ILLINOIS POLLUTION CONTROL BOARD
May 14,
1987
IN THE MATTER OF:
)
REQUEST FOR SITE APPROVAL FOR
)
PCB 87—51
A.R.F. FACILITY FILED BEFORE
)
87—57
THE
COUNTY
BOARD
OF
LAKE
COUNTY
)
CONCURRING
OPINION
(by B.
Forcade):
I concur that the cross—appeal
in PCB 87—57 must be
dismissed, but believe additional explanation
is warranted.
Historically,
the Board allowed third parties (anyone other
than the landfill applicant or the local government decision—
maker)
to appeal
a local government decision to approve
siting.
The Board also allowed third parties to cross—appeal or
intervene
in a proceeding brought by the landfill applicant to challenge a
siting denial.
In part,
that prior philosophy was based
on the
somewhat vague statutory language and
in part it was based on the
theory that the General Assembly intended
to grant third parties
the right to participate
in and
to appeal decisions granting
local siting approval whether those decisions were made by the
local government or made by this Board
in overturning a local
government denials.
That approach to allowing third party cross—
appeals
in siting denials was changed by the Second District’s
holding in McHenry County Landfill
v.
IPCB
(Second District, Slip
Opinion,
March 30,
1987).
The court
in McHenry County evaluated the statutory language
of Section 40.1 of the Environmental Protection Act (hereinafter,
the RAct~)and the factual scenario which brought the case
to the
Second District.
In the factual scenario, the County Board of
McHenry County denied
an application of McHenry County Landfill
for site location approval on October 15,
1985
(after
a prior
remand from this Board
in PCB 85—56,
September 20,
1985),
and
NcHenry County Landfill appealed that October denial to this
Board
(PCB 85—192).
Several objectors also filed cross—appeals,
which
the Board accepted.
On March 14,
1986, this Board affirmed
the October
15,
1985, denial
of site location suitability
approval.
The McHenry County Landfill appealed that decision to
the Second District and
the third parties
(also called objectors)
cross—appealed.
Thus, when the case arrived at the Second
District,
the McHenry County Board had denied site location
approval and this Board had affirmed denial.
With this factual
background,
the Second District reviewed the statutory language
and concluded the objectors had
no standing
to appeal
to this
Board
or the Second District.
78-26
—2—
Section 40.1
of the Act, which governs appeals
to the Pollution Control Board provides:
W1f
the
county
board
...
refuses
to
grant
(site)
approval
...
the
applicant
may
petition
for
a
hearing
before
the
(PCb)
to
contest the decision...
(b)
If
the
county
board
...
grants
(site)
approval
...
a
third
party
other
than
the
applicant
...
may petition the
(PCB)
...
for
a
hearing
to contest the approval
...
(Ill. Rev.
Stat.
1985,
ch. 1l~/~par. 1040.1(a),
(b)).
The
Act
thus
does
not
provide
for
a
third—
party
appeal
where
the
PCB
has
refused
to
grant
site approval.
(See.
E
&
E Hauling
v.
Pollution
Control
Board,
(1985),
107
Ill.
2d
33,
41
(concluding that Section
40.1 as writ-
ten
adequately
recognizes
arid
protects
the
rights of
third parties).)
The PCB
is power-
less to expand its authority beyond that which
the
legislature
has expressly granted
to
it.
(Landfill,
Inc.
v.
Pollution
Control
Board,
(1978),
74
Ill.
2d
541,
557—58;
see
also,
Schalz
v.
McHenry County Sheriff’s Department
Merit
Corn.
(1986), 113 Iii.
2d l9d,
204.)
We,
therefore,
conclude
that
the
PCB
improperly
permitted
the
objectors
to
become
parties
to
the
proceeding
before
it.
The
objectors
therefore
have
no
standing
to
appeal
to
this
court
under
Section
41
of
the Act
(Ill.
Rev.
Stat.
1985,
ch.
l11l/~, par.
1041),
and
their
cross—appeals are hereby dismissed.
This language
is certainly dispositive
in the
instant
proceeding.
The County Board of Lake County did,
in fact, deny
site location approval and William Alter
and the LaSalle National
Bank, as third—parties, are precluded from cross—appealing
to
this Board.
The larger
issue of whether
a third party can seek
review if this Board grants approval (by overturning
a County
Board denial)
is less clear.
The Second District
in McHenry County did not dismiss the
objectors from the Second District proceeding because of the
action of the County Board,
but rather because of the action of
this Board:
The
Act
thus
does
not
provide
for
a
third—
party
appeal
where
the
PCB
has
refused
to
grant site approval
(Citation Omitted).
Slip
Opinion at
7.
78-27
—3—
At page six of the Slip Opinion, the court states that standing
to appeal
a decision of this Board
under Section 41(a)
of the Act
depends on whether one
is adversely affected by the decision of
the Board:
We will first consider Landfill’s motion to
dismiss the cross—appeals.
Due process
of law
does
not
encompass
the
right
to
appeal
an
administrative
decision,
and
affording
that
right
is
the
exclusive
prerogative
of
the
legislature.
(Board
of
Education
v.
Gates
(1974),
22
Ill.
App.
3d
16,
20.)
Section
41(a)
of
the
Act
(Ill.
Rev.
Stat.
1985,
ch.
luLl2,
par.
1041(a))
permits
appeals
only
by
those
who
have
been
denied
a
hearing,
variance,
or
permit
by
the PCB
—
clearly not
applicable
to
the
objectors
—
or
persons who
are parties
to
a PCB hearing
or are adversely
affected by
a
final order
or determination
of
the PCB.
The
PCB
found
that Landfill
had met
its
burden
in
establishing
four
of
the statutory
criteria for
site approval, but had
failed
to
establish the remaining two.
It then affirmed
the
county
board’s
denial
of Landfill’s
site
approval
request.
The
objectors
oppose
the
landfill,
and
thus
cannot
have
been directly
adversely
affected
by
that
decision.
(See
Dolnick
v.
Redmond
(1972),
4
Ill.
App.
3d
1037,
1040
(noting
that
the
adverse
effect
must
be
direct
to
confer
standing
to
appeal).)
The objectors thus have no standing
to appeal unless they were properly parties to
the PCB hearing.
These two sections of McHenry County seem
to imply that
third parties may have
a right to appeal
a decision of this Board
to an appellate court
under Section 41(a)
of the Act if this
Board grants site approval by overturning a County Board
denial.
At present however,
the law in this area would have
to
be described as uncertain.
78-28
—4—
I, Dorothy
14. Gunn, hereby ce
ify that the above Concurring
Opinion was submitted on the
~
day of
~7’h
~
1987.
/
Dorothy N. Gum, Clerk
Illinois Pollution Control Board