ILLINOIS POLLUTION CONTROL BOARD
December 17, 1992
PEOPLE OF THE STATE OF ILLINOIS
)
and THE
COUNTY
OF GRUNDY,
)
ILLINOIS ex rel. GRUNDY COUNTY
)
STATE’S ATTORNEY DAVID W.
NEAL,
)
)
Petitioners,
v.
)
PCB 92—207
)
(Landfill Siting
ENVIRONTECH, INC., an Illinois
)
Review)
corporation, and CITY OF MORRIS,
)
ILLINOIS,
)
)
Co-Respondents.
ORDER OF THE BOARD
(by B. Forcade):
This action is
a third-party appeal filed December 15,
1992
pursuant to Section 40.1
(b)
of the Environmental Protection Act
(“Act”)
(Il1Rev.Stat.
Ch.
111—1/2,
par. 1040.1
(b)).
People
of
the State of Illinois and The County of Grundy,
Illinois ex rel.
Grundy County State’s Attorney David W. Neal appeal the decision of
the City of Morris granting site location suitability approval.
It appears that the pet~itionis not duplicitous or frivolous
and that Petitioner participated in the hearing below ~
.Pet. P.
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 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 City
of
Morris
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
City of Morris 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
OI38-o~75
2
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 City of Norris 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 City of Morris’ 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
pGtitioner(s).
The Clerk of the City of Morris 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
~
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 bee
addressed in
3”~
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.
This
matter
is
accepted
for
hearing.
Hearing
must
be
OI38~
‘76
3
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
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.
0138-0 177
4
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board
hereby certfy that the above order was adopted on the
/7aZ~
day of
_________________,
1992, by a vote of
7o
0136-0178
Ltion Control Board2