ILLINOIS POLLUTION CONTROL BOARD
October 17, 1996
SENATOR WILLIAM SHAW, RONNIE
LEWIS, and JUDITH EVANS,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, BOARD OF
TRUSTEES OF THE VILLAGE OF
DOLTON, ILLINOIS, LAND AND LAKES,
and MAYOR DONALD HART,
Respondents.
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PCB 97-68
(Landfill Siting Review)
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 (1994)) on October 8, 1996 by Senator
William Shaw, Ronnie Lewis, and Judith Evans (petitioners) from the September 3, 1996
decision of the Village of Dolton, Illinois (Village) granting local siting approval to Land and
Lakes Company for the pollution control facility located 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)).
This petition is deficient in various respects:
1.
The petition does not allege that the petitioners participated at the local hearing
held by the Village. The Board accordingly cannot make the finding required
by section 40.1(b) of the Act that the petitioners participated at the hearing and
are so located as to be affected by the facility. Unless both points are alleged in
the petition, the Board cannot find that petitioners have standing to appeal.
2.
The petition fails to contain a copy of the resolution, ordinance, or other official
writing which memorializes the Village’s September 3, 1996 decision. Without
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this document, the Board cannot determine whether the appeal was in fact filed
within 35 days as required by Section 40.1. (The Board must dismiss late
appeals.)
If an amended petition curing these deficiencies is not filed within 14 days of the date of
this order, this petition is subject to dismissal. The filing of an amended petition curing these
deficiencies will restart the Board’s decision timeclock, as we do not construe the time as
starting to count down until we have received a complete petition. However, the Board will
look to the petition’s original filing date in making any determinations as to the timeliness of
the filing of the appeal pursuant to Section 40.1.
As explained in more detail below, once the decision timeclock begins to run after the
filing of a complete petition, this case is one in which the siting applicant, and not the
petitioners control the 120-day decision timeclock. (See Waiver of the Decision Deadline
below.) In the meantime, the Board will direct the Village to begin preparing its record, and
will assign this case to a hearing officer prior to making the Section 40.1(b) finding regarding
standing, so that at least the process of scheduling a hearing can begin. If the Board later finds
that petitioners do not have standing to sue under Section 40.1, the hearing obviously need not
go forward.
RECORD BEFORE THE VILLAGE OF DOLTON
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 Village 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 Village 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 Village 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 petitioners. 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 Village 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
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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
(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) 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
Board’s 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 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 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
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deadline. Absent any future waivers of the decision deadline, the statutory decision deadline is
now February 5, 1997 (120 days from October 8, 1996); the Board meeting immediately
preceding the decision deadline is scheduled for January 23, 1997.
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.
Board Member K.M. Hennessey abstained.
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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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board