ILLINOIS POLLUTION CONTROL BOARD

March 19,

 1987’

PETER VALESSARES and

)

EDWARD

F.

 HElL,

)

Petitioners,

v.

)

 PCB 87—36

THE COUNTY BOARD OF KANE

)

COUNTY and WASTE MANAGEMENT

OF ILLINOIS,

 INC..,

Respondents.

ORDER OF THE BOARD

 (by B.

 Forcade):

This action is

 a third—party appeal

 filed March

17,

 1987,

pursuant to Section 40.1(b)

 of the Environmental Protection Act

(“Act”)

 (Il1.Rev..Stat.

ch.

 1111/2, par. 1040.1(b).

 Peter

Valessares and Edward

F.

 Hell (“Petitioners”)

 appeal the decision

of the County Board

 of Kane County (“County”)

 approving

 site

location suitability approval.

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 petitioners.

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).

76-388

—2—

Section 40.1(a) provides that

 if there

 is no final action by

the Board within 120 days, petitioners 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 Ottawag 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.

 The cognizance of this ruling,

 the Board will provide for

stenographic transcription of the Board hearing

 in this matter.

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 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.

76-389

—3—

Within

 10 days of accepting this case,

 the Hearing Officer

shall

 enter

 a Hearing Officer Scheduling Order governing

completion of the record.

 That Order shall

 set a date certain

for each aspect of the case including:

 briefing

 schedule,

hearing date(s),

 completion of discovery (if necessary)

 and pre—

hearing conference

 (if necessary).

 The Hearing Officer

Scheduling Order may be modified by entry of

 a complete new

scheduling

 order conforming with the time requirements below.

The hearing officer may extend

 this schedule only on

a

 waiver of the decision deadline by the petitioner 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

petitioner 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 complete new scheduling order with

 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

modifications

only

unusual

circumstances.

Any

such

motion

must

set

forth

alternative

schedule

for

notice,

hearing,

and

final

submissions,

 well

 as the deadline

for

decision,

including

 response time

to

such

motion.

However,

such motion shall negate

 the obligation of the hearing officer

to

set

 a date pursuant to the fourth paragraph of this Order,

and

to

adhere

 to that Order

 until modified.

IT

 IS SO ORDERED

76-390

—4—

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Order

was

adopted

the

day

of _______________________,

1987,

vote

______

)7))

 /~~‘

Dorothy M. ‘Gunn,

 Clerk

Illinois

Pollution

Control

Board

76-391