ILLINOIS POLLUTION CONTROL BOARD

August 26,

1993

R.

LAVIN

& SONS,

INC.,

Petitioner,

v.

)

PCB 93—148

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by R.C.

Flemal):

On August

10,

1993

P.

Lavin

& Sons,

Inc.

(Lavin), filed

a

petition for hearing to review certain conditions imposed by the

Illinois Environmental Protection Agency in its RCRA closure plan

permit.

This matter is accepted for hearing.

This matter concerns closure and post—closure care issues,

and the parties are particularly directed to Board opinions and

orders in Browning-Ferris Industries v. EPA, PCB 84-136, May 5,

1988, aff’d,

179 Ill. App. 3d 598, 534 N.E.2d

616

(2d Dist.

1989); Marley-Ingrid (USA~, Inc.

v.

EPA, PCB 88—17, January 19,

1989; and Testor Corp.

v. EPA, PCB 88—191, November 2,

1989 for

discussions of standards of review and burdens of proof.

The

only issues before the Board are whether correct permitting

procedures were followed and whether the application demonstrates

that the Environmental Protection Act and Board regulations will

or will not be violated.

For each contested condition, the Board expects, and

strongly encourages the parties to state the applicable

regulatory law and relevant facts, with appropriate record

citations, which demonstrate that a violation is likely or

unlikely to occur.

The parties are urged to focus on RCRA

Update, USEPA Regulations, P87—39, February 25,

1988 and June 16,

1988 and R87—26, December 3,

1987.

The parties are ordered to file status reports to keep the

Board informed of any change in the status of this case.

The

parties shall file

a status report with the Board on or before

December 30,

1993.

Subsequent status reports should be filed

every three months thereafter or sooner

if circumstances warrant.

Based on the status reports the Board will set this matter for

hearing or take other appropriate action.

Along with the petition, Lavin filed

a waiver of

the

decision deadline until September

1,

1994.

Considering this

decision due date,

hearing must be completed

by June 30,

1994.

The hearing officer shall inform the Clerk of the Board of the

---

time and location of the hearing as expeditiously as possible but

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 30 days from the date of the hearing.

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.

At least 40 days prior to hearing,

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

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

---

—3—

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.

Board Member

B. Forcade abstained.

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify, that the above order was adopted on the

~

day of

~

,

1993,

by a vote of

(J

~Y.

~yX,~

Dorothy M. G~n, Clerk

Illinois Pollution Control Board