ILLINOIS POLLUTION CONTROL BOARD
    February 25, 1988
    WASTE MANAGEMENT OF ILLINOIS INC.,
    a Deleware Corporation,
    Petitioners,
    v.
    )
    PCB 88—39
    McHENRY COUNTY BOARD,
    Respondent.
    ORDER OF THE BOARD (by B. Forcade):
    This action is an appeal filed February 25, 1988, pursuant
    to Section 40.1 of the Environmental Protection Act (“Act”)
    (Ill.Rev.Stat. Ch. 111—1/2, par. 1040.1. Waste Management Of
    Illinois, Inc., “Petitioner”) appeal the decision of the Mdllenry
    County Board (“County”) approving site location suitability
    approval.
    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 105.l02(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 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 40.1(a) provides that if there is no final action by
    the Board within 120 days, petitioner may deem the site location
    approved.
    86—417
    —2—
    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 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
    86—418
    —3—
    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 ~51~.day of
    .~
    ,
    1988, by a vote
    of
    7—o
    Dorothy M. unn, Clerk
    Illinois Pollution Control Board
    86—419

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