ILLINOIS POLLUTION CONTROL BOARD
March 22, 1985
GEORGE HAMMONS AND RUTH HAMMONS,
)
Petitioners,
v.
)
PCB 85—13
SANGAMON COUNTY BOARD AND
)
M. BUERKETT, INC.,
Respondents.
ORDER OF THE BOARD (by 3. Anderson):
On February 7, 1985, the Board entered an Order directing
the Sangamon County Clerk to prepare a “Certificate of Record on
Appeal”, and to file within 21 days seven copies of that
certificate, seven copies of the transcript of the County’s SB
172 (P.A. 82—682) hearing, and three copies of any other document
contained in the County record. The Board also noted that the
Board would pay for stenographic transcription of the Board
hearing to be held in this matter.
On March 5, 1985, the State’s Attorney for Sangamon County
sent a letter to the Board in response to this Order, stating a)
that based on the Order, the County expected the Board to pay for
the transcript of the County’s hearing and b) that the County
would file only one copy of the Certificate of Record, one copy
of the transcript, and one copy of the record, with the apparent
exception of some of the exhibits which will not be copied
“except upon request and payment by either party”.
As an initial matter, due to the County’s good faith attempt
to comply with procedures which are obviously new and confusing
to it, the Board on its own motion excuses lack of timely
compliance with its initial order. This Order is being entered
to clarify the reasons for the requirements of the Board’s
initial order.
First, the Board believes that it is the responsibility of
the County, and not the Board or any party to this action, to pay
the costs of transcription of the hearing at the County level.
The Board initially made this holding in Browning—Ferris
Industries, Inc. v. Lake County Board of Supervisors, PCB 82—101,
January 27, 1983. In that case the Board struck a proviso of
Lake County’s approval resolution which would have required BFI
to reimburse the County for all notice publication, court
reporter and transcription costs of the county board’s
hearings. The Board found that it could not “construe the
silence of Section 39.2 and Section 40.1 requiring the county to
provide a transcribed record as authorizing the county to assess
63-245
—2—
even actual cost fees” to an applicant. (Although the County
appealed other aspects of the Board’s order, it acquiesed in this
determination.)
The validity of this approach is underscored by the analysis
used by the Third District Appellate Court in the Town of Ottawa,
et al. v. IPCB, et al,
______
Ill. App. 3rd
______
(Third
District, No. 3—84—0158, slip opinion at 8) (hereinafter
“Ottawa”). There the Court stated (Slip Opinion at 8—9):
“Finally, we agree with the municipalities that the
;)liUtiOfl
Cc~ntro1 Board should bear the expense of
~e report of the proceedings before its hearing
~fficer. The relevant portion of the Environmental
Protection Act Section 32 mandates stenographic
recording of proceedings before the Board. Since
no specific statutory language places the burden of
providing transcription on the seeker of review,
the Board is without authority to refuse to pay for
the transcript of the record proceedings. (Zurek
v. Cook Cty Police & Corrections Merit Bd. (1st
Dist. 1976), 42 Ill. App. 3d 1044, 356 N.E. 2d
1079.”
By analogy, then, Sections 39.2 and 40.1 do not convey authority
on the County to refuse to pay for the transcript of its hearing.
As to costs for reproduction of the balance of the items in
the County’s record, including oversize exhibits, Section 39.2
similarly requires the County to consider and maintain various
documents, including the application, public comments, and
presumably any exhibits produced at the public hearing which are
part of the County’s Section 39(d) “record sufficient to form the
basis of appeal”. The Board believes that costs for reproduction
of these materials also lie with the County.
The Board notes that, in its February 7 Order, it has
requested more than a single copy of the record, as has been its
practice since the very first appeal of this type. The multiple
copy request is based on the experience of the Board, in the 14
odd cases of this type which have come to decision, that the
record of proceedings at the Board level is rarely complete until
a very short time before the expiration of the Board’s decision
deadline. The Board has seven members, two of whom historically
are not baed in Chicago. The multiple copies are requested so
that all members have an opportunity to review them, In
particular, the County hearing transcripts are often lengthy and
hence difficult for Board Members to share (and in the usual
course of affairs multiple copies have already been prepared for
a County. This is because its own Board Members can lawfully
vote on applications only if they have been present at the
hearings or if transcriptions thereof have been available to them
for consideration prior to the vote.)
63-246
—3—
In summary, the Board will order the County, within 21 days
and at its own expense, to make the multiple filings required in
the Board’s Order of February 7, 1985. As to oversize exhibits,
the Board will entertain a motion for relief from the three
copies order, provided that at least one copy is submitted to the
Board, the motion is filed within 10 days of the date of this
Order, and the motion details the reasons (e.g. expense,
difficulties of copying) underlying the request. In the event of
non—compliance with this order, the Board will itself make
additional copies for which it will bill the County.
Finally, the Board does not wish entry of this explanatory
Order to be construed as authorizing delay in the scheduling of
hearing in this matter, as 53 of the 120 days allowed for
decision in this matter have elapsed. (The Board notes that its
initial Order erroneously listed November 1, 1984 as the filing
date of this action, rather than the actual date of January 28,
1985 due to mechanical error,)
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
________________,
1985 by a vote
of
(~‘—o
Th.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
63-247