ILLINOIS POLLUTION CONTROL BOARD
    November 8, 1990
    ACME FINISHING CO., INC.
    )
    Petitioner,
    PCB 90—179
    v.
    )
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD (by J.D. Dumelle):
    This matter comes before the Board on a permit appeal filed
    by Acme Finishing Company (“Acme”) on September 28, 1990. On
    October 9, 1990 the Illinois Environmental Protection Agency
    (“Agency”) filed a motion to dismiss pursuant to the Board’s
    decision in Caterpillar Tractor v. EPA, PCB 83—86 (October 18,
    1983). Acme replied on October 15, 1990 with a detailed brief
    asserting that Caterpillar is distinguishable from the instant
    case arid, further, that dismissal of this permit appeal would
    prejudice the company. On November 5, 1990, Acme filed a motion
    for leave to file a supplemental response. While this motion is
    not ripe, the Board will grant it so as to avoid undue delay.
    The Agency contends that Acme’s “reapplication” Is in fact a
    motion to reconsider, and that the Board is precluded from
    considering a permit appeal while the Agency’s reconsideration is
    pending. In Reichold v. EPA 3—89—0393 (Slip Op. October 12,
    1990), however, the Third District Appellate Court held that the
    Agency is without statutory authority to reconsider its
    decisions. In doing so, the court considered Caterpillar but
    held that the precedent espoused therein was not binding.
    Accordingly, the Agency’s motion is denied and this matter is
    accepted for hearing.
    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 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.
    116— 85
    —2—
    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 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
    116—86
    —3—
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on the,
    ~
    day of
    ____________________
    ,
    1990, by a vote of
    7- ~
    L2~~
    ~-
    ~/-
    /J- ~
    Dorothy M. Gt~/in, Clerk
    Illinois Pol~~utionControl Board
    116—87

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