ILLINOIS POLLUTION CONTROL BOARD

September

4,

1987

MCLEAN COUNTY DISPOSAL

COMPANY, INC.,

Petitioner,

v.

)

PCB 87—133

THE COUNTY OF MCLEAN,

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

This action

is an appeal filed August 31,

1987, pursuant to

Section 40.1

of the Environmental Protection Act (“Act”)

(Ill.Rev.Stat.

Ch.

111—1/2, par.

1040.1.

McLean County Disposal

Company, Inc.

(Petitioner)

appeals

the decision of the County

of

McLean (County)

denying

site location suitability approval.

Record Before

the 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 who

is

to file with the Board

such record 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—l72,

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 l05.l02(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

County Clerk

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 petitioner.

The

Clerk

of

the County is given

21 days from the date of this Order

to “prepare, bind and certify the

record

on appeal”

(Ill.

Supreme

Court, Rule 324).

81—69

---

—2—

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 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.

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.

This matter

is accepted for hearing.

Hearing must be

scheduled within

14 days of the date

of

this Order and completed

within

60 days of

the date

of this Order.

The 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, written schedule for

submission

of briefs

if any and all actual exhibits

to the Board

within

5 days of the hearing.

Any briefing schedule shall

provide for final filings

as expeditiously as possible and

in no

event later

than 70 days from the date of

this Order.

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.

This schedule will

only provide the Board

a very short

time period

to deliberate and

reach

a decision before the due date.

The hearing officer and

the parties are encouraged

to expedite

this proceeding as much as

possible.

81—70

---

—3—

The hearing officer may extend this schedule only

on

a

waiver

of the decision deadline by the site location suitability

applicant and only

for the equivalent

or fewer number of days

that the decision deadline is waived.

Such waivers must be

provided

in writing

to the Clerk of

the Board.

Any waiver must

be

an

“open waiver”

or

a waiver

of decision until

a date

certain.

Because of requirements regarding

the publication of notice

of hearing, no scheduled hearing may be canceled unless the site

location suitability applicant provides an open waiver or

a

waiver to

a date

at least 75 days beyond the date of the motion

to cancel hearing.

This should allow ample

time

for the Board

to

republish notice of hearing

and receive transcripts from the

hearing before the due date.

Any order

by the hearing officer

granting cancellation of hearing shall include

a new hearing date

at least

40 days

in the future and at least

30 days prior

to the

new due date and the Clerk of the Board shall be promptly

informed

of the new schedule.

Because

this proceeding

is the

type

for which

the Illinois

Environmental Protection Act sets

a very short statutory deadline

for decisionmaking, absent

a waiver,

the Board will grant

extensions

or modifications only

in unusual circumstances.

Any

such motion must set forth

an alternative schedule for notice,

hearing, and final

submissions,

as well

as the deadline

for

decision,

including response time

to such

a motion.

However, no

such motion shall negate the obligation

of the hearing officer

to

set a date pursuant to this Order.

IT IS SO ORDERED

I, Dorothy

M.

Gunn, Cle~k of the Illinois Pollution Control

Board, hereby certify that the .above Order was adopted

on

the

~

day of _______________________,

1987,

by a vote

of

~

~

.

//

,~

Dorothy

M.

Gui-in, Clerk~

Illinois Pollution Control Board

81—7 1