ILLINOIS POLLUTION CONTROL BOARD
February
3,
1994
CONCERNED CITIZENS FOR A
)
BETTER ENVIRONMENT,
)
)
Petitioner,
)
V.
)
PCB 94—44
(Landfill
Siting
CITY OF
HAVANA
and SOUTHWEST
)
Review)
ENERGY CORPORATION,
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
This matter is before the Board on an appeal filed pursuant to
Section
40.1(a)
of
the
Environmental
Protection
Act
(415
ILCS
5/40.1(a))
on January 25,
1994 by Concerned Citizens for a Better
Environment
(“CCBE”)
from
the
decision
of the
City
of
Havana
granting local
siting approval for
the
location
of a
regional
pollution
control
facility
(municipal
solid
waste
incinerator)
located in in the City of Havana.
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 CCBE 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
petition 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
Record Before City of Havana
PA.
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
~
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
Havana
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 Havana 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 City of Havana
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 Havana 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 Havana 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 Core.
et
~
PCB 80-184, October 30, 1980).
The Board therefore construes
3
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
p1.
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 Chief Hearing Officer shall assign a hearing officer to conduct
hearings.
The Clerk of the Board shall promptly issue appropriate
directions to the assigned hearing officer consistent with this
order.
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.
In
this
case,
the
statutory
decision deadline is May 28,
1994; therefore the decision due date
is May 19,
1994).
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
4
possible.
This order will not appear in the Board’s opinion volumes.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
hereby cer
y that the above order was adopted on the
~
day of
_______________________
,
1994, by a~voteof
~-o.
~.
Dorothy N. 4unn,
Clerk
Illinois P~11lutionControl Board