ILLINOIS POLLUTION CONTROL BOARD
January 23,
1986
CITY OF COLUMBIA, WALTER BYERLY,
JR.,
)
BARBARA HEINLEIN,
DANIEL HEINLEIN;
)
HOMER STEMLER AND LORETTA STEMLER,
)
Petitioners,
)
)
v.
)
PCB 85-177
)
and
COUNTY OF
ST. CLAIR AND BROWNING-
)
PCB 85-223
FERRIS INDUSTRIES OF ILLINOIS,
INC.,
)
)
Respondents.
)
BROWNING-FERRIS INDUSTRIES OF
)
ILLINOIS,
INC.,
)
)
Petitioner,
)
v.
)
PCB 85-220
)
(Consolidated)
COUNTY OF ST.
CLAIR,
ILLINOIS
)
Respondent.
)
ORDER OF THE BOARD
(by J. Anderson):
In
its Order of December
20,
1985,
the Board established
a
briefing schedule concerning an issue common to these actions
(consolidated by Board
Order of January
9,
1986): whether the 120
day decision period specified in PA.
82-682 or the 180 day
decision period of P.A.
83-1552 applied to BFI’s June 27,
1985
application for site location suitability approval.
This Order
a) explains why the Board must defer ruling
on this issue,
despite its announced intent
to make such
a ruling today,
b)
requires that the hearing scheduled for February
13,
1986
proceed,
and
c)
directs the County to file with the Board copies
of exhibits admitted into the County hearing record on September
24
which
have
not
been
filed
with
the
Board.
Legal briefs on the decision deadline issue were filed
by
the County on January
9,
1986 and by BFI on January 10 and
21,
1986.
On January 13,
the City,
et
al.,
filed
a document entitled
Response to Board Order of December 20,
1985.
While
the
Board
agrees with BFI’s observation that this filing
is not responsive
to the Boardts request for briefs on the deadline
issue,
the
Board declines to
strike the filing
as
it constitutes
an
amendment
to the petition which
is directly relevant and material
to the Board’s
inquiry.
Two aspects of this filing are
67-537
-2-
particularly noteworthy at this time.
First, at pps. 2-3 of its
filing,
the City appears
to object to the Board’s determination
of the deadline statutory construction issue
in advance of public
hearing.
Secondly,
at p.
6,
the City notes its contention that
the notice given by BFI of its application pursuant
to Section
39.2(a) of the Act was untimely and otherwise improper.
The Board notes that the effects of deficient notice has
recently been considered by the Second District Appellate Court
in Kane County Defenders,
et
al.
v.
Pollution Control Board,
et
al.,
No.
84-940,
December
30,
1985.
The Court there found that
the applicant’s “failure to publish appropriate newspaper
notice...rendered the county board hearing invalid for lack of
jurisdiction” and accordingly vacated the County’s decision (slip
Op.
at
p.
8).
The Board accordingly finds that
it would be
premature for the Board
to reach any decision concerning decision
deadlines applicable to the County before reaching the issue of
whether
the County had a valid application over which it was
required
to exercise jurisdiction by any given date.
Secondarily,
the Board declines to decide the statutory issue
prior
to hearing over
BFI’s objection,
in the interests of
eliminating any additional procedural grounds for appeal of the
Board’s ultimate rulings
in this matter.
The Board observes that,
absent waiver, decision
is due
in
PCB 85-177 on April
1,
and that the regular Board meeting
scheduled immediately prior
to that date
is March 27;
approximately one-half of the Board’s
120 day decision period has
therefore elapsed.
The Board therefore directs that the hearing
in these consolidated
actions noticed and scheduled for February
13
should proceed without continuance,
to allow the Board
sufficient time to deliberate these matters.
Additionally,
the Board notes that the County’s Record
as
filed January
14 and supplemented January 21
is incomplete.
The
transcript of the September 24 hearing indicates that some
22
“defendant/objectors” exhibits were introduced,
as well as an
unspecified number of petitioner’s
exhibits.
None of the former
exhibits have been submitted, and only some of the latter have
been submitted, significant omissions being exhibits reflecting
BFI’s Section 39.2(a) notice.
The County Clerk
is therefore
directed to prepare and file
a)
seven copies of an amended
certificate listing
in one document the materials submitted
January 14
and 21 as well as the numbers and descriptions
of the
hearing exhibits, and
b)
three copies of the hearing exhibits
themselves.
These shall be filed with the Board on or before
February
9.
Finally,
the City’s January
13,
1986 petition to intervene
in PCB 85-220
is referred
to the Hearing Officer for
disposition.
The Board notes that service of the motion upon BFI
by mail was not initiated by the City until January
21, and Board
staff verified on January
22 that
BFI was unaware of and had not
received the motion.
67-538
-3-
The
Clerk of the Board
is directed
to serve copies
of
this
Order on the parties today via first
Class mail,
with the usual
certified mail service
to follow.
IT
IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Order was adopted on
the
~
day of ________________________,
1986,
by
a vote
of
7—o
.
/
/
Dorothy M.
Cunn,
Clerk
Illinois Pollution Control Board
67-539