ILLINOIS POLLUTION CONTROL BOARD

April 30,

1987

GERALD CLUTTS and LEE SIEGFRIED,

Petitioners,

v..

)

PCB 87—49

HERMAN

L,. BEASLEY,

Respondent,

and

ALEXANDER COUNTY BOARD OF

)

COMMISSIONERS,

Co—Respondent.~

ORDER OF THE BOARD (by

B..

Forcade):

This action is an third—party appeal filed April

20,

1987,

(date)

pursuant to Section

40..l of the Environmental Protection

Act (“Act”)

(I1l..Rev..Stat.

Ch.. 111—1/2,

par..

1040.1.

Gerald.

Clutts and

Lee Siegfried

(“petitioners”)

appeal the decision of

the Alexander County Board of Commissioners

(“County”)

approving

site location suitability approval..

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.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

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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..

If after appropriate consultation with the parties, the

parties fail

to provide an acceptable hearing date

or

if after

an

77-275

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—3—

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 decisionniaking, 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 ~bove Order was adopted on

the

3’O~7 day of _______________________, 1987,

by a vote

of

~-o

..

Dorothy M/ Gunn,

Clerk

Illinois Pollution Control Board

77-276