ILLINOIS POLLUTION CONTROL BOARD
    June
    28,
    1977
    CITY OF CHILLICOTHE,
    )
    Petitioner,
    v.
    )
    PCB 77-6
    )
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Goodman):
    On March 25, 1977,
    Petitioner City of Chillicothe
    (City) sub-
    mitted
    a petition seeking variance from the final cover requirement
    of Rule 305(c)
    of the Board’s Solid Waste Management Regulations for
    a landfill site located within its boundaries.
    The Agency filed its
    Recommendation on June
    9,
    1977,
    76 days after the filing of the
    variance petition.
    No hearing has been held in this matter.
    The
    Agency Recommendation, which was filed too late to allow the Board
    to schedule a hearing, recommends denial of the variance and contra-
    dicts certain factual allegations in the petition.
    The City has
    filed a waiver of the statutory
    90—day
    decision period until June
    28, 1977.
    In Material Service Corporation
    v. Environmental Protection
    Agency and Pollution Control Board,
    41 Ill.App.3d 192,
    354 N.E.2d
    37
    (1976),
    the Illinois Appellate Court addressed a situation in which
    the Agency filed a recommendation of denial of the variance based on
    factual alleqations contradicting those in the petition and the Board
    then denied the petition without a hearing.
    The Court held that the
    recommendation must be considered an “objection” to the petition and
    that,
    under the Act and Procedural Rules,
    the Board could not deny
    the petition on the merits without
    a hearing.
    Because the Recommendation was not received by the Board until
    17 days prior to the date on which
    a decision was due in this matter,
    the Board has been unable to schedule a hearing.
    We are precluded
    26
    —
    53
    —2—
    under the Act and our Procedural Rules from deciding this case on
    its
    merits.
    The Board, therefore, dismisses the petition without
    prejudice and grants the City leave to refile should it so choose.
    This Opinion constitutes the finding of facts and conclusions
    of law of the Board in this matter.
    ORDER
    It is the Order of the Pollution Control Board that the Variance
    Petition filed by the City of Chillicothe on March 25,
    1977, be and
    is hereby dismi’ssed without prejudice.
    I,
    Christan
    L.
    Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certify the above Opinion and Order wer~adopted on
    the
    I~?.~1
    day of
    ~
    ,
    1977 by
    ~i
    vote of
    1-c~
    Illinois Pollution
    26-64

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