ILLINOIS POLLUTION CONTROL BOARD

February

23,

1989

FAIRVIEW AREA CITIZENS

)

TASK FORCE, et. al.,

)

Petitioner,

)

v.

)

PCB 89—33

VILLAGE OF FAIRVIEW and

GALLATIN NATIONAL COMPANY,

Respondents.

ORDER OF THE BOARD

(by B.

Forcade):

This action is an third—party appeal filed February 16,

1989

pursuant

to Section 40.1 of the Environmental Protection Act

(“Act”)

(I11.Rev.Stat.

Ch.

111—1/2, par.

1040.1.

Fairview Area

Citizens Task Force

(“Petitioners”)

appeal the decision of the

Village of Fairview (“unit of local government”)

and Gallatin

National Company approving site location suitability approval on

January

9,

1989.

Record Before

the Unit of Local Government

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 unit of

local government 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

unit of

local government 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 Clerk of the unit of

local government 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 unit of local government 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 unit of local government clerk

---

—2--

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 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 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 d~ysfrom 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

96—282

---

—3—

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 decisioninaking, 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

t~h,at the above Order was adopted

on

the

~

day of ________________________,

1989,

by

a vote

of

7—ô

.

~Dorothy

M. G~nn,Clerk

Illinois Po~’lutionControl

Board

.6—283