ILLINOIS POLLUTION CONTROL BOARD

December

6,

1984

BOARD

OF TRUSTEES OF CASNER TOWNSHIP,

)

JEFFERSON COUNTY, ILLINOIS; CITIZENS

)

AGAINST WOODLAWN AREA LANDFILLS;

)

CYNTHIA

CARPENTER;

ERNEST

CARPENTER;

)

dATTIE

HALL;

BYRON

KIRKLAND;

PATRICIA

)

KIRKLAND;

PEG O’DANIELL;

RONALD

O’ODANIELL;

DENNIS SHROYER; and

PATRICIA

SHROYER,

)

)

Petitioners,

)

PCB 84—175

COUNTY OF JEFFERSON and SOUTHERN

ILLINOIS

LANDFILL,

INC.,

Respondents.

JOUN

PRIOR,

Petitioner,

PCB

84—176

(Consolidated)

COUNTY

OF

JEFFERSON

and

SOUTHERN

ILLINOIS

LANDFILL,

INC.,

Respondents.

ORDER

OF

THE

BOARD

(by

J.

0.

Dumelle):

The

action

captioned

PCB

84—175

is

a

third

party

appeal

filed

p~rsuant

to

Section

40.1(b)

of the Environmental Protection

Act (Act)

(Ill.

Rev.

Stat.

ch.

111½, par.

1040.1(b)).

The

petition states that Southern Illinois Landfill,

Inc. proposes

to develop a new regional pollution control

facility for disposal

of i~unicipal and non-hazardous special waste.

The location of

the

proposed

site

is

said

to

be

within

the

confines

of

Casner

Township.

The

action

captioned

PCB

84-176

involves

the

same

site

and

same

subject

matter.

Therefore,

on

its

own

motion,

the Board hereby consolidates these actions.

81-357

---

—2—

The

petition

alleges

that

on

or

about the 11th day of July,

~espondent Southern Illinois Landfill,

Inc.

filed

an

application

~or approval of

a new regional

pollution control

facility with

respondent County of Jefferson,

pirsuant to Section 39.2 of the

Environmental

Protection

Act

(Act)

(Ill.

Rev.

Stat.

1983, ch.

111½,

pare

1039.2).

The petition further alleges

that

no

action

was

taken

on

the application within

120

days

of

its

filing.

Section

39.2(e)

provides

that the applicant may deem its request

approved if

there

is

rio final

action by the county board within

120

days

after

the

filing

of

the

request

for

site

approval.

Although captioned

as

an appeal

from

a decision granting site

auproval,

this is actually an appeal

from the statutory

consequence

of the County’s inaction,

i.e.

the fact that “the

applicant may deem the request approved.’1

Section 39,2(e) provides that the applicant may deem the

request approved immediately following the local

siting body’s

120 day decision period,

in this case November

8,

1984.

The

Board construes the

35 day time

for appeal

as running from this

same

date.

Therefore,

the

Board

finds

that

this

petition

was

timely

filed

art November 29,

1984.

Section 40.1(b)

of

the Act requires that the Board hear

a

petition “unless the Board determines that

such

petiiton

is

duplicitous or frivolous,

or that the petitioner

is so located as

to not be affected by the proposed facility.”

The Board

cannot

at

this

time

make

a

determination

that

the

petition

fails

to

meet

these

criteria,

Therefore,

the

Board

finds

that

hearing

should

be

scheduled as quickly as possible; however, no hearing

shall

be

held prior to January 10,

1985.

This

petition

presents

the

question

whether

the

Board

has

jurisdiction

to

hear

an

appeal

from

a

deemed

approved

request.

As

this

is

the

first

instance

in

which

this

question

has

been

presented,

the

Board

requests

that

the

parties

to

this

proceeding

address the following legal

questions in briefs:

1)

Does Section 40.1(b) convey jurisdiction

on the

Board

to

review

an

approval

granted

by

operation

of

1 aw?

2)

What

is

the

proper

scope

of

the

hearing

to

be

held

by

the

Board

in

this

situation

(e.g.

is

the

hearing

to

be

restricted

to oral

argument,

or may evidence not before

the

County

be

introduced)?

and

3)

What is the standard of review to be utilized by the

Board?

Initial

briefs

shall

be filed

on or before December

21,

1984

and responsive briefs shall

be

filed

no later than January

4,

1985,

to enable

the Board to rule on this question prior

to

hearing.

61-358

---

—3—

‘~t~e

Board anticipates ruling on this jurisdictional question on

January 10,

1984.

In order

for

the Board to proceed

on the jurisdictional

~iestion, and

to

proceed toward hearing, a copy of the record

before the County must be filed.

SB

172

(P.A.

82—0682),

as

‘~odified

in

Section 40.1(a)

of the Act,

provides that the hear—

in~J

before the Board is to “be based exclusively on the record

before the county board.”

The statute does not

specify who is

Lo file with the Board the record before the County or who is

to

certify to the completeness or 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

(P.A.

82-0682),

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 Section 105.102(a)(4) of

the

Board’s

Procedural

Rules and

to

Rules

321

through

324

of

the

Illinois

Supreme Court

Rules.

In

addition to the actual

documents which comprise the

record,

the

Clerk

of

the

County

shall

also

prepare

a

document

entitled “Certificate of Record on Appeal” which shall

list the

documents comprising the record.

Seven copies of the certificate,

seven copies of the transcript of the County 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.

As these requirements have not previously been

applied

to the

County

of Jefferson,

its Clerk is given 21 days

from the date

of this Order to “prepare,

bind and certify the

record on

appeal”

(Ill.

Supreme Court,

Rule

324).

Section 40.1(b)

provides that the petition shall

be heard

“in

accordance with the terms of” Section 40.1(a).

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 con-

cerning third-party appeals of the grant of hazardous waste

landfill

permits

as giving

the respondent who had received the

permit

a)

the right to a decision within the

applicable statutory

timeframe

(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 al.,

PCB 80—184,

October

30,

1980).

The

Board

therefore

construes

Section

40.1(b)

in

like

manner,

with

the

result that failure of the

Board

to

act

in

120

days

would

allow

respondent

to

deem

the

site

location

approved.

Pursuant

to Section 105.104 of the Procedural Rules,

it is each petitioner’s

responsibility to pursue its action,

to insist that a hearing on

61-359

---

—4—

its petition

is timely scheduled,

and to insure that a transcript

or

the

hearing

is

timely

filed

with

the

Board

in

order

to

allow

the Board to review the record and

to render

its decision within

12fl days of

the filing

of the petition.

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

/~

t~.

day

of

~

,

1984

by

a

vote

of

~

(2~(L

~

/7?,

Dorothy

M./~nn,

Clerk

Illinois Pollution Control Board

61-360