ILLINOIS POLLUTION CONTROL BOARD
June 10, 1987
GERTRUDE GUERRETTAZ,
EUNICE SCHACKMANN,
MICKIE BUNTON,
KATE BERGBOWER, RUTH
)
BERGBOWER,
SANDRA SCHACKMANN, MADONNA
)
SCHACKMANN, WAYNE BERGBOWER, SCOTT
BERGBOWER,
BROWNIE BERGBOWER, ROSEMARY
BERGBOWER,
TOM BERGBOWER, TIM McDONALD,
)
GLORIA McDONALD, KENNY BERGBOWER, CHUCK
)
BERGBOWER, JIM DROM,
CLOYCE BUNTON,
LARRY CASEY, BILL MENKE, JOE SCHACKMANN,
)
KEITH SCHACKMANN, BRYAN BERGBOWER,
)
LISA BERGBOWER, AUDREY MENKE, SUSAN
)
BERGBOWER,
CHRISTINE LITZELMAN, ANDY
)
DHOM,
SHARON DHOM, ED YAGER, CAROL
)
YAGER, DEBBIE YAGER, GENEVA DROM,
)
TERESA DHOM, BRIAN DHOM,
GENE
)
SCHACKMANN, JANE CASEY, EMMA YAGER,
)
JOHN YAGER and
A..C..
DROM,
)
)
Petitioners,
)
v..
)
PCB 87—76
)
JASPER COUNTY, ILLINOIS and
)
LENA RICHARDSON and BERGBOWER
)
LANDFILL,
INC..,
Respondents.
ORDER OF THE BOARD (by
B1. Forcade):
This action
is an appeal
filed June 2, 1987, pursuant to
Section
401.1 of the Environmental Protection Act
(“Act”)
(Ill1.Rev..Stat..
Ch.. 111—1/2,
par1.
10401.11.
Petitioners appeal the
April 28, 1987, decision of the Jasper County Board
(“County”)
“tacitly” approving applicant’s site location suitability1.
Record Before
the County Board
P1.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”1.
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 record1.
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
78-425
—2-
intention of SB—l72, the Board believes that the County must be
the party to prepare and file the record on appeal1.
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 petitioner(s)1.
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
78-426
—3-,
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
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
78-427
—4—
I, Dorothy
M,. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the /ô~~day of ______________________,
1987, by a vote
of
(~
-
p
,.
/
Dorothy M
Gunn, Clerk
Illinois Pollution Control Board
78-428