ILLINOIS POLLUTION CONTROL BOARD
February 7,
1985
GEORGE HAMMONS AND RUTH HAMMONS,
)
)
Petitioners,
)
v.
)
PCB 85—13
)
SANGAMON COUNTY BOARD AND
)
14.
BUERKETT,
INC.,
)
Respondents.
ORDER OF THE BOARD (by J. Anderson):
This action
is
a third party appeal filed pursuant to
Section 40.1(b)
of the Environmental Protection Act
(Act)
(Ill.
Rev.
Stat.
ch. 111 1/~par.1040.1(b)).
The Petitioners, George
and Ruth Hammons appeal the January 4, 1985 decision of the
Sangamon County Board granting site location suitability approval
for a vertical expansion of the Buerkett Landfill, Shale Road,
Springfield.
This appeal was timely filed on November 1, 1984.
As
required by Section 40.1(b)
of the Act, the Board finds that this
matter should proceed to hearing, as the petition a)
is not
duplicitous or frivolous,
b)
indicates that petitioners
participated in the County’s public hearing,
and c)
indicates
that the petitioners’ property
is located adjacent to the
proposed site.
The Board notes that there
is some confusion in this
petition concerning the identities
of the
proper parties to this
action.
Pursuant to Sections 401(a,
b) of the Act, t~ieparty
respondents
in this action are the Sangamon County Board and
14.
Buerkett, Inc., applicant for expansion at the Buei~ett
Landfill,
The Health, Safety, and Zoning Committee of~the County
Board
is not a proper party.
The certificate of service provided by the HamTnons does not
indicate that they have made service of this appeal on the County
or the applicant as required by Section 103.122 and 103.123 of
the Board’s Procedural Rules.Since
it
is unclear whether any
defects
in service would serve to stay the running of the Board
F8
120 day decision deadline
in this matter, the Board will not
delay
in ordering the filing of the record in this matter.
The
Clerk of the Board is therefore directed to serve the County and
14. Buerkett, Inc. with copies of the appeal
in addition to copies
of this Order.
SB 172,
as codified
in Section 40.1(a) of the Act, provides
that the hearing before the Board
is to Nbe based exclusively on
62-523
—2—
the record before the county board.”
The statute does not
specify who ie to file with the Board the record before the
County or who
is to certify to the completeness or correctness of
the record.
As the Sangamon 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
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’s 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
petitioners.
As these requiremens have not previously been
applied to the Sangamon County Board,
its Clerk
is given 21 days
from the date of this Order to “prepare,
bind and certify the
record on appeal”
(Ill.
Supreme Court,
Rule 324).
Section 4(
~(b) provides that the petition shall be heard
“in accordance
•.th the terms of” Section 40.1(a).
Section
40.1(a) provid~
that if there
is no final action by the Board
within 90 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 respondent who had redèived the
permit
a) the right
to a decision within the applicable statutory
timeframe
(now 120 days),
and b)
the right
to waive
~extend) the
decision period
(Alliance for a Safe Environment, etal.
v. Akron
Land Corp.
et al,, PCB 80—184, October 30,
1980).
T1~eBoard
therefore construes Section 40.1(b)
in like manner, ~‘Uththe
result
that failure of this Board to act
in 120 days would allow
respondent to deem the site location approved.
Pursuant to
Section 105.104 of the Procedural Rules,
it
j~seach p~titioners’s
responsibility to pursue
its action, and to i1~sistth4t a hearing
on its petition is timely scheduled in order to allow ~he Board
to review the record and to render its decision within 120 days
of the filing of the petition.
As a general matter Board regulations provide that
Petitioners in contested case matters shall provide for
stenographic transcription of hearings required by statute to be
held by the Boards
This applies to variance petitions
(35 Ill.
Adm. Code 104.202).~permit appeals
(Section 105.104), and various
hearings pursuant to specific rules
(Sections 106106,
106.203,
and 106.306).
Generally,
the Board assumes the obligation to
62-524
—3—
provide stenographic trnscription
in regulatory matters Section
102.164) and enforcement cases (Section 103.221).
Since the
Board’s procedural rules pre—date the site location suitability
appeal process,
there
is no set of specific procedural rules
applicable.
However, by analogy,
the Board has placed the burden
of providing stenographic transcription on petitioners.
The issue of who has the burden of providing transcription
in Board site location suitability appeals was first addressed by
the Illinois Courts
in Town of Ottawa, et al.
v.
IPCB, et
al,
_______
Ill. App. 3rd
______
(Third District,
No.
3—84—0158,
slip opinion at
8) (h~reinafte~“Ottawa~
There the Court
stated
(Slip Opinion at 8—9):
Finally, we agree with the municipalities that
the Pollution Control Board should bear the expense
of the report of the proceedings before its hearing
officer,
The relevant portion of the Environmental
Protection Act mandates stenographic recording of
proceedings before the Board.
Since no specific
statutory language places the burden of providing
transcription on the seeker of review, the Board
is
without authority to refuse to pay for the
transcript
of the record proceedings.
(Zur~kv.
Cook
~yPolice
& Corrections Merit Bd.
(1st Dist.
1976)
42
Ill. App.
3d 1044,
356 N.E.
2d 1079.
~cordingly,we affirm the decision of the
PolluLion Control Board, but order the Board to
reimburse the municipalities for the fee of the
reporter.
That Opinion was issued on November 30,
1984; however,
as of
today the mandate in Ottawa has not
issued from the Third
District.
As the Board was only a nominal party
in the Ottawa
appeal, the Board by the Illinois Attorney General filed with the
Third District on December 21, 1984,
a Motion for Leave to
Intervene,
Motion to file
a Petition for Rehearing In~tanter,and
a Petition for Rehearing.
On January
7,
1985 the Third District
granted the motions but on January
8,
1985 denied the Petition
for Rehearing.
On January 10,
1985, the Board filed an Affidavit
of Intent to Seek Review in the Illinois Supreme Court and Motion
for Stay of Order.
The Board has requested the Attorney General
to seek review in the Supreme Court and to request expedited
consideration.
Because of the unique circumstances surrounding the burden
of providing transcription issue and the fact that additional
judicial guidance
is expected shortly, the Board will construe
this appeal as containing a petition for the Board
to provide
transcription, similar to that provided by Section 104.1202(b):
b)
Upon petition and good cause shown, the Board
may assume the cost
off stenographic transcript
62-525
—4—
of the hearing provided, however,
that such
petition shall have been filed with and
granted by the Board prior to the hearing.
The Board construes the possible invalidity,
under Ottawa, of
requiring Petitioners to provide stenographic transcription as
good cause shown, as well as the need, because of the statutory
deadline for decision, not to further prolong this issue,
and
will grant the petition.
The Board will provide for stenographic transcription of the
proceedings
in this matt~~
IT IS SO ORDERED.
Board Member J.
T.
Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
7~
day of
___________________,
1985 by a vote
Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
02-526