ILLINOIS POLLUTION CONTROL BOARD
July 21, 1994
LAND AND LAI(ES CO., JNC
OPERATIONS, INC., AND NBD
)
TRUST COMPANY OF ILLINOIS
)
AS TRUSTEE UNDER TRUST NO.
)
2624 EG,
)
)
Petitioners,
)
v.
)
PCB 94—195
)
(Land Siting Review)
VILLAGE OF ROMEOVILLE,
)
)
Respondent.
ORDER OF THE BOARD:
This matter is before the Board on an appeal filed pursuant
to paragraph (a) of Section 40.1 of the Environmental Protection
Act (415 ILCS 5/40.1) on July 19, 1994 by Land and Lakes Co., JMC
Operations, Inc. and NBD Trust Company of Illinois (collectively
“Land & Lakes”) from the decision of Village of Romeoville
(“Village”) denying local siting approval for the expansion of
the Willow Ranch Landfill facility, located in Will County.
The cited section of the Act generally requires the Board to
decide the instant petition within 120 days of filing (unless the
petitioner files a waiver of the statutory decision deadline
pursuant to 35 Ill. Adm. Code 101. 105). This matter is accepted
for hearing.
Prior Proceedings
This is the third time this same May 15, 1990 siting
application is before the Board for review. As the petition
correctly summarizes:
Following proceedings before the Village of
Romeoville in 1990, proceedings in case PCB
91-7 before this Board in 1991, proceedings
before the Village of Roineoville on remand
from this Board’s orders in case PCB 91-7 in
1992, and further proceedings before this
Board in case PCB 92-25 during 1992, the
Village and this Board determined that
Petitioners had satisfied all siting criteria
pursuant to Section 39.2 of the Act except
criterion number 1 (the “need” criterion),
415 ILCS 5/39.2(a) (1).
2
Following appeal to the Third Judicial District of the
Illinois Appellate Court in the case entitled Land and
Lakes Co. v. Pollution Control Board, No. 3-92-0496,
the Appellate Court remanded the matter to the Village
of Romeoville for further proceedings as a result of
fundamentally unfair procedures having been imposed
upon Petitioners concerning the need criterion.
Following the Appellate Court’s remand order
this Board entered an order on December 2,
1993, remanding the matter to the Village of
Romeoville for further proceedings, and
indicating that any subsequent appeal of the
Village’s ruling would be pursuant to a new
docket.
Following proceedings before the Village of
Romeoville on remand, the Village Board met
on June 15, 1994. (Pet., par. 2-5)
The instant appeal alternatively challenges 1) whether the
Village actually rendered its decision on June 15, 2) whether
these proceedings are unconstitutional,
‘
3) whether any Village
decision was against the manifest weight of evidence, and 4)
whether the Village’s remand proceedings were fundamentally
unfair.
The Petitioners attempt to incorporate by reference “the
entirety of Board’s (sic) records in PCB 91-7 and PCB 92—25, as
well as the briefs and the decisions of the Appellate Court in
case 3-93-0496” (Pet. par. 11). The Board notes that petitioners
have failed to satisfy the requirements of 35 Ill. Adm. Code
101.106 for “Incorporation of Prior Proceedings”. The Board will
defer ruling on this request until the Village’s time to reply
pursuant to 35 Ill. Adm. Code 101.241 has elapsed.
Petitioners also:
assert the right to a review of all aspects
of the actions by both this Board and the
Village of Romeoville which Petitioners might
oppose. Petitioners expressly reserve the
right to add to their grounds for review and
to address all such grounds upon the filing
by the Village of Romeoville of the Record,
and following a hearing on this matter by
this Board. (pet., par. 10)
Petitioners filed a separate
Notice
of Claim of
Unconstitutionality on July 19, 1994.
3
In issuing this order, the Board expresses no opinion on the
petitioner’s ability to reserve such “rights”. The Board is
issuing this order today solely to avoid delay in the process of
the filing of the record by the Village and the scheduling of a
hearing by the Board.
Record Before the Village of Romeoville
PA. 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 Village 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 Village 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
Village 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 Village
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 Village
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.
4
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.
Scheduling and Conduct of Hearing
The hearing must be scheduled and completed in a timely
manner, consistent with Board practices and the applicable
statutory decision deadline, or the decision deadline as extended
by a waiver (the siting applicant may file a waiver of the
statutory decision deadline pursuant to 35 Ill. Adin. Code
101.105). The Chief Hearing Officer shall assign a hearing
officer to conduct hearings. The Clerk of the Board shall
promptly issue appropriate directions to the assigned hearing
officer consistent with this order.
The assigned 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, a statement regarding credibility of witnesses and
5
all actual exhibits to the Board within five days of the hearing.
Any briefing schedule shall provide for final filings as
expeditiously as possible and, in time-limited cases, no later
than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory
or deferred decision deadline. Absent any future waivers of the
decision deadline, the statutory decision deadline is November
16, 1994 (120 days from July 19, 1994); the Board meeting
immediately preceding the due date is scheduled for (November 3,
1994).
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. The hearing
officer and the parties are encouraged to expedite this
proceeding as much as possible.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif that the above order was adopted on the
~/“~‘
day of
__________________,
1994, by a vote of
_____
/~L~”
Dorothy M. G~in, Cler1~
llinois Pol~’jftion Control Board