ILLINOIS POLLUTION CONTROL BOARD

December 17, 1992

RON’S INTERSTATE SUNOCO,

)

)

Petitioner,

v.

)

PCB 92—200

)

(Underground Storage

ILLINOIS ENVIRONMENTAL

)

Tank Reimbursement)

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD (by J. Theodore Meyer):

On December 4, 1992, petitioner filed a petition for review of

an Underground Storage Tank reimbursement determination. This

matter is accepted for hearing.

Petitioner contests a November 2, 1992 decision of the

Illinois Environmental Protection Agency (Agency). In its petition

for review, petitioner states that the Agency’s November 2 letter

stated that “this decision does not constitute the Agency’s final

determination of eligibility.” (Petition~at 1.) Therefore,

petitioner maintains that it is uncertain as to whether this

decision is ripe for appeal. However, the Board notes that the

November 2 letter, attached to the petition for review,

specifically states “t)his:constitutes the Agency’s final action

with regard to the above invoices.” (Attachment A.) The Board has

not found the language quoted by petitioner that the determination

is not final. Therefore, the Board sees no issue as to the

appealability of the November 2, 1992 letter.

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 bearing, 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

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2

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

~*beyondthe date of the motion to cancel bearing. 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

)iearing 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 M. Gunn, Clerk of the Illinois Pollution Control

Board hereI~ cert that the above order was adopted on the

_____

day of

__________________,

1992, by a vote of

7-~

i5orothy M.(~unn, Clerk

Illinois ~llution Control Board

0138-0168