ILLINOIS POLLUTION CONTROL BOARD
    July 11, 1991
    ISRAEL-GEROLD’S,
    an Illinois
    General Partnership, FIRST
    )
    NATIONAL BANK
    AND
    TRUST
    )
    f/k/a LA GRANGE STATE BANK, as
    )
    Trustee under Trust No.
    1130
    )
    LEARSI AND
    CO.,
    INC., an
    Illinois Corporation,
    )
    Petitioners,
    PCB 91—108
    v.
    )
    (Underground Storage Tank Fund
    Reimbursement Determination)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by J.C.
    Marlin):
    On June 24,
    1991, the Petitioner filed a Petition for Review
    of Underground Storage Tank Fund Reimbursement Determination.
    The
    Petition was accompanied by a Motion to Stay the proceeding.
    On
    July 2,
    1991, the Board received a response in opposition from the
    Illinois Environmental Protection Agency
    (Agency).
    The Petitioner is requesting a stay of the proceedings while
    waiting the outcome of an appeal in the Circuit Court.
    The appeal
    filed
    in the Circuit Court by Petitioner is of a decision by the
    State Fire Marshall that Petitioner’s tanks are not eligible for
    registration.
    Petitioner
    asserts that the determination by the
    State Fire Marshall that the tanks could not be registered is an
    essential
    factor in determining the Petitioner’s eligibility to
    access the underground storage tank reimbursement fund.
    Therefore,
    the Petitioner is requesting that the Board not proceed with this
    case until the Circuit Court has ruled.
    In support of its contention that a stay should be denied, the
    Agency, citing to Big River Zinc Corporation v.
    IEPA,
    PCB 91-61
    (May
    6,
    1991),
    correctly states that the Board has declined to
    issue discretionary stays without authority for doing so.
    However,
    the Petitioner in Big River Zinc was requesting a stay of
    a rule
    which had been properly adopted and was in effect, not a stay of
    the actual proceedings before the Board.
    The Board further stated
    in Big River Zinc that the Board has “inherent authority to a grant
    stay under certain circumstances.”
    The Agency also cites to Noline
    Corporation
    v
    IEPA,
    PCB
    89-78
    (October
    18,
    1989)
    and
    Fansteel/Escast v.
    IEPA, PCB 89-31
    (February 23,
    1989)
    in support
    of its position that a stay should be denied.
    Both those cases are
    permit appeal cases where a stay was requested.
    In fact,
    in the
    Moline case,
    the Agency requested a stay in a joint motion.
    The
    Board denied the stay in Moline because
    a decision deadline was
    124—89
    2
    approaching and no waiver was filed; however in Fansteel/Escast the
    Board granted the stay.
    In sum, none of these cases persuade the
    Board that a stay should be categorically denied.
    In its June 24 motion, Petitioner stated that it would file
    all necessary waivers if the Board were to grant a stay.
    On July
    9,
    1991,
    Petitioner filed an unconditional 120 day waiver of the
    date for the filing of the Agency record in this matter and of the
    Board’s
    decision
    deadline.
    As
    seventeen
    days
    of
    the
    Board’s
    decision time period have elapsed since the filing of the petition,
    the Board hereby grants a stay of approximately 100 days,
    through
    October 15,
    1991.
    In the event that additional waivers are filed
    in the
    future,
    the Hearing Officer
    is authorized to
    “stay”
    or
    postpone hearing in this matter consistent with the directives on
    pages
    2 and
    3 of this Order.
    This matter is accepted for hearing.
    Hearing must be scheduled within 14 days of expiration of the
    stay in this matter and completed within 60 days of expiration of
    the stay
    in this matter.
    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 hearing.
    Any
    briefing schedule shall provide
    for
    final
    filings as expeditiously as possible and in no event later than 70
    days from the date of expiration of the stay in this matter.
    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 expiration of the stay, 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
    124—90
    3
    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
    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
    Board,
    do hereby certi~y,that the above Order was adopteL on the
    /1
    ~
    day of
    _____________,
    1991, by a vote of
    7c
    Dorothy N. ,4ánn, Clerk
    Illinois Pó.Zlution Control Board
    124—9 1

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