ILLINOIS POLLUTION CONTROLBOARI)

January 21,

1993

WASTE

MANAGEMENT

OF ILLINOIS,

INC.,

Petitioner,

)

v.

)

PCB 93—7

(Landfill Siting)

VILLAGE OF

ROCKDALE,

an Illinois

municipal corporation,

)

Respondent.

ORDER

OF

THE BOARD

(by B. Forcade):

This action is an appeal filed January 7, 1993 pursuant to

Section 40.1

(a) of the Environmental Protection Act (“Act”)

(Ill.Rev.Stat. Ch.

111—1/2, par.

1040.1

(a)).

Waste Management

of Illinois, Inc., appeals the decision of the Village of

Rockdale denying site location suitability approval.

•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

specify

~

is to file with

the

Board such record or who

is

to

certify to the completeness or correctness of the

reóord.

As the Village of Rockdale 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 of Rockdale 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 of Rockdale 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 of Rockdale hearing and three copies of any other

0138-0521

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2

docuinenta 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 of Rockdale 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 bad requested the

permit a) the

right

to

a

decision

within

the

applicabl, statutory

time

frame

(now

120

days),

and

b)

the right

to

waive

(extend)

the

decision period (Alliance for a Safe Environment. at p1.

y•

Akron

Land Corp.

et al, PCB 80—184, October 30, 1980).

TheBoard

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 p1.

v. IPCB

et p1.,

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

ji’~accepted for ‘iearing.

Hearing

must be

scheduled within 14 days of the Date of this order md comple~.2d

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

0138-0522

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3

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 end

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.

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

hearing before the due date.

Any order by the hearing officer

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.

0138-0523

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4

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

B~ard,hereby ce~.t~fy

that the above order was adopted on ~he

c/,’~~’*

day of

1993, by a vote of

~‘~‘

~‘

Ii.

Control

0138-0521+