ILLINOIS POLLUTION CONTROL BOARD
March 19, 1987
JOHN ASH, SR.,
)
Petitioner,
V.
)
PCB 87—29
IROQUOIS COUNTY BOARD
)
Respondent.
ORDER OF THE BOARD (by B. Forcade):
This action is an appeal filed March 9, 1987, pursuant to
Section 40.1(b) of the Environmental Protection Act (“Act”)
(Ill.Rev.Stat. ch. 1111/2, par. 1040.1(b). John Ash, Sr. appeals
the decision of the Iroquois County Board (“County”) denying site
location suitability approval.
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 County 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 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 105.102(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 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
Clerk of the County is given 21 days from the date of this Order
to “prepare, bind and certify the record on appeal” (Ill.. Supreme
Court, Rule 324).
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Section 40.1(a) provides that if there is no final action by
the Board within 120 days, petitioner(s)
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. The cognizance of this ruling, the Board will provide for
stenographic transcription of the Board hearing in this matter.
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 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 and
reach a decision before the due date. The hearing officer and
the parties are encouraged to expedite this proceeding as much as
possible.
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Within 10 days of accepting this case, the Hearing Officer
shall enter a Hearing Officer Scheduling Order governing
completion of the record. That Order shall set a date certain
for each aspect of the case including: briefing schedule,
hearing date(s), completion of discovery (if necessary) and pre—
hearing conference (if necessary). The Hearing Officer
Scheduling Order may be modified by entry of a complete new
scheduling order conforming with the time requirements below.
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 complete new scheduling order with 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 decisiorunaking, 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 the fourth paragraph of this Order, and to
adhere to that Order until modified.
IT IS SO ORDERED
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,,~,~rebycertify that the above Order was adopted on
the /7~ day of
_______________________,
1987, by a vote
of ~c
Illino~~s Pol on Control Board
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