ILLINOIS POLLUTION CONTROL BOARD
August
10,
1989
METROPOLITAN WASTE SYSTEMS,
INC.,
)
SPICER,
INC., and
SPICER PROPERTIES,
INC.,
Petitioners,
V.
)
PCB 89—121
CITY OF MARSEILLES,
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
This action
is an appeal filed July
27,
1989 pursuant to
Section 40.1 of the Environmental Protection Act
(“Act”)
(Ill.
Rev.
Stat.
ch. 111—1/2,
par. 1040.1).
Metropolitan Waste
Systems,
Inc., Spicer,
Inc., and Spicer Properties,
Inc.
(“Metropolitan”) appeal the July 26,
1989 decision of the City of
Marseilles
(“City”) denying 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 City 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 City 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
City 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 city 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 City
is given
21 days from the date of this Order
to
“prepare,
bind and certify the record on appeal”
(Ill.
Supreme
Court,
Rule 324).
102—55
—2--
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 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 ~zouldallow
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.
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 ~fficer 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.
t02—56
—3—
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 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 f~omthe
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~thatthe above Order was adopted on
the
~
day of ______________________,
1989,
by a vote
of
7-c
.
7)
/2
~Dorothy
M.79’unn, C1~érk
Illinois Pdllution Control Board
102—57