ILLINOIS POLLUTION CONTROL BOARD
    November
    29, 1988
    CITY OF FARMINGTON,
    )
    )
    Petitioner,
    v.
    )
    PCB 85—203
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J.D.
    Dumelle):
    This matter comes before
    the Board upon
    a September 9,
    1988
    Motion For Leave To File Agency Brief
    Instanter.
    This action was initially
    a request
    for an extension
    of an
    earlier granted variance
    (PCB 84—166), which allowed sanitary
    sewer overflows during installation of bypasses.
    The request was
    docketed as PCB 85—203.
    In approximately June of 1987 Petitioner
    and Respondent came
    to an agreement concerning
    a compliance plan.
    This agreement led
    to a favorable Agency Recommendation filed with the Board on July
    6,
    1987.
    However, on December
    16,
    1987 the Agency filed
    a Second
    Amended agency Recommendation withdrawing its approval, claiming
    that Petitioner had reneged on
    its promise
    to adhere
    to the
    agreed upon compliance schedule.
    Subsequently, Petitioner
    filed
    a new Petition For Variance
    and on March
    21,
    1988 Respondent filed
    its formal Agency
    Recommendation,
    urging the Board
    to deny the requested variance
    because,
    inter alia,
    “...
    their alternative compliance plan would
    not absolutely guarantee elimination of basement floodings...”
    The matter went
    to hearing on July 28,
    1988,
    and the Hearing
    Officer ordered briefs
    to be submitted simultaneously no later
    than two weeks after
    the Board’s receipt of record of hearing
    transcripts.
    On September
    9,
    1988,
    Respondent motioned for leave
    to file
    its brief,
    instanter,
    noting that Petitioner had
    (also)
    failed
    to
    file its brief within the time prescribed
    by the Hearing
    Officer.
    Respondent indicated that
    its motion and brief were
    submitted
    to the Hearing Officer
    (rather than opposing counsel)
    because
    a copy of the Respondent’s brief was attached to the
    motion.
    Respondent requested
    that the Hearing Officer hold the
    93—625
    —2—
    motion and brief until such time as Petitioner
    filed
    its brief so
    as
    to avoid giving Petitioner
    an advantage prior
    to submitting
    Petitioner’s brief;
    the Hearing Officer order setting
    simultaneous brief deadlines obviously was
    intended
    to prevent
    this.
    Because Petitioner
    never
    responded
    to Respondent’s Motion
    For Leave To File, Instanter,
    an attorney for the Board
    telephoned counsel for Petitioner.
    Petitioner’s counsel
    indicated surprise that he was not served with
    a copy of
    Respondent’s motion and also was surprised tolearn
    that hearing
    transcripts were available and had been available
    for
    approximately one month.
    Counsel for Petitioner was informed
    that a Response
    to respondent’s motion should be filed post haste
    and that Respondent’s brief
    (overdue at that time)
    should be
    submitted as
    soon as possible.
    Since that date Petitioner has failed
    to respond to the
    Motion For Leave To File,
    Instanter and has not filed
    its hearing
    brief.
    Respondent’s Motion For Leave To File,
    Instanter,
    is
    granted.
    Petitioner
    is hereby ordered
    to submit Petitioner’s
    brief
    no later
    than December
    9, 1988.
    If Petitioner’s brief
    is
    not submitted by December
    9,
    1988 this Board will review and
    consider appropriate sanctions
    (pursuant to
    35
    Ill. Adm.
    Code
    107),
    including dismissal of this action with prejudice.
    IT IS
    SO
    ORDERED.
    I, Dorothy M.
    Gunn,
    Clerk of
    the Illinois Pollution Control
    Board, hereby certify that
    t~e
    above Order was adopted on
    the
    ______________
    day
    of
    ~
    1988 by
    a vote
    of
    7-0
    .
    Dorothy M. ,i9~unn, Clerk
    Illinois Pc~llutionControl Board
    93—626

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