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