ILLINOIS POLLUTION CONTROL BOARD
    March
    9,
    1995
    KEITH TIBEREND,
    )
    Petitioner,
    v.
    )
    PCB 95—77
    )
    (Landfill Siting Review)
    WASTE MANAGEMENT OF
    )
    ILLINOIS,
    Inc.,
    and the
    )
    VILLAGE of MARISSA,
    )
    )
    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.lJ on
    March
    6,
    1995 by Keith Tiberend from
    the decision of the Village of Marissa granting local siting
    approval to Waste Management of Illinois,
    Inc. for the regional
    pollution control facility (Cottonwood Hills Recycling & Disposal
    Facility),
    located in St Clair County.
    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.
    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 Tiberend 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 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.
    2
    However, the Board cannot conclusively determine whether
    this case was timely filed as the petition fails to provide the
    Board with a copy of the Village’s decision.
    If an amended
    petition curing this deficiency is not filed within 14 days of
    the date of this order,
    this matter will be subject to dismissal.
    The filing of an amended petition will restart the Board’s
    decision timeclock, although the Board will look to the
    petition’s original filing date in making any determination as to
    the timeliness of the filing of the appeal pursuant to Section
    40.1.
    Record Before Village Board of Marissa
    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 ~q
    is to file with the Board such record or who is to
    certify to the completeness or correctness of the record.
    As the Village Board of Marissa 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 Board of Marissa 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 Village of Marissa 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 Village Board of Marissa’s 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 Village of Marissa 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.
    Waiver of Decision Deadline
    3
    Section 40.1(a) 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 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.
    IPCBI
    et a?., 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.
    Any briefing schedule shall provide for final filings as
    4
    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.
    As stated on page two, the filing
    of an amended petition will restart the Board’s decision
    timeclock.
    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~,hereby certif~y,~thatthe above order was adopted on the
    9
    day of
    /
    ,
    1995,
    by a vote of
    -~
    0
    ~9/
    ~
    ,3~.
    ~
    Dorothy M. ,~inn, Clerk
    Illinois P~lutionControl Board

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