ILLINOIS POLLUTION CONTROL BOARD
September 17, 1992
C.OA.L. (Citizens Opposed to
)
Additional Landfills),
)
)
Petitioners,
v.
)
PCB 92—131
(Landfill Siting)
)
LAAIDLAW WASTE SYSTEMS, INC.
)
and PERRY
COUNTY
BOARD of
)
COMNISSIONERS,
)
Co—Respondents.
ORDER
OF THE BOARD (by B. Forcade):
This action is a third-party appeal filed September 14, 1992
pursuant to Section 40.1 (b) of the Environmental Protection Act
(“Act”) (Ill.Rev.Stat. Ch. 111—1/2, par. 1040.1 (b)). C.O.A.L.
(Citizens Opposed to Additional Landfills) appeals the decision
of the Perry County Board of Commissioners granting site location
suitability approval.
It appears that the petition is not duplicitous or frivolous
but that there is no mention of participation on the part of the
Petitioner in the hearing below. The Board notes that Section
40.1(b) provides regarding third ~artv appeals:
“If the county board or the governing body of
the municipality as determined by ~aragra~h
(c) of Section 39 of this Act arants
ap~rova1under Section 39.2 of this Act, a
third party other than the applicant who
participated in the public hearing conducted
by the county board or governing body of the
municipality may petition the Board within 35
days for a hearing to contest the approval of
the county board or the governing body of the
municipality. Unless the Board determines
that such petition is du~licitous or
frivolous, or that the petitioner is so
located as to not be affected by the proposed
.facility. the Board shall hear the petition
~n accordance with the
terms
of subsection
(a) of this Section and its procedural rules
governing denial appeals, such hearing to be
based exclusively on the record before the
county board or the governina body of the
municipality.”
0136-0073
2
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
ipecT~ywho is to file with the Board such record or who is to
certify to the completeness or correctness of the record.
As the Perry County Board of Commissioners 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 Perry County Board of Commissioners 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
Perry County Board of Commissioners’ Clerk shall also prepare a
document entitled “Certificate of Record on Appeal” which shall
be an index of the record that lists the documents 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 Perry County Board of Commissioners 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 Perry County Board of
Commissioners 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
0136-00714
3
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 a.., 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.
puant~to~
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
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.
0136-0075
4
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
hear~ing~~f ore he-due- date .---Any or-der- by-tb hearing—of-f icer
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.
J. Theodore Meyer abstained.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board hereby cert y t at the above order was adopted on jthe
J7E7’
day of ____________________, 1992, by a vote of ~
—
~
~.
~Dorothy N. G3a~,Clerk
Illinois P01U)ition Control Board
0136-0076