ILLINOIS POLLUTION CONTROL BOARD
    September 21, 1995
    CONCERNED CITIZENS OF
    )
    WILLIAMSON COUNTY, and REV.
    )
    PAUL CRAIN and ROSE ROWELL, as
    )
    MEMBERS OF CONCERNED CITIZENS
    )
    OF WILLIAMSON COUNTY, and
    )
    individually,
    )
    )
    Petitioners,
    )
    )
    v.
    )
    PCB 96-60
    )
    (Landfill Siting Review)
    BILL KIBLER DEVELOPMENT CORP.
    )
    a/k/a KIBLER DEVELOPMENT CORP.
    )
    and the WILLIAMSON COUNTY BOARD
    )
    of COMMISSIONERS for and in
    )
    behalf of the COUNTY of
    )
    Williamson in the State of
    )
    Illinois,
    )
    )
    Respondents.
    )
    ORDER OF THE BOARD:
    This matter is before the Board on an appeal filed pursuant to paragraph
    (b) of Section 40.1 of the Environmental Protection Act [415 ILCS 5/40.1] on
    September 14, 1995 by the Concerned Citizens of Williamson County
    ("Citizens"), Rev. Paul Crain ("Crain") and Rose Rowell ("Rowell") as members
    of the Concerned Citizens of Williamson County. The petitioners appeal various
    actions, and inactions
    1
    , of the Williamson County Board of Commissioners
    ("County"), concerning the local siting approval application of Bill Kibler
    Development Corp., a/k/a Kibler Development Corp., for a pollution control
    facility, located in Williamson County. The County's action and inactions
    were taken following the Board's remand order of March 16, 1995, in PCB 94262.
        
    The cited section of the Act requires the Board to hear the instant
    petition if it has been filed by a third party other than the applicant if
    that party participated in the public hearing conducted by the county board or
    municipal governing body which has granted siting approval, unless it
    determines that the petition is duplicitous or frivolous, or that the
    petitioner is so located as to not be affected by the proposed facility. An
    action before the Board is duplicitous if the matter is identical or
    substantially similar to one brought in another forum (Brandle v. Ropp, PCB
    85-68, 64 PCB 263 (1985)). An action before the Board is frivolous if it
    fails to state a cause of action upon which relief can be granted by the Board
    (Citizens for a Better Environment v. Reynolds Metals Co., PCB 73-173, 8 PCB
    46 (1973)).
        
    The petition indicates that the Citizens, Crain and Rowell participated
    in the previous public hearing. There is no evidence before the Board to
    indicate this matter is identical or substantially similar to any matter
    brought in another forum, nor is there any evidence that the Board cannot
    grant the relief requested. There is also no evidence before the Board to
        
    1
    See Stephen Smith et al. v. City of Champaign et al., PCB 92-55 (August
    13, 1992 & October 16, 1992).
    2
    suggest that the petitioner is so located as to not be affected by the
    proposed facility. At this time, therefore, the Board finds that, pursuant to
    35 Ill. Adm. Code 103.124(a), the complaint is neither duplicitous nor
    frivolous, that the petitioner participated in the prior public hearing and
    that the petitioner is or may be so located as to be affected by the proposed
    facility. Accordingly, this matter shall proceed to hearing.
    Record Before Williamson County
    P.A. 82-682, also known as SB-172, as codified in Section 40.l(a) of the
    Act, provides that the hearing before the Board is to "be based exclusively on
    the record before the county board or governing body of the municipality". The
    statute does not specify who is to file with the Board such record or who is
    to certify to the completeness or correctness of the record.
    As the Williamson County Board of Commissioners alone can verify and
    certify what exactly is the entire record before it, in the interest of
    protecting the rights of all parties to this action, and in order to satisfy
    the intention of SB-172, the Board believes that the Williamson County Board
    of Commissioners must be the party to prepare and file the record on appeal.
    The Board suggests that guidance in so doing can be had by reference to Rules
    321 through 324 of the Illinois Supreme Court Rules. The record shall contain
    legible versions of all documents, transcripts, and exhibits deemed to pertain
    to this proceeding from initial filing through and including final action by
    the local government body. The record shall contain the originals of all
    documents, shall be arranged as much as possible in chronological sequence,
    and shall be sequentially numbered, placing the letter "C" before the number
    of such page. In addition to the actual documents which comprise the record,
    the Williamson County Clerk shall also prepare a document entitled
    "Certificate of Record on Appeal" which shall be an index of the record that
    lists the documents comprising the record and shows the page number upon which
    they start and end. Seven copies of the certificate, seven copies of the
    transcript of the Williamson County Board of Commissioners hearing and three
    copies of any other documents in the record shall be filed with the Board, and
    a copy of the certificate shall be served upon the petitioner(s). The Clerk
    of Williamson County is given 21 days from the date of this Order to
    "prepare, bind and certify the record on appeal" (Ill. Supreme Court, Rule
    324). If the record is not legible, is not sequentially numbered, or fails to
    include an appropriate index of record, the Clerk of the Pollution Control
    Board may refuse to accept the document for filing.
    Waiver of Decision Deadline
    Section 40.1(a) provides that if there is no final action by the Board
    within 120 days, petitioner may deem the site location approved.
    The Board has construed identical "in accordance with the terms of"
    language contained in Section 40(b) of the Act concerning third-party appeals
    of the grant of hazardous waste landfill permits as giving the person who had
    requested the permit a) the right to a decision within the applicable
    statutory time frame (now 120 days), and b) the right to waive (extend) the
    decision period (Alliance for a Safe Environment, et al. v. Akron Land Corp.
    et al., PCB 80-184, October 30, 1980). The Board therefore construes Section
    40.1(b) in like manner, with the result that failure of this Board to act in
    120 days would allow the site location applicant to deem the site location
    approved. Pursuant to Section 105.104 of the Procedural Rules, it is each
    party's responsibility to pursue its action, and to insist that a hearing on
    the petition is timely scheduled in order to allow the Board to review the
    record and to render its decision within 120 days of the filing of the
    3
    petition.
    Transcription Costs
    The issue of who has the burden of providing transcription in Board site
    location suitability appeals has been addressed in Town of Ottawa, et al. v.
    IPCB, et al., 129 Ill. App. 3rd, 472 N.E.2d 150 (Third District, 1984). In
    that case, the Court ordered the Board to assume transcription costs (472
    N.E.2d at 155). The Supreme Court denied leave to appeal on March 14, 1985.
    In cognizance of this ruling, the Board will provide for stenographic
    transcription of the Board hearing in this matter.
    Scheduling and Conduct of Hearing
    The hearing must be scheduled and completed in a timely manner,
    consistent with Board practices and the applicable statutory decision
    deadline, or the decision deadline as extended by a waiver (the siting
    applicant may file a waiver of the statutory decision deadline pursuant to 35
    Ill. Adm. Code 101.105). The Board will assign a hearing officer to conduct
    hearings consistent with this hearing, and the Clerk of the Board shall
    promptly issue appropriate directions to that assigned hearing officer.
    The assigned 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, a statement regarding credibility of
    witnesses and all actual exhibits to the Board within five days of the
    hearing.
    Any briefing schedule shall provide for final filings as expeditiously
    as possible and, in time-limited cases, no later than 30 days prior to the
    decision due date, which is the final regularly scheduled Board meeting date
    on or before the statutory or deferred decision deadline. Absent any future
    waivers of the decision deadline, the statutory decision deadline is now
    January 12, 1996 (120 days from September 14, 1995); the Board meeting
    immediately preceding the due date is scheduled for December 21, 1995.
    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. The hearing officer
    and the parties are encouraged to expedite this proceeding as much as
    possible.
         
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
    certify that the above order was adopted on the
    day of , 1995, by a vote of .
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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