ILLINOIS POLLUTION CONTROL BOARD

August

6,

1987

WABASH AND LAWRENCE COUNTIES

TAXPAYERS AND WATER DRINKERS

ASSOCIATION and KENNETH PHILLIPS,

Petitioners,

v.

)

 PCB 87—122

THE COUNTY OF WABASH

AND

K/C

RECLAMATION, INC.,

Respondents.

ORDER OF THE BOARD (by

 B. Forcade):

This action

 is an appeal

 filed August

6,

 1987, pursuant to

Section 40.1 of the Environmental Protection Act

 (“Act”)

(I11.Rev.Stat. Ch. 111—1/2, par.

 1040.1.

 Petitioners appeal the

decision of the County of Wabash (“County”)

 approving site

location suitability for K/C Reclamation, Inc.

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~.ofprotecting

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 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

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 petitioners.

The

Clerk

 of the County

 (city or 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).

80—139

—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

 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~construesSection 40.1(b)

 in like manner, with the

result

that

failure

this

Board

act

120

days

would

allow

the

site

location

applicant

 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, writ.ten 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.

80— 140

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.

ORDERED

I, Dorothy M. Gunn, Clerk

 of the Illinois Pollution Control

Board, hereby certify that~heabove Order was adopted on

the

~

 day of

 1987, by a vote

of

 ~,-c.

26~

Dorothy M. Gunn,

 Clerk

Illinois Pollution Control Board

80— 14 1