ILLINOIS POLLUTION CONTROL BOARD
December
20, 1990
FRANK WHITLOCK, PATRICIA
)
WHITLOCK, JANET BERGMAN,
)
MARVIN SAVAGE, SHIRLEY SAVAGE,
)
Individually and in Their
)
Capacity as Representatives
of an Organization Known as
)
CONCERNED CITIZENS AGAINST
LANDFILL,
Petitioners,
v.
)
PCB 90—231
)
(Landfill Siting)
MONTGOMERY COUNTY
BOARD
OF
)
SUPERVISORS, ROBERT BISHOP,
and ARMINDA BISHOP,
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
This action
is a third—party appeal filed December
17,
1990
pursuant
to Section 40.1
(b) of the Environmental Protection Act
(“Act”)
(Ill.Rev.Stat. Ch.
111—1/2, par. 1040.1
(b).
Frank
Whitlock, Patricia Whitlock, Janet Bergman, Marvin Savage,
Shirley Savage,
(“Concerned Citizens Against Landfill”), appeals
the decision of the Montgomery County Board of Supervisors
(“Montgomery Countyt’),
granting site location suitability
approval.
It appears that the petition is not duplicitous or frivolous
and that Petitioner participated in the hearing below
(See, Pet.
page
2, paragraph 1).
Record Before the County Board
PA.
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 Montgomery County 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
Montgomery County 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
117—167
Supreme Court Rules.
The record shall contain legible versions
of all documents,
transcripts, and exhibits deemed to pertain to
this proceeding from the initial filing by the siting applicant
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
is 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 Montgomery County Clerk
shall also prepare a document entitled “Certificate of Record on
Appeal” which shall list the documents comprising the record.
Seven copies of the certificate, seven copies of the transcript
of the Montgomery County 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 Montgomery 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
or record, the clerk of the Pollution Control Board may refuse to
accept the document for filling.
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 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
117—168
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 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 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
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
117—169
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
Board,
hereby certify
t
t the above Order was adopted on
the ~‘ö~7ãay
of ______________________,
1990, by a vote
of
______
,
Clerk
ution Control Board
Dor
01
Illinois
117—170