ILLINOIS POLLUTION CONTROL BOARD

July 11,

1991

INDIAN REFINING LIMITED

)

PARTNERSHIP,

)

Petitioner,

)

v.

)

PCB 91—110

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD by

(N. Nardulli):

This matter is before the Board on petitioner Indian Refining

Limited Partnership’s filing of a petition for review challenging

the Illinois Environmental Protection Agency’s

(Agency)

denial of

petitioner’s renewal applications for operating permits.

Section 40(a) (1)

of the Environmental Protection Act

(Ill.

Rev.

Stat.

1989,

ch.

111 1/2,

par.

1040(a)(l))

provides that an

applicant may seek review of the Agency’s permit decision by filing

a petition for hearing with the Board within

35

days.

Section

105.102(a)(2)

of the Board’s

procedural

rules

governing permit

appeals provides that such a petition for hearing shall be filed

with the

Board

“within

35

days

of

the date

of mailing

of the

Agency’s final decision.”

(35 Ill.

Adm. Code 105.102(a) (2).)

Here,

petitioner states that “by letter dated may

16,

1991,

the Agency denied the Renewal Applications

...

.“

35 days from May

16,

1991 is June 20, 1991.1

Petitioner’s petition for hearing was

date-stamped by the Clerk on June 25,

1991.

Because the petition

for hearing is date-stamped after the due date “the time of mailing

shall

be

deemed

the

time

of

filing.”

(35

Ill.

Adm.

Code

101.102(d).)

Hence, the Board must look to petitioner’s proof of

service

to

determine the

date

of

filing.

(35

Ill.

Adm.

Code

101.143(a)(l).)

Petitioner’s certificate of service states only

that the petition was served on the Agency by certified mail on

June 24,

1991,

four days after June 20,

1991.

The only reference

1

Section 101.109 of the Board’s general procedural rules

provides

that

“c)omputation

of

any

period

of

time

prescribed by this Chapter or the Act shall begin with

the first calendar day following the day on which the

act, event, or development occurs and shall run until the

end of the last day, or next business day if the last day

is

a

Saturday,

Sunday

or

national

or

state

legal

holiday.”

(35 Ill. Adm. Code 101.109.)

124—93

---

2

to filing with the Board is in petitioner’s notice of filing which

states that the petition was filed with the Board on June 24,

1991.

Based upon the above, it appears that the petition for hearing

is untimely filed.

The Board directs the parties to address the

issue of timeliness of the filing of the instant petition by filing

simultaneous responses to this order to be received by the Board

no later than 4:30 p.m. on July 22, 1991.

In particular, the Board

directs the parties’ attention to the Board’s decision in Finks

&

Austman v.

IEPA, PCB 90—243

(February 7,

1991).

Although the Board questions the timeliness of the instant

filing and, hence whether the Board has jurisdiction, because the

Board has a decision deadline in this permit appeal,

this matter

will be set for hearing subject to the outcome of the timeliness

issue.

The Board

notes

that the

time period within

which

the

hearing officer must schedule the hearing has been adjusted to

accommodate the July 22,

1991 filings of the parties pursuant to

the above discussion.

Hearing must be scheduled within 18 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 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.

Within

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

124—94

---

3

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

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 deadline

for making

a

decision,

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 requirements of this

Order, and to adhere to that Order until modified.

IT IS SO ORDERED.

I, Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board

hereby cer

fy that the above Order was adopted on the

/(t?7’day of

____________

,

1991 by a vote of

7c)

~

L~

orothy N. GUp~,Clerk”

Illinois P01Q)ition Control

Board

12 4—95