ILLINOIS POLLUTION CONTROL BOARD
February
6, 1986
HILLVIEW FARMS FERTILIZERS, INC.,
)
Petitioner,
v.
)
PCB 86—18
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On January 31,
1986, Hillview Farms Fertilizers, Inc. filed
Petition for Review.
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,
written schedule
for submission of briefs
if any 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 date.
The hearing officer and
the parties are encouraged
to expedite this proceeding as much as
possible.
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 105.102 regarding filing
the Agency record by
the equivalent number of days, but
in any circumstance the record
must be filed at
least
10 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
id 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 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
set
a date pursuant
to the second paragraph of this Order.
Petition to Intervene
This matter
involves Hiliview’s February
5,
1986 appeal of
the Agency’s denial of Hiliview’s application
for an operating
permit for
its sludge
injection facility in McHenry County,
Illinois.
On February
5,
the Attorney General
filed
a petition
for leave
to intervene,
requesting
a Board ruling
today.
Although the Attorney General has not given a reason for
truncation of Hillview’s time to respond, the Board will
rule on
the motion since
a)
the Board believes that an affirmative
ruling
is required by the Supreme Court’s ruling
in Pioneer
Processing
v.
IEPA,
102 Ill.2d 119,
464 N.E.
2d 238,
247
(1984),
b) hearing
in this matter must
be scheduled prior
to the next
Board meeting,
and
c)
any error can be corrected upon a motion
for reconsideration.
Pioneer Processing involved review of a Board decision
in a
permit appeal, one issue being
the Attorney General’s power
to
initiate judicial review of a Board decision where
the Attorney
General had not participated
in the proceeding before the
Board.
The Supreme Court ruled such appeal was proper, noting
its prior decisions discussing the powers of the Attorney General
as
a constitutional officer, as well as the purposes of the
Environmental Protection Act,
and finding that the Attorney
General
“as chief
legal officer of this State
...
has the duty
and authority to represent the interests of the People of the
State
to insure
a healthful environment.”
Logic dictates
that if
the Attorney General has the constitutional
right
to initiate
review of
a Board decision,
he possesses
the corollary right to
intervene and participate
in a proceeding prior
to the Board’s
decisions.
The petition for leave to intervene
is therefore
granted.
The Board notes that in Waste Management,
Inc.
v.
IEPA, PCB
84—45,
84—61
and 84—68,
(consolidated),
Orders of October 25 and
November
26,
1984,
the Board
found that there was
no explicit
legislative authority for allowance of citizen intervention
in
permit appeal cases, citing Landfill, Inc.,
v.
PCB,
74 Ill.2d
541,
387 N.E.
2d 258
(1978). These Orders were affirmed by the
Third Duistrict Appellate Court.
IEPA v.
IPCB and Waste
Management
Inc., No.
3—38—0777,
(Third Dist. November
15,
1985),
the Board
finds
no inconsistency between this ruling and the
ruling
today in Hillview, given the constitutional as well
as
statutory nature of the Attorney General’s duties and authority.
IT IS SO ORDERED
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify th~ the above Order was adopted on
the
c~-~day of _______________________,
1986, by a vote
of
7—°
.
Dorothy M.
dunn, Cl~rk
Illinois Pollution Control Board