ILLINOIS POLLUTION CONTROL BOARD

July

13,

1989

METROPOLITAN WASTE SYSTEMS,

INC.,

and CHICAGO WEST

PULLMAN

)

TRANSPORTATION CORPORATION,

)

Successor—In—Interest

CHICAGO RAIL LINK,

Petitioners,

V.

)

PCB 89—104

CITY OF BLUE ISLAND,

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

This action

is an appeal filed June

23, 1989 pursuant

to

Section 40.1 of

the Environmental Protection Act

(“Act”)

(Ill.Rev.Stat.

Ch.

111—1/2, par.

1040.1.

Metropolitan Waste

Systems,

Inc.,

and Chicago West Pullman Transportation

Corporation, succes~or-in—interestto Chicago Rail Line

(“Petitioners”)

appeal the decision of

the City of Blue

Island

(“City”) denying site location suitability approval for

a refuse

transfer station and recycling facility.

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 City 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 City 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 105.102(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

City 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 City hearing and three

copies

of any other

documents in the record shall

be filed

with

the Board,

and a copy

1~)1—1O1

---

—2—

of the certificate shall be served upon the petitioners.

The

Clerk of the City is given 21 days from the date of this Order

to

“prepare, bind and certify the record on appeal”

(Ill. Supreme

Court, Rule 324).

Section 40.1(a)

provides that if there

is no final action by

the Board within 120 days, petitioner may deent 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,

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

withi.n 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

101—102

---

—3—

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

75 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 decisionmaking, 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

set a date pursuant to this Order.

IT IS SO ORDERED

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

/J~day of

1

,

1989, by a vote

of

T

~

.

Dorothy M.4inn,

Clerk

Illinois PMlution Control Board

101—103