ILLINOIS POLLUTIONI CONTROL BOARD
March 10, 1988
r1cLEAN COUNTY DISPOSAL
COMPANY, INC.,
Petitioner,
)
PCB 87—133
THE COUNTY OF McLEAN,
Respondent.
ORDER OF THE BOARD (by 3. Theodore Meyer):
This matter is before the Board on two motions. The first
is a motion filed by respondent County of McLean on February 24,
1988, seeking reconsideration of the Board’s January 21, 1988
Opinion and Order. That decision held that local siting approval
of a landfill proposed by petitioner McLean County Disposal
Company, Inc. was deemed granted by operation of law because the
McLean County Board failed to take final action on the
application within the statutorily mandated 180—day time
period. In the alternative, the County seeks a stay of the Board
decision pending an appeal to be filed with the appellate
court. On March 1, 1988, petitioner filed its objections to the
County’s motion. The second pending motion is a February 25,
1988 motion by Citizens Against the Randolph Landfill (CARL)
seeking leave to intervene in this matter. Petitioner filed its
objection to CARL’S request on February 29, 1988.
Initially, petitioner asks that the County’s motion to
reconsider be stricken. Petitioner argues that because the Board
is under a statutory deadline to decide landfill siting appeals
and because the Board made its January 21 decision on the final
day of that statutory period, the Board now has no jurisdiction
to take any further action on this matter and thus may not
consider a motion for reconsideration. The Board is not
persuaded by petitioner’s claim. In Modine Manufacturing Co. v.
Pollution Control Board, 40 Ill. App. 3d 498, 351 NI.E.2d 875 (2d
Dist. 1976), the appellate court rejected the claim that the
Environmental Protection Act (Act), Ill. Rev. Stat. 1985, ch.
par. 1001 et seq., does not empower the Board to allow
rehearing after entering a final order in a variance case, which
also has a statutory deadline on the Board’s decision. The
Modine court found that the Act does indeed provide the necessary
authority for the Board to allow rehearirigs as a procedure to
correct any error, omission, or oversight in its initial
consideration. Modine, 351 N.E.2d at 877—78. The Board sees no
difference between the terms “rehearing” and “reconsideration”
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(in fact, the Board’s procedural rules refer to “rehearing”), and
no substantive difference between the facts of Modine and the
facts of this case. See also Mathers v. Pollution Control Board,
107 Ill. App. 3d 729, 438 N.E.2d 213, 221 (3d Dist. 1982)
(affirming the Board’s power to allow rehearing after entering a
final order in an appeal of Agency denial of a landfill permit,
although the rehearing was allowed after the statutory deadline
on the Board’s decision). Thus, the Board will consider the
County’s motion.
The second issue for the Board’s decision is CARL’s motion
to intervene. CARL is an organization which represents owners of
property near the site of the proposed landfill, and was a
participant, by counsel, in the local hearings held by the McLean
County Board. As CARL correctly notes, it previously had no
standing before the Board by virtue of the decision in McHenry
County Landfill v. Illinois Environmental Protection Agency, 154
Ill. App. 3d 89, 506 N.E 2d 372 (2d Dist. 1987). Both CARL, in
support of its motion to intervene, and petitioner, in objecting
to the motion, cite McHenry County Landfill as support for their
positions. However, McHenry County Landfill is not applicable to
the issue of intervention on a motion to reconsider. The Board
will deny the motion to intervene. As nobed above, CARL did not
previously have standing before the Board, and the Board believes
that standing as intervenor may not be granted on a motion for
reconsideration where that party did not have standing at time of
the Board’s decision. As Modine points out, reconsideration is a
procedure to correct any error,. omission, or oversight found in
the Board’s decision. The Board must reconsider its decision
based upon the information in the record at the time of that
decision. CARL participated at the county level, and information
presented by it is in .the record. Anything new which CARL would
now seek to present to the Board could not properly be considered
on a motion for reconsideration. Thus, CARL’s motion to
intervene is denied.
The third issue for the Board’s decision is the merits of
the County’s argument that the Board erred in vacating the County
Board’s decision and deeming site approval granted by operation
of law. After a review of the County’s argument, the Board finds
that the County raises nothing new that would persuade it to
vacate its prior holdings set forth in the January 21, 1988
Opinion and Order. Contrary to the County’s implication, the
Board’s January 21 decision did not hold that a county may not
establish rules by which to conduct public hearings pursuant to
Section 39.2 of the Act. Ill. Rev. Stat. 1985, ch. ll1~/2, par.
1039.2. The Board held, and reaffirms here, that a county is not
authorized to use local procedures to extend the statutory 180—
day deadline. Section 39.2 has repeatedly been construed very
strictly by the appellate courts, and there is no authority in
that section for anyone other than the applicant to extend the
time for final action. In establishing the procedures of Section
39.2, the legislature not only provided for local review of the
siting of new regional pollution control facilities, but also
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established strict deadlines for decisions by units of local
government and this Board. The legislative intent is two—fold:
allow local review of the siting of new regional pollution
control facilities, but provide for decisions within a statutory
time certain. Thus, a unit of local government has no authority
to use local procedures to extend the statutory 180—day deadline
for decision. The Board reaffirms its January 21, 1988 Opinion
and Order. The motion to reconsider is denied on its merits.
Finally, the County seeks a stay of the Board’s January 21
Order pending an appeal to the appellate court. In accord with
the Board’s previous practice, the motion for stay is denied.
The County may seek a stay from the appellate court. ARF
Landfill Corp. v. Village of Round Lake Park, PCB 87—34,
September 17, 1987.
IT IS SO ORDERED.
J. D. Dumelle, R. Flemal, and B. Forcade dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
/o4~
day of
)?) ~
,
1988, by a vote of
________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
a-The Board notes that tne record contains a copy of a February
23, 1988 letter from the County’s attorney to the Illinois
Environmental Protection Agency. The letter sets forth the
County’s claim that as a result of the filing of the motion to
reconsider, the Agency is prohibited from granting any permit to
petitioner for the development or operation of the proposed
landfill. Regardless of the merits of the County’s position, it
is clear that there is no stay in effect after today’s denial of
the motion to reconsider.
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