ILLINOIS POLLUTION CONTROL BOAR)

January 21,

1993

MATERIAL

RECOVERY

 CORPORATION,

Petitioner,

)

v.

)

PCB

93—11

)

 (Landfill Siting)

VILLAGE

LAXE

IN

THE

 HILLS,

)

Respondent.

ORDER

 OF THE BOARD

 (by B. Forcade):

This action is an appeal filed

January

 15, 1993 pursuant to

Section 40.1

(a)

 of the Environmental Protection Act (“Act”)

(Ill.Rev.Stat.

 Ch. 111—1/2, par. 1040.1

 (a)).

 Material Recovery

Corporation appeals the

decision of the Village of

Lake

in the

Hills denying site location suitability approval.

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

 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

Lake

in the Hills alon, 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

Lake

in the

 Hills must’ be the

party

to prepare and file the record on appeal.

The

Board

 iuggests

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

Lake

 in the

 Hills 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 Village of

Lake

in

the

Hills

hearing

and

three copies of any other documents in the record

shall be filed with the Board, and a copy of the certificate

0138-0525

2

shall be served upon the petitioner(s).

 The Clerk of the Village

of Lake in the Hills 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, at

p1.

v.

 Akron

Land CorD.

 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 i. 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 p1.

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 )tarch 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

schedu1ed within 14 days of

the

date of this order and completed

within ~0 d’iys of the date of this order.

 The hearing officer

shall infor~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

exhibit

list,

written

schedule

for

submission of briefs if

any and all actual exhibits to the Board

within

days

the

hearing.

Any

briefing

schedule

shall

provide

for

final

filings

expeditiously

possible

and

0138-0526

3

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

unable

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 *uch 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 unleis 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 aiple

time

for the

Board to

republish notice of ‘hearing and receive tx~anscriptsfrom

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,

well

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.

ORDERED.

0138-0527

4

I, Dorothy H. Gunn, Clerk of

the

Illinois

 Pollution Control

Board, hereby

 that the above order was adopted on the

c~I4~4day

of

 1993, by a vote of

h.

~-~borothy

 K. ~d~/n,Clerk

‘

Illinois Po~AtionControl

0138-0528