ILLINOIS POLLUTION CONTROL BOARD

November

6,

1986

RICK MOORE,

LEONARD MORRIS and

EDITH SIMPSON,

Petitioners,

v.

)

PCB 86—197

WAYNE COUNTY BOARD and

DAUBS LANDFILL,

INC.,

)

Respondents.

ORDER OF THE BOARD

(by

B.

Forcade):

This action

is

a third—party appeal

filed November

6,

1986,

pursuant

to Section 40.1(b)

of the Environmental Protection Act

(“Act”)

(I11.Rev.Stat.

Ch. 111—1/2, par. 1040.1(b).

Petitioners

appeal

the decision of the

Wayne County Board approving site

location suitability approval.

Section 40.1(b)

requires the Board

to make various findings

before authorizing

a hearing on third—party appeals.

The

petition,

on its

face, asserts that

the petitioners are located

so as

to be affected by the facility,

arid that they participated

at the county’s hearing.

The Board does not find that this

petition

is duplicitious or

frivolous,

although the petition

is

very general.

However, the Board cannot determine whether the

action was filed within 35 days of the county’s decision, which

is alleged to have occurred

“on or about” September

30,

1986,

but

which has not be provided.

Given the tight timeframe for Board

decision

in cases such as these, the Board

intends

to make its

determination of whether this appeal may go

forward on November

20,

1986.

Petitioners are directed

to file an amended petition

on or before November

18,

1986, which includes

a dated copy of

the county’s decision, and the factual

bases for the assertions

that the county lacked jurisdiction, conducted

its proceedings

in

a fundamentally unfair manner

and made

a decision against the

manifest weight of the evidence.

The Board orders that the

parties file memoranda, not later

than November

18,

1986,

regarding whether this petition has been timely filed.

The balance of this Order

is the standard procedural

instruction issued

in cases of this type.

The parties are

directed

to note that if decision

is delayed past November

20,

1986, due

to their

failure

to timely file the required pleadings,

that

the Wayne County Clerk

would

be required

to file the county

record

prior

to any Board determination that the action may

properly proceed;

the Board

would

find any such event

undesirable.

74-69

---

—2—

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

105.102(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).

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.

74-70

---

—3—

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

decisipn

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

cer tain.

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.

74-71

---

—4—

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

~

day

of

______________________,

1986,

by

a

vote

of

~

.

.*t?~2.

/‘~

~

Dorothy

M. ‘~unn, Clerk

Illinois Pollution Control Board