ILLINOIS POLLUTION
CONTROL BOARD
August
10, 2000
PJVERDALE RECYCLING, INC.
)
and
TRI-STATE DISPOSAL, INC.,
)
)
Petitioners,
)
)
v.
)
PCB 00-228
)
(Permit Appeal
-
Land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
ORDER OF THE BOARD
(by C.A. Manning):
This
matter is before the Board on a July 21,
2000
motion for leave to
intervene by the
Village of Riverdale (Village)
in an appeal of a denial of a supplemental solid waste permit.
The Village asserts it has an
interest in this proceeding because a Board decision regarding the
supplemental permit has a direct bearing upon the health,
safety and
welfare of its
citizens.
On August 30,
1994,
Riverdale Recycling, Inc.
and Tn-State Disposal,
Inc.
(petitioners) filed an amended siting application with the Village seeking location approval for
a pollution control facility pursuant to
Section 39.2 ofthe Environmental Protection Act (Act).
415
ILCS 5/39.2
(1998).
The Village
issued siting approval with conditions
to petitioner on
October
5,
1994.
Petitioners filed an application for a supplemental permit with the Illinois
Environmental Protection Agency
(Agency)
on August
5,
1999.
The Agency denied the
application
on the grounds that petitioner
“did not include demonstration that local siting
approval has been granted for the specific proposals in accordance with the requirements of
Section 39.2” of the Act.
See Petition to Appeal, Exh.
A at 2.
The petitioners appealed the
Agency’s denial of the permit to the Board.
The Village petitioned to
intervene in part because
it did not want to
rely upon the Agency to rebut petitioners’ arguments
about its
original siting
approval.
See
Village Pet.
at 4.
The Act,
by
its terms, does not grant general authority
to
the Board to
allow third-party
intervention in all cases appealing an Agency decision to
deny a permit.
In Landfill.
Inc.
v.
PCB,
74 Iii.
2d 541,
387
N.E.2d 258,
264
(1978), the court held that the Board’s procedural
rules allowing third-party complaints
in a sanitary landfill permit appeals case to be
void.
Since the Act did not
authorize the Board to
entertain such challenges,
the Board’s procedural
rules were
“unauthorized administrative extensions” of its
authority.
Id.
at 265.
If the Board
grants the Village’s petition to
intervene, it would
essentially allow a third-party challenge to
the Agency’s permit denial,
which the court precluded
in Landfill,
Inc.
This
rationale stands
2
even though the Village’s petition to intervene appears to be premised upon the Village’s
support of,
rather than objection to,
the Agency’s
denial of the supplemental permit.
The Third District has affirmed the Board’s denial of a third party petition “challenging
the Agency’s decision to issue an NPDES permit
and requesting a
de
novo
evidentiary
proceeding.”
Citizens
Utilities Company of Illinois
v.
PCB,
et al.
265
Iii. App.
3d 773,
775,
639 N.E.2d
1306,
1308
(3rd Dist.
1994).
In Citizens Utilities, the Village ofPlainfield
appealed the Agency decision to grant Bolingbrook a National Pollution Discharge Elimination
System (NPDES) permit for proposed discharge from
a new proposed wastewater treatment
plant.
The case involved a different type of permit.
However, the underlying holding that the
Board did not have general authority
to
allow third-party challenges without explicit statutory
authority,
directly applies to this case.
After the holdings in Landfill,
Inc.
and Citizens
Utilities, the legislature revisited the
issue of third-party appeals, and has since enacted two
specific sections regarding appeals of
Resource Conservation and Recovery Act
(RCRA)
and NPDES permit denials.
See
415
ILCS
40(b), (e)
(1998).
The legislature never granted general
authority
to the Board to
allow third-
party appeals or interventions
in other cases
involving permit denials.
The silence of the
Illinois
General Assembly after the explicit requirement for statutory authority
in Landfill,
Inc.
and
Citizens Utilities
is a clear indication that the Board does not
have authority under the Act
to accept third-party appeals
or interventions in this
matter.
Furthermore,
it is
well settled that third parties cannot intervene
in
cases where
the
local governments denied siting approval, pursuant to
Section 39.2 of the Act.
415
ILCS
5/39.2
(1998);
Land
and
Lakes Company v.
Village of Romeoville
(September
1,
1994), PCB
94-195;
see
also Waste Management of Illinois,
Inc.
v.
PCB,
160
Ill. App.
3d 434,
513
N.E.2d
592
(2d Dist.
1987).
In Land
and
Lakes, the Forest Preserve
District of Will County
(Forest Preserve) filed a motion for leave
to
intervene with the Board asserting it had a
statutory obligation to
protect and preserve ecological
interests in the Forest Preserve.
The
Forest Preserve also argued it would
be affected
and bound by a Board decision regarding the
Agency denial of the landfill siting approval.
The Board held that the Forest Preserve was a
third-party
objector,
and denied the petition to
intervene.
The Village,
here, much
like
the Forest Preserve in Land and
Lakes, petitions
to
intervene because the siting is
similarly
“an
issue of critical
importance to the Village.”
Village Pet.
at
1.
The Village
asserts it should
be a party in this
matter because it has a better
understanding of its
original
siting approval.
Although the Village
made the decision to
approve the original siting resolution,
the Agency
is responsible for deciding whether
petitioners’ permit application
is accepted or denied.
Since the Act does not grant express authority to
the Board
to
accept third-party
appeals
or interventions, the motion for leave to
intervene filed by the Village
is denied.
The Village
is,
however,
granted leave
to present
its
concerns to
the Board by
filing an
amicus curiae
brief
in this
matter pursuant to
the schedule established by
the hearing officer.
3
IT
IS SO
ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution
Control Board,
hereby certif~,
that
the above order
was adopted on the
10th day
of
August 2000 by
a vote of
5-0.
Dorothy M. Gunn,
Clerk
Illinois
Pollution Control Board