ILLINOIS

POLLUTION

CONTROL

BOARD

November

8,

1984

JANET

HOESMAN

AND

BYRON

HOESMAN,

)

Petitioners,

)

v,

)

PCB

84—162

CITY

COUNCIL

OF

THE

CITY

OF

)

URBANA,

ILLINOIS,

AND

THE

)

CITY

OF

URBANA,

ILLINOIS,

)

Respondents.

ORDER

OF

THE

BOARD

(by J.

D.

Dumelle):

This action

is a third party appeal

filed

pirsuant to

Section 40.1(b)

of the Environmental Protection Act

(Act)

(Ill.

Rev.

Stat.

ch.

111½,

par.

1040.1(b)).

The Petitioners,

Janet and

Byron Hoesman,

appeal

the October

1,

1984 decision

of the City

Council

of Urbana.

The City of Urbana proposes to develop a new

regional pollution control facility in the form of

a sanitary

landfill

for disposal of nonhazardous general municipal refuse.

The location of the proposed site is at 1210 East University

Avenue,

Urbana,

Illinois and is adjacent to previously operated

sanitary landfill

property.

This appeal was timely filed on November

1,

1984.

As

required

by

Section

40.1(b)

of the

Act,

the Board

finds that

this

matter

should

proceed

to

hearing,

as

the

petition

a)

is

not duplicitous or frivolous,

h)

indicates that petitioners

participated

in the City Council’s piblic hearing,

and

C)

indicates that the petitioners’ property

is located adjacent

to the proposed

site.

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 hoard.”

The statute does not

specify who is

to file ~ziththe Board the record before the

County or who is to certify to the completeness

or correctness

of the record.

As the City Council

of Urbana 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

City Council must be the party to prepare and file the record

on

61-55

---

—2—

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 Clerk

of the City Council 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,

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 City

Council

of

Urbana,

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(b) provides that the petition shall

he heard

“in

accordance with the terms of” Section 40,1(a),

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

con-

cerning

third—party

appeals

of

the

grant

of

hazardous

waste

landfill permits

as

giving the ~~j~ndent

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 Environm~n~et_al.v.Akron

~~~Cor.etaL,

PCB 80—184,

October

30,

1930),

The

Board

therefore construes

Section 40.1(b)

in like

manner, with the

result that failure

of

the

Board

to

act

in

120

days

would allow

respondent to deem the site location approved~

Rursuant

to

Section 105.104

of

the

Procedural

Rules,

it is

each

petitioner’s

responsibility

to

~irsue

its

action,

to

insist

that

a

hearing

on

its petition

is timely scheduled,

and to insure that a transcript

of the hearing

is timely filed with the Board

in order

to allow

the Board to review

the

record

and

to

render its decision within

120 days of the filing of the petitiov~.

Petitioners have

requested that the Respondents be

directed

to serve upon Petitioners a copy of the transcript

ar.d of any

and

all other documents

or

papers

filed

by them

in this case.

The Board notes that

the Board’s Procedural

Rule at 35

Ill. ~dm.

Code 103.123 requires

that

all pleadings,

motions,

and

notices

be served personally

or by First Cla9s mail.

However,

the

respondents are not

under

an obligation to serve upon

petitioners

a copy of the transcript

of the hearing or

any

other documents

in

the record,

These

documents,

once filed will

be available to

petitioners for review

and copying

(at

their own expense) at the

Board’s Chicago office,

They should also be

available from the

City of Urbana pirsuant

to the Illino~.sFreedom

of Information

Act.

IT

IS

SO

ORDERED.

61-56

---

—3—

I, Dorothy N.

Gunn,

Clerk of the Illinois Pollution

Control Board,

hereby certify that the above Order was

adopted

on the

f~

_day of

______________

,

avoteof___________

~

/~

___

Illinois Pdllution Control Board