ILLINOIS POLLUTION CONTROL BOARD

May 25,

1989

C9RISTIAN COUNTY LANDFILL,

INC.,

)

)

Petitioner,

v.

)

PCB 89—92

CHRISTIAN COUNTY BOARD,

)

Respondent.

ORDER OF THE BOARD

(by B. Forcade):

This action

is an appeal

filed May 24,

1989

to contest the

portion of the April

21,

1989 decision of the Christian County

Board which included conditions B—H with

the Christian County

Board’s approval

of Christian County Landfill,

Inc.’s application

for site location approval

for the expansion of its sanitary

landfill,

pursuant to Section

40.1

of the Environmental

Protection Act

(“Act”)

(Ill.Rev.Stat.

Ch. 111—1/2, par.

1040.1).

Record Before the County Board

P.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

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

docuirents 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.

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).

99—315

---

—2—

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

terTns

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

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

arid 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 qfficer

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.

99—316

---

—3—

The hearing officer may extend this schedule only on

a

waiver

of the decision deadline by the site location suitability

applicant

arid 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

~

day of ______________________,

1989,

by a vote

of

~

.

Ill

~11utionControl Board

99—317