ILLINOIS POLLUTION CONTROL BOARD
October
6,
1988
WILMER BROCKMAN;
EDITH BROCKMAN;
WILLIAM H. CLARKE;
and PIONEER
)
PROCESSING,
INC.,
Petitioner,
V.
)
PCB 88—158
JOAN BENYA BERNABEI; TOWN OF OTTAWA;
)
PEOPLE OF THE STATE OF ILLINOIS
)
EX REL, NEIL
F. HARTIGAN;
ILLINOIS
)
ENVIRONMENTAL PROTECTION AGENCY;
)
LA SALLE COUNTY;
MARIE MADDEN;
)
RESIDENTS AGAINST POLLUTED ENVIRONMENT;
)
ROSEMARY SINON; JAMES
R. VALESONE;
)
and VILLAGE OF NAPLATE,
)
Respondents.
ORDER OF THE BOARD
(by B. Forcade):
On October
4, 1988, Wilmer Brockman, Edith Brockman, William
H. Clarke and Pioneer Processing, Inc.
(“Petitioners”)
filed an
appeal of permit denial and petition for declaratory ruling.
The
Board notes
that it hereby dismisses
the United States
Environmental Protection Agency (“USEPA”)
and removes it from the
caption as a respondent.
The Board lacks authority over the
USEPA
in these matters.
Village of Sauget
v.
IEPA,
et. al., PCB
86—57
,86—58, 86—62, 86—63, June
5,
1988,
citing
Aminoil U.S.A.
Inc.
v. California State Water Resources Control Board, 674 F.2d
1227 (9th Cir.,
1982)1.
This matter
is accepted for hearing.
The Board orders that the parties
to this proceeding
file
simultaneous briefs on the following
issues:
1.
Whether,
on
or
about
March
22,
1988,
Petitioners
validly
withdrew
any
or
all
pending
applications
from
the
Illinois
Environmental
Protection
Agency
(“Agency”)
relating to the LaSalle County
site?;
2.
Whether
the
Agency
had
jurisdiction
to
issue
a decision on any validly withdrawn
application?;
3.
Whether
this
Board
has
jurisdiction
to
entertain
any
portion
of
the proceeding
relating
to a withdrawn petition?;
and
93—49
—2—
4.
Whether
any person
other
than
the Agency
is properly
joined
as
a
party respondent
in this appeal?
All parties must file an initial brief
on these
issues not
later
than November
1,
1988.
Parties may file a response brief
not later than November 15,
1988
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 as expeditiously as possible but
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
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.
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
75 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
93—50
—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 decisionmaking,
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 fourth paragraph
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, hereby certify
that. the above Order was adopted on
the
/~~—
day of ________________________,
1988, by
a vote
of
7—0
Illino
tion Control Board
93—51