ILLINOIS POLLUTION CONTRCL BOARD

January 12,

1987

JOLIET SAND AND

GRAVEL

COMPANY,

)

Petitioner,

)

v.

)

PCB 86—159

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by J.

Anderson):

This matter comes before the Board upon an emergency motion

filed by Joliet at approximately 4:15 p.m. on Friday, January

9,

1987.

Joliet requests that the Board overrule

a Hearing Officer

Order dated January

8 concerning witnesses required

to appear at

the hearing which is scheduled

for January 13,

1987.

In this

Order,

the Hearing Officer ordered

the Agency to produce five

witnesses:

Messrs. Telford,

Tippin, Zenisek, Desai and Mathur;

remaining individuals whose names appear on the November 21,

1986, November

24,

1986 and the January

5, 1987, notices, as well

as previously subpoenaed witness Miller, were not required

to

appear.

The Hearing Officer’s rationale for this ruling was

that:

Petitioner

has

failed

to

persuade

this

Hearing

Officer

that these

remaining named

individuals can

provide

relevant

admissible

testimony

regarding

facts

relating

to

the

denial

of

Petitioner’s

application

for

permit,

or

that

said

individuals

can

provide

relevant,

admissible

testimony

regarding

the

decision

to

deny

Petitioner’s

application

for

permit.

...The bounds of

relevant,

admissible evidence for this Hearing

are determined

by the Order

and Opinions of the Illinois Pollution

Control

Board

in

this and

other

cases,

and

by the

courts of the State of Illinois.

Joliet objects to the Order

on the grounds that

it had no

notice prior

to the entry of the Order, that the Hearing Officer

has established

a “burden of persuasion” which is contrary to

rules, statute,

and the law of the case, and that the Order

violates due process rights to select and present witnesses and

their testimony,

either directly or via offers of proof.

For

these reasons, Joliet submits

that the Hearing Officer’s Order

should be overruled.

75-1

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—2—

The Board

again notes, as it did

in its Order

of December

23,

1986,

that pursuant

to the 120 day decision deadline

established by Section 40, the Board must render decision on this

matter on or before January 28,

1987 to prevent issuance of a

permit by default.

It

is the duty of the Hearing Officer

to

manage the discovery and hearing processes in light of the due

process rights of the litigants

as well

as of the due process

rights of the public

to have the Board make a timely and

considered decision concerning

the environmental and procedural

issues presented on appeal.

The Board

finds that the Hearing

Officer has properly performed that function given

all of the

circumstances of this case,

and the Board accordingly affirms the

Hearing Officer’s Order

for the reasons outlined below.

First,

the Board notes that the Hearing

Officer’s Order of

January

8,

1987 ordered that the same five witnesses be presented

for hearing for essentially the same reasons as did his Order of

December l~,1986.

This portion of the Order was affirmed

in the

Board’s Order

of December

23.

The Hearing Officer

has therefore

applied what

is

in fact the law of the case.

Next,

given

the

time

constraints

in

this

case,

the

Board

finds

meritless

Joliet’s

complaints

about

lack

of

notice prior

to

entry

of

the

January

8

Order

limiting

the

number

of

witnesses

to

be

produced

on

January 13.

The

January

8

Hearing

Officer

Order

defined the Hearing Officer’s understanding of the Agency’s

production obligations

at hearing

in

a timely fashion which has

in fact allowed Joliet

to seek review of the Order.

Finally, there remains Joliet’s assertion of violation of

its due process rights to call

to hearing any witness who

arguably can present relevant testimony and

to have questions

concerning relevancy of that testimony determined at hearing.

Joliet

in essence

asserts that this right

is an absolute one; the

Board cannot

so find, as exercise of such

a right could violate

the public’s right

to a timely decision.

In this case,

for example, hearing

is being

held within two

weeks of the deadline for decision not due

to failure by the

Board

to timely schedule

a hearing, but instead due

to

inability!

failure to earlier complete discovery.

In similar circumstances,

in a worst case scenario, once hearing

commences,

it would be

hypothetically possible for

a petitioner

to filibuster

its way to

issuance of a default permit:

if

a hearing

is not concluded

within the decision period,

it could

be argued that

a default

occurred because

it was not petitioner’s “fault”

since he was

“merely” exercising an absolute right. See, Illinois Power Co.

v.

PCB,

137

Ill. App. 3d 449,

484 N.E.2d 898

(1985) and Marquette

Cement Manufacturing Co. v.

IEPA,

84

Ill.

App.

3d

434,

405 N.E.2d

512

(1980).

Similarly,

a hearing could be protracted

so that it

would

not

be humanly possible for the Board

to receive

transcripts of the final day of hearing, which again prevents

a

75-2

---

—3—

timely decision.

The Board

cannot allow petitioner’s

“rights” to

extinguish rights of the Agency and the public.

Finally,

the Board

notes that on January

9, Joliet filed

a

supplement

to its January

5 hearing notice, naming Christopher

Romaine as an additional witness.

As the Hearing Officer has not

ruled concerning this supplement,

the Board will not do so

either, with the result that this notice to appear stands.

In

summary,

then,

this

Order

requires

the

Agency

to

produce

the

following

witnesses

at

hearing

tomorrow,

January

13,

1987:

Messrs:

Anton Telford, Martin Tippin, William Zenisek,

Harish

B.

Desai, Bharat Mathur

and Christopher Romaine.

IT

IS SO ORDERED.

I,

Dorothy M.

Gunn,

Clerk of

the Illinois Pollution Control

Board,

her~p~y

certify

that

the

~ove

Order

was

adopted

on

the

/~2j/—

day

of

-

,

1987

by

a

vote

of

______.

Dorothy

M.

Gunri,

Clerk

Illinois Pollution Control Board