ILLINOIS POLLUTION CONTROL BOARD

June 23, 1994

SOLVENT SYSTEMS INTERNATIONAL,

Petitioner,

v.

PCB 94—179

(Land Siting Review)

VILLAGE OF HAMPSHIRE,

)

Respondent.

ORDER

OF

THE

BOARD:

This matter is before the Board on an appeal filed pursuant

to paragraph (a) of Section 40.1 of the Environmental Protection

Act 415 ILCS 5/40.1) on June 21, 1994 by Solvent Systems

International (Solvent) from the decision of Village of Hampshire

(Village) imposing a condition on its local siting approval for a

non—hazardous transfer station facility, located in Kane County.

The challenged condition requires reimbursement for the cost of

the Village’s hearing, including consultations with engineers and

attorneys.

The cited section of the Act generally requires the Board to

decide the instant petition within 120 days of filing (unless the

petitioner files a waiver of the statutory decision deadline

pursuant to 35 Iii. Adm. Code 101.105). This matter is accepted

for hearing.

Record Before the Village of Hampshire

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 inunicipality’. 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 Village of Hampshire 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

Village of Hampshire 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

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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 Village of Hampshire 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 Village of Hampshire 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 Village of Hampshire 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

p1.,

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

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.

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Schedulina and Conduct of Hearina

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 iesue 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. Absent any future waivers of the

decision deadline, the statutory decision deadline is October 19,

1994 (120 days from June 20, 1994); the Board meeting immediately

preceding the due date is scheduled for October 6, 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.

This order will not appear in the Board’s opinion volumes.

IT IS SO ORDERED.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board,, hereby cer y that the above order was adopted oj~the

~~-day

of

_______________

,

1994, by a vote of

~‘

t)•

Control Board