ILLINOIS POLLUTION CONTROL BOARD

September 19, 1986

LAIDLAW WASTE SYSTEMS,

INC.

)

a Delaware corporation

Petitioner,

)

V.

)

PCB 86—149

COUNTY OF MCHENRY,

ILLINOIS,

)

a body politic and corporate,

)

)

Respondent.

ORDER OF THE BOARD

(by

B.

Forcade):

This action

is an appeal filed September 16, 1986 pursuant

to Section 40.1(b)

of the Environmental Protection Act

(“Act”)

(Ill.Rev.Stat.

ch.

ilil,~, par. 1040.1(b).

Petitioner

appeals the

decision of the County of McHenry denying site location

suitability approval.

Record Before the County Board

P.A.

82—682,

also known

as SB—l72, 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 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—l72, the Board believes that the 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

Section 105.102(a) (4)

of the Board’s Procedural Rules and

to

Rules 321

through 324

of the Illinois Supreme Court Rules.

In

addition to the actual documents which comprise the record, the

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 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.

The

Clerk of the 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).

72-387

---

—2—

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

155).

The Supreme Court denied leave

to appeal on March 14,

1985.

The cognizance of this ruling,

the Board will provide for

stenographic transcription of the Board hearing

in this matter.

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

fa1il

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.

72.388

---

—3—

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

75 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 decisionmaking, 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

set a date pursuant to the fourth paragraph 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~?iat

he above Order was adopted on

the

/?~‘

day of ________________________,

1986, by

a vote

of

~L—o

.

~t~1?~

127.~4~

~orothy

M.

G nn,

Clerk

Illinois Pollution Control Board