ILLINOIS POLLUTION CONTROL BOARD

July 11, 1985

CONCERNED CITIZENS GROUP,

THERESA CASTARELLI, DEE ANN

MAYER

AND SHIRLEY WATSON,

)

Petitioners,

v.

)

PCB 85—97

COUNTY OF MARION AND

)

I.S.,

INC.,

Respondents.

ORDER OF THE BOARD

(by J. Anderson):

This action

is a third party appeal

filed July 2,

1985,

pursuant to Section 40.1(b)

of the Environmental Protection Act

(Act)

(Ill.

Rev.

Stat.

ch.

111—1/2, par.

1040.1(b).

Petitioners

appeal

the May 29,

1985, decision of

the Marion County Board

granting site location suitability approval

to I.S.

Inc.

for

a

new regional pollution control facility to be

located

in an

unincorporated area of the county.

Section 40.1(b)

of

the Act requires

that the Board

hear

a

petition “unless the Board determines

that such petition

is

duplicitous

or frivolous,

or that the petitioner

is

so located

as

to not be affected by the proposed facility.”

The Board

cannot:

at this time make a determination that the petition fails

to meet:

these criteria,

as it

is alleged that at least each of the

individual citizen petitioners participated

at hearing and reside

in the “immediate vicinity” of the proposed facility.

This

matter,

then,

is authorized for hearing.

Record before the County Board

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 Marion 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

65-73

---

—2—

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’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

petitioners.

As these requirements have not previously been

applied

to the Marion County Board,

its Clerk 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 respondent who had received 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

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.,

____

Ill.

App. 3rd

(Third District, No.

3—84—0158).

In that case,

the Court ordered

the Board

to assume transcription costs

(Slip Opinion at 8—9).

That Opinion was issued on November 30,

1984,

The mandate

in

Ottawa issued from the Third District on April 15,

1985,

the

Supreme Court having denied leave

to appeal on March 14, 1985.

In cognizance of this ruling,

the Board will provide

for

stenographic transcription of the proceedings

in this matter.

IT

IS SO ORDERED.

65-74

---

—3—

I, Dorothy M.

Gunn, Clerk of

the Illinois Pollution Control

Board hereb~certify that the ~bove Order was adopted on

the

//~

day of

___________________,

1985 by a vote

of

_________________

~

/

~‘•~•

Dorothy

M.

Gunn, Clerk

Illinois Pollution Control Board

65-75