ILLINOIS POLLUTION CONTROL BOARD
May
1,
1981
ALBURN, INC.,
Petitioner,
v.
)
PCB 80—189
PCB 80—190
PCB 81—23
PCB 81—24
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
ORDER OF THE BOARD
(by
I. Goodman):
On April
14,
1981, Album,
Inc.
(Album)
filed a motion for
stay of the permit conditions contested
in
PCB 80-189 and PCB
80—190.
On April
20,
1981 the Illinois Environmental Protection
Agency (Agency) filed a motion to vacate the Board’s Order of April
16,
1981 in PCB 80—189 and 80—190 issued
in
response to Album’s
motion for stay.
On April 22,
1981 the Agency filed a motion for
reconsideration of the Board’s March 19, 1981 Order dismissing PCB
81—23 and 81—24.
On April
30,
1981 Album
filed a motion for
emergency decision and oral argument
in
all four of the cases noted
in the caption herein,
Since all four
of
these matters are inter-
related and concern the issue of which permit, with what conditions,
is in effect during the pendency of a permit appeal, the Board will
consider all
of the above motions
in this Order.
The Agency’s April 22,
1981 motion for reconsideration of the
Board Order of March 19, 1981 in PCB 81—23 and 81—24 is granted.
The
Board reaffirms its holding that,
as a general matter, during
the pendency of a permit appeal, the permit in effect is not the
contested permit,
but the permit which was
in effect prior to the
issuance of the permit which is
the sublect of
the appeal.
The
previous permit continues
in effect even if
it would have expired
by its terms but for the filing of an appeal of the next issued permit.
With regard to Alburn~sconstruction permit,
first issued on
February 20,
1980 and later revised September
9,
1980,
the Board’s
Order remains the same,
With
Album’s filing of its appeal of the
September
9,
1980 revised construction permit
in
PCB 80—190, the
appeal has the effect of maintaining the original construction
permit of February 20,
1980 in effect until the Board takes final
action in Album’s appeal of the subsequent revision of September
9,
1980.
The rationale here is that Album
is under the constraints
of an issued permit and it is presumed that no harm will come to
the environment if this situation continues while
Album
pursues
its right of appeal.
The subsequent permit purportedly issued
January 26, 19H1 for the same operation can have no legal effect
4
1—323
—2—
until Album’s might of appeal
of the September 9, 1980 revision
is extinguished.
With respect to Album’s operating permit, which has been
appealed under PCB 80—189,
it has now been clarified that the
September 9,
1980 permit was the first operating permit issued.
The Board, therefore, vacates all portions of the March 19,
1981
Order with respect to the operating permit.
As there is no prior
permit to remain in effect while the Board considers Album’s appeal
in PCB 80—189, the issue
is, therefore, whether Album’s September
9,
1981 operating permit remains
in effect while it pursues its
right of appeal concerning certain conditions of that permit.
The Board finds that the mere filing of an appeal of conditions
of a permit is not sufficient in and of itself to continue that
permit in effect and to stay the appeal conditions.
In this case,
however, there appears to be no question of environmental harm and
indeed neither party has addressed this issue.
On the other hand,
Album
has alleged that if it is unable to operate, and the challengeiJ
permit conditions are not stayed, that it will suffer “crippling”,
irreparable financial harm.
This being the case, the Board finds
that it
is reasonable to allow Album
to proceed under its September
9,
1980 operating permit and to stay the contested permit conditions
until
such time as the Board makes a decision in PCB 80—189.
Having
decided that Album’s September 9, 1980 permit remains in full
force
and effect, any permit issued subsequently for the same operation
can have no legal effect until
such time as Album’s right of appeal
of this September
9,
1980 permit is extinguished.
The
final result of the Board’s reconsideration of the March 19~
1980 Order remains essentially the same.
Albumn~sconstruction and
operating permit appeals in PCB 81-23 and 81—24 are dismissed.
Album’s operating permit issued February 20,
1980 remains
in
full
force and effect and the revisions issued September
9,
1980 are
stayed until
such time as the Board makes
a final decision in PCB
80—190.
Album’s operating permit issued September
9,
1980 remains
in full force and effect and the conditions appealed are stayed
until
such time as the Board comes to a final decision in PCB 80—189.
The Agency’s April 20,
1981 motion to vacate the April
16, 1981
Order in PCB 80—189 and 80—190
is granted in light of the decisions
made above.
The Agency’s further motion to allow Respondent twenty-
one days in which to file a memorandum of law in this matter is
denied as the Board has been fully informed by the content of the
April
20,
1981 motion.
Album’s April
30.
1981 motion for emergency decision is
granted.
Album’s further motion for oral argument
is denied.
IT IS SO ORDERED.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution
Control Bo~ard, hereby certify that the above Order was adopted
on the
/‘~
day of’2~c~.
,
1981 by a vote of
I-~~
f
(i
-~
I
A
Christan L. Mo~f~t~,
Clerk
Illinois Pollution Control Board
4 1—324