ILLINOIS POLLUTION CONTROL BOARD
January 21, 1988
AR.F. LANDFILL CORPORATION,
Petitioner,
v.
)
PCB 87—34
VILLAGE OF ROUND LAKE PARK
)
AND LAKE COUNTY,
Respondent.
ORDER OF THE BOARD (By J. Marlin):
This matter comes before the Board on a Motion to Dismiss
Siting Application Appeal filed by the Village of Round Lake Park
(Village) on December 7, 1987. On December 16, 1987, A.R.F.
Landfill, Inc. (A.R.F.) filed a Response to this motion. Since
the Board issued an Opinion and Order in this matter on July 16,
1987, the Board will construe the Village’s motion as a motion to
vacate pursuant to 35 Ill. Adm. Code 103.241(b)(l) as well as a
motion to dismiss. The Village filed an Objection to A.R.F.’s
Response on December 24, 1987. On January 6, 1988, A.R.F. filed
a Motion for Leave to File a Response to the Village’s Objection.
In its Objection, the Village requests that the Board strike
A.R.F.’s Response for being untimely filed. The certificate of
service on the Village’s Motion to Dismiss indicates that a copy
of the motion was mailed to counsel for A.R.F. on December 4,
1987. Therefore, it is presumed that A.R.F. received the motion
on December 10th. Service by mail is presumed complete four days
after mailing (35 Ill. Adm. Code 103.123), and Saturdays and
Sundays are not to be counted for the four—day time period (35
Ill. Adm. Code 101.105). Since a response to a motion is due
seven days after service (35 Ill. Adm. Code 103.140), A.R.F.’s
response was due December 17. As a result, A.R.F.’s Response was
timely filed, and the Board will not strike it. The Board’s
procedural rules do not provide the moving party with an
opportunity to reply to a response to a motion. The remainder of
the Village’s Objection constitutes a reply which the Board has
not considered. Since the Board has not considered theVillage’s
Objection, it will not consider A.R.F.’s response to that
Objection. As a result, the Board denies A.R.F.’s Motion for
Leave to File a Response.
On February 10, 1987, the Village, by resolution, “declined
to exercise jurisdiction” and dismissed A.R.F.’s application for
site location suitability approval. In its July 16th Order, the
Board vacated the Village’s dismissal of A.R.F.’s application and
remanded the application for hearing and decision pursuant to
Section 39.2 of the Illinois Environmental Protection Act
85— 159
(Act). Vital to the Board’s decision was the Board’s conclusion
that the Village’s purported annexation of a parcel of land,
commonly referred to as the Heartland Property, must be
considered valid until the circuit court ruled on a pending quo
warranto action. A.R.F.’s landfill expansion proposal included
the Heartland Property. Since the Heartland Property was
considered by the Board to be within the Village’s jurisdiction,
the Board found it necessary for A.R.F. to procure site location
suitability approval from the Village for that portion of the
landfill proposed to be located on the Heartland Property.
In support of its motion, the Village states that on
September 25, 1987, the Circuit Court of Lake County, Nineteenth
Judicial Circuit, issued a Judgement Order in the quo warranto
action. In the Judgement Order, the Circuit Court found the
annexation by the Village of the Heartland Property to be void ab
initio. The Village also states that on October 15, 1987, the
Appellate Court of Illinois, Second District, granted a motion
made by Lake County thereby dismissing A.R.F.’s appeal of the
Board’s July 16th decision. Lake County had argued that the
appeal was moot, since the Circuit Court had found the Heartland
annexation void ab initio. Also, on November 10, the Second
District denied a motion by A.R.F. to vacate the October 15th
Order.
In its Response, A.R.F. asserts that the Board should deny
the Village’s motion because of two pending appeals. Apparently,
A.R.F. sought to intervene in the Circuit Court quo warranto
action and was denied intervention. Subsequent to the Circuit
Court’s September 25th order, A.R.F. moved the CircuitCourt to
reconsider its denial of A.R.F.’s petition for intervention as
well as to vacate its September 25th order. Those motions were
denied. A.R.F. asserts
that
it is currently appealing those
denials by the Circuit Court in the Appellate Court of Illinois,
Second District.
Also, A.R.F. has filed with the Supreme Court of Illinois an
appeal of the Second District’s October 15th and November 10th
Orders concerning A.R.F.’s appeal of the Board’s July 16th
decision. The Board notes that this appeal has been docketed by
the Supreme Court as #66291.
Although the Village has brought to the attention of the
Board relevant factual information which was not before the Board
when it made its decision on July 16th, the Board finds that it
may not now act on the Village’s motion. That is, the Board does
not currently have jurisdiction over this matter since an appeal
of this matter is still pending. However, once the Supreme Court
disposes of this appeal, the Board will be free to act upon the
Village’s motion, pursuant to 35 Ill.
Adrn.
Code l03.241(b)(1) and
l03.241(c)(2), in a manner that is consistent with the Court’s
Order. Therefore, the Board will deny the Village’s motion with
leave to refile after action is taken by the Supreme Court in
8 5—160
this matter.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1985 ch. 111 1/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify at the above Order was adopted on
the
J/~4’~
day of
_______________,
1988, by a vote
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
85—161