ILLINOIS POLLUTION CONTROL BOARD

November 2, 1995

SPILL, MADISON COUNTY

)

CONSERVATION ALLIANCE, SIERRA )

CLUB, NAMEOKI TOWNSHIP CLERK

)

HELEN HAWKINS, KATHY ANDRIA, )

SHIRLEY CRAIN, GLENDA

)

FULKERSON, JOHN GALL, THELMA

)

ORR, RON SHAW and PEARL

)

STOGSDILL,

)

 

)

Petitioners, )

)

v.

)

PCB 96-91

)

(Third Party-Landfill Siting

CITY OF MADISON and METRO- ) Review)

EAST, LLC,

   

)

)

Respondents.

)

ORDER OF THE BOARD:

This matter is before the Board on an appeal filed pursuant

to paragraph (b) of Section 40.1 of the Environmental Protection

Act [415 ILCS 5/40.1] on October 30, 1995 by SPILL, Madison

County Conservation Alliance, Sierra Club, Nameoki Township Clerk

Helen Hawkins, Kathy Andria, Shirley Crain Glenda Fulkerson, John

Gall, Thelma Orr, Ron Shaw and Pearl Stogsdill (Petitioners).

They appeal the decision

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of the City of Madison (City) granting

local siting approval to Metro-East, L.L.C. for the pollution

control facility, located in the City of Madison, Madison County,

Illinois.

The petition is deficient for failure to provide a copy of

the City's decision. Without a copy of the decision, the Board

cannot determine whether the petition was timely filed within 35

days of the date of the decision. If an amended petition curing

this deficiency is not filed within 14 days of the date of this

order, this matter will be subject to dismissal. The filing of

an amended petition will restart the Board's decision timeclock,

although the Board will look to the petitions' original filing

dates in making any determination as to the timeliness of the

filing of the appeal pursuant to section 40.1.

The cited section of the Act requires the Board to hear the

instant petition if it has been filed by a third party other than

the applicant if that party participated in the public hearing

    

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The Petitioner did not supply the date that the City of

Madison rendered its decision.

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conducted by the county board or municipal governing body which

has granted siting approval, unless it determines that the

petition is duplicitous or frivolous, or that the petitioner is

so located as to not be affected by the proposed facility. An

action before the Board is duplicitous if the matter is identical

or substantially similar to one brought in another forum (Brandle

v. Ropp, PCB 85-68, 64 PCB 263 (1985)). An action before the

Board is frivolous if it fails to state a cause of action upon

which relief can be granted by the Board (Citizens for a Better

Environment v. Reynolds Metals Co., PCB 73-173, 8 PCB 46 (1973)).

The petition indicates that the Petitioners participated in

the previous public hearing. There is no evidence before the

Board to indicate this matter is identical or substantially

similar to any matter brought in another forum, nor is there any

evidence that the Board cannot grant the relief requested. There

is also no evidence before the Board to suggest that the

petitioners are so located as to not be affected by the proposed

facility. At this time, therefore, the Board finds that,

pursuant to 35 Ill. Adm. Code 103.124(a), the complaint is

neither duplicitous nor frivolous, that the petitioners

participated in the prior public hearing and that the petitioners

are or may be so located as to be affected by the proposed

facility. Accordingly, this matter shall proceed to hearing.

Record Before the City of Madison

P.A. 82-682, also known as SB-172, as codified in Section

40.l(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 City of Madison 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

City of Madison 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 Rules 321 through 324 of the Illinois Supreme

Court Rules. The record shall contain legible versions of all

documents, transcripts, and exhibits deemed to pertain to this

proceeding from initial filing through and including final action

by the local government body. The record shall contain the

originals of all documents, shall be arranged as much as possible

in chronological sequence, and shall be sequentially numbered,

placing the letter "C" before the number of such page. In

addition to the actual documents which comprise the record, the

Clerk of the City of Madison shall also prepare a document

entitled "Certificate of Record on Appeal" which shall be an

index of the record that lists the documents comprising the

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record and shows the page number upon which they start and end.

Seven copies of the certificate, seven copies of the transcript

of the City of Madison 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 petitioner(s). The

City 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). If the record is not legible, is not

sequentially numbered, or fails to include an appropriate index

of record, the Clerk of the Pollution Control Board may refuse to

accept the document for filing.

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 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.

Scheduling and Conduct of Hearing

The hearing must be scheduled and completed in a timely

manner, consistent with Board practices and the applicable

statutory decision deadline, or the decision deadline as extended

by a waiver (the siting applicant may file a waiver of the

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statutory decision deadline pursuant to 35 Ill. Adm. Code

101.105). The Board will assign a hearing officer to conduct

hearings consistent with this hearing, and the Clerk of the Board

shall promptly issue appropriate directions to that assigned

hearing officer.

The assigned 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, a statement regarding credibility of witnesses and

all actual exhibits to the Board within five days of the hearing.

Any briefing schedule shall provide for final filings as

expeditiously as possible and, in time-limited cases, no later

than 30 days prior to the decision due date, which is the final

regularly scheduled Board meeting date on or before the statutory

or deferred decision deadline. Absent any future waivers of the

decision deadline, the statutory decision deadline is now

February 27, 1996 (120 days from October 30, 1995); the Board

meeting immediately preceding the due date is scheduled for

December 21, 1995.

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. The hearing officer

and the parties are encouraged to expedite this proceeding as

much as possible.

     

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

day of , 1995, by a vote of .

     

Dorothy M. Gunn, Clerk

Illinois Pollution

Control Board