ILLINOIS POLLUTION CONTROL BOARD

July 30,

1992

NOLINE/DUTCHWAY DRY CLEANERS,

Petitioner,

)

v.

)

PCB 92—102

(Underground Storage

ILLINOIS ENVIRONMENTAL

)

Tank Reimbursement)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

On July

13,

1992,

Moline/Dutchway

Dry Cleaners

(Dutchway)

filed

a

petition

for

review

of

an

Underground

Storage

Tank

Reimbursement Determination for its facility located at 2301 27th

Street in Moline, Rock Island County.

This matter is accepted for

hearing.

On

July

29,

1992,

Dutchway,

by

its

consultants,

Beling

Consultants, Inc., filed a letter purporting to extend the deadline

for the

filing

of the Illinois

Environmental

Protection Agency

(Agency)’ record in this case until September 9,

1992.

The letter,

also states that Beling and Dutchway understand that the

final

decision deadline for this case “could be” as late as December 25’,

1992.

However, Dutchway has no authority to waive the deadline for

the filing of

the Agency

record.

That deadline

(14 days after

notice of a petition for review)

is contained in a Board procedural

rule,

and

can

only

be

extended

by

the

Board

itself.

(35

Ill.Adm.Code 105.102.)

If an extension of the deadline to file the

record is needed, the Agency must make such a request.

Of course,

Dutchway can waive any objection to an Agency request for extension

of the 14-day deadline.

The Board notes, however, that it relies

on interim deadlines to assure timely submittal of information by

the Agency so that the Board

can make a timely

final decision.

Therefore,

an extension

of

time to

file the record

is

doubtful

absent a waiver of the final decision deadline.

If Dutchway wishes

to

waive

the

deadline

for

final

Board

decision,

it

mUst

specifically waive that deadline.

Such a waiver must be either an

open waiver

or

a

waiver

until

a

calendar

date

certain.

(35

Ill.Adm.Code

101.105.)

A

statement

that

•the

final

decision

deadline “could” be as late as December 25, 1992,

is not a waiver.

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 hearinci.

Any briefma

0135-0181

---

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

extensions or modifications only~in unusual circunistancès.

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

~

hereby certify

at the above order was adopted on

the

~1é~-’-’day of

__________________,

1992, by a vote of

~,

/

/2

~

Dorothy M.

Gqiy~-i, Clerk’

Illinois

Pofriition

Control Board