ILLINOIS POLLUTION CONTROL BOARD

November

15,

1989

THE GRIGOLEIT COMPANY,

Petitioner,

v.

)

PCB 89—184

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

On November

13,

1989,

the Grigoleit Company

filed a petition

for permit appeal.

This matter

is accepted for hearing.

Pursuant

to

35

Ill. Adm.

Code 101.161

(c),

the Board will

conditionally maintain as NOT SUBJECT TO DISCLOSURE,

the

information attached to the original petition

in this

proceeding.

This conditional protection will remain

in effect

until further order

of the Board.

The Board notes several

difficulties with the Application for Non—Disclosure and will

request briefs or other statements

of

intent from the parties

prior

to a final ruling on non—disclosure.

The Board orders the

parties

to file briefs, motions

or other appropriate pleadings,

not later

than December

15,

1989,

on the issues described

in the

following paragraph.

First,

the Board notes that this

is

a permit appeal and

in

such cases

the Board

is limited

to the information before the

Agency at the time

it made its decision.

Since the Agency must

file

the record on appeal with this Board,

the presently claimed

information may be

redundant with information filed by the

Agency.

Obviously, petitioner

is free

to challenge and augment

the Agency record once

it

is filed.

Second,

many of the claims

made

by the petitioner

do not seem

to involve

the non—disclosure

material.

Assuming,

for exa:~ple, that the Board makes

a

determination adverse

to the Agency on the default

issue

or

adverse

to petitioner on the restricted entry issue,

no

disclosure

of the claimed material would be at

issue.

In

that

case the Board would intend to

return the material

to the

petitioner

at the conclusion of the proceeding without

determination.

Third,

the Board

is having

great difficulty

determining exactly what material

is being claimed

for non-

disclosure.

Each page

of the original material,

or portion

thereof, should be marked by Petitioner

as

~Not Subject

to

DisclosureT1.

For each page or part

thereof,

the

exact reasons

for the claim should be articulated.

Since

the Petitioner has

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—2—

not identified the

exact material which

it claims

for non-

disclosure,

the Board is left

to deduce what is claimed for

protection.

At

a minimum,

the Board would anticipate

a motion by

Petitioner

to replace or augment the unmarked copies with marked

copies.

Fourth,

some of the material within what, the Board

believes

is claimed information does not appear

to meet the

description contained in paragraph

3 of the application.

Also,

some of the information may constitute emissions data which under

state and federal law may not be maintained as confidential.

The

Board would anticipate that such issues would be addressed prior

to any ultimate need by this Board

to make a determination.

Hearing must be scheduled within 14 days of the date of this

Order and completed within

60 days of the date of this Order.

The hearing officer shall inform the Clerk of

the Board of the

time and location of

the hearing as expeditiously as possible but

at least

40 days

in advance of hearing so that public notice of

hearing may be published.

After hearing,

the hearing officer

shall submit an exhibit

list, and all actual exhibits to the

Board within

5 days of

the hearing.

Any briefing schedule shall

provide for final

filings as expeditiously as possible and

in no

event

later

than 70 days from the date of this Order.

If after appropriate consultation with the parties,

the

parties fail

to provide an acceptable hearing date or

if after an

attempt the hearing officer

is unable

to consult with the

parties,

the hearing officer shall unilaterally set a hearing

date

in conformance with the schedule above.

This schedule will

only provide the Board

a very short time period to deliberate and

reach a decision before the due date.

The hearing officer and

the parties are encouraged

to expedite this proceeding as much as

possible.

c~!ithin 10 days of accepting this case,

the Hearing Officer

shall enter a Hearing Officer Scheduling Order governing

completion of the record.

That Order shall

set

a date certain

for each aspect of the case including:

briefing schedule,

hearing date(s),

completion of discovery

(if necessary) and pre—

hearing conference

(if necessary).

The Hearing Officer

Scheduling Order may be modified by entry of

a complete new

scheduling order conforming with the

time requirements below.

The hearing officer may extend this schedule only on a

waiver of

the decision deadline by the petitioner and only for

the equivalent or fewer number

of days

that the decision deadline

is waived.

Such waivers must

be provided

in writing

to the Clerk

of the Board.

Any waiver must be an “open waiver”

or

a waiver of

decision until

a date certain.

Because

of requirements regarding the publication of notice

of hearing,

no scheduled hearing may

be canceled unless the

petitioner provides an open waiver

or

a waiver

to

a date at least

1~5~32

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—3—

120 days beyond the date of the motion to cancel hearing.

This

should allow ample time for the Board to republish notice of

hearing and receive transcripts from the hearing before

the due

date.

Any order

by the hearing officer granting cancellation of

hearing shall include a complete new scheduling order with a new

hearing date at least

40 days in the future and at least

30 days

prior

to the new due date and the Clerk of the Board shall

be

promptly informed of

the new schedule.

Because this proceeding

is the type for which the Illinois

Environmental Protection Act sets

a very short statutory doadline

for decisionrnaking, absent a waiver,

the Board will grant

extensions or modifications only

in unusual circumstances.

Any

such motion must set forth an alternative schedule for notice,

hearing, and final submissions,

as well as the deadline for

decision,

including response time to such a motion.

However,

no

such motion shall negate

the obligation of the hearing officer

to

establish a scheduling Order pursuant

to the sixth paragraph of

this Order, and

to adhere

to that Order

until modified.

IT

IS SO ORDERED

I, Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify th

t

the above Order was adopted on

the

/4~day ~f _______________________,

1989, by a vote

of

7-0

.

~

Dorothy

M. ,,çunn, Clerk

Illinois Pollution Control Board

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