ILLINOIS POLLUTION CONTROL BOARD
July 13, 1989
McLEAN COUNTY DISPOSAL
COMPANY, INC.,
Petitioner,
v.
)
PCB 89—108
THE COUNTY OF McLEAN
)
(Redocketed from
PCB 87—133)
Respondent.
ORDER OF THE BOARD (by B. Forcade):
This action is an appeal filed July 7, 1989, pursuant to
Section 40.1 of the Environmental Protection Act (“Act”) (Ill.
Rev. Stat. ch. 111—1/2, par. 1040.1). McLean County Disposal
Company, Inc. (“MCDC”) appeals the decision of the County of
McLean (“County”) denying site location suitability approval.
On May 25, 1989, the Board remanded this matter back to the
County of McLean on the original docket number of PCB 87—133. On
June 20, 1989, the County voted to reaffirm its prior decision
denying site location approval for a new regional pollution
control facility. The Board considers this to be a new case,
thus, issuing a new docket number of PCB 89—108. As such, a
filing fee must accompany this petition for decision or, in the
alternative, for review. The statutory 120—day decision time—
clock does not start until the filing of the fee, and unless paid
within 21 days, this matter is subject to dismissal. This matter
is accepted for hearing.
Record Before the County Board
P.A. 82—682, also known as 33—172, as codified in Section
40.1(a) of the Act, provides that the hearing before the Board is
to t1be 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—l72, 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
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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 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).
Section 4ü.l(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 105.104 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 o~providing transcription
in Board site location suitability appeals has been addressed in
Town of Ottawa, et a1. 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 ~0 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
101—iF)
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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 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
Board Members J.D. Dumelle and M. Nardulli dissented.
101—111
—4—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, 1iereby~certify that the above Order was adopted on
the
/
~~day of
,
1989, by a vote
of
_____
Ii
Control Board
101—112