ILLINOIS POLLUTION CONTROL BOARD

February

4,

1988

LAIDLAW WASTE SYSTEMS, INC.,

Petitioner,

v.

)

PCB 88—27

THE MCHENRY COUNTY BOAPD,

Respondent.

ORDER OF THE BOARD (by J.D. Dumelle):

This action

is an appeal

filed January 27,

1988, pursuant to

Section 40.1 of the Environmental Protection Act

(“Act”)

(Il1.Rev.Stat. Ch.

111—1/2, par.

1040.1.

LaidLaw Waste Systems,

Inc.

(“Petitioner”) appeal

the decision of

the McHenry County

Board

(“County”)

approving 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 l05.102(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(s).

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).

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.

86—123

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—2—

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

partyts 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.

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

86—124

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—3—

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 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 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 this Order.

IT IS SO ORDERED

I,

Dorothy

M. Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that

above Order was adopted on

the

~

day of

~

,

1988,

by a vote

of

_____.

Dorothy ~

Clerk

Illinois Pollution Control Board

86—125