ILLINOIS POLLUTION CONTROL BOARD
January 22, 1998
ENVIRONMENTALLY CONCERNED
CITIZENS ORGANIZATION (E.C.C.O.)
and BETH FINNEY,
Petitioners,
v.
LANDFILL L.L.C. d/b/a and/or a/k/a WEST
END DISPOSAL FACILITY and the
SALINE COUNTY BOARD of
COMMISSIONERS,
Respondents.
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PCB 98-98
(Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on an appeal filed pursuant to Section 40.1(b) of the
Environmental Protection Act (Act) (415 ILCS 5/40.1(b) (1996)) on January 16, 1998, by
petitioners, Environmentally Concerned Citizens Organization (E.C.C.O.) and Beth Finney, from
the December 18, 1997, decision of the Saline County Board of Commissioners (county) granting
local siting approval to Landfill L.L.C. d/b/a and/or a/k/a West End Disposal Facility for the
pollution control facility located in Saline 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.
See Brandle v. Ropp (June 13, 1985), PCB 85-68. 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. See Citizens
for a Better Environment v. Reynolds Metal Co. (May 17, 1973), PCB 73-173.
The petition indicates that each of the petitioners participated in the county’s 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 petitioners are so located as to not be affected by the proposed facility. Therefore, the
Boards finds, pursuant to Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (1996)), that the
complaint is neither duplicitous nor frivolous, that each of the petitioners participated in the
prior public hearing and that each of the petitioners is or may be so located as to be affected by
the proposed facility. Accordingly, this matter shall proceed to hearing.
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RECORD BEFORE THE SALINE COUNTY BOARD
P.A. 82-682, also known as SB-172, as codified in Section 40.1(a) of the Act
(415
ILCS 5/40.1(a) (1996))
, 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
Saline 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
Saline 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 referring 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
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 Clerk of the
Saline County
Board 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
numbers upon which they start and end. Seven copies of the certificate, seven copies of the
transcript of the
Saline 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
petitioners. The Clerk of the
Saline County
Board 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, 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) of the Act
(415 ILCS 5/40.1(a) (1996))
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
(415 ILCS 5/40(b) (1996))
concerning third-party appeals
of the grant of hazardous waste landfill permits as giving the person who had requested the
permit: (1) the right to a decision within the applicable statutory timeframe (now 120 days),
and (2) the right to waive (extend) the decision period (Alliance for a Safe Environment, et al.
v. Akron Land Corp. et al. (October 30, 1980), PCB 80-184). The Board therefore construes
Section 40.1(b) of the Act
(415 ILCS 5/
40.1(b)
(1996))
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 (35 Ill. Adm. Code
105.104), 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.
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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.
3d 121, 472 N.E.2d 150 (3rd Dist. 1984). In that case, the court ordered the Board to assume
transcription costs. See Ottawa, 129 Ill. App. 3d at 127, 472 N.E.2d at 155. The Illinois
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 site location 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 30 days in advance of hearing so that a 21-day 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 May 16, 1998 (120 days from January 16, 1998); the Board meeting immediately
preceding the decision deadline is scheduled for May 7, 1998
.
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.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 22nd day of January 1998, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
