ILLINOIS POLLUTION CONTROL BOARD
    August 15, 1996
    VILLAGE OF LYNWOOD,
    Petitioner,
    v.
    COOK COUNTY BOARD OF
    COMMISSIONERS AND J.T. EINODER
    COMPANY,
    Respondents.
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    PCB 97-28
    (Landfill Siting Review)
    ORDER OF THE BOARD (by C.A. Manning):
    This matter is before the Illinois Pollution Control Board (Board) on an appeal filed
    pursuant to paragraph (b) of Section 40.1 of the Environmental Protection Act (Act) (415 ILCS
    5/40.1 (1994)) on August 6, 1996 by the Village of Lynwood (Petitioner) from the decision of
    the Cook County Board of Commissioners (County) granting local siting approval to J.T.
    Einoder Company for the pollution control facility located near the Village of Lynwood in
    Cook County.
    The cited section 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 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, PCB 85-68, 64 PCB 263 (1985)). An action before the Board is 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 Metals Co., PCB 73-173, 8 PCB 46 (1973)).
    The petition indicates that the petitioner 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 petitioner
    2
    Record Before The County of Cook Board of Appeals
    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 the 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 the 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 reference to
    Rules 321 through 324 of the Illinois Supreme Court Rules. (107 Ill. 2d R. 321-324). 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 each 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 number upon which they start and end. The original and nine
    copies of the certificate shall be filed with the Board, and a copy of the certificate shall be
    served upon the petitioner(s). The original and nine copies of the transcript of the local
    hearing and the original and three copies of any other documents in the record shall be filed
    with the Board. The Clerk of the County is given 21 days from the date of this order to
    “prepare, bind and certify the record on appeal” (107 Ill. 2d R. 324.) If the record is not
    legible, 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 the 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
    3
    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 the 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 waiver (the siting applicant 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 December 4, 1996 (120 days from August 6, 1996); the Board meeting immediately
    preceding the decision deadline is scheduled for November 21, 1996.
    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 ___________, 1996, by a vote of

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