ILLINOIS POLLUTION CONTROL BOARD
November 21,
1991
CWM
CHEMICAL SERVICES,
INC.,
)
)
Petitioner,
)
V.
)
PCB 89—177
)
(Permit Appeal)
ILLINOIS, ENVIRONMENTAL
)
PROTECTION AGENCY and
)
PEOPLE OF THE STATE
)
OF ILLINOIS,
)
Respondents.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter
is before the Board on CWM Chemical
Services,
Inc.’s
(CWM)
November
7,
1991
emergency
motion
for
stay
of
hearings.
CWN
asks
that
hearings
in
this
matter,
which
are
currently proceeding,
be stayed pending resolution of its motion
to remand the case to the Illinois Environmental Protection Agency
(Agency)
.~
On November 8,
1991, the Attorney General, on behalf of
the People
of the State
of
Illinois and the
Agency,
filed
its
response to the motion for stay of hearings.
Also on November 8,
amicus
curiae the
35th District Environmental
Task Force
(Task
Force)
filed
a
motion
for
leave
to
file
its response
to
CWM’s
motion instanter.
That motion is granted.
The Task Force filed
a
supplemental
response on November
13,
1991,
and the
Attorney
General
filed
a supplemental response on November
14,
1991.
On
November 20,
1991,
CWM
filed a motion for leave to file instanter
a supplement to its previous filings on the motion to stay.
That
motion to file instanter is granted.
•
This. proceeding
is
CWM’s
appeal of the Agency’s 1989 denial
of
CWM’s
request for a RCRA Part B permit.
In its motion for stay
of hearings,
CWM
notes that its motion to remand contends that the
1
The Board notes that
CWM’s
motion to stay asks the Board to
stay the hearings pending the hearing officer’s resolution of the
motion to remand.
However, the hearing officer has no authority
to rule on a motion to remand.
See Sections 103.200,
101.220, and
101.247
of the Board’s procedural rules.
CWM
has not formally
filed its motion to remand with the Board, although a copy of that
motion to remand is included as an attachment to its motion to stay
hearings.
However, the Board will consider the motion to remand
as if it had been properly filed with the Board itself.
127—155
2
Agency failed to follow crucial regulatory procedures which denied
CWM
and
the
public
their
right
to
participate
in
the
permit
process.
CWM
originally presented
its motion
to
stay to
the
hearing officer on the morning of the first day of hearing.
The
hearing officer denied the motion to stay the hearings, and CWM
asks the Board
to review that ruling.
CWM maintains that the
remand of the proceeding to the Agency will produce a new and more
complete record, and may decrease the number of issues in the case.
CWM argues that continuing the hearing on this “incomplete” record
further ,denies CWN and the public their right to full and fair
participation
in
the hearing
process,
and that
continuing
the
hearing would be
a waste of the resources of the Board
and the
parties.
Finally,
CWM
asserts that this motion is timely,
since
the record in this matter was not filed with the Board or otherwise
available to
CWM
until March 1991.
CWN
states that it also bases
its motion on the testimony of
its witnesses,
presented at the
first day of hearing, as well as the expected testimony of Agency
officials.
Thus, CWM asks that the Board stay the hearings in this
proceeding,
pending the resolution of
its motion to remand the
proceedings.
On November
8,
the
Attorney General
filed
a
response
in
support of CWN’s motion to stay the hearings.
The Attorney General
stated that if
CWN
prevails on its motion to remand, the hearing
need not go forward at this time,
that any hearing held prior to
the
ruling
on
the
motion
to remand
was wasteful
in
terms
of
resources,
and that a
stay of hearing is warranted so that the
Attorney General can devote its full resources to its response to
the motion to remand.2
On November 14, the Attorney General filed
a supplemental response, clarifying that the People and the Agency
believed that
a stay -Of hearings was appropriate only until the
Board ruled on the motion to remand.
The Attorney General stated
that it assumed that the Board would decide the motion to remand
in December,
and that it objected to any stay of hearings which
continues
beyond
December
19
(the
date
of
the
Board’s
second
meeting in December).
The
Task Force
also
filed
a
response
and a
supplemental
response.
The Task Force contends that the emergency motion to
stay is without merit, and that there is no emergency.
The Task
Force maintains that CWM’s attorney conceded to the hearing officer
that CWM could have filed its motion to remand long ~agobut chose
not to for tactical reasons.
Therefore, the Task Force argues that
CWN
cannot
claim
that
its
own delay
in
filing
the motion now
creates an emergency that requires
a stay of hearing.
The Task
Force also notes that
CWM
has twice moved for, and been granted,
continuances~ofpreviously scheduled hearings, and that the hearing
officer’s latest
orders
stated that the
November 1991 hearings
2
The Board notes that the Attorney General filed its response
•to the motion to remand on November 20,
1991.
127—156
3
would
begin
and
continue
as
scheduled,
“barring
extraordinary
emergency such as death, earthquake, or war...”
(Hearing Officer
Order, October 4,
1991, p.
3.)
The Task Force asks that theBoard
deny CWM’s motion for stay.
CWM’s motion for stay of hearings is denied.
The Board does
not yet have the transcript
of
the November 7 hearing,3 and
so
cannot~verify
the
Task
Force’s
statement
that
CWN’s
counsel
admitted
that
the motion
to
remand was
not
filed
earlier
for
tactical, reasons.
If this is indeed the case, the Board disagrees
with CWM’s characterization of the situation as an emergency.
In
any event,
CWM has failed to demonstrate, or even allege, that a
grant
of its motion to remand will dispose of the entire case.
CWM
‘s motion to stay does not allege that hearings on the merits
of this proceeding are unnecessary, but simply that the number of
issues may be reduced.4
Although
CWN
makes the bare allegation
that
continuing
hearings
in
this
matter
on
the
basis
of
an
“incomplete” record denies it and the public their right to full
participation,
CWN
has
not
supported
that
statement with
any
indication of what is missing in the record which leads to adenial
of
its
right to
fully participate.
Additionally,
the Board
is
bothered by CWM’s assertion that this motion is timely because it
did not have access to the record until March
1991.
The Board
points out that the instant motion was not filed until November 7,
1991,
approximately eight months after the record was filed.
In
the absence of any further explanation,
the Board believes that
eight months
is
a sufficient amount of time to examine a record,
even one as voluminous as the record in this case.
Finally,
the
Board cannot ignore the fact that the motion to stay was filed
on.
the morning of the first day of hearing, after the hearing officer
had made it clear that he intended that the hearings would proceed
barring extraordinary circumstances.
The Board also notes that at
the October 8, 1991 pre—hearing conference in this matter, counsel
for
CWM
indicated
that
there
was
no
reason
why
the
November
hearings could not go forward.
(October 8, 1991 transcript, p. 8.)
In
sum,
the Board
finds that there
is no emergency which would
necessitate a stay of the scheduled hearings pending a ruling on
the motion to remand.
Finally, the Board emphasizes that today it rules only on the
motion to stay, and reserves ruling on the motion to remand.
The
~That transcript is expected in Board offices on November 25,
1991.
~ The
Board
notes
that
CWM’s
November
20
supplement
does
~ssert
that
the
motion
to
remand
is
potentially
conclusive.
~-Iowever,
the Board finds that this bare assertion, made two weeks
after the motion to stay hearing was filed,
and after six days of
iearing have been held,
is
insufficient to result
in a
stay of
iearings at this late date.
127—157
4
Board anticipates ruling on the motion to remand at its December
5, 1991 meeting, and may revisit the issue of a stay at that time.
IT IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby c~tify that
the above
Order was adopted on the
~/-~~i-
day of
7
~
,
1991, by a vote of
~.
~
~.
~
Dorothy M//Gunn, Clerk
Illinois 1~6llutionControl Board
127—158