ILLINOIS POLLUTION CONTROL BOARD
    August 24, 1995
    LARRY SLATES, LONNIE SEYMOUR,
    )
    JAMES KLABER, FAYE MOTT and
    HOOPESTON COMMUNITY MEMORIAL
    )
    HOSPITAL,
    )
    Petitioners,
    )
    v.
    )
    PCB 96—29
    )
    (Third Party—Landfill Siting
    ILLINOIS LANDFILLS, INC.,
    )
    Review)
    and HOOPESTON CITY COUNCIL,
    )
    on behalf of the CITY OF
    )
    HOOPESTON,
    )
    Respondents.
    ORDER OF THE BOARD:
    This matter is before the Board on an appeal filed pursuant
    to paragraph (b) of Section 40.1 of the Environmental Protection
    Act 415 ILCS 5/40.? (1994) on August 3,
    19951
    by Larry Slates,
    Lonnie Seymour, James Klaber, Faye Mott and Hoopeston Community
    Memorial Hospital (Petitioners). They appeal the June 27, 1995
    decision of the Hoopeston City Council granting local siting
    approval to Illinois Landfills, Inc., for the regional pollution
    control facility, located in the City of Hoopeston, Vermilion
    County, Illinois. The City’s action was taken following the
    Board’s remand order of May 18, 1995, implementing the remand
    order in Illinois Landfills Inc. v. Illinois Pollution Control
    Board et al., 4—94—001 (4th District, April 28, 1995).
    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
    or substantially similar to one brought in another forum (Brandle
    V.
    Ro~p,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)).
    1The petition was served by first class mail on July
    31,
    1995 and received by the Board on August 3, 1995.
    2
    The petition indicates that the Petitioners 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
    petitioners are 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 Hoo~eston City Council
    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
    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 Hoopeston City Council 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
    Hoopeston City Council 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
    Hoopeston 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 number upon which they start and end. Seven copies of
    the certificate, seven copies of the transcript of the Hoopeston
    City Council 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
    Hoopeston City Clerk 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.
    3
    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
    ~and Corn. 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.
    ~ranscriDtion 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 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.
    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.
    4
    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. On August 18, 1995 Illinois
    Landfills, Inc. filed a waiver of the decision deadline until
    February 28, 1996.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after art
    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 14. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certi,~ythat the above order was adopted on the
    -~(/~day of
    ______________,
    1995, by a vote of
    ~7-~2
    Dorothy M./~unn, Clerk
    Illinois P6llution Control Board

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