ILLINOIS POLLUTION CONTROL BOARD
December 4,
1990
GSF ENERGY, INC.,
a
)
subsidiary of Air
)
Products and Chemical,
)
Inc. and WASTE MANAGEMENT
)
OF ILLINOIS, INC.,
PCB 90—219
Petitioners,
)
(Permit Appeal)
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by 3. Anderson):
On November 16, 1990,
GSF Energy,
Inc.
(“GSF”) and Waste
Management of Illinois,
Inc.
(“WNI”)
filed a Petition for Hearing
and a Notion for Stay or Provisional Variance or Expedited
Hearing and Decision.
On November 26,
1990, the Illinois
Environmental Protection Agency filed its Response to GSF’s
motion.
GSF and
WMI
state that they are appealing the Agency’s
denial of their Special Waste Stream Permit Application.
GSF and
WNI
sought the permit in order to allow for the disposal of
contaminated soil from GSF’s methane gas recovery facility as a
non-hazardous waste at WNI’s CID Landfill
#2.
The Agency denied
the permit on the grounds that the applicants failed to
demonstrate that the waste stream was not a RCRA hazardous waste
pursuant to 35 Ill. Adm. Code 721.103(a) (2) (D) and 721.130.
The
purpose of the motion is to preserve GSF’s and
WMI’s
opportunity
for further discussion with the Agency without jeopardizing their
effort to comply with the 90-day RCRA rule under which a
generator who accumulates hazardous waste for more than 90 days
is regarded as an operator of a storage facility.
(see 35 Ill.
Adm. Code 722.134(b).
In response, the Agency states that it takes no position
regarding the motion for a stay from 35 Ill.
Adin. Code 722.134(b)
until resolution of the permit denial, but agrees that an
expedited hearing and briefing schedule is necessary regardless
of whether the Board grants the motion for stay.
With regard to
GSF’s and WNI’s provisional variance request, the Agency notes
that it received the provisional variance request on November 19,
1990,
and that it will recommend denial of the request via an
Agency recommendation to be filed with the Board no later than
November 30,
1990.
The Agency filed its recommendation for
denial with the Board on December 4,
1990.
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2
GSF’s and WNI’s motion is hereby denied.
First, GSF and
WNI
have not convinced the Board that it is within its statutory or
regulatory authority to grant a stay of a RCRA regulation.
Second, the Board notes that a hearing has already been scheduled
for January 2,
1991, and that it appears from the facts presented
in the Agency’s variance recommendation that the waste has
already been held on site longer than 90 days.
We will make
every effort, however, to issue our decision as expeditiously as
possible.
Hearing must be scheduled within 14 days of the date of this
Order and completed within 60 days of the date of this Order.
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 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 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 dates(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.
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
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3
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 N. Gunn,
Clerk of the Illinois Pollution Control
Boarq~herebycerti
that the above Order was adopted on the
-‘,~‘~
day of
_____________,
1990, by a vote of
Dorothy N(JGunn, Clerk
Illinois Pollution Control Board
117—19