ILLINOIS POLLUTION CONTROL BOARD
June 6, 1996
CITIZENS UNITED FOR A
RESPONSIBLE ENVIRONMENT,
Petitioner,
v.
BROWNING-FERRIS INDUSTRIES OF
ILLINOIS, INC. and VILLAGE BOARD OF
THE VILLAGE OF DAVIS JUNCTION,
ILLINOIS,
Respondents.
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PCB 96-238
(Landfill Siting Review)
ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on an appeal filed pursuant to paragraph (b) of Section
40.1 of the Environmental Protection Act (Act) (415 ILCS 5/40.1 (1994)) on May 21, 1996 by
Citizens United for a Responsible Environment (C.U.R.E.) from the decision of the Village
Board of the Village of Davis Junction, Illinois (Village) granting local siting approval to
Browning-Ferris Industries of Illinois, Inc. (BFI) for the pollution control facility located in
Ogle County, Illinois.
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)).
The petition indicates that C.U.R.E. 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,
pursuant to 35 Ill. Adm. Code 103.124(a), that 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.
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Record Before The Village of Davis Junction
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 seven
copies of the certificate shall be filed with the Board, and a copy of the certificate shall be
served upon the petitioner(s). The original and seven 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” (Illinois Supreme Court Rule 324). If the
record is not legible, sequentially numbered, or fails to include an appropriate index of record,
the Clerk of the Board may refuse to accept the document for filing.
Waiver of the Decision Deadline
Section 40.1(a) of the Act 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
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.
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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.
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
deadline. BFI filed a waiver of the decision deadline on May 24, 1996 extending the decision
deadline date by one day to September 19, 1996; there is a Board meeting presently scheduled
for September 19, 1996.
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 _____ day of ___________, 1996, by a vote of
______________.
___________________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board