ILLINOIS POLLUTION CONTROL BOARD
    December 17, 1987
    USI CHEMICALS COMPANY
    (Tuscola Plant
    TWR
    Unit),
    Petitioner,
    v.
    )
    PCB 87—199
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD (by B. Forcade):
    On December 15, 1987, USI Chemicals Company (“USI”) filed a
    permit appeal. This matter is accepted for hearing. USI has
    challenged the underlying validity of the regulations upon which
    this permit is based, presumably under the theory of Celotex
    Corp. v. IPCB 94 Ill. 2d 107, 445 NE2d 752 (1983). The issue
    appears settled that a permit denial applicant may challenge a
    regulation as applied to that applicant. However, the extent and
    scope of such a hearing is not well settled.
    In Village of Carey v. IPCB 403 NE2d 83 (2nd Dist., 1980)
    the court stated as follows:
    When the validity of a regulation has been
    challenged, as in this case, the Board may
    properly consider the evidence received
    when it adopted
    ...
    the regulation
    ...
    and
    that evidence should be made a part of the
    record
    ...
    for purposes of judicial review.
    Accordingly, the Board orders the parties to present
    arguments concerning the burdens of proof, standards of review
    and relevant evidence to be considered at such a hearing. The
    Board gives the parties until January 15, 1988, to submit briefs
    on these issues.
    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.
    84—675
    —2—
    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
    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 sixth paragraph of
    this Order, and to adhere to that Order until modified.
    This Order will not appear in the Board’s Opinion Volumes.
    IT IS SO ORDERED
    84—676
    —3—
    I, Dorothy
    M.
    Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    /7~
    day of
    ________________________,
    1987, by a vote
    of ~-o
    Dorothy M~Gunn, Clerk
    Illinois Pollution Control Board
    84—67 7

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