ILLINOIS POLLUTION CONTROL BOARD
February 23,
1989
WASTE MANAGEMENT OF ILLINOIS, INC.,
Petitioner,
v.
)
PCB 89—28
VILLAGE
OF BENSENVILLE,
Respondent.
ORDER
OF THE BOARD
(by B.
Forcade):
This action
is an appeal filed February
8,
1989 pursuant
to
Section 4O.~1of the Environmental Protection Act
(“Act”)
(Ill.
Rev.
Stat.
Ch.
111—1/2, par.
1040.1.
Waste Management
of
Illinois,
Inc.
(“Waste Management”)
appeals
the decision of the
Village of Bensenville (“unit of local government”) denying site
location suitability approval
for its waste transfer station
located
at
the northeast corner of County Line Road and Green
Street
in the Village of Bensenville.
Waste Management did
not submit the appropriate filing fee
when the petition was filed.
Recent amendments
to the
Environmental Protection Act prescribe such filing
fees.
P.A.
85—1331 (effective January
1,
1989).
Pursuant to Resolution 88—3
(a copy of which is attached),
the Board finds that the petition
is deficient for failure to submit
a filing fee of
75 dollars.
The Board finds that
the 120—day statutory decision period
does not begin running
until
the appropriate
filing fee
is
received by the Board.
This matter will
be accepted for hearing.
However, unless
Waste Management
files
the correct filing fee within 21 days of
the date of this Order, the petition will
be
subject
to
dismissal.
Record Before the Unit of
Local Government
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
exclusiv,ely 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 unit of local government alone can verify and certify
what exactly
is
the entire record before
it,
in the
interest of
96—271
—2—
protecting
the rights of all parties to this action, and
in order
to
satisfy
the
intention
of
SB—172,
the
Board
believes
that
the
unit of local government 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 105.l02(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
Clerk
of
the
unit
of
local
government
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
unit
of
local
government
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
Waste
Management.
The
unit
of
local
government
clerk
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.
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
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
96— 27 2
—3—
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
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
96—27 3
—4—
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify t~atthe above Order was adopted on
the
~
day of _______________________, 1989, by a vote
of
7—
~‘
.
Dorothy
M. ~4~nn, Clerk
Illinois P&llution Control Board
96—274