ILLINOIS POLLUTION CONTROL BOARD

October

6,

1988

MONSANTO COMPANY,

Petitioner,

v.

)

PCB 85—19

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY and

)

JOHN E. NORTON,

Respondents.

ORDER OF THE BOARD (by B. Forcade):

Monsanto Company

(“Monsanto”)

has filed

a September

30,

1988

agreed motion for a 90—day stay of Board decision.

Monsanto

seeks

this stay

to allow settlement negotiations with the

Illinois Environmental Protection Agency (“Agency”).

The stay

is

denied.

The Board will proceed to schedule this matter

for

decision at its November

3,

1988 regularly—scheduled meeting

absent some request for viable Board action.

The Board’s decision to deny the requested stay

is premised

on its perception that the only viable outcomes are those

outlined below.

For the reasons articulated

in Caterpillar

Tractor Company v.

EPA, PCB 79-180

(July 14, 1983)

and Album,

Inc.

v,

EPA,

PCB 81—23

(March

19,

1981),

the Agency now lacks

the

jurisdiction to alter

its decision, and its underlying factual

and legal conclusions,

by negotiation with Monsanto.

The motion

for

stay of decision

is denied

for these reasons.

The Board perceives only three viable alternative courses

of

action:

1.

Monsanto

could

voluntarily

move

to

dismiss its petition;

2.

Norton

could

move

to

formally

withdraw

his

information request on file with

the

Agency.

Monsanto

and

the

Agency

could

then jointly move

to dismiss this action;

or

3.

The

Board

could

proceed

to

render

its

decision.

Under the

first alternative,

the Agency’s decision under review

would become final,

and

the documents would then

fall into

the

93—01

---

—2--

public domain.

The second alternative would result

in the

Agency’s decision being vacated

and this matter being dismissed

as moot.

The third alternative would

result

in

a final opinion

and order by the Board on the substance of the claims raised in

this controversy.

Notwithstanding the above articulated basis

for denial,

the

Board wishes

to supplement its Opinion with an aside note on the

peculiar timing of the Monsanto motion.

This matter was publicly

listed

for discussion

at the September

8 and September

22,

1988

Board meetings.

The case was ready for

a final vote on October

6,

1988.

Monsanto filed

its motion

for stay on September

30,

1988.

The Board believes that motions submitted

in adjudicatory

proceedings are inappropriate subsequent

to the Board’s public

discussion

of the articulated probable outcomes

of

a matter under

review.

The Board believes that public discussion of the merits

of

proceedings serves

a valuable function in an open

government.

The Board frequently furthers that goal by extended

and detailed debate of the

facts,

the law, and possible

outcomes.

The Board finds

such discussions useful, but

it

feels

that they should not become

an opportunity for parties

to

forestall or challenge

a probable outcome

as soon as

it

is

reasonably apparent,

but prior

to a Board vote.

For that reason,

the Board must discourage motions subsequent to the public

discussion of adjudicatory matters.

IT IS SO ORDERED

Chairman J.D. Dumelle concurred.

I, Dorothy

M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify tha~theabove Order was adopted on

the

~

day of ________________________,

1988,

by

a vote

of

7-a

Dorothy M4~unn, Clerk

Illinois P’ollution Control Board

93—02