ILLINOIS POLLUTION CONTROL BOARD

May 28, 1987

NATIONAL CAN CORPORATION,

)

)

Petitioner,

)

V..

)

PCB 87—67

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent..

ORDER OF THE BOARD (by B.. Forcade):

On May 19, 1987, National Can Corporation filed a petition

for variance extension.. This matter is accepted for hearing..

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 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 dateS. 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..

78-204

---

—2—

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.. Any waiver shall extend the time

deadline of Section 104..l80 regarding filing the Agency

recommendation by the equivalent number of days, but in any

circumstance the recommendation must be filed at least 20 days

before the hearing..

Because of requirements regarding the publication of notice

of hearing, no scheduled hearing may be cancelled 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

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 decisiorimaking, 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

set a date pursuant to the fourth paragraph of this Order, and to

adhere to that Order until modified..

IT IS SO ORDERED

Chairman J..D.. Dumelle dissented..

I, Dorothy M.. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the c~/~dayof

~

,

1987, by a vote

of~5-J

/

Dorothy M.. c~unn, Clerk

Illinois Pollution Control Board