ILLINOIS POLLUTION CONTROL BOARD

August

21,

1985

CONCERNED NEIGHBORS FOR A

)

BETTER ENVIRONMENT AND

WILLIAM SCAVARDA,

)

Petitioners,

PCB 85-124

COUNTY

 OF ROCK ISLAND, AND

BROWNING FERRIS INDUSTRIES

)

OF

 IOWA,

 INC.,

Respondents.

ORDER OF THE BOARD

 (by J. Anderson):

This action

 is a third party appeal filed August

20,

 1985,

pursuant to Section 40.1(b)

 of the Environmental Protection Act

(Act)

 (Ill.

 Rev,

 Stat.

ch,

 111—1/2, par.

 1040.1(b),

 Petitioners

appeal

 the July 16,

 1985, decision of the Rock Island County

Board granting site location suitability approval

 to Browning

Ferris Industries of

 Iowa,

 Inc.

for

 a vertical expansion of

an

existing facility located

 in an unincorporated area of

the

county.

Section 40.1(b)

 of the Act requires that the Board hear

a

petition “unless the Board determines that such petition

is

duplicitous

 or frivolous,

or

 that the petitioner

 is so located as

to not be affected by the proposed facility.”

 The Board cannot

at

 this time make

 a determination that the petition fails

 to meet

these criteria,

as

 it is alleged that at each of

 the petitioners

participated

 at hearing and “are situated so as

to

 be affected

by”

 the proposed facility.

 This matter,

 then,

 is authorized

for

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 Rock Island 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

65~355

—2--

by reference

 to Section l05.l02(a)(4)

 of the Board3s Procedural

Rules and to Rules

 321 through 324

 of the Illinois Supreme Court

Rules.

 In addition to

 the actual documents which comprise

the

~:ecord,the County 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 County~shearing 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

petitioners.

 The Clerk of

 the Rock

 Island County Board

 is given

2!. 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 90

 days, petitioner may deem

 the site location

approved.

The Board

 has construed identical

 “in accordance with the

terms of”

 languaqe contained in Section

 40(b)

of

 the Act

concerning

 thii:d-~partyappeals

of

 the grant of hazardous waste

landfill permits

 as giving

 the ~~onden~

 who had

 received the

permit

a)

 the right to

 a decision within

 the applicable statutory

time

 f-ame

 (now 120 days),

and

b)

 the right to waive

 (extend)

the

decision period

 (A:Lliance

for

 a Safe Environment, et

al.

 v. Akron

Land Corp.

 et a1.~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

 ie 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.

Transcr~p~ionCosts

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

 Iii.

 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.

IT

 IS SO ORDERED,

65-356

—j--

1, Dorothy

 M. ~unn, Clerk

of

the

IliLnois

Pollution

Cont.rol

~oerd

hereby

certify

that

~he

above

Order

w~s

adopted

‘-

day

______________________,

l9E~5

vote

__________________.

/~~:

.~,.

Dorothy M.~unn, Clerk

Illinois Pollution

 Cont~::J. 13o~r~

65-357