ILLINOIS POLLUTION CONTROL BOARD
October 19,
1995
THOSE OPPOSED TO AREA
LANDFILLS (T.O.T.A.L),
)
a Concerned Citizen’s Group,
Petitioner,
v.
)
PCB 96—79
(Third Party-Landfill Siting)
CITY OF SALEM,
Respondent.
CONCERNED ADJOINING OWNERS,
a Concerned Citizen’s Group,
Petitioner,
v.
)
PCB 96—82
(Third Party-Landfill Siting)
CITY OF SALEM,
Respondent.
ORDER OF THE BOARD:
This matter is before the Board on an appeals filed pursuant
to paragraph
(b)
of Section 40.1 of the Environmental Protection
Act (415 ILCS 5/40.1) on October 13,
1995 by Those Opposed To
Area Landfills (T.O.T.A.L.),
a Concerned Citizen’s Group and on
October 16,
1995 by the Concerned Adjoining Owners,
a Concerned
Citizen’s Group,.
Both groups are appealing the September 11,
1995 decision of the City of Salem granting local siting approval
for
a pollution control facility,
located in the City of Salem,
Marion County,
Illinois1.
As each of these appeals involve the
decision of the City of Salem granting site location suitability
approval, the Board on its own motion consolidates these cases
for hearing.
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 that party participated in the public hearing
conducted by the county board or municipal governing body which
has 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
‘The City of Salem is also the applicant for this siting
approval
in this matter.
2
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 the Petitioner 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 that,
pursuant to 35
Ill.
Adm. Code 103.124(a),
the complaint is
neither duplicitous nor frivolous,
that the petitioners
participated in the prior public hearing and that the petitioners
are or may be so located as to be affected by the proposed
facility. Accordingly, this matter shall proceed to hearing.
Record Before the City of Salem
P.A.
82—682,
also known as SB—l72,
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 City of Salem 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
City of Salem 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.
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 such page.
In
addition to the actual documents which comprise the record, the
Clerk of City of Salem 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.
Seven copies of
the certificate, seven copies of the transcript of the City of
Salem 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(s).
The Clerk of
3
City of Salem
is given 21 days from the date of this Order to
“prepare, bind and certify the record on appeal”
(Ill.
Supreme
Court, Rule 324).
If the record is not legible,
is not
sequentially 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 Decision Deadline
Section 40.1(a) provides that if there
is no final action by
the Board within 120 days, petitioners 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.,
129 111.
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.
Scheduling and Conduct of 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 a 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 hearing, and the Clerk of the Board
shall promptly issue appropriate directions to that assigned
hearing officer.
4
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. Absent any future waivers of the
decision deadline, the statutory decision deadline is now
February 10,
1995
(120 days from October
13,
1995); the Board
meeting immediately preceding the due date is scheduled for
December 21,
1995.
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.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Boa~d hereby certify
tJ~t
the above order was adopted on the
/fzt
day of
______________
,
1995,
by a vote of
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Gunn,
Clerk
liution Control Board