ILLINOIS POLLUTION CONTROL BOARD
    June 22,
    1995
    SIERRA
    CLUB, MADISON COUNTY
    )
    CONSERVATION ALLIANCE, and
    )
    JIM BENSMAN,
    Petitioners,
    )
    V.
    )
    PCB 95—174
    )
    (Landfill Siting Review)
    THE CITY OF WOOD RIVER and
    )
    WOOD RIVER PARTNERS,
    L.L. C.,
    )
    )
    Respondents.
    ORDER OF THE BOARD
    (by C.
    A. Manning):
    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 5/40.1) on June 19,
    1995 by the Sierra Club,
    Madison County Conservation Alliance, and Jim Bensman (Sierra
    Club,
    et al.,). They appeal the May 15,
    1995 decision of the City
    of Wood River granting local siting approval to Wood River
    Partners,
    L..L.C., for the regional pollution control facility,
    located in Wood River, Madison County,
    Illinois.
    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 Sierra Club,
    et al. 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 Iii.
    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
    2
    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 Wood River
    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 Wood River 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
    City of Wood River 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 the City of Wood River 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 Wood River 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 the City of Wood River 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
    3
    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
    Iii.
    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.
    Adni. Code
    101.105). The Board will assign a hearing officer to conduct
    hearings consistent with this order, 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. Absent any future waivers of the
    decision deadline, the statutory decision deadline is now October
    17,
    1995
    (120 days from June 19,
    1995); the Board meeting
    immediately preceding the due date is scheduled for October 5,
    1995.
    4
    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 M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby cert~
    that the above order was adopted on the
    ~“
    day of
    --.~-~--•
    ,
    1995, by a vote of
    _________
    I
    ~
    ~t.
    Dorothy N. Gt~n,Clerk
    Illinois Pollution Control Board

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