ILLINOIS POLLUTION CONTROL BOARD
    February 17,
    1994
    RODNEY B. NELSON,
    III,
    M.D.,
    )
    Petitioner,
    )
    V.
    )
    PCB 94—51
    )
    (Landfill Siting Review)
    )
    KANE
    COUNTY,
    KANE
    COUNTY
    )
    BOARD,
    and
    WASTE
    MANAGEMENT
    )
    OF ILLINOIS,
    INCORPORATED,
    )
    Respondents.
    CITY OF
    GENEVA,
    )
    )
    Petitioner,
    )
    v.
    )
    PCB 94—58
    )
    (Landfill Siting Review)
    )
    (Consolidated)
    WASTE MANAGEMENT OF ILLINOIS,
    )
    INC. and COUNTY BOARD,
    COUNTY
    )
    OF KANE, STATE OF ILLINOIS,
    )
    )
    Respondents.
    ORDER OF THE BOARD
    (by C.
    A. Manning):
    This matter comes before the Board on two third party
    ~petitiOifot
    review filed pursuant to Section 40.1(b) of the
    Environmental Protection Act
    (Act)
    (415 ILCS 5/40.1(b)
    (1992)),
    of the January 11, 1994 decision of the County of Kane (County)
    granting site location suitability approval for expansion of a
    new
    regional pollution control facility known as Settler’s Hill
    Recycling and Solid Waste Disposal Facility operated by Waste
    Management of Illinois,
    Inc.
    (WMI).
    Pursuant to Section 40.1(b)
    of the Act, any petitions for review of this decision must be
    filed within 35 days, j.~.on or before February 15,
    1994.
    THE PETITIONS
    PCB 94—51. Nelson
    The first petition for review (PCB 94—51) was filed by
    Rodney B. Nelson,
    III, M.D.
    on February 1,
    1994.
    However, the
    proof of service required by 35 Ill. Adm. Code 101.143 was not
    2
    filed until February
    4,
    1994.
    On February 15,
    1994,
    Dr. Nelson
    filed a “first addendum” to the petition, which was not
    accompanied by a proof of service.
    The Board finds the petition timely filed pursuant to
    Section 40.1(b).
    However, the filing of the “first amendment”
    restarts the Board’s 120-day decision timeclock as specified in
    Section 40.1(a).
    However, since the filing is not complete until
    the proof of service is received, the decision timeclock will
    restart with the filing of the proof of service.
    The Nelson petition challenges the fundamental fairness of
    the County’s proceedings, and also asserts that its decision was
    against the manifest weight of the evidence.
    The petition
    recites that Dr. Nelson resides within 5 blocks of the proposed
    expansion.
    Dr. Nelson further asserts that he has standing to
    pursue this action on the basis that he “submitted written
    comments during the public hearing phase of siting”
    (Pet.
    at 9).
    PCB 94—58. Geneva
    The second petition for review was filed by the City of
    Geneva
    (Geneva) on February 9,
    1994.
    The petition challenges the
    fundamental fairness of the County’s proceedings, and also
    asserts that its decision was against the manifest weight of the
    evidence.
    The petition further alleges that the proceedings
    failed to comply with Section 39(c)
    of the Act,
    in that the City
    has concurrent siting jurisdiction over the proposed Settler’s
    Hill expansion by virtue of the fact that a portion of the
    Settler’s Hill facility lies within the corporate limits of the
    City of Geneva.
    The petition states that the City of Geneva,
    through its Mayor, William T.
    Ottilie, and its attorneys Charles
    A. Radovich and LeeR.
    Cunningham, attended the public hearing
    conducted by Kane County, participated in the hearing process,
    produced witnesses, entered exhibits, and submitted written
    objections as part of the public hearing.
    Standina and Consolidation
    Within the meaning of Section 40.1(b) of the Act,
    it appears
    that the Geneva petition is not duplicitous or frivolous, that
    the City participated at the County hearing and is located so as
    to be affected by the facility.
    The Geneva petition is
    accordingly accepted for hearing.
    The Board cannot, however, conclusively determine at this
    point whether Dr. Nelson has standing to pursue his action.
    Without access to the County record, the Board cannot determine
    whether written comments were submitted at or after the public
    hearing,
    a fact which may be crucial.
    See Valessares et al.
    v.
    3
    Kane CountY Board et p1.,
    PCB 87-36
    (July 16,
    1987)
    (esp.
    p.
    3-
    5).
    1
    However, to avoid any delay which could jeopardize the
    Board’s timely decision of this case, the Board will accept this
    petition for hearing.
    The parties may, however, make any
    appropriate challenge to standing within 14 days of the date of
    this order,
    i.e. on or before March
    1,
    1994.
    As the Board’s usual practice with multiple petitions
    challenging a single local siting decision, the Board on its own
    motion consolidates these actions into one case.
    The consolidated case will be decided on the due date of the
    case earliest due.
    In this instance, the due date is calculated
    as June 9,
    1994, based on the February
    9 filing of the Geneva
    petition.
    The Board’s closest regularly scheduled meeting
    preceding this date is June 2,
    1994.
    Record Before the County Board
    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 County of Kane 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
    County of Kane 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
    County of Kane 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 County of
    Kane hearing and three copies of any other documents in the
    1
    The Clerk is directed to serve the parties with a copy of
    the PCB 87-36 opinion along with the instant order.
    4
    record shall be filed with the Board,
    and a copy of the
    certificate shall be served upon the petitioners.
    The Clerk of
    the County of Kane 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 p1.
    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.
    TranscriDtion 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 p1., 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.
    Hearing Procedures
    The hearing must be scheduled and
    ~in a timely
    manner, consistent with Board practices and the applicable
    statutory decision deadline or the waiver provisions of 35 Iii.
    5
    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 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, pursuant to Section
    40.1
    (b) of the Act, the statutory decision deadline is
    June
    9,
    1994; therefore, the decision due date is June 2, 1994.
    If after appropriate consultation with the parties, the
    parties fail to provide an acceptable hearing date or if after
    attempting to do so, the hearing officer is unable to consult
    with the parties, the hearing officer shall unilaterally set a
    hearing date in conformance with the above schedule.
    The hearing
    officer and the parties are encouraged to expedite this
    proceeding to the extent possible.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify th t the above order was adopted on the
    /7ZZ
    day of ____________________________,
    1994, by a vote of
    ~~~~0~
    Dorothy
    M.
    unn,
    Clerk
    Illinois
    llution Control Board

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