ILLINOIS POLLUTION CONTROL BOARD
May 5, 1994
CONTINENTAL WASTE INDUSTRIES
)
of ILLINOIS,
Inc.,
Petitioner,
v.
)
PCB 94—138
)
(Land
Siting
Review)
CITY OF MT. VERNON,
ILLINOIS,
)
Respondent.
ORDER
OF
THE
BOARD
(by
E.
Dunham):
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
26,
1994 by Continental Waste
Industries of Illinois,
Inc. from the decision of the City of Mt.
Vernon, Illinois denying local siting approval to “regionalize”
the existing transfer station to accept waste from outside of Mt.
Vernon, thereby creating a “new regional pollution control
facility”,
located in Jefferson 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.
The petition was deficient for failure to provide a copy of
the City of Mt. Vernon’s written decision.
An amended petition
curing this deficiency was filed on May 3,
1994.
The filing of
this amended petition has restarted 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 City of Mt. Vernon, Illinois
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
~JjQ
is to file with the Board such record or who
is to
certify to the completeness or correctness of the record.
As the City of Mt. Vernon 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
2
City of Mt. Vernon 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
32.
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 City of Mt. Vernon 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 City of Mt. Vernon 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.
The
Clerk of the City of Mt. Vernon 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 a?., 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.
3
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.
Absent any future waivers of the
decision deadline, the statutory decision deadline is now
August 31,
1994
(120 days from May 3,
1994);
the Board meeting
immediately preceding the due date is scheduled for 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.
This order will not appear in the Board’s opinion volumes.
IT
IS SO ORDERED.
4
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, Ji~rebycertify that the above order was adopted on the
___________
day of
____________________,
1994, by a vote
of
~~—ô
Dorothy M. gtinn,
Clerk
Illinois P
lution Control Board