ILLINOIS POLLUTION CONTROL BOARD
August
4,
1988
ALTON PACKAGING CORPORATION,
)
Petitioner,
v.
)
PCB
83—55
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before
the Board on
a July 25,
1988 motion
by the Illinois Environmental Protection Agency (“Agency”)
to
overrule certain Orders
of the Hearing Officer
and
to appoint
a
new Hearing Officer
in this proceeding.
The Board will first
address
the Agency’s motion as
it
relates
to the appeal of the
Hearing Officer’s Orders.
Specifically, the Agency appeals
the
July 18,
1988 Hearing Officer Order scheduling hearing on August
22,
1988,
the Order denying
the Agency motion for continuance,
and the Order compelling the Agency
to produce persons and
documents
for deposition.
The Agency does
not contest
the Order
allowing the filing
of only three copies
of an exhibit.
On
August
1, 1988, Alton Packaging Corporation
(“Alton”) filed
its
response
in opposition
to the Agency’s motion.
This proceeding
is currently before the Board on
a petition
filed by Alton pursuant
to Section
28.1
of the Environmental
Protection Act
(“Act”)
and
35
Ill,
Adm.
Code 214.201
to establish
an adjusted sulfur dioxide emission rate
as
an alternative
to the
1.8 pounds per million British Thermal Units standard of
35 Ill.
Mm.
Code 214.141.
Although
the original petition
in this matter
was filed on April
13,
1983,
the matter
as
it now stands
is based
on an Second Amended Petition filed July
13,
1988.
Hearings
to determine
the merits of such petitions are
conducted according
to the procedures contained
in
35 Ill.
Adm.
Code 106,
Subpart
C.
As the Agency points out,
inter
alia,
35
Mm.
Code 106.304 allows the Agency 90 days
for review of the
petition and filing of
a recommendation.
Although the Agency did
file
a
recommendation after
review of
the original petition,
it
now requests that
it be allowed
to file a supplemental
recommendation based upon the Second Amended Petition.
Pursuant
to Section 106.304, the filing of
the Second Amended Petition,
whether or not previously reviewed by the Agency,
necessitates
that the Agency be allowed
90 days from the date of
the filing of
the Second Amended Petition
for filing
of an amended
recommendation.
The Board will accordingly accept the Agency’s
91—45
—2—
amended recommendation,
which
is due on October
11,
1988.
Any
hardship which this
request may impose upon Alton
is arguably
self—imposed since,
although
Altori apparently has had
the
materials contained
in the Second Amended Petition since March
1988,
it
failed
to file them with the Board
(and hence trigger
the Agency’s 90—day review period) until July 13,
1988.
The
Board notes
that
if this scenario,
or other matters related
to
the disposition of this proceeding, should warrant additional
hearing(s),
the parties are free
to petition the hearing officer
to that end.
The Board cautions that
in so ruling,
it
is not receeding
from its expressed desire,
as manifest
in the rulings
of
its
Hearing Officer,
that there should be no unnecessary delay
in
this already protracted proceeding.
For this reason,
and for
the
following reasons,
the Board denies the Agency’s motion and
sustains the Hearing Officer’s Orders setting
the hearing
for
August
22, 1988 and denying the Agency motion
to continue.
The
Agency claims that an additional time
is necessary for review of
the recently filed Second Amended Petition.
Alton contends
that
the Agency has already had four months
to review Alton’s
Atmospheric Dispersion Modeling Study,
which was submitted
to the
Agency as part
of
a permit application
involving the Alton
facility.
The Board notes
that the permit application was denied
and
is currently on appeal before
the Board
in PCB 88—112.
The Board finds
that an additional review period would be
necessary had the Agency not sufficiently reviewed the material
submitted
in the Second Amended Petition.
But as Alton has
shown,
the Agency has reviewed the material submitted by Alton
which was filed with the Agency prior
to its June 17,
1988
determination on the permit appeal.
As the permit denial letters
indicate,
the Agency reviewed Alton’s model and noted its
findings of deficiencies* (Exhibits A and B to Alton’s
response
to Motion
to Continue).
Moreover, noting that many motions have been filed
in the
instant proceeding,
the Board
finds that it would be in the best
interests of
a resolution to this matter
to have the parties
address
the issues at hearing.
As to the appeal
of the Order
to compel production of
documents and for depositions,
the Agency’s principal concern is
the timing of
the discovery events
in light of their concern for
review of recently filed
documents.
Again,
the Board disagees
and finds that additional
time is unnecessary.
The Agency
further objected
to the location
of the depositions which was
ordered
to be
in Chicago.
The Board
further notes
that the
*
The Board
in
so noting,
does not intend to make any finding on
the merits
of the pending permit appeal.
91—46
—3—
Agency failed
to appear at the depositions which were scheduled
for July 27 and 28,
1988,
dates which are now passed.
Alton asks
that the Board sanction the Agency for defying the Hearing
Officer Order.
While the affect
of the Agency’s action was
contrary to
the Hearing Officer’s Order,
the Board believes
it
was the Agency’s intent
to appeal that Order and not
to openly
defy it.
Although
it
is arguable that
to first appeal
to the
Hearing Officer might have been the better course,
the Agency was
not required
to do
so.
This, together with the fact that, due
to
the timing of
the scheduled depositions
and
the motions,
the
Board was unable
to rule on the motion until this date,
indicates
that sanctions are unwarranted
in this
instance.
If the parties
are unable to schedule other depositions at
a mutually agreeable
date,
time,
and location, pursuant
to Illinois Supreme Court Rule
203, within
the short
time prior
to hearing,
the parties may
present at the hearing matters which would have been addressed in
the depositions.
The portion of the Agency’s motion which
appeals the Hearing Officer Order compelling
the depositions by
July 27 and
28, 1988
is now moot.
Based on the foregoing,
the Board denies that portion of the
Agency’s motion which requests that the Board overrule
the
Hearing Officerts Order compelling production of documents and
for depositions.
The Board now turns
to the Agency’s Motion to Appoint
a New
Hearing Officer
in this proceeding.
The Agency claims that the
Hearing Officer “abused his authority to the benefit of one party
and detriment of the other”.
The Board cannot accept that the
Hearing Officer abused
his authority simply by ruling on the
motions in favor
of Alton.
In every ruling on
a contested
issue
one of the parties will not prevail.
A mere failure
to prevail,
therefore, by itself provides
no support for
a finding of abuse
of authority.
The Agency does allude that some oral conversation
“may have been responsible”
for the Hearing Officer’s
rulings.
Aside from the unsubstantiated nature of
this allegation,
the
Board notes
that it has been standard Board practice for hearing
officers,
in many
instances due
to time constraints,
to
telephone
parties when setting hearing dates,
times,
and locations.
The
Board therefore denies
the Agency’s Motion
to Appoint
a New
Hearing Officer
in this proceeding.
The Hearing Officer
is
directed
to continue
to conduct this proceeding in
a manner
consistent with this Order.
IT IS SO ORDERED.
Board Member
John Marlin dissented.
91—47
—4—
I, Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was
adopted on
the
~7L~
day
of
—,
1988,
by a vote
~.
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
91—48