ILLINOIS POLLUTION CONTROL BOARD
June 15,
1995
JOHN C.
JUSTICE,
d/b/a/
)
MICROCOSM,
)
Petitioner,
v.
)
PCB 95—112
(Permit Appeal
-
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by C.A.
Manning):
This matter is before the Board on an operating permit
appeal filed
pro se
by John
C. Justice, doing business as
Microcosm on March 28, 1995.
The Board accepted the petition for
hearing on April
6,
1995 and subsequently the Board received a
waiver of the decision deadline on April
14,
1995, waiving the
statutory decision due date in this case until October 30,
1995.
On April 20,
1995, the Illinois Environmental Protection Agency
(Agency)
filed a motion to dismiss the permit appeal challenging
the sufficiency of the pleading
(35 Ill.
Adm.
Code
101.243)
to
which the petitioner filed a response on June 5,
1995.
The Agency argues that dismissal is proper because the
permit appeal does not satisfy the Board’s informational
requirements of
35
Ill. Adm. Code 105.102.
According to the
Agency, the petition fails to:
(1)
cite particular standards
under which the operating permit was being sought (Section
105.102(a) (2) (A));
(2) reference a complete and precise
description of the facility,
equipment, vehicle, vessel or
aircraft for which a permit
is sought,
including its location
(Section 105.l02(a)(2)(B));
(3)
include a complete description of
contaminant emissions and of proposed methods for their control
(Section 105.102(a) (2) (C)); and
(4)
submit or reference any other
materials necessary to demonstrate that Petitioner’s activity
will not cause a violation of the Illinois Environmental
Protection Act or applicable regulations
(Section
105.102 (a) (2) (D)
.)
In response, Mr. Justice states that
(1)
the Board ordered
the Agency to submit the record on appeal when it accepted this
case;
(2) any documents or records that the Agency believes to be
missing are not in the possession of the petitioner; and
(3) due
process requires a hearing in the case of a permit denial.
The Agency is correct that the petition does not satisfy the
informational requirements of Part 105, especially as they relate
to the facility description.
However,
as this material is always
included in the Agency’s record and as the Board’s review in this
2
type of permit appeal is restricted to review of the record,
the
Board has not heretofore required strict compliance with the
portion of Part 105
prior to accepting a petition.’
While we
understand the concerns stated in the Agency’s dismissal request
regarding lack of information
in the petition, the Board can not,
in this case,
begin requiring strict compliance.
We note,
however, that we are in the process of reviewing our procedural
rules
in Docket R95-1,
and that the public,
as well as the Agency
and the regulated community, will have a full and complete
opportunity to comment concerning any of the Board’s ~ew
procedures.
We hereby deny the Agency’s motion to dismiss.
We direct
the Agency to file the record,
and we direct that the hearing
officer hold a pre—hearing conference so that the parties may
determine what information must be provided prior to hearing.
Additionally,
any requests for stay or for a negotiation schedule
shall be at the discretion of the hearing officer, consistent
with the decision deadline
in this matter.
This matter
is accepted for hearing.
The hearing must be
scheduled and completed in a timely manner,
consistent with Board
practices and the applicable statutory decision deadline, or the
decision deadline as extended by a waiver
(petitioner may file a
waiver of the statutory decision deadline pursuant to 35 Ill.
Adm. Code 101.105).
We also direct the hearing officer to hold a
pre—hearing conference so that the parties may determine what,
if
any information, must be provided to one another,
or to the
Board, prior to hearing.
Additionally, the hearing schedule and
any requests for stay or for a negotiation schedule shall be at
the discretion of the hearing officer.
The assigned 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,
a statement regarding credibility of witnesses and
all actual exhibits to the Board within five days of the hearing.
Any briefing schedule shall provide for final filings as
expeditiously as possible and,
in time—limited cases, no later
than 30 days prior to the decision due date,
which is the final
regularly scheduled Board meeting date on or before the statutory
or deferred decision deadline.
Absent any future waivers of the
decision deadline, the statutory decision deadline
is now October
1
We note that the Agency’s record was due to have been
transmitted to the Board within
14 days of the Agency’s receipt
of notice of the petition, which in this case would have been
April 17,
1995.
(35 Ill.
Adm. Code Section l05.l02(a)(4).)
It
has not yet been filed.
3
30, 1995
(pursuant to the petitioner’s waiver of April
14, 1995);
the Board meeting immediately
preceding the due date is scheduled
for October
19,
1995.
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.
The hearing officer
and the parties are encouraged to expedite this proceeding as
much as possible.
IT IS SO ORDERED.
I, Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board, her~ycertify that the
al~o~v~e
order
was
adopted on the
__________________
day of
___________________,
1995,
by a vote
of
(a0
/2
/
Dorothy M. ~unn,
Clerk
Illinois P,dllution Control Board