ILLINOIS POLLUTION CONTROL

BOARD

January 7, 1993

A.

B. DICK

COMPANY

)

Petitioner,

)

v.

)

PcB

92—209

)

(Permit

Appeal)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

ORDER

OF

THE

BOARD

(by

G.

T

Girard):

On

December

17,

1992,

A.

B.

Dick

Company

filed

a

petition

for bearing to review certain conditions

imposed

by the Illinois

Environmental Protection Agency in its

RcRA

closure plan permit.

In addition the petitioner filed

a

waiver

of decision deadline

until January 1,

1994, which the

hearing

officer shall take into

consideration when setting this matter for hearing.

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,

P~B84—136, May 5,

1988,

aff’d,

179 Ill. App. 3d 598, 534 N.E.2d 616 (2d Diet.

1989); Marley-Inarid (USA~I. Inc. v. EPA, PCB88—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

UDdate. USEPA Reaulations, R87—39,February 25, 1988 and

June

16,

1988 and R87—26, December 3,

1987.

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 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

0138-0325

---

2

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

co’npletion

of

the

record.

That

order

shall

set

a date certain.

for each aspect of the case including:

briefing schedule,

hearing date

(8),

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 i~swriting to the Clerk

of the Board.

Any

waiver

must

be

an

‘~openwàiver”.,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 bearing 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

exte”sions

or

modificati-’ms

only

in

unusual

circumstances.

Any

such

,~otionmust

set

fortn

an

iternative schedule for notice,

hearing,

and

final

~ubmjssjons,

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.

0138~O326

---

3

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Boa d, hereby cert

that the above order was adopted on~.the

_____

day of

__________________,

1993,

by a vote of .70

‘~DorothyN. ~d)~nn,Clerk

Illinois Pk3flution Control Board

0138 -0327