ILLINOIS POLLUTION CONTROL BOARD
    October 24, 1991
    R. L1~VIN& SONS,
    INC.,
    )
    )
    Petitioner,
    PCB 91—139
    v.
    )
    (Permit Appeal)
    )
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J.
    C. Marlin):
    On September
    23,
    1991,
    R.
    Lavin
    &
    Sons
    (“Lavin”)
    filed
    an
    Amended.Petition in this proceeding.
    On September 24,
    1991 the
    Illinois
    Environmental
    Protection
    Agency
    (“Agency”)
    filed
    a
    “Memorandum in Response to the Illinois Pollution Control Board’s
    Order of August 22, 1991”.
    Within that memorandum is a Motion for
    Summary
    Judgement.
    On October
    7,
    1991,
    the Board
    received
    a
    response to the Motion from Lavin.
    The Agency states that the Lake County Circuit Court entered
    a consent order on October 12,
    1990, which sets forth interim and
    final
    compliance
    limits.
    Further,
    the Agency
    asserts that the
    Circuit Court has jurisdiction over “the terms and conditions of
    Defendant’s
    NPDES permit renewals or amendments or modifications
    to
    said Permit”
    under .the conditions
    set
    forth
    in the consent
    decree.
    Therefore, the Agency asserts that the court is the proper
    venue
    for dealing with the
    issues
    in
    this permit
    appeal.
    The
    Agency
    also asserts that there
    are
    not material
    issue
    of
    fact
    involved.
    Lavin asserts that there are issues to be decided which are
    beyond the scope of the consent decree.
    Lavin cites to specific
    issues which Lavin
    believes the Board must decide.
    Lavin
    also
    asserts that the motion
    should
    be
    stricken because
    it was
    not
    properly filed with the Board.
    The Board does not dispute that the Circuit Court has sole
    jurisdiction over the terms
    of the consent decree.
    The filings
    received
    by
    the
    Board
    on
    the Motion
    indicate
    that
    there
    are
    questions of material fact and may be questions of law which are
    better resolved after a hearing has been held in this proceeding.
    Therefore, the Motion for Summary Judgement is denied.
    On September 23, 1991,
    R. Lavin
    & Sons,
    Inc. filed an amended
    petition for permit review.
    This matter is accepted for hearing.
    The Board notes that the filing of the amended petition restarts
    the time for Board decision pursuant to Section 40 of the Act.

    2
    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.
    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

    3
    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.
    This Order will not appear in the Board’s Opinion Volumes.
    IT IS SO ORDERED.
    Board Member
    B.
    Forcade dissented.
    I,
    Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Boa~,do hereby certi~r~at
    the above Order was adopted on the
    ~
    day of
    ______________________________,
    1991, by a vote of
    “—I.
    Control Board

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