ILLINOIS POLLUTION CONTROL BOARD
October 27,
1994
THE ALTER GROUP,
)
Petitioner,
)
v.
)
PCB 94—302
(3d Party-Landfill Siting
THE
LAXE
COUNTY
BOARD
)
Review)
and
USA
WASTE
SERVICES,
INC.,
)
)
Respondents.
ORDER OF THE BOARD:
This matter is before the Board on an appeal filed pursuant
to paragraph
(b)
of Section 40.1 of the Environmental Protection
Act E415 ILCS 5/40.1
on
October 24,
1994 by The Alter Group
(Alter)
from the decision of
the Lake County Board granting
local siting approval to USA Waste Services,
Inc.,
for the
regional pollution control facility known as Countryside
Landfill, located in Lake 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 that party participated in the public hearing
conducted by the county board or municipal governing body which
has 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 Alter 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 is so
located as to not be affected by the proposed facility.
At this
time, therefore, the Board finds that, pursuant to 35 Ill.
Adm.
Code 103
.
124 (a), the complaint is neither duplicitous nor
frivolous, that the petitioner participated in the prior
public
hearing and that the petitioner is or may be so located as to be
affected by the proposed facility.
Accordingly, this matter
shall proceed to hearing.
2
Record
Before
Lake
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 ~j2Qis to file with the Board such record or who is to
certify to the completeness or correctness of the record.
As the Lake County Board 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
Lake County Board 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 deemecj 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 Lake 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 Lake
County Board 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 Lake 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
3
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
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.
TranscrilDtion 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.
IPCBI
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 Board will assign a hearing officer to conduct
hearings consistent with this hearing, 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
February 21, 1995
(120 days from October 24,
1994); the Board
meeting immediately preceding the due date is scheduled for
February 16,
1995.
If after appropriate consultation with the parties, the
parties fail to provide an acceptable hearing date or if after an
4
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 N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert
that the above order was adopted on the
~22’~
day of
_________________
by a vote of
_____________
f
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Dorothy N. G~jnn, Clerk
Illinois Pollution Control Board