ILLINOIS POLLUTION CONTROL BOARD
October 24, 1991
R. L1~VIN& SONS,
INC.,
)
)
Petitioner,
PCB 91—139
v.
)
(Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by J.
C. Marlin):
On September
23,
1991,
R.
Lavin
&
Sons
(“Lavin”)
filed
an
Amended.Petition in this proceeding.
On September 24,
1991 the
Illinois
Environmental
Protection
Agency
(“Agency”)
filed
a
“Memorandum in Response to the Illinois Pollution Control Board’s
Order of August 22, 1991”.
Within that memorandum is a Motion for
Summary
Judgement.
On October
7,
1991,
the Board
received
a
response to the Motion from Lavin.
The Agency states that the Lake County Circuit Court entered
a consent order on October 12,
1990, which sets forth interim and
final
compliance
limits.
Further,
the Agency
asserts that the
Circuit Court has jurisdiction over “the terms and conditions of
Defendant’s
NPDES permit renewals or amendments or modifications
to
said Permit”
under .the conditions
set
forth
in the consent
decree.
Therefore, the Agency asserts that the court is the proper
venue
for dealing with the
issues
in
this permit
appeal.
The
Agency
also asserts that there
are
not material
issue
of
fact
involved.
Lavin asserts that there are issues to be decided which are
beyond the scope of the consent decree.
Lavin cites to specific
issues which Lavin
believes the Board must decide.
Lavin
also
asserts that the motion
should
be
stricken because
it was
not
properly filed with the Board.
The Board does not dispute that the Circuit Court has sole
jurisdiction over the terms
of the consent decree.
The filings
received
by
the
Board
on
the Motion
indicate
that
there
are
questions of material fact and may be questions of law which are
better resolved after a hearing has been held in this proceeding.
Therefore, the Motion for Summary Judgement is denied.
On September 23, 1991,
R. Lavin
& Sons,
Inc. filed an amended
petition for permit review.
This matter is accepted for hearing.
The Board notes that the filing of the amended petition restarts
the time for Board decision pursuant to Section 40 of the Act.
2
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,
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.
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
120 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
making
a
decision,
absent
a
waiver,
the
Board
will
grant
3
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 requirements 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.
Board Member
B.
Forcade dissented.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Boa~,do hereby certi~r~at
the above Order was adopted on the
~
day of
______________________________,
1991, by a vote of
“—I.
Control Board