ILLINOIS POLLUTION CONTROL BOARD
June 6,
1991
CITIZENS FOR CONTROLLED
)
LANDFILLS and THE YMCA
)
OF SOUTHWEST ILLINOIS,
)
Petitioners,
)
v.
)
PCB 91—89
PCB 91—90
(Consolidated)
)
(Landfill Siting Appeal)
LAIDLAW WASTE SYSTEMS
)
(BELLEVILLE),
INC. and THE
)
ST. CLAIR COUNTY BOARD,
)
Respondents.
ORDER OF THE BOARD
(by
B.
Forcade):
These actions are a third—party appeal
filed May
31,
1991
pursuant
to Section 40.1(b)
of the Environmental Protection Act
(“Act”)
(I11.Rev.Stat.
Ch.
111—4, par.
1040.1
(b)).
The YMCA of
Southwest Illinois appeals the decision of the St. Clair County
Board granting site location suitability approval.
Section 40,1(b) requires that any party appealing a county
board grant of siting approval must be
“a third party other than
the applicant who participated
in the public hearing conducted by
the county board” can petitiDn for review before
the Board.
In
addition,
the petition must not be duplicitDus or
frivolous.
The
petition of the YMCA of Southwest
Illinois
(YMCA)
fulfills both
of the requirements of Section 40.1(b)
(See,
Pet.
Para.
2).
The
petition of Citizens for Controlled Landfills (Citizens)
is
deficient because
it does not indicate whether
or not Citizens
participated in the hearings before the county board as required
by Section
40.1(b).
In the interest of efficiency,
the Board on its own motion,
hereby consolidates
these two petitions into one proceeding.
Consolidation will also avoid the question of duplicitous
proceedings concerning this matter.
Citizens is ordered to
correct the deficiency in its petition by filing additional
information with the Board.
Failure th file as directed could
subject Citizens’ petition
to dismissal.
Citizens should ensure that the additional
information
conforms with all aspects of Part 101 of the Board’s procedural
rules
(35 I11.Adm.Code
101).
That requires the amended petition
to
contain the proper heading, caption, and assigned docket
number, be typewritten,
include the additional information
requested by the Board and proof
of service and file the original
123—49
—2—
and ninecopies
with the Clerk of the Board.
Citizens’
amended
petition must be
in the Board’s office no later than June 27,
1991.
Record Before
the County Board
P.A.
82—682, also known as SB—~L72,as codified in Section
40.1(a) •of the Act, provides that the hearing before the Board is
to “be based exclusively on the
re.cord 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 St.
Clair County Board 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
St. Clair County Board 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 St.
Clair County Board 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 St. Clair County Board 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 St.
Clair County Board 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’thegrant
of hazardous waste
landfill permits as giving
the person who had requested
the
123—50
—3—
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 ~arch 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 tne 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
arid
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 notice
of hearing, no scheduled hearing may be canceled unless
the site
location suitability applicant provides an open waiver
or
a
123—Si
—4—
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
Board, hereby certify that the above Order was adopted’ori the
~
day of
—
,
1991,
by
a vote of
7-C
~
~
Dorothy M.gGunn, Clerk
Illinois Pollution Control Board
123—52