1. MOTIONS TO STAY
      2. MOTION TO MODIFY
ILLiNOIS POLLUTION CONTROL BOARD
May
15,
2003
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
V.
)
)
STATE OIL COMPANY, an ILLINOIS
)
PCB 97-103
corporation, WILLIAM ANEST fldlb/a S &
S
)
(Enforcement
—
Water, Land)
PETROLEUM PRODUCTS, CHARLES
)
ABRAHAM, JOSEPHiNE ABRAHAM, and
)
MILLSTREAM SERVICE, INC., an Illinois
)
corporation,
)
)
Respondents.
)
ORDER OF THE BOARD (by T.E. Johnson):
On April 18, 2003, the People ofthe State ofIllinois (People) filed a motion asking the
Board to modify a March 20, 2003
opinion and order.
On April 30, 2003, respondents Charles
and Josephine Abraham (the Abrahams), and Milistream Service, Inc.
(Milistream) filed a
response in opposition to the motion to modify.
On May
5,
2003, respondents State Oil
Company (State Oil),
and William and PeterAnest (the Anests) filed a response opposing the
motion to modify.
On May 8, 2003, the Abrahams and Milistream filed a motion for stay of
order pending appeal.
On May 13, 2003, State
Oil and the Anests filed a motion for stay oforder
pending appeal.
To
date, a response to either motions for stay has not been received.
For the reasons discussed below, the Board grants the motions to stay, and denies the
motion to modify the order.
MOTIONS TO STAY
The motions to stay are substantively identical.
In the motions, the respondents assert
that a petition for review ofthe Board’s March 20, 2003 order was timely filed with the
Appellate Court ofIllinois for the Second District.
Motions at 3.
According to the motions, the
petitions for review were assigned case numbers 03-0463 and 03-0493.
The respondents argue
that a stay is necessary to preserve the status quo in that the date for payment ofthe penalty will
pass prior to a decision by the Appellate Court.
The respondents assert that the People will not
be prejudiced by the stay for the duration ofthe Appellate process, especially in light ofthe
evidence contained in the record that the People waited more than five years before first
requesting payment ofcosts
allegedly incurred, and over ten years before asking for penalties.
Motions
at 4.
The respondents assert that a stay ofthe Board’s order will not harm the
environment; as the record establishes that the tanks at the site were relined by the Abrahams and
Millstream in
1989,
and that nothing in the record indicates any releases have occurred in the
interim.
Motions at
5.
2
The response time to the motions for stay has not yet lapsed.
As stated, no response to
the motions to stay has been received by the Board.
The Board will not grant any motion before
the expiration ofthe
14 day response period unless undue delay or material prejudice would
result.
See
35
Ill. Adm.
Code 101.500(d).
In light ofthe deadline the March 20,
2003 order
imposes for payment ofpenalty, and the appellate
court filings, the Board finds that material
prejudice will result if the Board waits forthe expiration ofthe
14
day response periodbefore
addressing the motions to stay.
Pursuant to Section
101.906(c) ofthe Board’s procedural rules, the procedure for the stay
ofany final Board order during appeal will be as provided by Rule 335 ofthe Rules ofthe
Supreme Court ofIllinois.
35 Ill. Adm. Code
101.906(c).
Supreme Court Rule 335(g) Rule 335
of the Rules ofthe Supreme Court ofIllinois provides that the “application
fora stay ofa
decision or order ofan
agencypending direct review in the Appellate Court shall ordinarily be
made in the first instance to the agency.”
172 Ill. 2d R. 335.
The decision to grant or deny a motion for stay is vested in the sound discretion ofthe
Board.
See
People v. ESGWatts, Inc.,
PCB 96-107 (Mar.
19,
1998), providing that such
motions “shall ordinarily be made in the
first instance to the agency.”
The Board uses its
discretion when deciding whether to grant a motion to stayof a final Board order.
See
Alice
Zeman v.
Village ofSummit,
et al,
PCB 92-174 (Apr. 8,
1993); Village ofMattson v. World
Music Theatre
et al.
PCB 90-146 (Mar.
25,
1993).
In this instance,
the Board
finds that a stay ofthe final Board order is appropriate.
Accordingly, the motions to stay the March 20, 2003 Board order are granted.
MOTION TO MODIFY
The People ask the Board to
modifyparagraph 6 on page 27 ofthe March 20, 2003 order.
The motion has been fully responded to by all respondents.
However, in light ofthe appeal
made to the Appellate Court,
the Board denies the motion at this time.
The Board has previously
considered this
issue.
The Appellate Court has affirmed the Board’s decision not to consider a
motion to reconsider because of a petition for review filed with the court in Watts v. IEPA, PCB
01-139 (Jun. 6, 2002).
The Appellate Court has found that Appellate Courtjurisdiction attaches
when an
appeal ofa Board decision is properly made, thus depriving the Board ofjurisdiction to
modify its order.
See
Cain v.
Sukkar, 167 Ill. App. 3rd. 941
(4th Dist.
1988).
Accordingly, the
Board does not have jurisdiction to grant the motion to modify its March 20, 2003
order, and the
motion is denied.
IT IS
SO ORDERED.
3
I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Control Board,
certify that the Board
adopted the above order on May
15,
2003, by a vote of7-0.
____
DorothyM. Gunn, Clerk
Illinois Pollution Control Board

Back to top