ILLINOIS POLLUTION CONTROL BOARD
    December 20,
    1985
    CITY OF COLUMBIA, WALTER BYERLY,
    JR.,
    )
    BARBARA HEINLEIN, DANIEL FIEINLEIN;
    )
    UOMER STEMLER AND LORETTA STEMLER,
    )
    Petitioners,
    )
    v.
    )
    PCB 85-177
    )
    COUNTY OF ST. CLAIR AND BROWNING-
    )
    FERRIS INDUSTRIES OF ILLINOIS,
    INC.,
    )
    )
    Respondents.
    ORDER OF THE BOARD
    (by J. Anderson):
    On December
    2, 1985 petitioners pursuant
    to Section 40,1 of
    the
    Act
    (also known as P.A.
    82-682 and SB
    172)
    filed an appeal
    to
    “preserve” an issue which they asserted might be
    at issue:
    whether
    the Cpunty’s decision must be made within 120 days or 180
    days of Browning-Ferris
    Industries’
    (BFI’s) filing of its
    application for site location suitability approval for
    a new
    regional pollution control facility to avoid the application’s
    being “deemed approved” pursuant to Section 39.2(e).
    The
    petition was accompanied by
    a motion to require BFI to file an
    answer containing any assertion that a 120 day or a 180 decision
    deadline applied to this action.
    On December
    5,
    1985 the Board
    issued an Order requesting additional information from the
    parties
    to allow the Board to determine whether
    a timely filed
    case or controversy exists of which
    the Board might take
    jurisdiction.
    Each party has filed a response.
    The factual situation is as follows.
    BFI filed its request
    for site location suitability approval with St.
    Clair County on
    June 27, 1985.
    The statute
    in effect on that date,
    P.A.
    82-682,
    contained
    a 120 day deadline for County decision on the
    application which would have been October 25.
    However,
    P.
    A.
    83-
    1552, which became effective four days later on July 1, 1985,
    amended
    P.
    A.
    82-682 to provide,
    inter alia,
    that the County
    decision was due 180 days after the application’s
    filing, which
    would have been December 24.
    The County made
    a decision to deny
    the application on November
    25.
    BFI asserts,
    in it December 20 filing, that
    it intends to
    file
    an appeal (due December 30) of the County’s decision which
    will include
    as one ground
    the assertion that, pursuant
    to
    Section
    39.2,
    it may deem its application approved as of October
    26 for failure
    of the County to render a decision
    in 120 days.
    The Board
    finds that
    the City of Columbia’s, December
    2,
    1985 petition was timely filed pursuant to Section 40.1(b)
    and
    87-109

    -2-
    that
    a controversy exists over which the Board must take
    jurisdiction.
    The Board notes
    that this situation is
    procedurally awkward, as the Board’s
    120 day decision timeclock,
    which
    runs in favor
    of the applicant, has commenced well before
    the filing of any appeal
    by the applicant.
    The Board further
    notes,
    in the interests of administrative economy,
    its intention
    to consolidate any appeal by BFI with the City’s appeal.
    In the absence of
    a waiver by the applicant,
    the Board
    faces
    a tight
    time schedule.
    While the Board acknowledges the
    disruption of normal business activities occasioned by
    the
    holiday season,
    adherence to the following filing and briefing
    schedule is essential to allow the Board
    to make
    a timely
    decision
    in this matter.
    As
    explained in greater detail below,
    the
    County
    is directed to file its record in this matter on or
    before January 10, 1986.
    All parties are directed
    to file
    simultaneous briefs on or before January 10,
    1986 asserting legal
    arguments as
    to the decision deadline applicable
    to the County.
    Any responses thereto shall be filed on or before January 21,
    to
    allow for possible resolution of this component of the action by
    the Board at its January 23 meeting.
    Hearing may be scheduled,
    but shall not be held, until
    after the question of the applicable
    decision date
    is determined.
    The Board wishes
    to advise the City of its intention,
    in the
    event that the Board determines that
    a
    120 day deadline
    is
    applicable
    as
    a matter of statutory construction, to order the
    filing of an amendment to the City’s petition on or about January
    31
    specifying
    1) any factual or legal
    basis for estoppel of
    BF.I
    from benefitting from a
    120 day determination,
    2)
    in what regard
    the County’s procedures were fundamentslly unfair, and
    3) why
    “approval”
    is contrary to the manifest weight of the evidence
    (see Petition, ¶5).
    This amendment will be required
    to give
    Focus
    to the hearing.
    Record before
    the County Board
    P.
    A.
    82-682, also known as SB 172,
    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.”
    The statute does not specify who
    is to file with the
    Board
    the record before the County or who
    is to certify to the
    completeness or correctness of the record.
    As the
    St.
    Clair County Board 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
    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 105,102(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
    87-110

    “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’s 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
    other
    parties.
    The
    Clerk of the St.
    Clair County Board 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 respondent who had received the
    permit a)
    the right to
    a decision within the applicable statutory
    time frame, 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 respondent
    to deem the site location approved.
    Pursuant to Section 105.104
    of the Procedural Rules,
    it is each petitioners’ responsibility
    to pursue
    its action,
    and to insist that a hearing on its
    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.
    Finally,
    the
    Clerk’s
    Office
    is
    directed
    to
    serve
    the
    parties
    with
    copies
    of
    this
    Order
    today
    by
    first
    class
    mail,
    in
    addition
    to the usual certified mail.
    IT IS SO ORDERED.
    67-ill

    —4*
    I,
    Dorothy
    M.
    Gunn,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board,
    hereby
    certify
    that
    the
    above
    Order
    was
    adopted on
    the
    -~7L~ day
    of
    _______________________,
    1985,
    by
    a
    vote
    of
    ~
    -
    C
    .
    Dorothy
    M. d~inn, Clerk
    Illinois
    Pollution
    Control
    Board
    67-112

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