ILLINOIS POLLUTION CONTROL BOARD

October

 6, 1994

CONCERNED CITIZENS OF

)

WILLIAMSON COUNTY, and REV.

)

PAUL CRAIN and ROSE ROWELL, as

)

MEMBERS OF CONCERNED CITIZENS

)

WILLIAMSON

COUNTY,

and

)

individually,

Petitioner,

)

 PCB 94—262

)

 (Landfill Siting Review)

BILL KIBLER DEVELOPMENT CORP.,

)

a/k/a KIBLER DEVELOPMENT

CORP.,

)

and the WILLIAMSON COUNTY BOARD

)

of COMMISSIONERS for and in

)

behalf of the COUNTY of

)

WILLIAMSON in the State of

)

Illinois,

)

Respondent.

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 5/40.13 on

 September 21,

 1994 by the Concerned

Citizens of Williamson County (~Citizens”),Rev. Paul Cram

(“Cram”) and Rose Rowell

 (“Rowell”), as members of the Concerned

Citizens of Williamson County from the decision of the Williamson

County Board of Commissioners granting local siting approval to

 Bill Kibler

 Development Corp., a/k/a Kibler Development Corp.,

for the regional pollution control facility,

 located in

Williamson 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

 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

 Reynolds Metals Co., PCB 73—173,

 8 PCB 46

 (1973)).

The petition indicates that the Citizens, Cram

 and Rowell

2

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.

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

petitions’ original filing dates

 in making any determination as

to the timeliness of the filing of the appeal pursuant to Section

40.1.

Record Before Williamson County

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 Williamson County Board of Commissioners 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 Williamson County Board of Commissioners

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

Williamson County 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

3

the page number upon which they start and end.

 Seven copies of

the certificate, seven copies of the transcript of the Williamson

County Board of Commissioners 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

 Williamson County 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, 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.

 IPCBI 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.

Schedulinci 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

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

Board,

 hereby certi~ytj~atthe above order was adopted on the

~

 day of

1994,

vote

_________

Control Board