ILLINOIS POLLUTION CONTROL BOARD
December
20,
1990
MADISON COUNTY CONSERVATION
ALLIANCE, RICHARD WORTHEN,
CLARENCE
BOHM,
HARRY
PARKER,
)
GEORGE
~4.RNOLD,CLINTON
)
AUFDERHEIDE,
MARY
AUFDERHEIDE,
)
WILLIAM DORRIS and
MARY
DORRIS,
)
)
Petitioners,
v.
)
PCB 90—239
(Landfill Siting)
MADISON COUNTY and
)
ENVIRONMENTAL CONTROL
)
SYSTEMS, INC.,
)
Respondents.
ORDER OF THE BOARD
(by
B. Forcade):
This action is a third—party appeal filed December
18,
1990,
pursuant
to Section 40.1
(b)
of the Environmental Protection Act
(“Act”.)
(I1l.Rev.Stat. Ch.
111—1/2,
par. 1040.1
(b).
Madison
County Conservation Alliance, Richard Worthen, Clarence Bohm,
Harry Parker, George Arnold, Clinton Aufderheide, Mary
Aufderheide, William Dorris and Mary Dorris,
(“Madison County
Conservation Alliance”)
appeal the decision of Madison County
granting site location suitability approval.
It appears that the petition
is not duplicitous or
frivolous
and that Petitioner participated
in the hearing below
(See,
Pet.
P.
2).
Record Before the County Board
PA.
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 Madison County 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 Madison County 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,
117—185
transcripts,
and exhibits deemed to pertain to this proceeding
from the initial filing by the siting applicant 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 is 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 Madison County Clerk shall also prepare a
document entitled “Certificate of Record on Appeal” which shall
list the documents comprising the record.
Seven copies of the
certificate, seven copies of the transcript of the Madison County
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
Madison
County 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
or
record,
the
clerk
of
the
Pollution
Control
Board
may
refuse
to
accept
the
document for filling.
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)
th~ 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,
117—186
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
117—187
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
th
t the above Order was adopted on
the
öZ~day of _______________________,
1990,
by a vote
of
~
Clerk
Illinois
Pol
ution
Control
Board
117—188