ILLINOIS POLLUTION CONTROL BOARD
November 21,
1991
5027 CORP,
Petitioner,
v.
)
PCB 91—224
(Landfill Siting)
)
CITY OF MOLINE,
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
This action
is an appeal filed November 18,
1991 pursuant to
Section 40.1
(a)
of the Environmental Protection Act
(“Act”)
(Ill.Rev.Stat. Ch.
111—1/2, par.
1040.1
(a)).
5027 Corp appeals
the decision of the City of Moline denying site location
suitability approval.
On page
2 of the Petition, statement
6 states that “...there
was no written transcript available for review by the council
members.
.
.
~
From this statement it is not clear
if there is no
transcript or whether council members did not have access to the
transcript.
The Board has addressed the need for written
transcripts in McLean County Disposal Company,
Inc.. v. County of
McLean
—
PCB 87—133 May 25,
1989 and Ash v. Iroauis County Board,
PCB 87—29 July 16,
1987.
If the facts of this case are
consistent with the holdings of the above cases, the Board would
entertain appropriate motions for summary disposition
(with any
necessary supporting affidavits) to be received by the Clerk of
the Board no later than 4:30 pm, on~December 13,
1991.
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 of Moline 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—l72, the Board believes that the
City of Moline 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
127—241
2
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 of Moline 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 of
Moline 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 of Moline 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 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
(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,
127—242
3
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.
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
1270243
4
establish a Scheduling Order pursuant to the requirementsof this
Order,
and to adhere to that Order until modified.
IT IS SO ORDERED.
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Bçard,
hereby certt~that the above Order was adopted on the
-~-~
day of
~
J~A_—1
,
1991,
by a vote of
________
/2
~
Dorothy N. ç4nn,
Clerk
Illinois Pol-lution Control
12 7—244