ILLINOIS POLLUTION CONTROL BOARD

October 29, 1992

CITIZENS AGAINST REGIONAL LANDFILL,  

)

Petitioners,

)

PCB 92—156

)

(Landfill Siting)

)

THE COUNTY BOARD OF WHITESIDE COUNTY  

)

and WASTE MANAGEMENT OF ILLINOIS,   

)

INC..,

Respondents.

ORDER OF THE BOARD (by B. Forcade):

This action is a third-party appeal filed October 20, 1992

pursuant to Section 40.1 (b) of the Environmental Protection Act

(“Act”) (Ill.Rev.Stat. Ch. 111—1/2, par. 1040.1 (b)). Citizens

Against Regional Landfill appeals the decision of the Whiteside

County Board granting site location suitability approval.

It appears that the petition is not duplicitous or frivolous

and that Petitioner participated in the hearing below.

(See, Pet. p. 1).

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 

is to file with the Board such record or who is to

certify to the completeness or correctness of the record.

As the Whiteside County Board 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

Whiteside County Board 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 Whiteside County Board Clerk shall also prepare a document

2

entitled “Certificate of Record on Appeal” which shall be an

index of the record that lists the document.s comprising the

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

Seven copies of the certificate, seven copies of the transcript

of the Whiteside County Board 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 Whiteside County Board 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, 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

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.

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

1)! 37-0086

3

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 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

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.

0 37-0087

4

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

Board hereby certi5~ythat the above order wa~adopted on the

~--‘~

day of 

__________________,

1992, by a vote of,,,~• 7

~borothy M.,~nn, Clerk

Illinois Po’lution Control Board

0137-0088