ILLINOIS POLLUTION CONTROL BOARD
    November 4, 1993
    MOBIL OIL
    CORPORATION,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 93—151
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER
    OF THE BOARD (by J. Theodore Meyer):
    This matter is before the Board on two filings. On October
    27, 1993, respondent the Illinois Environmental Protection Agency
    (Agency) filed a motion for leave to file its recommendation
    instanter. The Agency notes that its recommendation was due on
    September 18, 1993, but states that because of a death in the
    assigned attorney’s family, and subsequent negotiations with
    petitioner Mobil Oil Company, the recommendation is filed 34 days
    late. The motion to file the Agency recommendation instanter is
    granted.
    On November 2, 1993, Mobil filed two documents: a
    “response” to the Agency recommendation, and a request for
    hearing. As to the request for hearing, Mobil notes that in its
    original petition, it waived its right to a hearing unless an
    objection was filed. Mobil states that it requests a hearing,
    and asks that “the hearing be scheduled immediately so that the
    Board can meet its statutory timeframe for variance decisions.”
    (Request at 2.)
    Section 104.181 of the Board’s procedural rules (35 Ill.
    Adm. Code 104.181) provides for a petitioner to take one of two
    actions within 7 days of the receipt of the Agency
    recommendation: 1) file a response to that recommendation; or 2)
    file an amended petition, requesting that the matter be set for
    hearing. The rule does not provide for a petitioner to file both
    a response and a request for hearing. This limitation is
    necessary so that the Board can meet the statutory decision
    deadline while also complying with the notice requirements for
    hearing. Because Mobil requests a hearing, we construe its
    response as an amended petition pursuant to Section 104.181(b).
    The filing of an amended petition restarts the timeclock for
    decision, so that decision in this case is now due 120 days from
    November 2, 1993 (the date of filing of Mobil’s amended
    2
    petition).1 The Board hereby authorizes hearing.
    The Board notes that Mobil is currently operating under a
    site—specific rule which expires on December 31, 1993. (35 Ill.
    Adm. Code 304.214.) Because of this circumstance,
    if
    Mobil
    wishes to withdraw its request for hearing, the Board will make
    its decision in accordance with the
    original decision deadline.
    Any withdrawal of the request for hearing must be filed no later
    than November 15, 1993.
    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 con5ult 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
    We note that Section 104.181(b) states that decision is
    due 90 days after filing. However, our procedural rule has not
    been updated since the statutory change to Section 38(a) of the
    Environmental Protection Act (Act) (415 ILCS 5/38(a) (1992))
    extended our time for decisions in variances from 90 to 120 days.
    The Board will make every effort to decide this case as soon as
    possible after the conclusion of hearing and any briefing
    schedule.
    3
    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
    cancelled 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
    Environmental Protection Act sets a very short statutory deadline
    for making a decision, 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
    establish a scheduling order pursuant to the requirements 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
    Boa~41,hereby cer y that the above order was adopted on the
    ~
    day of
    _______________,
    1993, by a vote of ~
    Dorothy M. unn, Clerk
    Illinois lution Control Board

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