ILLINOIS POLLUTION CONTROL BOARD

Nay 9, 1991

CLEAN QUALITY RESOURCES, INC.,

Petitioner,

PCB 91—72

)

(Landfill Siting)

)

MARION COUNTY BOARD,      

)

Respondent.

ORDER OF THE BOARD BY (N. Nardulli):

This matter comes before the Board on a May 1, 1991 “Special

and Limited Appearance, Petition of Review and Objection to

Supplemental Proceedings” filed by the Petitioner, Clean Quality

Resources, Inc. (“CQR”)  This filing was incorrectly captioned

with the docket number of a prior case involving the same

parties. As reflected in the caption to this order, the Clerk

has assigned a new docket number to the May 1, 1991 petition for

review.

HISTORY

The previous docket, PCB 90-216, was closed when the Board

remanded a denial of site location suitability approval back to

the Marion County Board (“NCB”) for a complete final

determination. (Clean quality Resources v. Marion County Board,

PCB 90—216, 

—

PCB

—,

February 28, 1991.) CQR appealed the

Board’s remand order to the Illinois Appellate Court, Fifth

District, on March 11, 1991. The Board, through the Attorney

General’s office, moved to dismiss for lack of a final and

appealable order. The appellate court granted the Board’s motion

to dismiss on May 6, 1991.

While the matter was pending before the appellate court, the

Marion County Clerk filed with the Board on April 3, 1991, a

certified copy of a Resolution containing a complete and final

determination adopted by the NCB on Tuesday, March 26, 1991. The

Resolution contained new findings of law under Section 39.2 of

the Illinois Environmental Protection Act (“Act”). The Board

informed CQR on April 11, 1991 that the prior case was closed but

that CQR could appeal the new findings of the Marion County Board

by filing .a new petition for review with the Board pursuant to

the applicable regulations. CQR’s latest filing is a response to

that Board Order.

SPECIAL AND LIMITED APPEARANCE

CQR’s May 1, 1991 filing enters a. special and limited

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appearance to “preserve the issues for eventual Appellate review,

and further to object to the supplemental proceedings of the

Marion County Board and the review of same by” the Board. CQR

contends that both the Board and the MCB are without jurisdiction

or statutory authority to take these actions. CQR also states

that it will not participate in any subsequent proceedings held

in reference to the Resolution. Finally, CQR states that this

filing should be considered as a Petition for Review to preserve

CQR’s rights.

PETITION FOR REVIEW

The Board hereby accepts this petition for review for

hearing pursuant to Section 40.1(a) of the Environmental

Protection Act (“Act”) (Ill. Rev. Stat. ch. 111—1/2, par. •1040..l

(a)). Pursuant to Section 40.1(a), and no matter how CQR

proceeds with this action, the Board must take final action

within 120 days from the filing of the petition and the burden of

proof is on the petitioner. The Board will continue to waive the

filing fee for this petition for review for the reasons stated in

the April 11, 1991 Order in docket PCB 90—216.

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”. In the

original proceedings which were the subject of PCB 90-216, Marion

County verified and certified to the Board two sets of over 1500

pages of transcript, over 1900 pages of documents, and

approximately 600 pages of exhibits. One set was sent to the

appellate court for the appeal of PCB 90-216. The other set

remained in the Board’s offices. On its own motion, the Board

incorporates that latter set into this proceeding.

In addition to the record incorporated by the Board, the

Clerk of the Marion County is given 21 days from the date of this

Order to prepare, bind and certify the record of any proceedings

relating to CQR’s application for site location approval which

occurred after October 11, 1990. The record shall contain

legible versions of all documents, transcripts, and exhibits

deemed to pertain to this proceeding from October 11, 1990

forward. 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 and starting where the

numbering ended in PCB 90-216. In addition to the actual

documents which comprise the record, the Marion Clerk shall also

prepare a document entitled “Addendum to Certificate of Record on

Appeal” which shall be an addendum to the index of the PCB 90-

216 record that lists the documents comprising the record for PCB

91-72 and shows the page number upon which it starts and ends.

Seven copies of the certificate, seven copies of the transcript

of the Marion hearinq and three copies of any other documents in

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the record shall be filed with the Board, and a copy of the

certificate shall be served upon the petitioner(s). 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.

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. The Board will provide for

stenographic transcription of the Board hearing in this matter.

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 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 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

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for making a decision, 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

establish a Scheduling Order pursuant to the requirements 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, hereby certify that the above Order was adopted on the

~t7~

day of 

__________________,

1991, by a vote of 

Dorothy M. ~mnn, Clerk

Illinois Po~’1ution Control Board

122—140