ILLINOIS POLLUTION CONTROL BOARD
August
30,
1990
ERWIN HEDIGER, HORACE FILE,
SUSIE ARMERUSTER, ARLIN WOKER,
)
LAYTON PEDDICORD, ARLINE DAIL,
)
BURNELL
NEUMANN,
LJAVERLE EAKLE,
LYNN SCHMOLLINGER, HOWARD PRINGLE,
)
REID BINGHAM, AGNES PRINGLE,
CRAIG WOKER, MRS.
OJ DAIL,
)
JEANETTE TIFT, GLEN MILES
BILL GOODALL, DONALD SPRADLING
HOLLIE WILLMANN, CHARLES
H.
FUNK,
)
CAROLYN SPRADLING, PAMELA FUNK,
LOLA BROAN, JAMES DARNELL
LEROY WIESE,
LAMOINE
BROWN,
MIKE EATON,
JIM STOECKLIN,
)
BOB BOWEN,
MARY BLOEMKER,
)
DON CORE,
ELDON BLOEMKER,
FRANCIS RINDERER, DANNY KUHN,
MRS.
RALPH BAUMANN, PAMELA
BRYANT, LEORA LEISHER,
MR. RALPH BAUMANN, JIM ZEBB,
)
MYRNA BRUCE, RICHARD ARMBRUSTER,
)
JOHN LANGFORD, MRS.
PETTY
)
DARNELL
and BOND COUNTY
CONCERNED CITIZENS,
)
Petitioners,
v.
)
PCB 90—163
(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 August 20,
1990
pursuant
to Section
30.1(b)
off
the Environmental Protection Act
(“Act”)
(Ill.Rev.Stat.
Ch. 11l~,par.
1040.1
(b)).
The above—
named individuals and Bond County Concerned Citizens
(“Petitioners”) appeal
the decision
off
the Bond County Board of
Supervisors
(“County”)
granting site location suitability
approval.
It appears
that the petition
is not duplicitous or
frivolous
and that
Petitioners participated
in the hearing below.
(See,
Pet.
p.
3).
The Board notes
that
the petition presents
Ii
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7
—1—
inconsistent spellings of the individual petitioners’
names, and
the Board has reproduced the names as captioned in the
petition.
Petitioners are directed to correct any spelling
errors with the next filing.
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 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
rights
of all parties
to this action,
and in order
to satisfy the
intention of SB—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 l05.102(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
off
the certificate,
seven copies of the
transcript of the 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 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).
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 ~ct
concerning
third—party
appeals of
the grant
off 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
off the Procedural
Rules,
it
is each
party’s
responsibility to pursue
its action, and to insist that a
1
1!~-.3!~3
—3—
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,
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 apprcpriate 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
lease
120 days beyond the date of
the motion
to cancel hearing.
This should allow ample
time
for
the Board
to
republish notice
off hearing and receive transcripts from the
hearing before the due date.
Any order by
the hearing officer
ii
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—4—
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 certiffy ~-iat the above Order was adopted on
the ~0r~-
day of
______________________
,
1990,
by a vote
of
7- ~
.
Dorothy
M. Gy~n, Clerk
Illinois Poflution
Control Board
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