ILLINOIS POLLUTION CONTROL BOARD

May 2, 1985

MCHENRY COUNTY LANDFILL,

INC.,

Petitioner,

V.

)

PCB 85—56

COUNTY BOARD OF MCHENRY COUNTY,

Respondent.

ORDER OF THE BOARD

(by J. Anderson):

This action

is an appeal filed April

23,

1985 pursuant

to

Section 40.1(a)

of

the Environmental Protection Act

(Act)

(Ill.

Rev,

Stat.

ch, 11i~par. 1040.1(a)).

McHenry County Landfill,

Inc.

(the Landfill) appealed the March

20,

1985 denial

of the

McHenry County Board of the Landfill’s application for site

location suitability approval pursuant

to PA 82—682

(SB 172)

for

a new sanitary landfill.

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 McHenry 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

“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 Mdflenry 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.

84-35

---

—2—

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

timeframe

(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(a)

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’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.

Finally,

the Board anticipates entry of an Order concerning

who must pay the costs of transcription of the hearing

to be held

by this Board

in this matter

at the Board’s May 16 meeting.

IT

IS SO ORDERED,

J.

Theodore Meyer dissented.

I, Dorothy M. Gunn, Clerk

of the Illinois Pollution Control

Board, h~ebycertify

t

t the above Order was adopted on

the

_________

day of

________________,

1985 by

a vote

~

.~

Dorothy

M. Gun

,

Clerk

Illinois Pollut on Control Board