ILLINOIS POLLUTION CONTROL BOARD
    October 16, 1992
    MARSCO
    MFG.
    CO.,
    )
    Petitioner,
    PCB91—235
    v.
    )
    (Variance)
    )
    ILLINOIS
    ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER
    OF THE BOARD (by J. Anderson):
    On October 14,
    1992, Narsco Manufacturing Company (Marsco)
    filed
    1) a second amended petition for variance that changed the
    time frame of the requested relief and contained an open waiver
    of the decision deadline,
    2)
    an appeal of an October
    9,
    1992
    hearing officer order,
    and 3)
    a status report.
    The Illinois
    Environmental Protection Agency
    (Agency) has not yet responded to
    any of Marsco’s filings.
    In its appeal of the hearing officer’s order, Marsco
    requests that the Board vacate the hearing officer’s October
    9,
    1992 order denying Marsco’s October 2,
    1992 request to cancel
    the
    October 20,
    1992 hearing in this matter and direct the hearing
    officer to reschedule a hearing on Marsco’s second amended
    petition.
    In support of its request, Marsco cites to its status report
    and argues that the Agency has not yet reviewed its second
    amended petition or filed a recommendation on the first amended
    petition.
    In its status report, Narsco states that it submitted
    a draft settlement agreement to the Illinois Attorney General’s
    Office
    (AG’S Office) on August 13,
    1992, to resolve the alleged
    violations in this case.
    Marsco adds that, although the AG’s
    Office and Agency are currently reviewing the agreement,
    it does
    not know when such review will be completed.
    Finally, Maraco
    states that it expects that the parties will reach agreement by
    the end of the year and that Marsco will dismiss its variance
    petition as a condition of settlement.
    Although the Agency’s response time has not yet expired, the
    Board will rule on Marsco’s appeal in order to prevent undue
    delay.
    35 Ill. Adm. Code 101.241(b).
    A review of the record
    indicates that,
    in addition to Marsco’s October 2,
    1992 request
    to cancel hearing, Marsco also moved to cancel hearing on
    February 18,
    1992.
    The reason that Marsco gave for each of its
    requests was as follows:
    01 36-0375
    2
    Marsco, the Agency and the Attorney General’s
    Office are currently negotiating the
    resolution of this matter and anticipate
    arriving at an agreement in the near future.
    The hearing officer,
    in his October 9~1992 order1 stated
    that he was denying Marsco’s October 2,
    1992 request to cancel
    hearing because Marsco failed to provide additional facts or an
    affidavit to support its request as required by 35 Ill. Adm. Code
    103
    •
    143(a) and that, as a result,
    it was impossible to determine
    whether the parties had made any progress in the ongoing
    negotiations since Mareco’s February 18,
    1992 request for
    continuance.
    The Board will not overrule the hearing officer in this
    instance.
    As the hearing officer correctly noted in his order,
    35
    Ill. Adm. Code 103.143(a)
    requires a movant to support its
    request for continuance with an affidavit.
    Marsco failed to
    support its October 2,
    1992 request for continuance with an
    affidavit.
    Marsco also has failed to support its appeal of the
    hearing officer’s ruling with an affidavit.
    In addition, the
    Board notes that Marsco supports its current request for
    cancellation with a different reason (i.e., the lack of an Agency
    recommendation) than was presented to the hearing officer.
    The
    Board will not overturn a hearing officer ruling based on facts
    that were never presented to the hearing officer.
    Accordingly,
    for the foregoing reasons, the Board hereby
    denies Marsco’s request to vacate the hearing officer’s order.
    Because the October 20,
    1992 hearing will go forward, the Board
    need not order any more status reports or take any action on
    Marsco’s amended petition.
    The Board anticipates that the
    parties will be prepared to address the merits of the case at
    hearing.
    IT IS SO ORDERED.
    Board Member R. Flemal dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board,
    hereby certify that j~heabove order was adopted on the
    ___________
    day of
    _________________,
    1992,
    by a
    te of
    Dorothy N.
    ,~unn,
    Clerk
    Illinois P~illutionControl Board
    0136-0376

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