ILLINOIS POLLUTION CONTROL BOARD

March 14, 1986

EVERETT ALLEN, INC., an Illinois

Corporation, d/b/a/ Allen Waste

Management,

Petitioner,

v.

)

PCB 86—34

CITY OF MOUNT VERNON,

Respondent.

ORDER OF THE BOARD (by B. Forcade):

This action is an appeal filed March 7, 1986, pursuant to

Section 40.1(b) of the Environmental Protection Act (“Act”)

(Ill.Rev.Stat. ch. 111—1/2, par. 1040.1(b). Petitioner appeals

the decision of the City of Mt. Vernon denying 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

...

governing

body of the municipality.” The statute does not specify who is

to file with the Board the record before the municipality or who

is to certify to the completeness or correctness of the record.

As the City of Mt. Vernon 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—l72, the Board believes that the

City 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 City 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 City’s 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. The Clerk of the City of Mt. Vernon 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 90 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

petitioner to deem the site location approved. Pursuant to

Section 105.104 of the Procedural Rules, it is each petitioner’s

responsibility to pursue its action, and to insist that a hearing

on its 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.

Transcr~~4onCosts

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 anci

---

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 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 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, he~by certify tha~t~the above Order was adopted on

the

/~?‘C/~

day of

____ __________________,

1986, by a vote

of 7-0

.

__

~

j27

___

Dorothy M. Qlinn, Clerk

Illinois Pollution Control Board