ILLINOIS POLLUTION CONTRCL BCARC
January 22,
1987
JOLIET SAND AND
GRAVEL
COMPANY,
)
Petitioner,
v.
)
PCB 86—159
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER
OF THE BCARD
(by ~3.Anderson):
The evidentiary hearing
in this matter commenced on January
13,
1987,
the case being
due
for decision by the Board on
or
before January 28,
1987 in order
to avoid
issuance of the permit
by operation of law.
With this deadline
in mind,
the Hearing
Cfficer
directed
that
Joliet’s
case
was
to
be
completed
by
noon
on January 14, and the Agency’s case by 5:00 p.m. the same day.
On the morning of January
14, Joliet made an oral motion
for
continuance
of
the
hearing
in
order
to
afford
it
more
time
to
present
its
case,
and
offered
an
eight
day
waiver
of
the
decision
period
through
February
5,
1987.
The
motion
for
continuance
was
denied
by
the
Hearing
Officer
on
the
record,
who
at
that
time
noted
that
his
schedule did not permit him
to conduct further
hearings
“within
the
next
week”
(R.
501).
Pursuant
to
the
Hearing
Officer’s
suggestion
that
it
might
be
expedient
to
reduce
the
motion
to
writing
due
to
uncertainty
as
to
when
transcripts
could
be delivered
to the Board, Joliet did
so.
Petitioner’s
Emergency
Motion
to
Board
to
Permit
Additional Hearings after
January
14,
1987
was
filed
very
shortly
before
close
of
business
on
Thursday,
January
15,
1987.
On
Friday
morning,
January
15,
1987,
the
Board
was
polled
to
determine
whether
a
special
meeting
should
be
scheduled
to
handle
the
motion.
It
was
determined
that
a
fully
informed
decision
could
be
made
only
after
review
of
the
transcripts,
and that the
Board’s
shorthand
reporters,
who
had
agreed
to
expedite
delivery
of
these
transcripts, could
not guarantee delivery of both days’
transcripts
prior
to
Tuesday,
January
20.
As
transcripts
delivered Tuesday could not be delivered
to downstate Board
Members prior
to wednesday, January
21,
the Board determined
to
place the motion on
the agenda
for decision at its regularly
scheduled meeting
today.
The hearing
transcripts were delivered on Tuesday, January
20,
at
approximately
4:00
p.m.
On
the
morning
of
January
21,
75.62
—2—
1987,
the Agency filed
a response
in opposition
to Joliet’s
motion.
Joliet’s motion
is premised
on
the grounds that
it had
no
notice prior
to January 13 that hearings would not continue
“thereafter
until Petitioner had been able to complete
presentation of its case”,
that the eight day waiver provided
an
“ample” period
for additional hearings,
and that petitioner
should be allotted
an “additional two days or
so of hearings”
in
order
to “afford Petitioner
its due process rights guaranteed by
the Constitution”
(Motion, Para.
5,
12,
14).
Based
on Joliet’s motion, the Agency’s response, and
a
review of the transcript,
the motion
for additional hearing is
denied.
Throughout
this proceeding,
Joliet has emphatically stood
upon its statutory right
to a 120 day decision period.
At
hearing
it was explained that this
is due
to
the pendancy of
an
enforcement action alleging operation without
a permit; as the
complaint
seeks money damages of $1000 per day of violation.
Joliet wishes
to keep its potential monetary liability as low as
possible
(R.
242—243).
The Board’s Orders
in this case addressing
the numerous
“emergency” discovery motions have repeatedly discussed the
inherent tension between Joliet’s asserted due process rights
to
full discovery,
witness selection and presentation of testimony,
and Joliet’s statutory right,as well as that of the Agency and
the public,
to.a decision within 120 days of the filing
of its
petition.
The Board has made
every effort
to accommodate Joliet’s
discovery and hearing rights as well as its statutory decision
deadline rights.
The Board
notes that in the scheduling
Order of
October
9, 1986, which was the first Crder entered herein, that
the Board
had ordered completion of hearing and submittal
of any
final briefs within 70 days,
which would have given the Board
approximately 40 days
in which
to receive the transcript
and
deliberate
and decide the case.
In
order
to
accommodate Joliet’s discovery demands
in
scheduling hearings on January 13—14,
Board acquiesced
to
truncation of its review time
to
a bare
9 working days
(three of
which have been consumed
in awaiting delivery of expedited
transcripts).
Additionally, the Agency and
its counsel
the
Attorney General have been compelled by Orders of the Board
and
the Hearing officer
to adhere
to extremely tight document
production,
deposition,
and hearing timetable.
On
the other
hand,
the
Board must observe that Joliet
has
tendered every theoretically conceivable objection
to every
75.63
—3—
Agency discovery request, with seeming disregard
of the
legitimacy of the objection.
Joliet has produced discovery only
when ordered
to do
so, and only then at the last instant possible
to avoid violation of Board or Hearing Officer Orders.
The
result of
this tactical manuevering has been denial of
information to the Agency, which
is bound, as ‘well as the Board,
by the statutory decision deadline and any necessary intermediate
deadlines required to meet the decision deadline.
This
manipulation of the discovery process alone has nearly driven
this proceeding
into
a default posture.
As
to the
issue of the waiver
in relation
to additional
hearings,
the proferred eight—day waiver
is hardly ample
time
to
conduct additional
hearings under
the circumstances of this
case.
The Board
notes that counsel
for Joliet has practiced
before
the Board
for
a number of years,
and was formerly a Member
of the Pollution Control
Board; counsel
is more than usually
chargeable with knowledge of Board practice and procedures.
As counsel
is aware, Board Hearing Officers are not full
time Board staff members, but are instead outside attorneys who
by contract handle Board hearings
in addition
to the various
other
components of their
practice.
The scheduling additional
hearings cannot necessarily be arranged on twenty—four
hours
notice, as Joliet has requested here.
As the Agency has
suggested
in its response, given the tight
time frame
for
decision,
it was unreasonable
for Joliet to
assume that hearing
days could be continued indefinitely, beyond January
14;
it was
instead incumbent on ioliet
before that time
to make an
appropriate motion
for additional days.
This unreasonableness
is
highlighted by the
fact that counsel
is well
aware that all Board
Members cannot attend hearings due
to time and budget
constraints,
and must rely instead
on hearing transcripts
to
formulate their decisions.
For
the Board
to attempt
to render decision
in
a case where
testimony has not either been witnessed
or read by the Board
Members would
be obvious reversible error, error which the Board
cannot allow
to
be
engendered
by
a
petitioner.
While
it
is true that the Board could hypothetically have
assigned
another
Hearing
Officer
to
this
case
to
continue
hearings,
this
poses
two
practical
problems
which
also could
lead
to commission of reversible error.
Given the history of this
action,
even
the best substitute Hearing Officer
assigned
to the
case with only twenty—four
hours notice would likely make
ill—
advised evidentiary rulings, particularly where such rulings
would necessarily be made in ignorance of the existence and basis
for evidentiary rulings made on the two previous hearing days;
it
is easy to envision the colloquy between the parties as
to what
in fact the original Hearing Officer had said and why.
75.64
—4—
Even putting
aside the
issue
of adequate time for
the Board
to review the
testimonial
record, once the Hearing Officer’s
personal availability during
the
time frame of the eight—day
waiver was established, with the result that
it was impossible
to
continue the hearing
to
a date certain before
the hearing was
recessed on January 14, counsel
for Joliet should have known that
no additional hearing could lawfully proceed prior
to the 21—day
notice required by Section 40(a)(l) of the Act.
See Illinois
Power
Co.
v.
Illinois
Pollution Control Board,
137 Ill. App.
3d
449,
484 N.E.2d 898
(1985)
(proper notice of hearing is
jurisdictional).
For all
of the foregoing reasons, the Hearing Officer aptly
noted at hearing “an 8—day
(sic) waiver doesn’t do anybody any
good
in
this matter”.
What the Agency has characterized
as
“Petitioner’s strategy of brinksmanship and procedural posturing”
throughout
the course of this proceeding has come perilously
close
to abuse of the Board’s
processes.
The Board will
not,
in
the name of “due process”
for petitioner, allow either
its
ability
to perform its statutory duties or the rights of the
Agency and
the public
to be jeopardized.
Petitioner’s oral waiver was “confirmed”
in writing by
January 22.
While
the wording of petitioner’s waiver
(R.
499)
is
capable of construction as
an absolute waiver,
rather
than a
hearing—contigent one,
the Board will take the more conservative
course
and construe the waiver as
a conditional one which has
been extinguished by denial
of Joliet’s motion.
The Board
therefore presently anticipates rendering decision on or before
January 28,
and, will schedule
a special Board meeting
on January
26.
All pending motions,
including the Agency’s January 12
motion for dismissal with prejudice, will
be handled
in the
Board’s final disposition of the case.
IT
IS
SO ORDERED.
J.
T.
Meyer dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above
Order was adopted on
the
~
day of ______________________,
1987
by
a
vote
of
_______.
/
~
//.‘,
,-~~--
Dorothy
M.
Gunn,
Clerk
Illinois Pollution Control Board
75-65