ILLINOIS POLLUTION CONTROL BOARD
August
9,
1990
RICHARD WORTHEN, CLARENCE BOHM,
)
HARRY
PARKER,
GEORGE ARNOLD,
CITY OF EDWARDSVILLE, CITY OF
TROY, VILLAGE OF MARYVILLE, and
VILLAGE OF GLEN CARBON,
Petitioners,
v.
)
PCB 90—137
(Landfill Siting)
VILLAGE OF ROXANA and
)
LAIDLAW WASTE SYSTEMS
(MADISON),
INC.,
)
Respondents.
ORDER OF THE BOARD (by J.
Marlin):
This action
is
a third—party appeal filed July
23, 1990
pursuant
to Section 40.1(b)
of the Environmental Protection Act
(“Act”)
(Ill.Rev.Stat.
Ch. lll~,par.
1040.1(b)).
Petitioners
appeal the decision of the Village of Roxana
(“Village”) granting
site location suitability approval.
It appears that the petition is not duplicitous or frivolous
and that Petitioners participated
in the hearing below
(See,
Pet.
P.
4).
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 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 Village 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 Village 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
Village Clerk
shall also prepare
a document entitled “Certificate
of Record on Appeal” which
shal.l list the documents comprising
114—93
—
the record.
Seven copies of the certificate,
seven
coflies of
the
transcript
of the Village 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 petitioners.
The
Clerk
of the Village
is given
21 days
from the date of
this Order
to “prepare,
bind and certify
the record on appeal”
(Ill.
Supreme
Court,
Rule 324).
Waiver
of Decision Deadline
Section 40.1(a)
provides that
if there
is no final action by
the Board within 120 days, petitioners 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
a?.
v. Akron
Land Corp.
et
a?.,
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
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 nossible
and
in
no
event
later than
70 days from the date of this Order.
I
1
—~L’~
—3—
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
120 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 making a decision, 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
establish a Scheduling Order pursuant
to the requirements of this
Order, and to adhere
to that Order
until modified.
IT
IS SO ORDERED.
I, Dorothy N. Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that~the above Order
was adooted on
the
?t7
day of
_____________________
,
1990,
by
a vote
of
~
.
~_7~
~
Dorothy
M. c~nn,ClerK
Illinois Pd~1utionControl Board
I 1.4—95