ILLINOIS POLLUTION CONTROL BOARD

~pri1

6, 1989

CONTAINER CORPORATION OF AMERICA,

)

)

Petitioner,

v.

)

PCB 87—183

)

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

ORDER OF THE BO1\RD

(by J.

Anderson):

This

matter

comes before the Board

on the Joint Motion To

Continue Hearing To Allow For Implementation of Settlement

Agreement,

filed with

the Board

on ~pril

3,

1989.

The hearing

in

question

is presently scheduled

for April

14,

1989;

the parties

seek continuance

to June 12,

1989.

In support

of this motion,

the Petitioner and Respondent advise the Board

that they “have

reached an agreement whereby

the Carol Stream Plant will

be

brought

into unquestioned compliance with

the Board’s

flexographic and rotogravure VOM regulations by December

31,

1990”.

(p.

2)

The patties propose

to incorporate this

agreement

“in a consent decree

or order

and have

it approved either by the

Board or the Circuit Court”.

This agreement,

the Board

is

further

advised, has been submitted

to the Attorney General’s

office

for

approval.

Once

it has been approved

(by both the

Attorney General

and either the Board

ou the Circuit Court),

Petitioner will dismiss

the present variance proceeding

as well

as

the companion site—specific rulemaking petition before

the

Board

in Docket R88—4.

Normally,

this Board would welcome efforts

to conserve its

resources

and promote speedy resolution

of matters involving

noncompliance with its regulations.

Because the Board

is not

persuaded

that the requested continuance will achieve

or promote

either

of

these goals

in the long

run,

and because

the proffered

rationale

for continuance appears

to

be unrelated and irrelevant

to

a variance proceeding,

the motion

is denied,

and hearing shall

take place as scheduled.

Some background

to this Order

is appropriate.

This

is

an

air polluLion variance case;

it was originally filed

on November

30,

1987.

The presently scheduled hearing

is the sixth scheduled

in this proceeding, yet would

be only the second actually held.

The previous hearing was held on December

14,

1988,

only after

98—23

---

—2—

this Board on November

14,

1988,

in response

to an Agency Motion

for Sanctions ordered

the hearing

to proceed

as scheduled.

That

Order noted

“a pattern of delay and unresponsiveness”

in this

case

(p.3)

and that

it “has already taken more than

a year

to

reach the hearing stage”

(p.

4).

~lthough

the motion

for

sanctions was denied,

such denial was due

to the fact that the

Agency appeared

to be prepared

to proceed and

to the fact that

granting the motion “merely invites more delay”

(ibid).

However,

the Board

instructed

the Hearing Officer

to deny any request

for

continuance

(ibid).

Yet even this intention appears

to have been frustrated.

Two days prior

to the December

14,

1988 hearing,

the Board was

advised

by the parties

that

a settlement

in principle

in this

matter had been achieved.

The Board was informally asked

to

allow the Hearing Officer

to continue this case to

a date

certain,

to

enable

the

parties

to

reduce

their

agreement

in

principle

to writing

and obtain necessary signature approvals.

The

Board

acquiesced

in

this

arrangement,

which

was

dutifully

described at

the December

14,

1988 hearing by the parties

(P.

3—

7).

In consequence of this arrangement,

the December

14,

1988

hearing consisted of

little more than description by the parties

of the arrangement

and occupied but six pages of transcribed oral

statements.

No evidentiary matters were presented.

The arrangement described in the instant motion

is

not the

arrangement

or outcome upon which the preceeding continuance was

premised.

In four months,

no written settlement agreement has

been provided to the Board,

and no motion to dismiss

this

proceeding

is imminent; we ate now offered only another

contingent contingency:

if the Attorney General

approves the

proposed settlement,

then

if

the Board

or Circuit Court approves

the

proposed

settlement,

then

Petitioner

“will

dismiss

(sic)

this

proceeding”

(Jt. Mt.

at.

2).

Given

the already protracted

history of

this docket,

there

is nothing

in this

joint motion

to

suggest

that

we are any nearer

resolution

of

this matter

than we

were

four months ago,

or that we will

be any nearer

60 days from

now

if the requested continuance

is granted.

The Board

is not concetned solely by

the prospect

of

continuing delay, per se.

As noted previously,

since November

1987,

the Board has scheduled public hearings

in this matter

six

times.

Of those,

four were cancelled

by the parties, one was

convened and immediately continued

on the record,

and

the parties

now seek

to cancel

the sixth.

On

all but one occasion,

cancellation

or continuance

of the hearing occurred after

the

Board

had caused to

E~epublished public notice of such hearing.

This has resulted

in the wasted expenditure

of limited Board

resources.

~\nd

still

there

is

no

record

which

wcul ~

allow

a

Board

decision.

98—24

---

—3—

Of even greater concern

is the misinformation conveyed

to

members of

the interested public.

If today’s motion

to cancel

is

granted,

none of the hearings described

in the five published

hearing notices will have occurred

to discuss

the merits of

the

case.

Finally, the Board senses that the parties may be

misapprehending

the purpose and role of

a variance proceeding and

are

thus

attempting

to

promote

a

rationale

for

settlement

that

is

at odds with

the statutory bases

for variances.

If so,

the

apparent

outcome

for

which

the

parties

labor

is

unrelated

and

irrelevant

in

the

context

of

justifying

delaying action in

a

variance

proceeding.

It

appears

that

the

parties

contemplate

a

scenario

in

which

compliance

with

the

subject

VOM

regulations

will

be

achieved

in

approximately

21

months

pursuant

to

a

consent

decree

approved

by

the Circuit Court.

The parties

are reminded

that,

by

law,

the

jurisdiction

of

this

Board

in

Variance

cases

is

not

extinguished

by

Circuit

Court

decrees.

The

Circuit

Courts

have

no

jurisdiction

to

grant

variances;

that

power

is

reserved

by

law

to

this

Board

pursuant

to

Title

IX

of

the

Environmental

Protection

Act

(the

Act).

Unlike

enforcement

cases,

in

which

the

jurisdiction

of

the

Circuit

Courts

and

this

Board

are

essentially

concurrent,

there

is

no

concurrent

jurisdiction

in variance

matters,

and

thus

there

is

no

court—fashioned

“equivalent”

to

variance

relief.

Such

variance

relief

would

be

an

essential

prerequisite

under

the

Act

to

issuance

of

a

permit

for

the

subject

facility

during

and

for

such

period

of

time

as

the

facility

remains

out

of

compliance

with

applicable

regulations.

The

Board

Order

of

November

17,

1988

demanded

that

hearings

commence,

and

precluded

the

hearing

officer

from

granting

any

additional

continuances.

That

Order

is

specifically

reaffirmed.

Today,

the

Board

demands

that

hearings

in

this

matLer

be

concluded

as

soon

as

possible,

but

in

no

event

later

than

May

15,

1989,

and

that

any

record

be

promptly

conveyed

to

the

Board

for

decision.

The

Board

authorizes

the

hearing

officer

to

take

all

necessary

steps

to

ensure

that

the

record

in

this

matter

is

completed

promptly.

Any

failure

to

promptly

conclude

proceedings

in

this

matter

will

raise

the

distinct

possibility

of

Board

imposed

sanctions.

For

the

foregoing

reasons,

the

Joint

Motion

for

Continuance

is

denied.

IT

IS

SO

ORDERED.

98—2 5

---

—4—

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certif

that the above Order was adopted

on

the

~Y?Z day of

_____________,

1989,

by

a vote of

7-°

~Dorothy

M. ,4’unn,

Clerk

Illinois P&~lutionControl Board

98—26