ILLINOIS POLLUTION CONTROL BOARD
July 10, 1997
CITIZENS OPPOSED TO ADDITIONAL
LANDFILLS and HARVEY C. PITT,
individually and as a member of Citizens
Opposed to Additional Landfills,
Petitioners,
v.
GREATER EGYPT REGIONAL
ENVIRONMENTAL COMPLEX a/k/a
GERE PROPERTIES, INC., and the PERRY
COUNTY BOARD OF COMMISSIONERS
for and in behalf of the County of Perry,
Respondents.
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PCB 97-233
(Landfill Siting Review)
ORDER OF THE BOARD (by J. Yi):
This matter is before the Board on an appeal filed pursuant to Section 40.1(b) of the
Environmental Protection Act (Act) (415 ILCS 5/40.1(b) (1996)) on June 23, 1997 by Citizens
Opposed to Additional Landfills and Harvey C. Pitt (Petitioners) from the May 27, 1997
decision of the Perry County Board of Commissioners (County) granting local siting approval
to Greater Egypt Regional Environmental Complex a/k/a Gere Properties, Inc. for the
pollution control facility located in Perry County. The County’s May 27, 1997 decision was
done pursuant to the Board’s remand of its earlier decision for reasons set forth in PCB 97-29,
August 15, 1996.
The cited section of the Act requires the Board to hear the instant petition if it
has been filed by a third party other than the applicant if the party participated in the
public hearing conducted by the county board or municipal governing body which
granted siting approval, unless it determines that the petition is duplicitous or frivolous,
or that the petitioner is so located as to not be affected by the proposed facility. An
action before the Board is duplicitous if the matter is identical or substantially similar to
one brought in another forum Brandle v. Ropp (June 13, 1985), PCB 85-68. An action
before the Board is frivolous if it fails to state a cause of action upon which relief can
be granted by the Board Citizens for a Better Environment v. Reynolds Metal Co.
(May 17, 1973) PCB 73-173.
The petition indicates that the petitioners participated in the previous public hearing.
There is no evidence before the Board to indicate this matter is identical or substantially
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similar to any matter brought in another forum, nor is there any evidence that the Board cannot
grant the relief requested. There is also no evidence before the Board to suggest that the
petitioners are so located as to not be affected by the proposed facility. Therefore, the Boards
finds, pursuant to 35 Ill. Adm. Code 103.124(a), that the complaint is neither duplicitous nor
frivolous, that the petitioners participated in the prior public hearing and that the petitioners
are or may be so located as to be affected by the proposed facility. Accordingly, this matter
shall proceed to hearing.
Record Before the County of Perry Board of Appeals
P.A. 82-682, also known as SB-172, as codified in Section 40.1(a) of the Act (415
ILCS 5/40.1(a) (1996)), provides that the hearing before the Board is to “be based exclusively
on the record before the county board or the governing body of the municipality.” The statute
does not specify who is to file with the Board such record or who is to certify to the
completeness of the correctness of the record.
As the County 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
Rules 321 through 324 of the Illinois Supreme Court Rules. 107 Ill. 2d R. 321-324. The
record shall contain legible versions of all documents, transcripts, and exhibits deemed to
pertain to this proceeding from initial filing through and including final action by the local
government body. The record shall contain the originals of all documents, shall be arranged
as much as possible in chronological sequence, and shall be sequentially numbered, placing the
letter “C” before the number of each page. 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 be an index of the record that lists the documents comprising
the record and shows the page number upon which they start and end. The original and nine
copies of the certificate shall be filed with the Board, and a copy of the certificate shall be
served upon the petitioner(s). The original and nine copies of the transcript of the local
hearing and the original and three copies of any other documents in the record shall be filed
with the Board. The Clerk of the County is given 21 days from the date of this order to
“prepare, bind and certify the record on appeal” (Illinois Supreme Court Rule 324). If the
record is not legible, sequentially numbered, or fails to include an appropriate index of record,
the Clerk of the Pollution Control Board may refuse to accept the document for filing.
Waiver of the Decision Deadline
Section 40.1(a) of the Act (415 ILCS 5/40.1(a) (1996)) 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 (415 ILCS 5/40(b) (1996)) 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),
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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) of the Act (415 ILCS 5/40.1(b) (1996)) in like manner with the result that
failure of this Board to act in 120 days would allow the site location applicant to deem the site
location approved. Pursuant to Section 105.104 of the Board’s Procedural Rules, (35 Ill.
Adm. Code 105.104) it is each party’s responsibility to pursue its action, and to insist that a
hearing on the 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 Appellate Court ordered the
Board to assume transcription costs (Ottawa, 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.
Scheduling and Conduct of the Hearing
The hearing must be scheduled and completed in a timely manner, consistent with
Board practices and the applicable statutory decision deadline, or the decision deadline as
extended by waiver (the siting applicant may file a waiver of the statutory decision deadline
pursuant to 35 Ill. Adm. Code 101.105). The Board will assign a hearing officer to conduct
hearings consistent with this order, and the Clerk of the Board shall promptly issue appropriate
directions to that assigned hearing officer.
The assigned 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, a statement
regarding credibility of witnesses and all actual exhibits to the Board within five days of the
hearing.
Any briefing schedule shall provide for final filings as expeditiously as possible and, in
time-limited cases, no later than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory or deferred decision
deadline. Absent any future waivers of the decision deadline, the statutory decision deadline is
now October 21, 1997 (120 days from June 23, 1997); the Board meeting immediately
preceding the decision deadline is scheduled for October 16, 1997.
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. The hearing officer and the parties are encouraged to expedite this proceeding
as much as possible.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 10th day of July 1997, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
