ILLINOIS POLLUTION CONTROL BOARD

October 25, 1990

GALLATIN NATIONAL COMPANY,

)

Petitioner,

v.

)

PCB 90—183

(Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD (by J. Anderson):

In this variance petition, filed October 9, 1990, Gallatin

National Company seeks variance from “the regulations contained

in 35 Ill. Adm. Code §812 (sic) until October, 1991”, which rules

became effective September 18, 1990. Gallatin seeks to avoid

“retroactive” application by the Agency of the new Part 812

landfill rules to Gallatin’s request, which has been filed and

pending since April 23, 1990, for a development permit for a

baleful to be located in Fairview, Illinois. Gallatin asserts

that it “now substantially complies with all the new regulations

and will be in complete compliance by October, 1991, or before

any waste is accepted at the site, whichever is sooner”. (Pet.

p. 11).

Gallatin’s petition was accompanied by a request for

hearing, a motion for stay, and a motion to file a single copy of

Exhibit B to the petition. The matter was accepted for hearing

by the Board’s Order of October 11, which noted that the Board

declined to rule on the pending motions until it had received the

Agency’s response. On October 17, 1990 Gallatin filed a motion

for clarification ~f the Board October 11 Order. On October 23,

1990, the Agency filed a response in opposition to the motion and

a response neither opposing nor denying the motion to file a

single copy of Exhibit B, both accompanied by a motion for leave

to file instanter. The Agency also filed a motion for expedited

hearing and decision in this matter, noting that it is presently

required, pursuant to Section 39(a) of the Act as waived by

Gallatin, to make its decision concerning Gallatin’s permit

application on or before December 19, 1990 to avoid issuance of a

permit by operation of law.

The Agency’s motion for leave to file is granted.

Gallatin’s motion to file a single copy of the voluminous Exhibit

115—469

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—2—

B is granted. This leaves for resolution the more troublesome

stay issue.

As Gallatin points out, Section 38(b) of the Act provides in

pertinent part that:

If any person files a petition for a 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...

The Board may hold a hearing upon said

petition 5 days from the date of notice of

such hearing or thereafter.

Gallatin’s petition was timely filed on October 9 (see 35

Ill. Adm. Code 101.109). The Agency asserts that a Section 38(b)

stay should not apply in a case such as this, where Gallatin

currently holds no permits and where the status quo is

accordingly not disturbed by the lack of a stay. (Motion, p.

2). However, the Board notes that the Agency has failed to cite

any authority for the proposition that the clear language of the

statute can be ignored to reach this result.

Accordingly, the Board finds that the application of Part

812 to Gallatin is stayed pursuant to Section 38(b). The Board

acknowledges, however, that if Section 38(b) is read as

precluding the applicability of Part 812 prior to the outcome of

this case, while at the same time Section 39(a) is read as

requiring an Agency permit decision based on questions relating

to the same issue prior to the Board’s decision on the merits,

that an absurd result is reached. In order to avoid an absurd

application of the decision deadline of Section 39(a) the Board

finds that the Agency’s decision deadline is tolled during the

pendancy of the stay. This is consistent with the result in

People v. Pollution Control Board et al., 113 Ill. App. 3d 282,

300—01, 446 N.E. 2d 915 (3d Dist. 1983), rev’d on other grounds

sub. norn., Pioneer Processing,

Inc.

v. IEPA~, 102 Ill. 2d 119, 464

N.E. 2d 238 (1984). In that case the court found that the

Board’s decision deadline pursuant to Section 40 was tolled

during the pendancy of an injunction against the Board~s

proceeding with the case.

Ruling is reserved on the Agency’s motion for expedited

hearing and decision. However, given the nature of this case,

the Board would prefer to decide this motion at a special meeting

to be held early in the week of October 29, 1990 rather than at

it next regular meeting on November 8. Gallatin is accordingly

directed to file any response it may have to the Agency’s motion

115—4 70

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in such manner that it is received in the Board’s Chicago office

before 4:30 p.m. on Monday, October 29, 1990.

IT IS SO ORDERED.

B. Forcade dissented.

J.D. Dumelle abstained.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Qpinion and Order was

adopted on the ~5~i day of

d2---t~.ei~,

,

1990, by a vote

of

____

~

Dorothy M. ,G~nn, Clerk

Illinois Po-flution Control Board

115—47 1

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