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