ILLINOIS POLLUTION CONTROL BOARD
March 24, 1988
WASTE r4ANAGEMENT OF ILLINOIS, INC.,
Petitioner,
v.
)
PCB 88—39
MCHENRY COUNTY BOARD,
)
Respondent.
ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board on a petition of the
Mdllenry County Defenders (Defenders), filed March 11, 1988. On
March 14, 1988, Waste Management of Illinois, Inc. (WMI) filed a
motion to dismiss the Defender’s petition. On March 21, 1988,
the Defenders filed a response. The Defenders’ petition requests
a hearing and review of the McHenry County Board’s (County)
decision that WMI satisfied Criterion #1 of Section 39.2(a) of
the Environmental Protection Act (Act).
On August 31, 1987, the County denied WMI’s request for Site
location suitability approval of a regional pollution control
facility (commonly referred to an “SB172” proceeding); the denial
was based on failure of WMI to satisfy Criteria #2 and #3 of
Section 39.2(a) of the Act. The County found that WMI had
satisfied Criteria ~1, #4, #5 and #6. On February 25, 1988, WMI
filed an appeal of the County’s action. The Defenders support
the County’s action on Criteria #2 and #3, oppose its action on
Criterion #1, and did not comment in its filings about the
County’s findings that WMI satisfied Criteria #4, #5 and #6.
The Defenders’ assert that its participation in the County
hearing was principally directed to contesting WMI’s showing on
Criterion #1. The Defenders volunteered that the Board may feel
bound by the decision of the Appellate Court in McHenry County
Landfill v. Illinois Pollution Control Board, 154 Ill. App. 3d
89, 506 N.E. 2d 372 (2nd Dist. 1987), which ruled that Section
40.1 of the Act does not allow for cross—appeals by objectors in
the case of a denial of an SB172 site location suitability
approval. The Defenders argue, however, that the McHenry County
Landfill appellate court decision misconstrues Section 40.1 of
the Act, and stated that its petition, at the very least, is
filed to preserve its appellate rights.
87—217
—2—
The Defenders also argue that this instant case is
distinguishable because the Board had affirmed the County in
McHenry County Landfill, whereas in this case a reversal is
possible and, if so, would adversely affect the third—party
objectors.
WMI argues that the principle that third party objectors may
not cross—appeal a county denial is well established, citing
Mcflenry County Landfill and also the City of Rockford v.
Winnebago County Board, PCB 87—92, (November 19, 1987).
The Board does not agree that the McHenry County Landfill
appellate court decision, which reversed the Board on this issue,
turns on whether or not the Board upholds a county or municipal
denial. Since the Mcuenry County Landfill decision, the Board
has consistently, and it believes properly, denied third party
appeal status when there is a local SB172 denial. The Board has,
however, allowed the submission of amicus curiae briefs.
In Waste Management of Illinois, Inc. v. Lake County Board,
PCB 87—75, (July 16, 1987), the Board, basing its decision on
McHenry County Landfill, rejected an attempt to intervene in a
SB172 appeal of a denial of site location suitability approval.
However, in A.R.F. Landfill, Inc. v. Lake County, PCB 87—51
(August 20, 1987), the Board allowed the submission of an amicus
curiae brief by an interested person. Similarly, the Board
denied intervention to a citizen’s group and treated the group’s
brief as an arnicus curiae in City of Rockford v. Winnebago County
Board, PCB 87—92 (November 19, 1987). The Board also allowed the
filing of amicus curiae briefs in Waste Management of Illinois,
Inc. v. Lake County Board, PCB 87—75 (December 17, 1987), and
Laidlaw Systems, Inc. v. Mcflenry County Board, PCB 88—27 (March
10, 1988).
Regarding the filing of an amicus curiae brief in this case,
the Board notes that a) the Defenders did not petition for this
relief, and b) the petition for hearing was requested solely:
to review the specific finding of Respondent
McHenry County Board (“County Board”), in its
decision on February 24, 1988 denying landfill
siting approval to Waste Management of
Illinois, Inc. (“Waste Management”), that
Waste Management satisfied its burden of
proving that its proposed landfill is
Unecessary to accommodate the waste needs of
the area it is intended to serve.” Ill. Rev.
Stat., ch. Ill 1/2, Section l039.2(a)(i)
(hereinafter “Criterion #1). (Pet. p. 1,2,
March 11, 1988).
87—2 18
—3—
The Board has already disallowed briefing on subject matter
that is not an issue on appeal. The Board has stated:
However, in its brief, STL attempts to
litigate the sufficiency of the evidence
supporting the County’s decision that
criterion (iv), relating to flood plains, was
met. The Board notes that this criterion is
not an issue on appeal, and therefore, the
Board accordingly strikes pages 80 and 81 of
STL’s October 13, 1987 brief. Although they
will not be considered by the Board, they will
physically remain in the record for
transmittal to any reviewing court. (City of
Rockford v. Winnebago County Board, PCB 87—92,
November 19, 1987, p. 4,5)
The Defenders here present arguments concerning Criterion
#1; it does not present any argument concerning criteria #2 and
#3 in either its Petition or Response. Nor has the Defenders
indicated a desire to do so. Nevertheless, the Board will allow
the Defenders to file an amicus curiae brief except insofar as
the Defenders address any criteria other than Criteria #2 and #3,
the only two criteria which are at issue in this appeal. The
timing of the brief’s submission shall be determined by the
Hearing Officer when the briefing schedule is set.
The motion to dismiss the petition is granted. The
Petitioner is granted leave to file an amicus curiae brief
subject to the conditions contained in this Order.
IT IS SO ORDERED.
J. D. Dumelle and B. Forcade concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif that the above Order was adopted on
the
~
day of
____________,
1988, by a vote of ~
DorothyIllinoisM.PollutionG mi,
~
ClerkControl
Board
87-219