ILLINOIS POLLUTIOF’1 CONTROL BOARD
March 10, 1988
MCLEAN COUNTY DISPOSAL
COMPANY, INC.,
Petitioner,
v.
)
PCB 87—133
COUNTY OF MCLEAN,
Respondent.
DISSENTIt~IGOPINION (by B. Forcade, J.D. Dumelle and R. Flemal):
We dissent from the decision of the majority on the motion
for reconsideration for the reasons expressed in our January 21,
1988, Dissenting Opinion, which need not be repeated here.
However, although we agree that the motion to intervene
filed by Citizens Against the Randolph Landfill (“CARL”) should
he denied before this Board, we believe that, under these facts,
additional discussion regarding CARL’s participation in the
landfill siting process 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 McUenry County evaluated the statutory language
of Section 40.1 of the Environmental Protection Act (hereinafter,
the “Act”) 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
McHenry County Landfill appealed that October denial to this
87—17
—2—
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 r4cHenry 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.
Section 40.1 of the Act, which governs appeals
to the Pollution Control Board provides:
“If 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. lll~-/2, 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 and 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 Ill. 2d 198, 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. llll/2, par. 1041), and their
cross—appeals are hereby dismissed.
This language is certainly dispositive of the request by
CARL to intervene before this Board. The County of McLean did,
in fact, deny site location approval and CARL, as a third—party,
is precluded from intervention before this Board. The larger
issue of whether a third party can seek review if this Board
87—18
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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.
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.
1111/2, 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
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Board grants site approval by overturning a County Board
denial. In this proceeding the County Board denied site approval
and this Board granted site approval. Thus the question left
open by McHenry County is now ripe. While neither this Board nor
the dissenters can bind the Appellate Courts, we feel that CARL
is entitled to the analysis
Bil
oard
S. Forcade
Mernbe
~
~—~•
/J.D.
6
Board
Dumelle, P.E.
Member
I, Dorothy M. Gunn, hereby e tify that the above Dissenting
Opinion was submitted on the~’(
day of
2?#-t.e_.L
1988.
Ill
Pollution Control Board
87—20