ILLINOIS POLLUTION CONTROL BOARD
    September 21, 2006
     
    CITGO PETROLEUM CORPORATION,
     
    Petitioner,
     
    v.
     
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
     
    Respondents.
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    PCB 07-10
    (NPDES Permit Appeal – Water)
     
          
     
    ORDER OF THE BOARD (by N.J. Melas):
     
    On August 14, 2006, Citgo Petroleum Corporation (Citgo) timely filed a petition asking
    n of the Illinois Environmental Protection
    Agency (Agency).
    See
    415 ILCS 5/40(a)(1) (2004); 35 Ill. Adm. Code 101.300(b), 105.206(a).
    The Agency determination being appealed is a reissuance of a National Pollutant Discharge
    Elimination System (NPDES) permit to Citgo, with conditions. Citgo appeals on the grounds
    that certain specified conditions in the reissued NPDES permit are unnecessary or contain
    requirements that either are not applicable or are inconsistent with ot
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    On August 17, 2006, Citgo requested a stay of the effectiveness of the provisions and
    conditions appealed in the permit. To date, the Agency has not responded. If a party fails to
    respond to a motion within 14 days, the party is deemed to have waived objection to the granting
    of the motion.
    See
    35 Ill. Adm. Code 101.500(d).
     
    Citgo seeks a stay of special conditions 17, 18, and 19 of its reissued NPDES permit that
    is the subject of this appeal. Citgo states that it does not seek a stay of the remaining permit
    conditions because some of the provisions are necessary for Citgo to implement the actions
    required by a consent decree between Citgo, the United States Environmental Protection Agency,
    and the states of Illinois, Louisiana, New Jersey, and Georgia. Mot. at 1-2. Special conditions
    17, 18, and 19, notes Citgo, are new to the permit and are not necessary to implement the consent
    decree.
    Id
    . at 2.
     
    Citgo contends that the Board has granted discretionary stays in the past based on a
    consideration of the following standards:
     
    (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.
    See
    Mot. at 2; citing Nielsen &
    Bainbridge, L.L.C. v. IEPA, PCB 03-98 (Feb. 6, 2003); Saint-Gobain Containers,
    Inc. v. IEPA, PCB 04-47 (Nov. 6, 2003).
     
    2
     
    According to Board precedent, contends Citgo, it is not necessary for the Board to
    determine that all four factors exist to grant a discretionary stay. Mot. at 2;
    citing
     
    Bridgestone/Firestone Off Road Tire Co. v. IEPA, PCB 02-31 (Nov. 1, 2001). Citgo argues that
    a stay is necessary in this proceeding to protect Citgo’s right to appeal and prevent the
    applicability of new permit conditions before Citgo has the opportunity to exercise its right to
    appeal. Mot. at 2. Further, Citgo asserts it has no adequate remedy at law other than this permit
    appeal before the Board. The requested stay of special conditions 17, 18, and 19, argues Citgo,
    would not result in any harm to the Agency, the public, or the environment.
    Id
    . Finally, Citgo
    contends it is likely to succeed on the merits of the petition because the new conditions do not
    represent “‘applicable requirements’” under Illinois law.
    Id
    .
     
    Pursuant to the Illinois Administrative Procedure Act (APA) (5 ILCS 100/1-1
    et seq
    .
    (2004)), and provided Citgo’s assertions and the Agency’s lack of response, the Board grants
    Citgo’s motion. Under the APA, the conditions Citgo contests are automatically stayed. 5 ILCS
    100/10-65(b) (2004). Borg-Warner Corp. v. Mauzy, 100 Ill. App. 3d 862, 427 N.E.2d 415 (3rd
    Dist. 1981). Accordingly, the Board grants the motion to stay the effectiveness of special
    conditions 17, 18, and 19 of Citgo’s reissued NPDES Permit No. IL0001589.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted
    the above order on September 21, 2006, by a vote of 4-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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