ILLINOIS POLLUTION CONTROL BOARD

STATUTORY AND REGULATORY BACKGROUND

December 21, 2007

PEORIA DISPOSAL COMPANY,

(Pollution Control Facility Siting

Appeal)

ORDER OF THE BOARD (by N.J. Melas):

On June 7, 2006, petitioner, Peoria Disposal Company (PDC), filed a petition for review

of the Peoria County Board’s (County) alleged failure to take action by May 3, 2006, on a

pollution control facility siting application. The Board accepted the petition for hearing on

June 15, 2006.

On November 6, 2006, the County moved for leave to supplement the record on appeal

(Mot.), filed the three documents it requests leave to incorporate into the record, and filed a

second amended index.

On November 16, 2006, PDC responded in opposition to the County’s motion for leave

to supplement (Resp.). On November 30, 2006, the County moved for leave to file a reply

(Reply). PDC responded in opposition to the County’s motion for leave to file a reply on

December 6, 2006 (Obj.). The Board grants the County’s motion for leave to file a response and

accepts that response.

For the reasons set forth below, the Board grants the County’s motion for leave to

supplement the record. The Board, however, orders the County to file a clean copy of one of the

three documents, or explain why the Board should accept the filed version, by January 5, 2007.

STATUTORY AND REGULATORY BACKGROUND

Section 40.1(a) of the Act provides:

In making its orders and determinations under this Section the Board shall include

in its consideration the written decision and reasons for the decision of the county

board . . . the transcribed record of the hearing held pursuant to subsection (d) of

Section 39.2, and the fundamental fairness of the procedures used by the county

board . . . in reaching its decision. 415 ILCS 5/40.1(a) (2004).

Section 107.304(a) of the Board’s regulations concerning petitions for review of pollution

control facility siting decisions provides:

The record must contain all information or evidence presented to the local siting

authority or relied upon by the local siting authority during its hearing

process. . . . . 35 Ill. Adm. Code 107.304(a).

MOTION TO SUPPLEMENT THE RECORD

The County moves the board to supplement the record with three documents that were

not filed due to inadvertence. Mot. at 2. The County identifies the documents as: (1) the

supplemental staff report for the Peoria Disposal Company application for local siting approval

which was presented by County staff at the April 6, 2006, subcommittee meeting (Supplemental

Staff Report); (2) proposed findings of fact prepared by the County staff for consideration by and

distributed to the County prior to the April 6, 2006 committee meeting (April 6 Proposed

Findings); and (3) a one-page sheet of findings of fact generated by County staff at the May 3,

2006 County Board meeting incorporating one change decided and made by the County at that

meeting (Findings Page).

The County contends that the first two documents were reviewed by the local siting

authority during the proceedings and should be incorporated into the record. The Findings Page,

argues the County, documents the one change made to the proposed findings of fact at the

May 3, 2006 meeting, and should also be made part of the record. Mot. at 3. The County asserts

that supplementing the record with these documents is fair, appropriate, and necessary and will

not cause prejudice to either party or the public. The County included a second amended index

of the record “should the Board grant this motion.”

In response, PDC did not object to supplementing the record with the Supplemental Staff

Report. PDC objects to incorporating the April 6 Proposed Findings and the Findings Page into

the record, arguing the documents were not properly included in the record, the documents were

never available to PDC or the public prior to filing this petition for review, and the motion for

leave is grossly untimely and prejudicial to PDC. Resp. at 2-3.

PDC contends that under Section 107.304 of the Board’s procedural rules, the record

must contain evidence presented to or relied upon by the local siting authority. The April 6

Proposed Findings and the Findings Page, however, were reviewed and discussed by the siting

committee, not the County Board. Resp. at 3; citing 35 Ill. Adm. Code 107.304(a). PDC reasons

that these two documents, therefore, do not belong in the record.

. at 3, 4.

PDC next asserts that the April 6 Proposed Findings and Findings Page were never

placed into the record at any time prior to PDC’s filing of this petition. Resp. at 5. Further,

contends PDC, the County seeks to supplement the record with tables and calculations, pages

C139653-58, not included with the April 6 Proposed Findings. PDC claims these pages were not

part of the record available to PDC or the general public. According to PDC, the County has

provided no foundation or explanation for these pages in the motion to supplement. Resp. at 6.

Finally, PDC argues that supplementing the record with the April 6 Proposed Findings

and Findings Page at this late date is untimely and prejudicial to PDC. Resp. at 7. PDC states

that the parties have completed discovery. Supplementing the record with these two documents,

argues PDC, would mandate a reopening of discovery.

. at 9. PDC requests that the Board

deny the County’s motion to for leave to supplement.

. at 10.

In reply, the County contends that despite PDC’s claim that it was “totally unaware” of

the April 6 Proposed Findings and the Findings Page, PDC actually questioned Ms. Karen

Raithel, on behalf of the County, about the April 6 Proposed Findings during her deposition.

Reply at 2. The County contends that PDC was well aware of both documents during the

proceeding and has had ample opportunity to question any and all deponents about them.

The County claims that copies of the April 6 Proposed Findings were distributed to the

public at the start of the April 6, 2006 committee meeting. The County states that the April 6

Proposed Findings were referenced twice in PDC’s response to the committee of the whole vote,

filed April 27, 2006. Reply at 2; citing C13461-13488. The County asserts that the April 6

Proposed Findings document was used by the board members as clearly evident from the

transcripts of the April 6, 2006 meeting. For these reasons, the County contends including these

documents in the record on appeal will cause PDC no prejudice or delay. Reply at 3.

PDC objects to the County’s reply due to several misstatements of fact. Obj. at 1. PDC

admits that it received a copy of proposed findings of fact on April 6, 2006, but that the

document received by the public was not identical to the document the County now seeks to

incorporate into the record. PDC states the April 6 Proposed Findings contains handwritten

notations that did not appear in the handout distributed to the public, includes page C139649

which was not included in the handout distributed to the public, and includes pages C139653

through C139658 (showing charts pertaining to perpetual care) which also was not included in

the handout distributed to the public.

. at 3-4. PDC also contends the two documents were

formatted differently. For these reasons, PDC moves the Board to deny the County’s motion for

leave to supplement the record on appeal.

BOARD ANALYSIS

Because the parties do not agree to supplement the record on appeal, the Board must

consider whether the documents the County requests to incorporate is “information or evidence

presented to the local siting authority or relied upon by the local siting authority during its

hearing process.” 35 Ill. Adm. Code 107.304(a). PDC does not object to incorporating the

Supplemental Staff Report. PDC does object to incorporating the April 6 Proposed Findings and

the Findings Page. The County’s motion, on the other hand, states that both documents were

reviewed and relied upon by the siting committee. The Board finds that all three documents

were presented to the local siting authority during the hearing process and grants the County’s

motion for leave to supplement the record. The Board, however, requests that the County file a

clean copy of the April 6 Proposed Findings with the Board.

PDC specifically objects to incorporating the version of the April 6 Proposed Findings

that the County filed along with the motion to supplement on November 6, 2006. PDC claims

that the April 6 Proposed Findings includes handwritten notations that were not in the version of

the proposed findings distributed to the public at the April 6, 2006 committee meeting. The

County attached an affidavit of Ms. Karen Raithel to its November 30, 2006 reply. Ms. Raithel’s

affidavit stated that a copy of the version of the April 6 Proposed Findings handed out to the

public at the April 6, 2006 committee meeting was attached to her affidavit. The Board finds no

document attached to her affidavit.

The Board orders the County to file a clean copy of the April 6, 2006 Proposed Findings

or explain why the Board should accept the version including handwritten notes. Pursuant to

Section 107.304(a), the County must file the version of the document presented to the siting

authority during the local hearing process. Because hearing is scheduled to take place January 8

through 11, 2007, the Board allows the County 14 days from the date of this order, or until

January 5, 2007, to file a clean copy or an explanation.

CONCLUSION

The Board grants the County’s motion for leave to supplement the record and

incorporates the Supplemental Staff Report and Findings Page into the record. The Board orders

the County to file a clean copy of the April 6 Proposed Findings, or an explanation of why the

Board should accept the version including handwritten notes, by January 5, 2007. For purposes

of administrative efficiency and accurate reference at hearing, the Board also orders the County

to file an amended index reflecting any changes in pagination.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on December 21, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board