ILLINOIS POLLUTION CONTROL BOARD

November 20, 1986

SOURS GRAIN COMPANY,

)

Petitioner,

v.

)

PCB 85—190

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by

J.

D.

Dunielle):

This matter comes before

the Board

upon two filings dated

November

12,

1986, on behalf of Sours Grain Company

(Sours):

one

requesting

that

certain

documents

be

treated

as

confidential

pursuant

to

35

Ill.

Adm.

Code

101.107,

the other requesting an

emergency

continuance

of

hearing.

The

Illinois

Environmental

Protection Agency (Agency)

has

filed

no response.

On November

20, 1986,

Sours

filed

a Supplemental Memorandum

in support of the

continuance

and

a letter clarifying that

in its confidentiality

motion,

it is not

at present requesting that any determination be

made.

Therefore,

no

action

other

than

the

protection

of

the

documents

need

be

taken

at

this

time.

The

motion

for

continuance

is hereby denied.

Sours argues

that

the

“Agency’s refusal

to

respond

to discovery,

the Hearing

Officer’s

attempt

to

rush

to

hearing,

the

large

volume

of

business handled by Sours during January and February, and the

inability of Sours’

counsel

to attend

the hearing

now scheduled”

requires continuance.

First, discovery commenced

in

this matter

no later

than

January 27, 1986,

and,

therefore, has been ongoing

for

a period

of nearly

10 months at

a minimum

in

a case which was intended

to

be decided

in three months.

A cut—off date

for discovery has

been established

and remaining problems can be dealt with by

appropriate motions.

Second,

at hearing, or thereafter,

the allegation that the

hearing officer

is rushing this matter

to hearing

is difficult to

accept.

The variance petition was

filed

on November 7,

1985,

over

a

year

ago

in

a

case

with

a

90—day

decision

deadline.

That

deadline

evidences

legislative

intent

not

only

to

assure

a

timely

decision

for

the petitioner, but also

for

an expeditious decision

to protect the environment.

Hearing was originally scheduled

for

April

7,

1986,

and again

for September

10,

1986,

and several pre—

hearing

conferences have been held.

A December, 1986, hearing

74-94

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—2—

date hardly appears to demonstrate that Sours has been “rushed”

to hearing.

Third, while

it may be unfortunate that hearing

is scheduled

during Sours’ busy season, that

is not a sufficient reason for

delaying hearing

for

an additional two months.

Sours has come

before this Board asking

to be allowed

to remain

in noncompliance

with the

air pollution regulations, presumably a substantial

benefit

to

it.

The Board does not find

it unreasonable that

Sours may suffer some inconvenience

in attempting

to gain this

benefit.

Fourth, while

the Board does make substantial attempts to

accommodate the schedules of the parties,

it cannot reschedule

hearings whenever

a conflict arises.

It

is

a fact of an

attorney’s life that conflicts arise

and accommodations must be

made.

With respect to

the one date on which there

is

a direct

conflict, December

9,

1986, the R86—36 hearing was scheduled

prior

to hearing

in this matter

and Sours should have been

prepared

at the October 27, 1986,

pre—hearing conference

to

inform the hearing officer that such a conflict existed.

Sours

should

have

realized

that

the

scheduling

of

a

hearing

date

might

well

be

a

subject

at

that

pre—hearing

conference.

Furthermore,

the

Agency

alleges

in its November 12,

1986,

Response

to

motion

for continuance, accompanied

by

a supporting

affidavit, that

the

hearing dates “were chosen by agreement between this hearing

officer, Agency counsel

and counsel for Petitioner during

a

telephone conference on

a date sometime around the first of

September,

1986,”

that several attempts were made to consult

Sour’s attorney regarding hearing dates

for R86—36,

and that

confirmation of the acceptability of those dates was obtained

from a member of the

firm representing Sours Grain.

The Board

cannot find

that the hearing

officer acted

improperly in imposing

the hearing

schedule.

Fifth,

some

deference

is

due

the

hearing

officer

in

matters

such

as

this.

The

hearing

officer

has

been

actively

involved

in

the discovery disputes and

in establishing

the schedule for this

proceeding.

The Board has not.

Presumably, the hearing officer

has

considered

all

of

the

matters

which

have

now

been

brought

before

the Board

for resolution

in

the

overall

context

of

his

familiarity with the overall proceeding.

The Board will not

lightly disturb his ruling and Sours has not presented

sufficiently compelling arguments

in this case

to do so.

Finally,

the Board

notes that this ruling may depart to

some

degree from

its historical practice of more freely granting

continuances.

However, there

is good reason

for doing

so.

The

Board

has

found that proceedings before it have become

increasingly prolonged, especially during the discovery phase,

and

that cancellations of hearing

have become increasingly

expensive since

the Board determined that rescheduled hearings

74.95

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—3—

must have public notice republished.

Thus,

the Board has

determined that

it must maintain tighter control

over the

progress of its proceedings.

IT

IS SO ORDERED.

Board Member

J.

Anderson dissents.

I,

Dorothy

M.

Gunn, Clerk of the Illinois Pollution Control

Board,

hereby cert~fythat the above Order was adopted

on

the

‘-~

day of

~

,

1986,

by a vote of

.5~/

Dorothy

M. Ginn,

Clerk

Illinois Pollution Control Board

74-96