ILLINOIS POLLUTION CONTROL BOARD
    February 6, 2003
     
    NIELSEN & BRAINBRIDGE, L.L.C.,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondent.
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    PCB 03-98
    (CAAPP Permit Appeal – Air)
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    On January 23, 2003, the Board accepted Nielsen & Brainbridge, L.L.C.’s (Nielsen)
    petition appealing the Illinois Environmental Protection Agency’s (Agency) conditional approval
    Nielsen’s application for a Clean Air Act Permit Program (CAAPP) permit, but reserved ruling
    on a concurrently filed motion to stay effectiveness of the CAAPP permit. To date, the Agency
    has not filed a response to the motion.
     
    The Board has recognized that Illinois law provides standards to help determine whether
    stays are appropriate. Community Landfill Company and City of Morris v. IEPA, PCB 01-48,
    49 (Oct. 19, 2000), citing Motor Oils Refining Company, Inc. v. IEPA, PCB 89-116 (Aug.31,
    1989). Those standards are: (1) a certain and clearly ascertainable right needs protection; (2)
    irreparable injury will occur without the injunction; (3) no adequate remedy at law exists; and (4)
    there is a probability of success on the merits. Motor Oils, PCB 89-116, slip op. at 1-2 (Aug. 31,
    1989),
    citing
    Junkunc v. S.J. Advanced Technology & Mfg., 149 Ill. App. 3d 114, 498 N.E. 2d
    1179 (1st Dist. 1986). The Board has held that it is not required to specifically address each of
    these factors in making a stay determination. Bridgestone/Firestone Off-Road Tire Company v.
    IEPA, PCB 02-31 (Nov. 1, 2001).
     
    Motions to stay a proceeding must be accompanied by sufficient information detailing
    why a stay is needed. 35 Ill. Adm. Code 101.514(a). If a party files no response to a motion
    within 14 days the party will be deemed to have waived objection to the granting of the motion.
    See
    35 Ill. Adm. Code 101.500(d). Nielsen contends that a stay of the CAAPP permit is
    necessary to protect its certain and clearly ascertainable right to appeal permit conditions.
    Nielsen asserts that the Agency, the public and the environment will not be harmed if a stay is
    granted.
     
    In this instance, the Board finds that Nielsen’s right to appeal the condition is a certain
    and ascertainable right that needs protection. The Board grants the motion to stay effectiveness
    of the CAAPP permit until the Board’s final action in this matter or until the Board orders
    otherwise. The Board directs the hearing officer to proceed as expeditiously as practicable.
     
     
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    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on February 6, 2003, by a vote of 7-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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