ILLINOIS POLLUTION CONTROL BOARD
February
4,
1993
CONCERNED CITIZENS OF
)
WILLIAMSON COUNTY, and
)
R.S. BLAXELY and MAX
)
STUCKER, as members of
Concerned Citizens of
)
Williamson County,
)
Petitioner,
)
v.
)
PCB
92—204
)
(Landfill Siting Review)
BILL KIBLER DEVELOPMENT
CORP., a/k/a KIBLER
DEVELOPMENT CORP., and the
WILLIAMSON COUNTY BOARD OF
COMMISSIONERS,
)
Respondents.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This case is before the Board on an amended petition for
review,
filed on January 27,
1993.
This action is a third-party
appeal filed pursuant to Section 401
(b)
of the Environmental
Protection Act
(Act)
(415 ICLS 5/40.1(b)
(1992).)
Petitioners
Concerned Citizens of Williamson County, and R.S. Blakely and Max
Stucker,
individual members of Concerned Citizens of Williamson
County, appeal the decision of the Williamson County Board of
Commissioners granting site location suitability approval.
This appeal was originally filed with the Board on December
14,
1992.
On December 17,
1992,
the Board issued an order
requiring petitioners to file an amended petition.
The January
27 amended petition fulfills the requirements of that order.
As
stated in that December 17, 1992 order,
the Board’s decision
deadline began to run on January 27,
1993,
the date that the
amended petition was filed.
It appears that the petition is not duplicitous or frivolous
and that petitioners participated in the hearing below.
(Amended
pet. at 2.)
Record Before the County Board
P.A. 82—682, also known as SB-172, as codified in Section
40.1(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
0139-0067
2
specify
whQ
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 cnntain 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
Ø~390086
3
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 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 3d Dist.
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.
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 maybe 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 site location suitability
applicant 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 site
location suitability applicant 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
0139-0089
4
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 making a decision, 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
establish a scheduling order pursuant to the requirements of this
order,
and to adhere to that order until modified.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Bo r
hereby certify~ithatthe above order was adopted on ~he
day of
1993,
by a vote of
(~~0
0139-0090
Control Board