ILLINOIS POLLUTION CONTROL BOARD
March 31, 1994
BEARDSTOWN AREA CITIZENS
)
FOR A BETTER ENVIRONMENT,
)
Petitioner,
PCB 94—98
v.
)
(Landfill Siting Review)
)
CITY OF BEARDSTOWN AND
)
SOUTHWEST ENERGY CORPORATION,
)
)
Respondent.
ORDER OF THE BOARD (by
3.
Theodore Meyer):
This matter is before the Board on an appeal filed pursuant
to Section 40.1(b) of the Environmental Protection Act (415 ILCS
5/40.1(b) (1992)) on March 25, 1994 by the Beardstown Area
Citizens for a Better Environment (Citizens). Citizens appeals
the decision of the City of Beardstown (City) granting local
siting approval to Southwest Energy Corporation for a municipal
solid waste incinerator facility, located in the City of
Beardstown, Cass County.
Section 40.1(b) of the Act requires the Board to hear the
instant petition, 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 the Board determines that the
petition is duplicitous or frivolous, or that the petitioner is
sploçate&astonot 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.
Ro~p,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 Citizens 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 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
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 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 Section 40.1(b), the Board believes that the City
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 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 City’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 Clerk of the City is given 21
days from the date of this order to “prepare, bind and certify
the record on appeal” (Ill. Sup. Ct. Rule 324). If the record is
not legible, is not sequentially numbered, or fails to include an
appropriate index. of record, the~Clerk-ofthe Pollution Control
Board may refuse to accept the document for filing.
Section 40.1(a) also provides that if there is no final
action by the Board within 120 days, the applicant for site
approval 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 the right to a decision within the applicable statutory
time frame (now 120 days), and 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
3
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.
The issue of who has the burden of providing transcription
in Board site location suitability appeals has been addressed in
Town of Ottawa v. IPCB (3d Dist. 1984), 129 Ill. App. 3rd, 472
N.E.2d 150. 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.
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~Boardmeeting date on or before the statutory
or deferred decision deadline. In this case, the statutory
decision deadline is July 23, 1994; therefore the decision due
date is July 21, 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 possible.
IT IS SO ORDERED.
4
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, h reby certify that the above order was adopted on the
____
day of
____________
,
1994, by a vote of
~
Dorothy M. inn, Clerk
Illinois P~3,~IutionControl Board