ILLINOIS POLLUTION CONTROL BOARD
June 7, 2001
AMERICAN BOTTOM CONSERVANCY,
EAST ST. LOUIS COMMUNITY ACTION
NETWORK, KATHY ANDRIA and JACK
NORMAN,
Petitioners,
v.
VILLAGE OF FAIRMONT CITY and
WASTE MANAGEMENT OF ILLINOIS,
INC,
Respondents.
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PCB 01-159
(Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by S.T. Lawton):
On May 24, 2001, petitioners filed an appeal pursuant to Section 40.1(b) of the
Environmental Protection Act (Act) (415 ILCS 5/40.1(b) (2000)). This appeal arises from the
second decision by the Village of Fairmont City (Village) to approve local siting for Waste
Management of Illinois (Waste Management) of a proposed expansion of the Milam pollution
control facility located in the Village of Fairmont City, St. Clair County, Illinois. Petitioners
allege that the Village’s approval of the expansion is against the manifest weight of evidence
because the proposed facility fails to meet four of the nine criteria set forth in
Section 39.2 of
the Act. 415 ILCS 5/39.2 (2000). The Board finds this matter is neither frivolous nor
duplicitous, and that the petitioners are located close enough to be affected by the proposed
facility. Accordingly, the Board sets this matter for hearing.
The Board notes that it did not receive the petition in this matter by May 23, 2001,
which is 35 days after the April 18, 2001 decision by the Village to approve the expansion of
the Milam pollution control facility. Section 40.1 of the Act states that:
If the county Board or the governing body of the municipality, as determined by
paragraph (c) of Section 39 of this Act, grants approval under Section 39.2 of
this Act, a third party other than the applicant who participated in the public
hearing conducted by the county board or governing body of the municipality
may petition the Board within 35 days for a hearing to contest the approval of
the county board or the governing body of the municipality. 415 ILCS
5/40.1(b) (2000).
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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;
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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
___.”
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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
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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