ILLINOIS POLLUTION CONTROL BOARD
March 14, 1986
EVERETT ALLEN, INC., an Illinois
Corporation, d/b/a/ Allen Waste
Management,
Petitioner,
v.
)
PCB 86—34
CITY OF MOUNT VERNON,
Respondent.
ORDER OF THE BOARD (by B. Forcade):
This action is an appeal filed March 7, 1986, pursuant to
Section 40.1(b) of the Environmental Protection Act (“Act”)
(Ill.Rev.Stat. ch. 111—1/2, par. 1040.1(b). Petitioner appeals
the decision of the City of Mt. Vernon denying site location
suitability approval.
Record Before the County Board
P.A. 82—682, also known as SB—l72, 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
...
governing
body of the municipality.” The statute does not specify who is
to file with the Board the record before the municipality or who
is to certify to the completeness or correctness of the record.
As the City of Mt. Vernon 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—l72, the Board believes that the
City 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 City 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 City’s 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. The Clerk of the City of Mt. Vernon is given 21 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” 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
petitioner to deem the site location approved. Pursuant to
Section 105.104 of the Procedural Rules, it is each petitioner’s
responsibility to pursue its action, and to insist that a hearing
on its 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.
Transcr~~4onCosts
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 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 above. This schedule will
only provide the Board a very short time period to deliberate anci
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 petitioner 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
petitioner provides an open waiver or a waiver to a date at least
75 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 decisionmaking, 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
set a date pursuant to this Order.
IT IS SO ORDERED
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, he~by certify tha~t~the above Order was adopted on
the
/~?‘C/~
day of
____ __________________,
1986, by a vote
of 7-0
.
__
~
j27
___
Dorothy M. Qlinn, Clerk
Illinois Pollution Control Board