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:
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