2

However, the Board’s procedural rules provide that if the Clerk receives any filing “by U.S.

Mail subsequent to the filing deadline, yet the postmark precedes the filing deadline, the

document will be deemed filed on the postmark date, provided all filing requirements are met

as set forth in Section 101.302 of this Part.” 35 Ill. Adm. Code 101.300(b)(2). Since the

petition was sent via U.S. Mail and postmarked on May 22, 2001, and it meets all of the filing

requirements under 35 Ill. Adm. Code 101.302, the Board considers the petition to be timely

filed with the Clerk.

 

DUPLICITOUS/FRIVOLOUS DETERMINATION

 

This case is before the Board pursuant to Section 40.1(b) of the Act (415 ILCS

5/40.1(b) (2000)) and Section 101.202 of the Board’s procedural rules (35 Ill. Adm. Code

101.202). Under Section 40.1(b) of the Act, the Board must determine whether this petition

for a hearing to contest the local siting approval by the Village is duplicitous or frivolous. 415

ILCS 5/40.1(b) (2000). The Board’s procedural rules define the terms “duplicitous” and

“frivolous.” 35 Ill. Adm. Code 101.202.

 

Allegations in the Petition are Not Frivolous

 

Under the Board’s procedural rules, a petition is frivolous if the Board does not have

the authority to grant the requested relief, or if the petition fails to state a cause of action for

which the Board can grant relief. 35 Ill. Adm. Code 101.202. The Board has authority to

grant the relief requested in the petition. Petitioners request the Board to “reverse the

Village’s siting approval, and grant such other additional relief as this Board deems fair and

equitable.” Pet. at 7-8.

1 The Board has the authority to grant this relief under Section 40.1(b)

of the Act (415 ILCS 40.1(b) (2000)), in that it can hear a petition contesting the approval of a

decision by a county board or the governing body of the municipality.

 

The petition also sufficiently states a cause of action for which the Board can grant

relief. The petitioner in this matter alleges that the Village’s decision to grant local siting of

the proposed expansion of the Milam pollution control facility is against the manifest weight of

evidence because the proposed facility fails to meet the first four of nine criteria under Section

39.2(a) of the Act (415 ILCS 5/39.2(a)(i), (ii), (iii), (iv) (2000)). Specifically, Waste

Management failed to show the following:

 

1. The expansion of the Milam facility is necessary to accommodate the waste

needs of the area it intends to serve;

 

2. The facility is so designed, located, and proposed to be operated in a manner

that the public health, safety, and welfare will be protected;

 

1

The Petition received by the Board on May 24, 2001, which challenges the Village’s approval

of the siting of the expansion at the Milam pollution control facility, will be referred to as “Pet. at

___.”

---

 

3

3. The facility is located so as to minimize incompatability with the character of

the surrounding area and to minimize the effect on the value of the surrounding

property; and

 

4. The facility is not in the 100-year flood plain or is flood-proofed.

 

The Petition is Not Duplicitous

 

The Board’s procedural rules define duplicitous as a matter before the Board that is

identical or substantially similar to one brought in this or another forum. 35 Ill. Adm. Code

101.202. Neither party identified any other actions, identical or substantially similar, to this

pending in this or another forum.

 

The Board notes that it previously heard a petition by the petitioners, which challenged

the same expansion of the Milam pollution control facility. See

 

American Bottom

Conservancy,

et al.

v. Village of Fairmont City and Waste Management of Illinois (October

19, 2000), PCB 00-200. On October 19, 2000, the Board found that the first proceedings

before the Village were fundamentally unfair, vacated the Village’s earlier decision, and

ordered the Village to hold a new hearing on the expansion of the Waste Management facility.

Id.

The Village held hearings on February 12, 2001, and February 19, 2001, and again

approved the application for the expansion. Petitioners filed their new petition challenging this

decision by the Village on the grounds that it is against the manifest weight of evidence. The

Board finds that this case is not duplicitous.

 

CONCLUSION

 

The Board directs that this matter proceed to hearing as expeditiously as practicable. A

hearing on the petition should be scheduled to allow the Board time to review the record and to

render its decision within 120 days of the filing of the appeal. See McHenry County

Defenders, Inc. v. IEPA (August 6, 1998), PCB 98-173, slip op. at 4-5. The Board has

previously construed the Act as giving the person who requested the permit: (1) the right to a

decision within the applicable statutory time frame (120 days), and (2) the right to waive

(extend) the 120-day decision period. Waste Management, the siting applicant, is the party

with the right to a decision within 120 days and is the only party with the right to waive the

decision deadline.

The result is that failure of this Board to act within the 120 days would allow the siting

applicant, Waste Management, to pursue an appellate court order as detailed in Section

40(a)(3) of the Act. 415 ILCS 5/40(a)(3) (2000). Unless Waste Management waives the

current statutory decision deadline of September 19, 2001, this matter must be handled on or

before the September 6, 2001 Board meeting.

 

The assigned hearing officer must set the matter for hearing in accordance with the

requirements of the Act and the Board’s procedural rules. It is the responsibility of the hearing

---

 

4

officer to guide the parties toward prompt resolution or adjudication of this matter, through

whatever status calls and hearing officer orders he determines are necessary and appropriate.

 

 

Pursuant to Section 40.1(b) of the Act, (415 ILCS 5/40.1(b) (2000)) the hearing is to be

based “exclusively on the record before the county board or governing body of the

municipality.” Although the Act does not specifically state who is required to file such record

with the Board, the Board believes that the Village of Fairmont City must prepare and file the

record on appeal.

 

 

The record shall contain legible versions of all documents, transcripts, and exhibits

deemed to pertain to this proceeding from initial filing through the including final action by the

local government body. The record shall also 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 Village of Fairmont City 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 numbers upon

which they start and end. Seven copies of the certificate, seven copies of the transcript of the

Village of Fairmont hearing, and three copies of any other documents in the record shall be

filed with the Board; a copy of the certificate shall be served upon the petitioner. The Village

of Fairmont City Clerk is given 21 days from the date of this order to “prepare, bind and

certify the record on appeal.” See 155 Ill. 2d R. 324. If the record is not legible, sequentially

numbered, or fails to include an appropriate index of the record, the Clerk of the Board may

refuse to accept the document for filing. For further guidance in preparing and filing the

record on appeal, the Village of Fairmont may refer to the Illinois Supreme Court Rules 321

through 324. See 155 Ill. 2d R. 321-324.

 

 

The Board notes that this will be the first hearing of an appeal of a local siting decision

under the Board’s new procedural rules. The Board directs the Clerk to provide a copy of the

new procedural rules to all parties in this matter.

 

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 7th day of June 2001 by a vote of 7-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board