ILLINOIS POLLUTION CONTROL BOARD
June
3,
1993
C.A.R.E.,
LARRY
SLATES,
)
LONNIE SEYMOUR, JAMES KLABER,
)
FAYE !4OTT, as members of C.A.R.E.,
)
HOOPESTON COMMUNITY MEMORIAL
)
HOSPITAL, HOOPESTON INDUSTRIAL
)
CORPORATION, WILLIAM REGAN, and
MARY
REGAN,
as Trustees,
)
)
Petitioners,
v.
)
PCB 93—106
)
(Landfill Siting Review)
JAMES
VAN
WEELDEN, d/b/a/
)
ILLINOIS LANDFILLS,
INC.,
and
HOOPESTON CITY COUNCIL, on
)
behalf of the CITY OF
)
HOOPESTON,
)
Respondent.
ORDER OF THE BOARD
(by 3. Theodore Meyer):
This action is a third—party appeal filed May 27,
1993
pursuant to Section 40.1(b) of the Environmental Protection Act
(Act).
(415 ILCS 5/40.1(b)
(1992).)
Petitioners Citizens Against
Ruining the Environment (C.A.R.E.), Larry Slates, Lonnie Seymour,
James Kiaber, and Faye Mott, as members of C.A.R.E., Hoopeston
Community Memorial Hospital, Hoopeston Industrial Corporation,
William Regan,
and Mary Regan,
as Trustees,
(collectively
petitioners)
appeal the decision of the City of Hoopeston
granting site location suitability approval.
It appears that the petition is not duplicitous or
frivolous.
Section 40.1(b)
of the Act provides for appeal by
third-parties who “participated in the public hearing conducted
by the
***
governing body of the municipality.”
In their
petition, petitioners state that they “were
in attendance,
participated in the public
hearing
process conducted by the
council
or submitted written objections as part of
the
(pjublic
(hJearing.”
(Pet. at
2; emphasis added)
This Board has previously held that for persons who did not
attend the local hearing, “simply submitting a public conunent
after the close of the public hearing does not constitute an
adequate basis for standing to seek review.”
(Valessares v.
County Board of Kane County (July 16,
1987),
79 PCB 106,
109, PCB
87-36.)
We cannot determine from the face of the petition which
petitioners allege participation in the hearing and which
petitioners allege the submittal of written objections.
Thus,
the issue of standing is unsettled.
However,
it is clear from
2
the pleading that petitioners allege that at least some of the
petitioners participated in the hearing.
That allegation is
sufficient,
at this time,
to accept this case for hearing.
The
Board must decide this case within 120 days of the date of
filing, and thus the proceeding must continue at this time.
The
Board directs petitioners to file a brief addressing this issue
of standing, and who is a proper party to this appeal, by June
17,
1993.
Respondents shall file any response by June 25,
1993.
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 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 SB-172, 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 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.
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
~‘
pr~o
~
UtJo
3
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 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.
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 3d Dist.
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.
This matter is accepted for hearing.
Hearing must be
scheduled within 14 days of the date of this order and completed
within 60 days of the date of this order.
The 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, written schedule for
submission of briefs if any and all actual exhibits to the Board
within
5 days of the hearing.
Any briefing schedule shall
provide for final filings as expeditiously as possible and in no
event later than 70 days from the date of this order.
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.
This schedule will
only provide the Board a very short time period to deliberate and
reach a decision before the due date.
The hearing officer and
the parties are encouraged to expedite this proceeding as much as
possible.
a
i ~3-OO85
4
The hearing officer may extend this schedule only on a
waiver of the decision deadline by the site location suitability
applicant and only for the equivalent or fewer number of days
that the decision deadline is waived.
Such waivers must be
provided in writing to the Clerk of the Board.
Any waiver must
be an “open waiver” or a waiver of decision until a date certain.
Because of requirements regarding the publication of notice
of hearing, no scheduled hearing may be canceled unless the site
location suitability applicant provides an open waiver or a
waiver to a date at least 120 days beyond the date of the motion
to cancel hearing.
This should allow ample time for the Board to
republish notice of hearing and receive transcripts from the
hearing before the due date.
Any order by the hearing officer
granting cancellation of hearing shall include a new hearing date
at least 40 days in the future and at least 30 days prior to the
new due date and the Clerk of the Board shall be promptly
informed of the new schedule.
Because this proceeding is the type for which the Illinois
Environmental Protection Act sets a very short statutory deadline
for making a decision, absent a waiver, the Board will grant
extensions or modifications only in unusual circumstances.
Any
such motion must set forth an alternative schedule for notice,
hearing, and final submissions, as well as the deadline for
decision,
including response time to such a motion.
However, no
such motion shall negate the obligation of the hearing officer to
establish a scheduling order pursuant to the requirements of this
order,
and to adhere to that order until modified.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
hereby certif
that the above order was adopted on ~he
day of
___________________,
1993,
by a vote of
.
&
~
~1t.
~-~orothy M. G~n, Clerk
Illinois Por)~’utionControl Board
Q
L~.
-0086