ILLINOIS POLLUTION CONTROL BOARD
    January
    20,
    1994
    MICHAEL
    TURLEK,
    LILLIAN
    )
    SMEJKAL
    and
    JOHN
    LATHROP,
    )
    )
    Petitioners,
    )
    v.
    )
    PCB 94—19
    )
    (Land
    Siting
    Review)
    VILLAGE
    OF
    SUMMIT
    and
    )
    WEST
    SUBURBAN
    RECYCLING
    )
    AND
    ENERGY
    CENTER,
    INC.,
    )
    )
    Respondents.
    KAY
    KULAGA
    AND
    ALICE
    ZEMAN,
    )
    )
    Petitioners,
    )
    v.
    )
    PCB 94—21
    )
    (Land Siting Review)
    VILLAGE
    OF
    SUMMIT
    and
    )
    WEST
    SUBURBAN
    RECYCLING
    )
    AND
    ENERGY
    CENTER,
    INC.,
    )
    )
    Respondents.
    CITIZENS FOR A BETTER
    )
    ENVIRONMENT, PATRICIA J.
    )
    BARTLEMAN, NANCI KATZ
    and MICHELLE SCHMITS,
    )
    )
    Petitioners,
    )
    v.
    )
    PCB 94—22
    )
    (Land Siting Review)
    (Consolidated)
    VILLAGE OF SUMMIT and
    )
    WEST
    SUBURBAN
    RECYCLING
    )
    AND
    ENERGY
    CENTER,
    INC.,
    )
    )
    Respondents.
    ORDER
    OF
    THE
    BOARD
    (by
    M.
    McFawn):
    This matter comes before the Board on three third party
    petitions for review filed pursuant Section
    40.1(b)
    of
    the

    2
    Environmental Protection Act
    (Act)
    (415 ILCS 5/40.1(b) (1992)), of
    the December 6,
    1993 decision of the Village of Summit (Village)
    granting site location suitability approval for construction of a
    new regional pollution control facility to West Suburban
    Recycling and Energy Center,
    Inc.
    (WSRC).
    This case involves
    proceedings held by the Village following Board remand of an
    August
    5,
    1992 application for the purpose of curing procedural
    fundamental unfairness in prior proceedings.
    Zeman et p1.
    v.
    Village of Summit and West Suburban Recycling and EnergY Center~
    Inc. and guilty v. Board of Trustees and Mayor of the Village of
    Summit and West Suburban Recycling and
    Enerav
    Center.
    Inc.,
    PCB
    92—174 and PCB 92—177 (consolidated)
    (February 25, 1993), appeal
    dismissed, No. 1—93—1070 (1st Dist. June 14,
    1993).
    The Petitions
    The first petition (PCB 94-19) was filed by Michael Turlek,
    Lillian Smejkal, and John Lathrop on January 7,
    1994.
    This
    petition asserts that the Village lacked jurisdiction to render
    its December
    6,
    1993 decision, on the grounds that the June 8,
    1993 application it was considering was improperly filed during
    the pendency of the August
    5,
    1992 application remanded in the
    consolidated cases PCB 92-174 and PCB 92-177.
    The petition
    recites that each petitioner lives in “immediate proximity” to
    the proposed site and that each participated in the hearing
    below.
    This petition does not contain a copy of the Village’s
    decision.
    The second petition (PCB 94-21) was filed by Kay Kulaga and
    Alice Zeman on January 10,
    1994.
    This petition challenges the
    fundamental fairness of the Village’s procedures.
    The petition
    recites that each petitioner lives in proximity to the proposed
    site and that each participated in the hearing below.
    Petitioner
    Zeiuan has not signed the petition or otherwise entered an
    appearance as required by 35 Ill.
    Adm.
    Code 101.107(a).
    This
    petition also does not contain a copy of the Village’s decision.
    The third petition
    (PCB 94-22) was filed by Citizens for a
    Better Environment, Patricia J. Bartelman,
    Nanci Katz and
    Michelle Schmits on January 10,
    1994.
    The petition recites that
    each petitioner resides within approximately
    5 miles of the
    facility (one residing 1/2 mile therefrom), that each
    participated in the hearing below and that each is a member of
    CBE.
    This petition asserts that the Village’s decision should be
    reversed on the grounds that the floodproofing and need criteria
    of Section 39.2
    (415 ILCS 5/39.2(a) (4)
    &
    (1)) were not met.
    This petition refers to the Village’s decision as Ordinance No.
    93—0-30, but does not provide a copy.
    Within the meaning of Section 40.1(b) of the Act,
    it appears
    that none of the petitions is duplicitous or frivolous, that all
    petitioners participated at the Village hearing and are located

    3
    so as to be affected by the facility.
    This matter is accordingly
    accepted for hearing.
    As
    is the Board’s usual practice with multiple petitions
    challenging a single local siting decision, the Board on its own
    motion consolidates these actions into one case.
    All petitions
    are deficient for failure to provide a copy of the Village’s
    decision.
    If an amended petition curing this deficiency is not
    filed within 14 days of the date of this order, this matter will
    be subject to dismissal.
    The filing of an amended petition will
    restart the Board’s decision timeclock, although the Board will
    look to the petitions’ original filing dates in making any
    determination as to the timeliness of the filing of the appeal
    pursuant to Section 40.1.
    Additionally, Petitioner Zeman is directed to file an
    appearance in person or by counsel as required by 35 Ill. Adm.
    Code
    101.107(a) within 14 days of the date of this order.
    If
    petitioner Zeman fails to do so, her name will be stricken as a
    petitioner in this action.
    (See Doruff et al.
    v. Bloomincidale
    Elementary School District 13 et al., PCB 93—204
    (January
    6,
    1994).)
    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
    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 Village of Summit 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
    Village of Summit 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 Village of Summit 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

    4
    of the Village of Summit 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
    petitioners.
    The
    Clerk
    of
    the
    Village
    of
    Summit
    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 p1.
    v. Akron
    Land
    Corp.
    et
    p1.,
    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 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.
    Hearinci
    Procedures
    The hearing must be scheduled and completed in a timely
    manner, consistent with Board practices and the applicable
    statutory decision deadline or the waiver provisions of 35 Ill.
    Adm.
    Code
    101.105.
    The Chief Hearing Officer shall assign a
    hearing officer to conduct hearings.
    The Clerk of the Board

    5
    shall promptly issue appropriate directions to the assigned
    hearing officer consistent with this order.
    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 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.
    In
    this
    case,
    pursuant
    to
    Section
    40.1
    (b)
    of
    the
    Act,
    the
    statutory
    decision deadline is May 7,
    1994’; therefore, the decision due date is May 5,
    1994.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after
    attempting to do so, the hearing officer is unable to consult
    with the parties, the hearing officer shall unilaterally set a
    hearing date in conformance with the above schedule.
    The hearing
    officer and the parties are encouraged to expedite this
    proceeding
    to the extent possible.
    IT IS SO ORDERED.
    I,
    Dorothy
    M.
    Gunn,
    Clerk
    of the Illinois Pollution
    Control
    Board,
    hereby
    cer
    fy
    that
    the
    above
    order
    was
    adopted
    on
    the
    ~?~~tZ
    day of
    -,
    ,
    1994,
    by
    a
    vote
    of
    7’-•é
    ~a
    Dorothy M. 4inn, Clerk
    Illinois P~&lutionControl Board
    The decision deadline is calculated using the filing date
    of
    the
    earliest filed case, PCB 94—19, but, as earlier stated, will
    be recalculated
    on
    the
    date
    of
    fIling
    of
    an
    amended
    petition
    containing the Village’s written decision.

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