I

I

NO

IS

POILIJ’

1

ON

CONTROL

BOARD

July

~,

i 99:3

Nati

ona

I

Coat.

i

nq~,

Inc.

I:)c:~t

it

loner

,

PCB

93—128

(Permit

Appe~I)

ILLINOIS

ENV

I RONMENTAL

PROTECTION

AGENCY,

Respondent

ORDER

OF

THE

BOARD

(by

C.

T

.

Ci

rard

On

July

7,

1793,

National

Coatings,

Inc.,

filed

a

pet:t

ion

for hearirc;

to

review

certain conditions imposed

by

the

I

Ii~ino~

Environmental

Protection

Agency

in

its RCRA closure

pian

permIt.

This matter

:is accepted for

hearing.

This

matter concerns closure and post-closure

care

issues,

and the parties

are

particularly directed to Board

opinions

and

orders

in

Browning-Ferris

Industries

v.

EPA,

PCB

84~136,

May

5,

1988,

aff’d,

179

111..

App.

3d

598,

534 N.E.2d 616

(2d Dist.

1989);

Marley—lnqrid

(USA)

,

Inc.

v.

EPA, PCB 88—17,

January

19,

1989;

and Testor Corp.

V.

EPA,

PCB 88-191,

November

2,

1989 for

discussions of standards of review and burdens of proof.

The

only issues before the Board are whether correct permitting

procedures were followed and whether the application demonstrates

that the Environmental Protection Act and Board regulations will

or will not

be violated.

For each contested condition,

the Board expects,

and

~trongly

encouraqes the parties to state the applicable

regulatory

law

and relevant facts,

with appropriate record

citations,

which

demonstrate

that

a violation

is likely

or

unlikely

to

occur.

The

part

ies are urged to focus on

RCRA

Update,

USEP/\ Regulations,

R87—39,

February

25,

1988,

and

June

16,

1988,

and P87—26,

December

3,

1987.

Hearing

must

be

scheduled within

14 days

of

the

date

of

thin

order and completed within

60

days

of the date of

tli~s

order.

rrhe hearing officer shall inform

the

Clerk

of

the

Board

of

the

time and location of

the hearing as expeditiously as

possible

hut

at

least

40

days

in

advance of hearing so that pub

I

i c not

ice

Of

hearing

may

he

published.

After

hearing,

the

hearing

of

1.

icet:

shal.i

submit

an

exhibit

list,

and

all

actual

exhibits

to

the

Board

within

Jay:;

of

the

hearing.

Any

brief

ing

schedule

sha

1

1

provide

for

I

i ni

I

I

I

irigs

as

expeditiously

as

poss

ILl

e

and

n

no

event

later

teliw

/u

days

V

rom

the

date

of

this

order

11

at

ter

appropriate

consultation

with

the

put

1:,

Un.

part.

i en

i

i

I

V

o

p rev

i do an

ccoptab

le

lieu r

i nq

dat~

I

I t

r

an

---

at;temnt

the

h.iriiig

ot licer

is

unable

to consult

with

the

part:

iou,

the

hearing

off

icer shall

unilutera

ily

set

a

hearing

date

in

confornancc

with

the

schedule

above.

This

sc::hedul

eo

i

I

I

only provide

the

Board

a

very

short

time

per

i od

to

(to

I

i

hera V e

an;

I

reach

a

deci

sion

be

fore

the

due

date.

The

hearing

of

f

i cc r

a no

the

parties

are

encouraged

to

expedite

this

proceed

i og

us

much

ì:;

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

pro—

hearing

conference

(if

necessary)

.

The

Hearing

Officer

Scheduling

order

may

be modified by entry of

a

complete

new

schedu

1

ing

order

conforming

with

the

time

requirements

be

I ow.

The hear

ing

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

decis

ion

dead?

inc

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

Protect

ion

Act

sets

a

very

short

statutory

dead 1 inc

for

making

a

decision,

absent

a

waiver,

the

Board

will grant

extensions

or

modi fications

only

in

unusual

circumst:unces.

Aiiy

such

motion

must

set

forth

an

alternative

schedule

for

not

ice,

hearing,

and

final submissions,

as well

as the dead? inc

or

decision,

including

response

time

to

Such

a

motion.

However,

no

such

motion

shall

negate

the

obligation

of

the

hearing

of

I

icer

to

estabi

ish

a

Schedu

I

ing

order

pursuant

to

the

requ i

remcrits

of

Ui

i s

order,

and

to

adhere

to

that

order

unti

I

modi

~ i ccl

This

order

ei

I

I

not

appear

in

tile

Board’s

opin

ion

Volumes.

lI

1 5

50

ol~II)i:io-3)

l)oiothy

N.

Gnnii,

Clerk

of

the

11

1

inois

Iol

lot

ion

V~it

t

---

Board,

hereby

certify

that

the

above

order

was

adopted

on

the

day

of

_,

1.993,

by

a

vote

of

7(i”

~

Dorothy

N.

Gin,

Clerk

Illinois Poli~ution

Control

Board