ILLINOIS POLLUTION CONTROL BOARDD
March 14,
1991
COMMONWEALTH EDISON COMPANY,
)
Petitioner,
v.
)
PCB 91—29
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
On February
7,
1991, Commonwealth Edison filed a petition
requesting variance from the temperature requirements of
35
Ill.
Adm. Code 302.211(d).
On February
22, 1991,
the Sierra Club
filed an objection
to Commonwealth Edison’s petition and a
petition
to intervene.
On February 27, 1991,
the Izaak Walton
League of America also filed an objection in this matter.
Pursuant
to 35
Ill. Adm. Code 104.141
(a), any person may
file a written objection
to a variance petition within 21 days
after
the filing of the petition.
Section 104.121(a) also allows
for such objections
to be accompanied by a petition to intervene
in accordance with the intervention rules contained
in 35
Ill.
Adm. Code 103.
Because
the Sierra Clubts petition for
intervention satisfies the criteria set forth in Section 103.142,
the Board will allow the Sierra Club to intervene and will set
this matter for hearing.
We also wish to note that the Sierra Club states,
in its
petition to intervene, that Commonwealth Edison’s variance
petition should be dismissed.
We construe such statement and the
material
in support of such statement
as a motion to dismiss.
Accordingly, pursuant
to
35
Ill. Adm. Code 101.241(b),
Commonwealth Edison has seven days from the date of service of
the Sierra Club’s petiton to intervene,
to respond to the motion
to dismiss
if it so chooses.
The Hearing Officer shall give notice of the hearing
in
accordance with 35
Ill. Adm. Code 103.123(b), at least
21 days
before the hearing
to the petitioner,
the Agency,
and anyone who
has filed an objection to the petition.
Hearing must
be scheduled within
14 days of the date of this
Order and completed within 60 days of the date of this Order.
120—79
—2—
The hearing officer shall
inform the Clerk of the Board of the
time and location of the hearing at least 4~Ydays 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 f~ilingsas
expeditiously as possible and in no 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
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 the Board.
Any waiver must be an “open waiver”
or a waiver of
decision until
a date certain.
Any waiver shall extend the time
deadline of Section 104.180 regarding filing
the Agency
recommendation by the equivalent number of days,
but
in any
circumstance the recommendation must be filed at least
20 days
before the hearing.
Because of requirements regarding the publication of notice
of hearing,
no scheduled hearing may be cancelled 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.
120—80
—3—
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,
h reby certify that the above Order was adopted on
the _______day of
~‘~t.t-t~j
,
1991, by a vote of
________
Dorothy M. ~opn, Clerk
Illinois PoUution Control Board
120—81