BEFORE
    THE
    BOARD
    NORTH SHORE SANITARY
    DISTRICT,
    Petitioner,
    oF
    ILL1N0
    V.
    )
    PCB
    7)37_/(/
    pollution
    Control
    Board
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Respondent.
    NOTICE
    OF FILING AND
    PROOF OF
    SERVICE
    TO: Dorothy
    Gunn, Clerk
    Illinois
    Pollution
    Control
    Board
    James
    R.
    Thompson
    Center
    100 W.
    Randolph,
    Suite 11-500
    Chicago,
    IL
    60601-3218
    Julie
    Armitage
    Illinois
    Environmental
    Protection
    Agency
    Division
    of Legal
    Counsel
    1021 North
    Grand
    Avenue East
    P.O. Box
    19276
    Springfield,
    IL
    62794-9276
    PLEASE TAKE
    NOTICE that
    on March 10,
    2003,
    we
    sent to the
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board the
    originals and
    nine
    (9)
    copies
    each,
    via Federal
    Express,
    of Emergency
    Motion
    for Stay
    for filing
    in the above-entitled
    cause,
    copies
    of which
    are attached
    hereto.
    The undersigned
    hereby
    certifies that
    true and
    correct
    copies
    of the Notice
    of
    Filing,
    together
    with
    copies
    of the
    documents
    described
    above,
    were served upon
    the
    Respondent
    by
    enclosing
    same in
    envelopes addressed
    to
    said
    Respondent,
    and by
    depositing
    said envelopes
    in a
    United States
    Post
    Office Mail Box
    at
    Springfield,
    Illinois,
    with postage
    fully
    prepaid,
    on the 10
    of
    March,
    2003, and by
    facsimile
    copy
    nt on
    March 10,
    2003.
    .llaman
    MOHAN,
    ALEWELT, PRILLAMAN
    & -
    1
    North
    Old Capitol
    Plaza, Suite
    32
    Springfield,
    IL 62701
    Phone:
    (217) 528-2517
    THIS
    FILING SUBMITTED
    ON
    RECYCLED
    PAPER

    (*I&
    BEFORE
    THE
    i4jt
    S
    BOARD
    PR
    Z003
    r
    NORTH
    SHORE
    SANITARY
    )
    D;it”)’
    DISTRICT,
    )
    PoIItfon
    Con!:ro!
    Board
    Petitioner,
    V.
    )
    PCB
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Respondent.
    EMERGENCY
    MOTION
    FOR STAY
    NOW
    COMES
    Petitioner,
    NORTH
    SHORE
    SANITARY
    DISTRICT
    (“NSSD”),
    by
    its
    undersigned
    attorneys,
    pursuant
    to
    Sections
    101.500,
    101.504,
    and
    101.512
    of
    the
    Board’s
    Procedural
    Rules,
    35
    IAC 101.500,
    101.504,
    and
    101.512,
    and for
    its emergency
    motion
    to stay
    the
    force
    and
    effect
    of
    Standard
    Condition
    No.
    1 of
    the
    March
    11,
    2002,
    permit
    issued
    to Petitioner,
    which
    such
    standard
    condition
    is
    the
    subject
    of
    the Application
    for
    Revision
    to
    Standard
    Condition
    No.
    1,
    filed with
    the
    Illinois
    Environmental
    Protection
    Agency
    (“Agency”
    or “IEPA”)
    on or
    about
    February
    13,
    2003,
    and which
    Standard
    Condition
    is
    also
    the subject
    of the
    Petition
    for
    Permit
    Review
    filed with
    the
    Illinois
    Pollution
    Control
    Board
    (“Board”)
    on
    March 10,
    2003,
    and specifically
    requesting
    the
    Board
    to
    act
    immediately
    upon
    this
    motion,
    states
    as
    follows:
    1.
    The
    NSSD
    is the
    owner
    of
    the
    sewage
    treatment
    plant
    facility
    lOcated
    on
    Dahringer
    Road,
    in Waukegan,
    Lake
    County,

    Illinois.
    The
    I.D. Number
    097190AB1
    has
    been
    designated
    for this
    facility
    by the
    Agency.
    2.
    on or about
    March
    11,
    2002,
    the
    NSSD
    was granted
    a
    Construction
    Permit
    for
    a sludge
    dryer/melter
    to be
    constructed
    at
    the NSSD’s
    Waukegan,
    Illinois
    sewage
    treatment
    plant
    facility.
    A true
    and
    correct
    copy of
    the subject
    permit
    is
    attached
    to the
    Petition
    for
    Permit
    Review
    as
    Exhibit
    A.
    3.
    On
    or about
    February
    13, 2003,
    the
    NSSD
    filed
    an
    Application
    for Revision
    to
    Standard
    Condition
    No.
    1
    appearing
    in
    the
    Agency’s
    March
    11,
    2002
    Construction
    Permit.
    A
    true
    and
    correct
    copy
    of the
    subject
    application
    is
    attached
    to
    the
    Petition
    for
    Permit
    Review
    as
    Exhibit
    B.
    4. On
    or about
    March
    3,
    2003, the
    Agency
    rendered
    its
    final
    determination
    on
    the NSSD’s
    request
    to
    revise
    said
    Standard
    Condition
    No.
    1.
    A
    true
    and
    correct
    copy
    of
    the subject
    Agency
    decision
    is
    attached
    to
    the Petition
    for Permit
    Review
    as
    Exhibit
    C.
    5.
    On March
    10, 2003,
    the
    NSSD filed
    with
    the Board
    its
    Petition
    for
    Permit
    Review
    in this
    cause.
    As alleged
    by
    the
    NSSD
    in its
    Petition
    for
    Permit
    Review,
    the
    Agency’s
    denial
    of the
    NSSD’s
    request
    to revise
    the
    said
    Standard
    Condition
    No.
    1 is
    contrary
    to the
    law, contrary
    to
    the
    facts,
    contrary
    to
    the
    equities,
    and contrary
    to
    Agency
    precedent.
    6. The
    aforesaid
    Application
    for Revision
    to Standard
    Condition
    No. 1
    (Exhibit
    B to the
    Petition
    for
    Permit
    Review)
    -2-

    contains
    in it a Request
    for a
    Provisional
    Variance, which
    sets
    forth
    the
    reasons why
    the NSSD is
    entitled to
    immediate relief
    from the
    permit
    expiration provisions
    of Standard
    Condition
    No.
    1, which
    reasons
    also serve as
    a basis for
    the
    Board’s
    granting
    of this
    Emergency
    Motion for
    Stay,
    to-wit:
    a.
    The
    construction
    permit
    authorized
    NSSD to take
    the
    treated
    residuals
    from its
    wastewater
    treatment
    operations
    and
    recycle them
    as
    a source
    of energy
    and
    construction
    products.
    The
    beneficial
    use
    of
    such
    biosolids
    have long
    been a
    goal of federal
    and
    state
    environmental
    policy, albeit
    never mandated.
    Biosolid
    use
    remains a
    voluntary
    initiative.
    b.
    The
    NSSD has expended
    substantial
    funds
    in the
    planning,
    development
    and
    permitting of
    the sludge
    dryer/melter
    project.
    c.
    Through
    no fault of its
    own, the
    NSSD has been
    sued
    (along
    with the Agency)
    in the
    Circuit Court
    of Lake
    (Waukegan
    v. IEPA & NSS]D,
    Case No.
    Ol-CH-1777).
    The
    lawsuit
    seeks to prohibit
    construction
    under
    the
    subject
    permit by alleging
    that
    NSSD failed to
    obtain,
    and the
    IEPA
    failed
    to
    require,
    local siting
    approval
    or city
    zoning
    approval.
    The
    judge ruled in
    favor of
    NSSD and
    the
    IEPA
    on the issue
    of siting, but
    that
    judgment
    is currently
    on appeal
    to the Illinois
    Appellate
    Court.
    (Waukegan
    v.
    IEPA & NSSD,
    Appeal No.
    2-02-0635)
    The question
    of
    whether
    zoning is
    required
    is also
    before the Illinois
    Appellate
    Court,
    in the
    same appeal,
    and the issue
    of whether
    Waukegan
    improperly denied
    zoned
    to
    the NSSD
    is
    currently
    on
    administrative
    review
    in the same
    trial court.
    d.
    The
    construction
    perinit
    contains the
    following
    condition
    (Standard Condition
    No.
    1):
    Unless
    this permit has
    been
    extended
    or it has
    been
    voided by a
    newly issued
    permit, this
    permit
    will
    expire one year
    from the
    date
    of issuance,
    unless
    a
    continuous program
    of
    construction or
    development
    on
    this project
    has started by
    such time.
    e.
    To avoid the
    expiration of
    the permit,
    the NSSD has
    sought a provisional
    variance
    from
    the
    IEPA to
    -3-

    temporarily
    suspend
    operation of
    the
    above
    condition
    and
    has applied for
    a revision to
    the
    permit
    to
    conform
    the
    construction permit
    to the language
    found
    in
    Section
    39(k)
    of the
    Act
    (415
    ILCS 5/39(k))
    The NSSD
    has
    sought to pursue
    all
    viable
    economic alternatives
    to
    preclude
    expiration
    of
    the
    permit.
    f.
    The IEPA
    has never
    responded, one
    way or
    another,
    to
    the aforesaid
    Request
    for Provisional
    Variance.
    g.
    In
    the absence
    of action
    from the IEPA,
    the
    NSSD
    attempted
    to commence
    construction
    of the
    sludge
    dryer/melter
    and
    was
    physically
    prevented
    from doing
    so
    by
    a
    barricade
    erected
    by
    the City of Waukegan
    and
    subsequently
    by
    a temporary
    restraining
    order entered
    by
    the Circuit
    Court of Lake
    County in
    the
    above
    referenced
    lawsuit,
    preventing
    the
    NSSD from commencing
    construction
    in order to
    preserve the status
    quo.
    h.
    An
    arbitrary and
    unreasonable
    hardship
    would be
    suffered
    by the
    NSSD if the
    construction
    permit is
    allowed
    to expire
    while the Board
    reviews
    this permit
    appeal.
    If the
    permit expires,
    the issues
    in the
    permit
    appeal would
    likely become
    moot
    and the Board’s
    authority
    to review
    all permit
    decisions
    would become
    illusory.
    The need
    to preserve
    the
    status
    quo was
    recognized
    by the
    Board in
    Album v. IEPA,
    PCB Nos. 80
    189;
    80-190; 81-23;
    81-24 (February
    7,
    1982) (reversed
    on
    other grounds
    in IEPA v. PCB,
    118
    I1l.App.3d
    772,
    1
    st
    Dist.
    1983),
    wherein the Board
    held that
    the filing
    of an application
    to
    extend an
    existing permit
    stays
    the expiration
    of the
    existing permit
    pending
    resolution
    of the appeal
    before the
    Board.
    i.
    As
    in Album,
    no harm
    will come to the
    environment
    if
    the situation
    continues
    while the NSSD
    pursues
    its
    right of
    appeal.
    7. For reasons
    appearing in
    the Request
    for Provisional
    Variance,
    Petitioner
    will be materially
    prejudiced
    if the
    subject
    permit is
    allowed to
    expire for
    reasons beyond
    its
    control,
    and
    therefore
    the
    Board
    should grant
    this motion before
    the
    expiration
    of any
    response, on a
    temporary
    basis, to provide
    time
    for
    response
    and reply.
    -4-

    WHEREFORE, Petitioner, NORTH SHORE SANITARY
    DISTRICT,
    petitions for a ruling as follows:
    a.
    That the
    construction permit issued on or about March
    11,
    2002
    remains
    in full force pending a final decision
    herein; and
    b.
    That
    Standard Condition No. 1 to the
    construction
    permit issued on or about
    March 11, 2002 is stayed
    pending a
    final decision herein.
    Respectfully
    submitted,
    NORTH SHORE SANITARY DISTRICT,
    Petitioner
    By
    MORAN, ALEWELT,
    PRILLAIVIAN
    1 North Old Capitol Plaza
    Suite 325
    Springfield,
    IL 62701
    Phone:
    (217)
    528-2517
    VERIFICATION
    The
    undersigned certifies
    that the
    statements
    set
    forth in
    this instrument are true and correct,
    matters
    therein
    stated to be
    on information andbelief
    as to
    such
    matters the undersigned certifies
    as
    aforesa:
    he verily
    believes the same to be true.
    me
    i/
    /3
    day
    of March,
    Notary P
    3
    ic
    By MORAN, ALEWELT, PRIL.
    &
    ADAMI
    ADAM I
    B
    Subscribed and
    sworn
    to
    bef
    2003.
    lAL SEAL
    CNDYR.KOLLEY
    STATE QF
    ILLINOIS
    N:
    C:
    \Mapa\NSS
    eoo4
    crk\3\1O\03
    -5-

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