ILLINOIS POLLUTION CONTROL BOARD
January
20,
1994
MICHAEL
TURLEK,
LILLIAN
)
SMEJKAL
and
JOHN
LATHROP,
)
)
Petitioners,
)
v.
)
PCB 94—19
)
(Land
Siting
Review)
VILLAGE
OF
SUMMIT
and
)
WEST
SUBURBAN
RECYCLING
)
AND
ENERGY
CENTER,
INC.,
)
)
Respondents.
KAY
KULAGA
AND
ALICE
ZEMAN,
)
)
Petitioners,
)
v.
)
PCB 94—21
)
(Land Siting Review)
VILLAGE
OF
SUMMIT
and
)
WEST
SUBURBAN
RECYCLING
)
AND
ENERGY
CENTER,
INC.,
)
)
Respondents.
CITIZENS FOR A BETTER
)
ENVIRONMENT, PATRICIA J.
)
BARTLEMAN, NANCI KATZ
and MICHELLE SCHMITS,
)
)
Petitioners,
)
v.
)
PCB 94—22
)
(Land Siting Review)
(Consolidated)
VILLAGE OF SUMMIT and
)
WEST
SUBURBAN
RECYCLING
)
AND
ENERGY
CENTER,
INC.,
)
)
Respondents.
ORDER
OF
THE
BOARD
(by
M.
McFawn):
This matter comes before the Board on three third party
petitions for review filed pursuant Section
40.1(b)
of
the
2
Environmental Protection Act
(Act)
(415 ILCS 5/40.1(b) (1992)), of
the December 6,
1993 decision of the Village of Summit (Village)
granting site location suitability approval for construction of a
new regional pollution control facility to West Suburban
Recycling and Energy Center,
Inc.
(WSRC).
This case involves
proceedings held by the Village following Board remand of an
August
5,
1992 application for the purpose of curing procedural
fundamental unfairness in prior proceedings.
Zeman et p1.
v.
Village of Summit and West Suburban Recycling and EnergY Center~
Inc. and guilty v. Board of Trustees and Mayor of the Village of
Summit and West Suburban Recycling and
Enerav
Center.
Inc.,
PCB
92—174 and PCB 92—177 (consolidated)
(February 25, 1993), appeal
dismissed, No. 1—93—1070 (1st Dist. June 14,
1993).
The Petitions
The first petition (PCB 94-19) was filed by Michael Turlek,
Lillian Smejkal, and John Lathrop on January 7,
1994.
This
petition asserts that the Village lacked jurisdiction to render
its December
6,
1993 decision, on the grounds that the June 8,
1993 application it was considering was improperly filed during
the pendency of the August
5,
1992 application remanded in the
consolidated cases PCB 92-174 and PCB 92-177.
The petition
recites that each petitioner lives in “immediate proximity” to
the proposed site and that each participated in the hearing
below.
This petition does not contain a copy of the Village’s
decision.
The second petition (PCB 94-21) was filed by Kay Kulaga and
Alice Zeman on January 10,
1994.
This petition challenges the
fundamental fairness of the Village’s procedures.
The petition
recites that each petitioner lives in proximity to the proposed
site and that each participated in the hearing below.
Petitioner
Zeiuan has not signed the petition or otherwise entered an
appearance as required by 35 Ill.
Adm.
Code 101.107(a).
This
petition also does not contain a copy of the Village’s decision.
The third petition
(PCB 94-22) was filed by Citizens for a
Better Environment, Patricia J. Bartelman,
Nanci Katz and
Michelle Schmits on January 10,
1994.
The petition recites that
each petitioner resides within approximately
5 miles of the
facility (one residing 1/2 mile therefrom), that each
participated in the hearing below and that each is a member of
CBE.
This petition asserts that the Village’s decision should be
reversed on the grounds that the floodproofing and need criteria
of Section 39.2
(415 ILCS 5/39.2(a) (4)
&
(1)) were not met.
This petition refers to the Village’s decision as Ordinance No.
93—0-30, but does not provide a copy.
Within the meaning of Section 40.1(b) of the Act,
it appears
that none of the petitions is duplicitous or frivolous, that all
petitioners participated at the Village hearing and are located
3
so as to be affected by the facility.
This matter is accordingly
accepted for hearing.
As
is 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.
All petitions
are deficient for failure to provide a copy of the Village’s
decision.
If an amended petition curing this deficiency is not
filed within 14 days of the date of this order, this matter will
be subject to dismissal.
The filing of an amended petition will
restart the Board’s decision timeclock, although the Board will
look to the petitions’ original filing dates in making any
determination as to the timeliness of the filing of the appeal
pursuant to Section 40.1.
Additionally, Petitioner Zeman is directed to file an
appearance in person or by counsel as required by 35 Ill. Adm.
Code
101.107(a) within 14 days of the date of this order.
If
petitioner Zeman fails to do so, her name will be stricken as a
petitioner in this action.
(See Doruff et al.
v. Bloomincidale
Elementary School District 13 et al., PCB 93—204
(January
6,
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 Village of Summit 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 Summit 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 Village of Summit 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
4
of the Village of Summit 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
petitioners.
The
Clerk
of
the
Village
of
Summit
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
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
al.
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.
Hearinci
Procedures
The hearing must be scheduled and completed in a timely
manner, consistent with Board practices and the applicable
statutory decision deadline or the waiver provisions of 35 Ill.
Adm.
Code
101.105.
The Chief Hearing Officer shall assign a
hearing officer to conduct hearings.
The Clerk of the Board
5
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 May 7,
1994’; therefore, the decision due date is May 5,
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
cer
fy
that
the
above
order
was
adopted
on
the
~?~~tZ
day of
-,
,
1994,
by
a
vote
of
7’-•é
~a
Dorothy M. 4inn, Clerk
Illinois P~&lutionControl Board
The decision deadline is calculated using the filing date
of
the
earliest filed case, PCB 94—19, but, as earlier stated, will
be recalculated
on
the
date
of
fIling
of
an
amended
petition
containing the Village’s written decision.