ILLINOIS POLLUTION CONTROL BOARD
December 20,
1985
CITY OF COLUMBIA, WALTER BYERLY,
JR.,
)
BARBARA HEINLEIN, DANIEL FIEINLEIN;
)
UOMER STEMLER AND LORETTA STEMLER,
)
Petitioners,
)
v.
)
PCB 85-177
)
COUNTY OF ST. CLAIR AND BROWNING-
)
FERRIS INDUSTRIES OF ILLINOIS,
INC.,
)
)
Respondents.
ORDER OF THE BOARD
(by J. Anderson):
On December
2, 1985 petitioners pursuant
to Section 40,1 of
the
Act
(also known as P.A.
82-682 and SB
172)
filed an appeal
to
“preserve” an issue which they asserted might be
at issue:
whether
the Cpunty’s decision must be made within 120 days or 180
days of Browning-Ferris
Industries’
(BFI’s) filing of its
application for site location suitability approval for
a new
regional pollution control facility to avoid the application’s
being “deemed approved” pursuant to Section 39.2(e).
The
petition was accompanied by
a motion to require BFI to file an
answer containing any assertion that a 120 day or a 180 decision
deadline applied to this action.
On December
5,
1985 the Board
issued an Order requesting additional information from the
parties
to allow the Board to determine whether
a timely filed
case or controversy exists of which
the Board might take
jurisdiction.
Each party has filed a response.
The factual situation is as follows.
BFI filed its request
for site location suitability approval with St.
Clair County on
June 27, 1985.
The statute
in effect on that date,
P.A.
82-682,
contained
a 120 day deadline for County decision on the
application which would have been October 25.
However,
P.
A.
83-
1552, which became effective four days later on July 1, 1985,
amended
P.
A.
82-682 to provide,
inter alia,
that the County
decision was due 180 days after the application’s
filing, which
would have been December 24.
The County made
a decision to deny
the application on November
25.
BFI asserts,
in it December 20 filing, that
it intends to
file
an appeal (due December 30) of the County’s decision which
will include
as one ground
the assertion that, pursuant
to
Section
39.2,
it may deem its application approved as of October
26 for failure
of the County to render a decision
in 120 days.
The Board
finds that
the City of Columbia’s, December
2,
1985 petition was timely filed pursuant to Section 40.1(b)
and
87-109
-2-
that
a controversy exists over which the Board must take
jurisdiction.
The Board notes
that this situation is
procedurally awkward, as the Board’s
120 day decision timeclock,
which
runs in favor
of the applicant, has commenced well before
the filing of any appeal
by the applicant.
The Board further
notes,
in the interests of administrative economy,
its intention
to consolidate any appeal by BFI with the City’s appeal.
In the absence of
a waiver by the applicant,
the Board
faces
a tight
time schedule.
While the Board acknowledges the
disruption of normal business activities occasioned by
the
holiday season,
adherence to the following filing and briefing
schedule is essential to allow the Board
to make
a timely
decision
in this matter.
As
explained in greater detail below,
the
County
is directed to file its record in this matter on or
before January 10, 1986.
All parties are directed
to file
simultaneous briefs on or before January 10,
1986 asserting legal
arguments as
to the decision deadline applicable
to the County.
Any responses thereto shall be filed on or before January 21,
to
allow for possible resolution of this component of the action by
the Board at its January 23 meeting.
Hearing may be scheduled,
but shall not be held, until
after the question of the applicable
decision date
is determined.
The Board wishes
to advise the City of its intention,
in the
event that the Board determines that
a
120 day deadline
is
applicable
as
a matter of statutory construction, to order the
filing of an amendment to the City’s petition on or about January
31
specifying
1) any factual or legal
basis for estoppel of
BF.I
from benefitting from a
120 day determination,
2)
in what regard
the County’s procedures were fundamentslly unfair, and
3) why
“approval”
is contrary to the manifest weight of the evidence
(see Petition, ¶5).
This amendment will be required
to give
Focus
to the hearing.
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.”
The statute does not specify who
is to file with the
Board
the record before the County or who
is to certify to the
completeness or correctness of the record.
As the
St.
Clair County Board 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
87-110
“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’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
other
parties.
The
Clerk of the St.
Clair County Board 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 respondent who had received the
permit a)
the right to
a decision within the applicable statutory
time frame, 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 respondent
to deem the site location approved.
Pursuant to Section 105.104
of the Procedural Rules,
it is each petitioners’ 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.
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.
Finally,
the
Clerk’s
Office
is
directed
to
serve
the
parties
with
copies
of
this
Order
today
by
first
class
mail,
in
addition
to the usual certified mail.
IT IS SO ORDERED.
67-ill
—4*
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Order
was
adopted on
the
-~7L~ day
of
_______________________,
1985,
by
a
vote
of
~
-
C
.
Dorothy
M. d~inn, Clerk
Illinois
Pollution
Control
Board
67-112