    the instant matter.
    Accordingly,
    the Board hereby directs the Hearing Officer
    to
    schedule
    a hearing
    in this matter at some convenient time no
    later than August
    15, 1988 and take all reasonable efforts to
    expeditiously conclude this proceeding.
    IT
    IS SO ORDERED.
    I,
    Dorothy
    NI.
    Gunn,
    Clerk
    of
    the Illinois Pollution Control
    Board, hereby certify that the above Interim Order was adopted on
    the
    2”
    day of
    ____________________,
    1988,
    by
    a vote
    of
    ~.-O
    ~
    ~
    Dorothy
    NI. Gunn, Clerk
    Illinois Pollution Control Board
    90—09

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