ILLINOIS

POLLUTION CONTROL BOARD

May

10,

1990

HORACE

FILE,

ERWIN HEDIGER

ARLIN WOKER,

ANDY TIFT,

LAYTON

PEDDICORD,

BURNELL NEUMANN,

LAVERLE

EAKLE,

LYNN SCHMOLLINGER,

HOWARD PRINGLE,

REID BINGHAN,

DUANE FLOWERS,

CRAIG WOKER,

MRS.

O.J.

DAIL, JEANETTE TIFT,

JAMES ULMER,

ARLENE DAIL,

GLEN MILES,

JUANITA HEDIGER,

LEILA

MILES,

EDDIE ULMER,

BILL GOODALL,

CAROLYN

SPRADLING,

DONNA HAMPTON,

HOLLIE

WILLMAN,

CHARLES

H.

FUNK,

LEROY WIESE,

MIKE EATON,

PAM

FUNK,

JIM STOECKLIN,

MARY

BLOEMKER,

r,.~ILLIA~NEER,

DONALD 5PRADL:NG,

BOB BOWEN,

DON MARTIN,

JEANETTE

FILE AND

BOND COUNTY CONCERNED

CITIZENS,

Petitioners,

v.

)

PCB 90—94

(Landfill Siting)

D

&

L LANDFILL,

INC.,

BOND

COUNTY BOARD OF SUPERVISORS,

COUNTY OF

BOND,

STATE OF ILLINOIS,

Respondents.

ORDER OF THE BOARD

(by

B.

Forcade):

This action

is

a third—party appeal filed

May

7,

1990

pursuant

to Section

40.1 of

the Environmental Protection Act

(“Act”)

(I1l.Rev.Stat.

Ch.

111—1/2, par.

1040.1).

Petitioners

appeal the decision of

the Bond County Board

(County) approving

site location suitability approval.

Record Before the County Board

?.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 County alone can verify and certify what

exactly

is

the entire record before

it,

in

the interest of protecting

the

ill—I 35

---

rights of all parties

to this action, and

in order

to satisfy the

intention of S2—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.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

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 hearing

ar.d

three copies of any other

documents

in the record shall

be filed with

the Board, and a coov

of the certificate shall

be served upon

the petitioner(s).

The

Clerk

of

the County

is given

21 days from the date

of

this Order

to “prepare,

bind and certify

the record on appeal”

(Ill. Su~reme

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 105.103

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, eral.,

129

Ill.

Ano.

3rd,

472

N.E.2o

150

(Third District,

1984).

in

that case,

tne Court

oroered

the Boara

to assume transcription costs

(472 N.E.2a 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

13 days of

the date of

this Order

and completed

within

60 days of the date of

this Order.

The hearing officer

11 1-i3~

---

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 anove.

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 hearinc

shall

include

a new hearino date

at least

30 cavs

in the future anc 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 crant

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

sucri

a motion.

However,

no

such motion shall negate

the oblication of

the hearing officer

to

set

a date pursuant

to

the

requirements

of

this Order,

and to

adhere to

that Order until modified.

IT

IS

SO ORDERED

11

1—i 37

---

I,

Dorothy M. Gunn,

Clerk of

the Illinois Pollution Control

Board,

hereby certify

that the above Order was adopted on

the

~

day of

_______________________

,

1990,

by

a vote

of

7-0

.

~

~,

/L~

Dorothy M/ Gunn,

Clerk

Illinois ~-Pol1ut

ion Control Board