ILLINOIS
POLLUTION CONTROL BOARD
May
10,
1990
HORACE
FILE,
ERWIN HEDIGER
ARLIN WOKER,
ANDY TIFT,
LAYTON
PEDDICORD,
BURNELL NEUMANN,
LAVERLE
EAKLE,
LYNN SCHMOLLINGER,
HOWARD PRINGLE,
REID BINGHAN,
DUANE FLOWERS,
CRAIG WOKER,
MRS.
O.J.
DAIL, JEANETTE TIFT,
JAMES ULMER,
ARLENE DAIL,
GLEN MILES,
JUANITA HEDIGER,
LEILA
MILES,
EDDIE ULMER,
BILL GOODALL,
CAROLYN
SPRADLING,
DONNA HAMPTON,
HOLLIE
WILLMAN,
CHARLES
H.
FUNK,
LEROY WIESE,
MIKE EATON,
PAM
FUNK,
JIM STOECKLIN,
MARY
BLOEMKER,
r,.~ILLIA~NEER,
DONALD 5PRADL:NG,
BOB BOWEN,
DON MARTIN,
JEANETTE
FILE AND
BOND COUNTY CONCERNED
CITIZENS,
Petitioners,
v.
)
PCB 90—94
(Landfill Siting)
D
&
L LANDFILL,
INC.,
BOND
COUNTY BOARD OF SUPERVISORS,
COUNTY OF
BOND,
STATE OF ILLINOIS,
Respondents.
ORDER OF THE BOARD
(by
B.
Forcade):
This action
is
a third—party appeal filed
May
7,
1990
pursuant
to Section
40.1 of
the Environmental Protection Act
(“Act”)
(I1l.Rev.Stat.
Ch.
111—1/2, par.
1040.1).
Petitioners
appeal the decision of
the Bond County Board
(County) approving
site location suitability approval.
Record Before the County Board
?.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 County alone can verify and certify what
exactly
is
the entire record before
it,
in
the interest of protecting
the
ill—I 35
rights of all parties
to this action, and
in order
to satisfy the
intention of S2—172,
the Board believes that
the 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
Section 105.l02(a)(4)
of the Board’s Procedural Rules and to
Rules
321 through 324 of the Illinois Supreme Court
Rules.
In
addition
to the actual documents which comprise the record,
the
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 County hearing
ar.d
three copies of any other
documents
in the record shall
be filed with
the Board, and a coov
of the certificate shall
be served upon
the petitioner(s).
The
Clerk
of
the County
is given
21 days from the date
of
this Order
to “prepare,
bind and certify
the record on appeal”
(Ill. Su~reme
Court,
Rule
324).
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 105.103
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, eral.,
129
Ill.
Ano.
3rd,
472
N.E.2o
150
(Third District,
1984).
in
that case,
tne Court
oroered
the Boara
to assume transcription costs
(472 N.E.2a 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
13 days of
the date of
this Order
and completed
within
60 days of the date of
this Order.
The hearing officer
11 1-i3~
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 anove.
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 hearinc
shall
include
a new hearino date
at least
30 cavs
in the future anc 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 decisionmaking, absent
a waiver,
the Board will crant
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
sucri
a motion.
However,
no
such motion shall negate
the oblication of
the hearing officer
to
set
a date pursuant
to
the
requirements
of
this Order,
and to
adhere to
that Order until modified.
IT
IS
SO ORDERED
11
1—i 37
I,
Dorothy M. Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify
that the above Order was adopted on
the
~
day of
_______________________
,
1990,
by
a vote
of
7-0
.
~
~,
/L~
Dorothy M/ Gunn,
Clerk
Illinois ~-Pol1ut
ion Control Board
111—138