ILLINOIS POLLUTION CONTROL BOARD
April 21,
1994
DAUBS LANDFILL,
Inc., d/b/a
)
WAYNE COUNTY REGIONAL
)
LANDFILL,
a subsidiary of
)
MID-AMERICAN WASTE SYSTEMS,
)
Inc.,
)
Petitioner,
)
v.
)
PCB 94—131
COUNTY BOARD OF WAYNE
)
(Landfill Siting Review)
COUNTY,
ILLINOIS
)
)
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 April 20,
1994 by Daubs Landfill,
Inc.,
d/b/a Wayne County Regional Landfill, a subsidiary of Mid-
American Waste Systems,
Inc.,
from the decision of the County
Board of Wayne County denying local siting approval for the new
regional pollution control facility, located in Wayne 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.
Daubs Landfill asserts that the County made its decision on
March 15,
1994,
but has not provided a copy of the County
Resolution.
Until the Resolution is filed, the Board cannot
determine whether the petition was timely filed within the 35 day
period established by Section 40.1.
The petition is deficient for failure to provide a copy of
the County Board’s decision.
If an amended petition curing this
deficiency is not filed within 14 days of the date of this order,
this matter will be subject to dismissal.
The filing of an
amended petition will restart the Board’s decision timeclock,
although the Board will look to the petitions’ original filing
dates
in making any determination as to the timeliness of the
filing of the appeal pursuant to Section 40.1.
Record Before the County Board
P.A.
82—682, also known as SB-172,
as codified in Section
2
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 of Wayne 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 of Wayne 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
Wayne 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 number upon which they start and end.
Seven copies of
the certificate, seven copies of the transcript of the Wayne
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 of Wayne 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
3
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. Adm. 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
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
.
In this case, the statutory
decision deadline is August 18,
1994; therefore the decision due
date is August 11,
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.
4
This order will not appear in the Board’s opinion volumes.
IT IS SO ORDERED.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, h~ebr certify that the above order was adopted on thec/~
day of
~A~J
,
1994, by a vote of
_________
~
~U.
Dorothy N. ~unn,
Clerk
Illinois P~LlutionControl Board