ILLINOIS POLLUTION CONTROL BOARD
    March 4, 2004
     
    ANTHONY and KAREN ROTI, PAUL
    ROSENSTROCK, and LESLIE WEBER,
     
    Complainants,
     
    v.
     
    LTD COMMODITIES,
     
    Respondent.
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    PCB 99-19
    (Citizens Enforcement – Noise)
     
    ORDER OF THE BOARD (by N.J. Melas):
     
    On February 24, 2004, LTD filed a motion to stay pending appeal. To date, the
    complainants have not responded to the motion to stay. For the reasons below, the Board grants
    the motion to stay.
     
    The response time to the motion for stay has not yet lapsed and the Board has not yet
    received any response. The Board will not grant any motion before the expiration of the 14-day
    response period unless undue delay or material prejudice would result.
    See
    35 Ill. Adm. Code
    101.500(d). In light of the deadlines the final order imposes in this matter for compliance and
    the payment of penalty, the Board finds that material prejudice will result from waiting for the
    expiration of the 14-day response period before addressing LTD’s motion to stay.
     
    Pursuant to Section 101.906 of the Board’s procedural rules, the procedure for the stay of
    any final Board order during appeal will be as provided by Rule 335 of the Rules of the Supreme
    Court of Illinois 35 Ill. Adm. Coe 101.906(c). Supreme Court Rule 335(g) provides that the
    “application for a stay of a decision or order of an agency pending direct review in the Appellate
    Court shall ordinarily be made in the first instance to the agency.” 172 Ill. 2d R. 335.
     
    In its motion for stay, LTD asserts that it is appealing the Board’s decision to the Second
    District Appellate Court. LTD contends a stay is necessary because Cycle Logistics, the operator
    of a yard tractor at the LTD facility, will not disconnect the backup beeper on its yard tractor due
    to worker safety concerns. LTD requests the Board to stay the February 15, 2001, July 24, 2003,
    and February 5, 2004 decisions pending appellate review of these decisions.
     
    The Board has discretion whether to grant or deny a motion for stay of a final Board order.
    See
    People v. ESG Watts, Inc., PCB 96-107 (Mar. 19, 1998); Village of Matteson v. World Music
    Theatre,
    et al
    , PCB 90-146 (Mar. 25, 1993). The Board notes that the February 4, 2004 order
    granting LTD’s motion for modification provides an exception for operators of yard tractors such
    as Cycle Logistics from the backup beeper requirement. Specifically, the supplemental opinion
    and order states: “the Board modifies the July 24, 2003 order to allow over-the-road trucks and
    tractors not owned or operated by LTD to continue to use backup warning devices at LTD’s
     
    2
    facility.” Roti v. LTD Commodities, PCB 99-19, slip op. at 7 (Feb. 5, 2004). The Board also
    ordered that on tractors owned or operated by LTD, replacement of any backup beeper must be
    done in accordance with state and federal law.
    Id
    . at 8.
     
    Here, in order to avoid any potential worker safety concerns at the LTD facility, the Board
    finds that a stay of the Board’s February 5, 2004 order is appropriate. The Board’s February 5,
    2004 order incorporates by reference the Board’s February 15, 2001 interim opinion and order as
    well as restates the Board’s July 24, 2003 order, as amended. Accordingly, the Board grants
    LTD’s motion to stay the February 5, 2004 order.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on March 4, 2004, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     
     
      

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