ILLINOIS POLLUTION CONTROL BOARD

March 19,

1987

A.R.F.

LANDFILL CORPORATION,

)

Petitioner,

V.

)

PCB

87—34

VILLAGE OF ROUND

LAKE

PARK

)

and LAKE COUNTY,

Respondents.

ORDER OF THE BOARD

(by

B,.

Forcade):

On March

12,

1987,

the A.R.F.

Landfill Corporation

(“A.R.F.”)

filed

a Siting Application Appeal.

That appeal

asserts that the Village of Round Lake Park failed

to act on

a

request

for site location suitability approval for

a new regional

pollution control facility under Section

39.,2 of the Environ-

mental Protection Act (“Act”).

A.R.F.

asserts that as

a result

of the failure

to

act, this Board must determine that

site

location suitability approval

is “deemed approved”

under

Section

39.2(e)

of the Act.

As

a preliminary matter, the Board

notes one area of un-

certainty.

A.R.F.’s siting application appeal states that the

proposed facility “...would

be partially located

in Round Lake

Park.

That part of the proposed site that would not be located

in Round Lake Park would be located

in unincorporated Lake

County”

(Appeal,

2).

Because a portion of the facility is

located

in unincorporated Lake County,

this Board

is uncertain

whether Lake County is

a necessary party

to this proceeding,

under Section

39(c)

of the Act which controls jurisdiction for

siting applications:

Except

for

those

facilities

owned

or

operated

by sanitary districts organized

under

“An Act

to

create

sanitary

districts

and

to

remove

obstructions

in

the

Des Plaines

and

Illinois

rivers”,

approved

May

29,

1889,

as

now

or

hereafter

amended,

no

permit

for

the develop-

ment

or

construction

of

a

new

regional

pollution

control

facility

may be

granted

by

the Agency unless

the applicant submits proof

to

the

Agency

that

the

location

of

said

facility has been approved by the County Board

of the county if

in

an unincorporated area,

or

the governing body of the municipality when

in

an

incorporated

area

in which

the facility

is

76-383

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—2—

to

be

located

in accordance with Section 39.2

of this Act.

The Board has not been briefed on what role,

if any, Lake County

should have in this process.

Consequently, the Board, on its own

motion, will join Lake County as a party respondent for purposes

of determining whether Lake County is a necessary party.

Any

party,

including Lake County, may file motions and briefs

opposing or supporting this joinder not later than April 10,

1987.

This action is an appeal

filed March 12, 1987, pursuant

to

Section 40.1(b)

of the Environmental Protection Act

(“Act”)

(Ill.Rev.Stat. ch.

11.~/2,

par. 1040.1(b).

Petitioner appeals the

asserted default decision of the Village of Round Lake Park

(“Village”).

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.”

‘Ihe 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 Village 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 village 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 lOS.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

Village 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 village 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 Village

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 äeem 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

76-384

---

—3—

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

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.

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

74.385

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—4—

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 decisioninaking,

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,

~p~çeby

certify

t

a

the

above

Order

was

adopted

on

the

//‘+‘day

of

________________________,

1987,

by

a

vote

of

_______.

Dorothy

M./Gunn,

Clerk

Illinois

Pollution

Control

Board

76-386