ILLINOIS POLLUTION CONTROL BOARD
February 17,
1994
RODNEY B. NELSON,
III,
M.D.,
)
Petitioner,
)
V.
)
PCB 94—51
)
(Landfill Siting Review)
)
KANE
COUNTY,
KANE
COUNTY
)
BOARD,
and
WASTE
MANAGEMENT
)
OF ILLINOIS,
INCORPORATED,
)
Respondents.
CITY OF
GENEVA,
)
)
Petitioner,
)
v.
)
PCB 94—58
)
(Landfill Siting Review)
)
(Consolidated)
WASTE MANAGEMENT OF ILLINOIS,
)
INC. and COUNTY BOARD,
COUNTY
)
OF KANE, STATE OF ILLINOIS,
)
)
Respondents.
ORDER OF THE BOARD
(by C.
A. Manning):
This matter comes before the Board on two third party
~petitiOifot
review filed pursuant to Section 40.1(b) of the
Environmental Protection Act
(Act)
(415 ILCS 5/40.1(b)
(1992)),
of the January 11, 1994 decision of the County of Kane (County)
granting site location suitability approval for expansion of a
new
regional pollution control facility known as Settler’s Hill
Recycling and Solid Waste Disposal Facility operated by Waste
Management of Illinois,
Inc.
(WMI).
Pursuant to Section 40.1(b)
of the Act, any petitions for review of this decision must be
filed within 35 days, j.~.on or before February 15,
1994.
THE PETITIONS
PCB 94—51. Nelson
The first petition for review (PCB 94—51) was filed by
Rodney B. Nelson,
III, M.D.
on February 1,
1994.
However, the
proof of service required by 35 Ill. Adm. Code 101.143 was not
2
filed until February
4,
1994.
On February 15,
1994,
Dr. Nelson
filed a “first addendum” to the petition, which was not
accompanied by a proof of service.
The Board finds the petition timely filed pursuant to
Section 40.1(b).
However, the filing of the “first amendment”
restarts the Board’s 120-day decision timeclock as specified in
Section 40.1(a).
However, since the filing is not complete until
the proof of service is received, the decision timeclock will
restart with the filing of the proof of service.
The Nelson petition challenges the fundamental fairness of
the County’s proceedings, and also asserts that its decision was
against the manifest weight of the evidence.
The petition
recites that Dr. Nelson resides within 5 blocks of the proposed
expansion.
Dr. Nelson further asserts that he has standing to
pursue this action on the basis that he “submitted written
comments during the public hearing phase of siting”
(Pet.
at 9).
PCB 94—58. Geneva
The second petition for review was filed by the City of
Geneva
(Geneva) on February 9,
1994.
The petition challenges the
fundamental fairness of the County’s proceedings, and also
asserts that its decision was against the manifest weight of the
evidence.
The petition further alleges that the proceedings
failed to comply with Section 39(c)
of the Act,
in that the City
has concurrent siting jurisdiction over the proposed Settler’s
Hill expansion by virtue of the fact that a portion of the
Settler’s Hill facility lies within the corporate limits of the
City of Geneva.
The petition states that the City of Geneva,
through its Mayor, William T.
Ottilie, and its attorneys Charles
A. Radovich and LeeR.
Cunningham, attended the public hearing
conducted by Kane County, participated in the hearing process,
produced witnesses, entered exhibits, and submitted written
objections as part of the public hearing.
Standina and Consolidation
Within the meaning of Section 40.1(b) of the Act,
it appears
that the Geneva petition is not duplicitous or frivolous, that
the City participated at the County hearing and is located so as
to be affected by the facility.
The Geneva petition is
accordingly accepted for hearing.
The Board cannot, however, conclusively determine at this
point whether Dr. Nelson has standing to pursue his action.
Without access to the County record, the Board cannot determine
whether written comments were submitted at or after the public
hearing,
a fact which may be crucial.
See Valessares et al.
v.
3
Kane CountY Board et p1.,
PCB 87-36
(July 16,
1987)
(esp.
p.
3-
5).
1
However, to avoid any delay which could jeopardize the
Board’s timely decision of this case, the Board will accept this
petition for hearing.
The parties may, however, make any
appropriate challenge to standing within 14 days of the date of
this order,
i.e. on or before March
1,
1994.
As 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.
The consolidated case will be decided on the due date of the
case earliest due.
In this instance, the due date is calculated
as June 9,
1994, based on the February
9 filing of the Geneva
petition.
The Board’s closest regularly scheduled meeting
preceding this date is June 2,
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 County of Kane 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
County of Kane 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
County of Kane 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 County of
Kane hearing and three copies of any other documents in the
1
The Clerk is directed to serve the parties with a copy of
the PCB 87-36 opinion along with the instant order.
4
record shall be filed with the Board,
and a copy of the
certificate shall be served upon the petitioners.
The Clerk of
the County of Kane 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 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.
TranscriDtion 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 p1., 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.
Hearing Procedures
The hearing must be scheduled and
~in a timely
manner, consistent with Board practices and the applicable
statutory decision deadline or the waiver provisions of 35 Iii.
5
Adm. Code 101.105.
The Chief Hearing Officer shall assign a
hearing officer to conduct hearings.
The Clerk of the Board
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
June
9,
1994; therefore, the decision due date is June 2, 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 certify th t the above order was adopted on the
/7ZZ
day of ____________________________,
1994, by a vote of
~~~~0~
Dorothy
M.
unn,
Clerk
Illinois
llution Control Board