ILLINOIS POLLUTION CONTROL BOARD

June 10,

1987

WASTE MANAGEMENT OF ILLINOIS,

INC.,

)

)

Petitioner,

v.

)

PCB 87—75

)

LAKE COUNTY BOARD,

)

Respondent.

ORDER OF THE BOARD

(by

B.

Forcade):

This action

is

an appeal

filed June

1,

1987, pursuant to

Section 40.1 of the Environmental Protection Act

(“Act”)

(Ill.Rev.Stat. ch.

1111/2,

par. 1040.1.

haste Management of

Illinois,

Inc.

(“Petitioner”) appeals the decision of the Lake

County Board

(“County”)

denying site location suitability

approval.

Petitioner should clarify what relationship,

if any,

there

is between any portion of the proposed facility

in this

proceeding which may be affected by the Heartland Settlement

Agreement

(Petition, Exhibit A,

p.

2, Paragraph

2(2))

and the

property

in two cases presently pending before the Board that may

be affected by the Heartland Settlement (A.R.F.

Landfill

Corporation v. Village of Round Lake Park and County of Lake, PCB

87—34;

In the matter of:

Request for Site Approval

for

A.R.F.

Facility Filed Before the County Board of Lake County,

PCB 8751

and PCB 87—57).

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 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

78-422

---

—2—

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.

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.

78-423

---

—3—

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

I,

Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Order was adopted on

the

/O~ day of ______________________,

1987,

by

a vote

of

(~,-o.

(

Dorothy M.

unn, Crerk

Illinois Pollution Control Board