ILLINOIS POLLUTION CONTROL BOARD
    April 3, 1997
    IN MATTER OF:
    PETITION OF THE LOUIS BERKMAN
    COMPANY, d/b/a THE SWENSON
    SPREADER COMPANY, FOR AN
    ADJUSTED STANDARD FROM 35 ILL.
    ADM. CODE PART 215 SUBPART F
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    AS 97-5
    (Adjusted Standard - Air)
    ORDER OF THE BOARD (by K.M. Hennessey):
    This case involves the petition of the Louis Berkman Company, d/b/a the Swenson
    Spreader Company (Swenson), for an adjusted standard. The rule from which Swenson seeks
    an adjusted standard is 35 Ill. Adm. Code 215.204(j), the emissions limit applicable to the
    painting operations at Swenson’s plant in Lindenwood, Ogle County, Illinois. (Second
    Amendment (in the Nature of a Substitute) to the Petition for an Adjusted Standard at 2
    (Second Amendment).)
    Now pending before the Illinois Pollution Control Board (Board) is the Illinois
    Environmental Protection Agency’s (Agency) motion to stay (motion), filed on March 31,
    1997. Swenson filed a response opposing the motion on April 2, 1997 (Resp.). For the
    reasons stated below, the Board denies the motion.
    PROCEDURAL HISTORY
    On October 11, 1996, Swenson filed a petition for an adjusted standard from 35 Ill.
    Adm. Code 215.204(j). Swenson filed a first amended petition on November 4, 1996, a
    second amended petition on December 20, 1996 and a third amended petition on January 3,
    1997.
    The Agency filed a response to the petition, recommending that the Board deny the
    adjusted standard, on February 26, 1997. On March 5, 1997, the hearing officer set this
    matter for hearing on April 17, 1997.
    The Agency also filed a separate enforcement action against Swenson on December 11,
    1996. In the enforcement action, the Agency alleges that Swenson has violated 35 Ill. Adm.
    Code 215.204(j), the same provision for which Swenson seeks an adjusted standard.
    On March 31, 1997, the Agency filed the motion for stay now at issue. In support of
    the motion, the Agency notes that the enforcement action involves the same regulation for
    which Swenson seeks an adjusted standard. The Agency states:
    In general, the resolution of enforcement proceedings involve[s] a plan whereby the
    facility achieves compliance with applicable requirements. The [Agency] believes that

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    there are methods of compliance available to petitioner. Therefore, the non-compliance
    issues that are the subject of the adjusted standard in the instant case may be resolved in
    the enforcement proceeding filed by the Attorney General’s office. If such a resolution
    occurs in the context of enforcement, an adjusted standard would no longer be needed
    for the facility as it would be in compliance with the requirements from which it is
    currently seeking an adjusted standard.
    (Motion at 1-2.) Because of this possibility, the Agency states that a stay of the adjusted
    standard proceeding is appropriate and will avoid the “unnecessary and duplicative expenditure
    of resources.” (Motion at 2.)
    In its reply, Swenson sets forth six reasons in support of its opposition to the motion.
    First, Swenson notes that the Agency did not inform Swenson that the motion would be filed
    and did not seek Swenson’s concurrence. (Resp. at 2.) Second, Swenson notes that the
    hearing has long been scheduled and that the adjusted standard petition is not the first of its
    kind filed before the Board. (Resp. at 3.) Third, Swenson notes that the adjusted standard
    petition was filed before the enforcement action and that Swenson has elected to pursue an
    adjusted standard as a means of coming into compliance with the regulation. (Resp. at 3-5.)
    Fourth, Swenson argues that it makes little sense to postpone the scheduled hearing in favor of
    an as yet unscheduled enforcement proceeding for which neither party is prepared. (Resp. at
    5.) Fifth, Swenson argues that it needs the adjusted standard in order to meet specifications of
    various government agencies that are its customers. (Resp. at 5-6.) Sixth, Swenson argues
    that the “real reason” for the motion is the Agency’s lack of “supportable technical and legal
    objections” to the adjusted standard petition. (Resp. at 6.)
    DISCUSSION
    The Board denies the motion for the following reasons. First, although the Agency
    speculates that the enforcement case will be resolved by a compliance plan, that outcome is not
    inevitable. The possibility that a compliance plan may be adopted is not a sufficient reason to
    stay the adjusted standard proceedings. This is especially true here given that the petition for
    adjusted standard was filed before the enforcement action and that preparations for the hearing
    on the adjusted standard have been underway for some time. Second, the Agency cites no
    precedent, rule or law that requires a stay. Third, to the extent that the Agency believes that
    Swenson can comply with the rule for which Swenson seeks an adjusted standard, it can
    present those arguments at the hearing on the adjusted standard petition.
    If the Agency needs to briefly postpone the April 17, 1997 hearing for reasons other
    than those stated in the motion, the Agency should file a motion requesting such an extension
    before the hearing officer.
    IT IS SO ORDERED.

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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _______ day of ______________, 1997, by a vote of
    ______________.
    __________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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