ILLINOIS POLLUTION CONTROL BOARD
    February 20, 1997
    RESIDENTS AGAINST A POLLUTED
    ENVIRONMENT AND THE EDMUND
    B. THORNTON FOUNDATION,
    Petitioners,
    v.
    COUNTY OF LASALLE AND
    LANDCOMP CORPORATION,
    Respondents.
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    PCB 97-139 (Local Siting
    Approval Appeal)
    ORDER OF THE BOARD (by C.A. Manning):
    This matter is before the Board on an appeal filed on February 19, 1997 pursuant to
    Section 40.1(b) of the Environmental Protection Act (Act) (415 ILCS 5/40.1 (1994)) by
    Residents Against a Polluted Environment and The Edmund B. Thornton Foundation
    (petitioners) from the decision of the County of LaSalle (County) granting the petition of
    LandComp Corporation (LandComp) for site location approval of a proposed new regional
    control facility, namely a municipal solid waste landfill located in the County.
    This matter comes before the Board following our remand order in which petitioners
    sought in PCB 96-243 review of an April 25, 1996 decision of the County which granted site
    location suitability approval to LandComp for the construction of the pollution control facility
    which is the subject of this appeal. In that case, the Board vacated the decision of the County
    and remanded the proceeding for additional hearings and a new decision on the finding that the
    proceeding was fundamentally unfair. (Residents Against a Polluted Environment and The
    Edmund B. Thornton Foundation v. County of LaSalle and LandComp Corporation
    (September 19, 1996), PCB 962-243.)
    In the instant petition, petitioners challenge the County’s decision on remand on
    grounds of fundamental unfairness and that the decision is against the manifest weight of the
    evidence concerning various parts of the criteria set forth in Section 39.2 of the Act.
    Section 40.1(b) of the Act requires the Board to hear the instant petition if it has been
    filed by a third party other than the applicant if the party participated in the public hearing
    conducted by the county board or municipal governing body which granted the siting approval,
    unless it determines that the petition is duplicitous or frivolous, or that the petitioner is so
    located as to not be affected by the proposed facility. An action before the Board is
    duplicitous if the matter is identical or substantially similar to one brought in another forum.
    (Brandle v. Ropp (June 13, 1985), PCB 85-68, 64 PCB 263.) An action before the Board is
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    frivolous if it fails to state a cause of action upon which relief can be granted by the Board.
    (Citizens for a Better Environment v. Reynolds Metal. Co. (May 17, 1973), PCB 73-173, 8
    PCB 46.)
    The petition indicates that the petitioners participated in the previous public hearing.
    There is no evidence before the Board to indicate this matter is identical or substantially
    similar to any matter brought in another forum, nor is there any evidence that the Board cannot
    grant the relief requested. There is also no evidence before the Board to suggest that the
    petitioners are so located as to not be affected by the proposed facility. At this time,
    therefore, the Board finds, pursuant to 35 Ill. Adm. Code 103.124(a), that the petition is
    neither duplicitous or frivolous, that the petitioners participated in the prior two public
    hearing, and that the petitioners are or may be so located as to be affected by the proposed
    facility. Accordingly, this matter shall proceed to hearing.
    Record Before County of LaSalle
    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 who is to file with
    the Board such record or who is to certify to the completeness or correctness of the record.
    As the County 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 referring 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 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 County 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 numbers upon which they start and end. Seven (7) copies of the
    certificate, seven (7) copies of the transcript of the County 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 County is given 21 days from the date of
    this order to “prepare, bind and certify the record on appeal” (145 Ill. 2d, 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) of the Act provides that if there is no final action by the Board within
    120 days, “petitioner may deem the site location approved.” Section 40.1(b) of the Act,
    under which this action is brought, states only that “the Board shall hear the petition in
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    accordance with the terms of subsection (a) of this Section and its procedural rules governing
    denial appeals.”
    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. (October 30, 1980), PCB 80-184.) 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 (3rd Dist. 1984). In that case, the court ordered the Board to assume
    transcription costs. (Town of Ottawa, 129 Ill. App. 3d at __, 472 N.E.2d at 155.) The
    Illinois Supreme Court denied leave to appeal on March 14, 1985. In accordance with 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. (Petitioner may file a waiver of the statutory decision deadline pursuant
    to 35 Ill. Adm. Code 101.105.) The Board will assign a hearing officer to conduct hearings
    consistent with this order, and the Clerk of the Board shall promptly issue appropriate
    directions to that assigned hearing officer.
    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 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
    now June 19, 1997; the Board meeting immediately preceding the decision deadline is
    scheduled for June 5, 1997.
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    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 M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1997, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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