ILLINOIS POLLUTION CONTROL BOARD
March
5,
1987
CITY OF ROCK ISLAND,
Petitioner,
v.
)
PCB
87—13
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by
B.
Forcade):
This matter comes before
the Board
on
a January 30,
1987,
petition
for variance filed by the City of
Rock Island
(“Rock
Island”).
On February
5,
1987,
the Board
issued
an order
finding
the petition deficient
in that it provided
inadequate information’
on
the date
and location of the
individual
trihalomethane
(THM)
samples which comprised the “range” of values since
1981.
The
Board ordered
that unless
an amended petition was
filed,
the
variance would be subject
to dismissal.
Additionally,
the Board
requested that Rock Island provide federal risk factor estimates
used
in promulgating the national THM standard.
This request was
not based
on
a finding
of informational inadequacy but was merely
made
to supplement the
record.
On February 27,
1987,
Rock Island filed
a Response
to Board
Order, which provided both the requested background information
and specific THM data,
as well as the federal risk assessment
document.
Rock Island, however, made
a legal objection
to the
Board’s finding
that its petition was inadequate.
Rock Island
asserts that the Board
is without statutory authority to require
it
to submit any additional information beyond
its petition,
which
it considers
to materially satisfy the requirements of
35
Ill.
Adrn.
Code 104.121.
Rock Island presumably does not view its
Response to Board Order
as an amended petition.
The Board
reaffirms ‘its February 5,
1987,
finding of
inadequacy of Rock Island’s petition.
On page
5 of the original
petition, Rock Island states:
“Individual samples taken by IEPA
since
1981 have ranged from 0.033
to 0.346 mg/I for TaM.”
This
sentence constitutes
the only THM data provided
to the Board
in
the petition.
In
a variance,
the Board must determine the extent
and severity of existing and potential environmental and human
health impacts.
Such a sketchy, generalized “range”
is
inadequate
for this purpose, absent either
some sort of
statistical analysis or specific enumeration of the
individual
data points.
As Rock Island has provided new factual
76-135
—2—
information, deemed necessary by the Board
for
an adequate
petition,
this filing constitutes an amended petition
for the
purposes of calculating
the statutory decision deadline.
On February 23,
1987,
the Board received two citizen
objections to this variance petition,
thus,
triggering
a
hearing.
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.
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.
Any waiver shall
extend
the time
deadline of Section 104.180 regarding filing
the Agency
recommendation by the equivalent number of days,
but
in any
circumstance the recommendation must be filed
at
least
20 days
before
the hearing.
76-136
—3—
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
75 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 decisionmaking,
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
set
a date pursuant
to the seventh paragraph 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,
hereby certify that the above Order was adopted on
the
~
day of
~7)~
~z-~L~-’
,
1987, by a vote
of
~
t1
~.
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
76-137