ILLINOIS POLLUTION CONTROL BOARD
    June 16, 2005
     
    WASTE MANAGEMENT OF ILLINOIS,
    INC.,
     
    Petitioner,
     
    v.
     
    COUNTY BOARD OF KANKAKEE
    COUNTY,
     
    Respondent.
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    PCB 04-186
    (Pollution Control Facility
    Siting Appeal)
     
    ORDER OF THE BOARD (by G.T. Girard):
     
    On June 10, 2005, the parties filed a stipulation and joint motion for remand (Mot.). The
    parties ask that this pollution control facility siting appeal be remanded to the Kankakee County
    Board for “continuing consideration” of the siting application. Mot. at 2. The Kankakee County
    Board adopted a resolution asking Waste Management of Illinois, Inc. (Waste Management) to
    seek a remand because Waste Management had submitted a stipulation to the Kankakee County
    Board.
    Id
    . The Kankakee County Board believed that Kankakee County Board lacked the
    authority to consider the stipulation while this appeal was pending.
    Id
    . The parties “agree” that
    remand to the Kankakee County Board for further consideration is “the most appropriate course
    of action” with respect to this appeal.
    Id
    . The parties state that th
    e Board has the authority to
    remand this proceeding based on Caterpillar Tractor Company v. IEPA, PCB 83-58 (Mar. 7,
    1985). For the reasons explained below, the Board disagrees with the parties, and denies the
    joint motion for remand.
    First,
    Caterpillar involved an air permit appeal in which the parties asked that the
    proceeding be remanded to the Illinois Environmental Protection Agency (Agency) “for
    reconsideration” of the permit. Caterpillar, PCB 83-58 (Mar. 7, 1985). The Board finds that
    Caterpillar does not support remand in this proceeding. The Board notes that Caterpillar was
    arguably overruled by a decision in the Appellate Court, Reichold Chemicals, Inc. v. PCB, 204
    Ill. App. 3d 674, 561 N.E.2d 1343 (3rd Dist. 1990). In Reichold, the court found that the Agency
    had no authority to reconsider or modify earlier decisions on permits. Reichold, 561 N.E.2d at
    1345. Thus, under Reichold, the Board could not remand a permit appeal to the Agency for
    reconsideration; rather, the Board would be required to render a decision that could allow for
    remand to the Agency under the appropriate circumstances.
    Second, Caterpillar involved a permit appeal while the instant case is a pollution control
    facility siting appeal. Both proceedings are authorized by the Environmental Protection Act
    (Act) (415 ILCS 5/1
    et seq
    . (2002)), however, there are material differences in the two types of
    proceedings. If a pollution control siting application is denied (as in the instant case) for failing
    to meet the criteria in Section 39.2 of the Act (415 ILCS 5/39.2 (2002)), an applicant may not
    file a new application for siting within two years that is substantially the same (
    see
    415 ILCS
     
    2
    5/39.2(m) (2002)). There are no such limits on a permit application. Also, when Caterpillar was
    decided by the Board, there was no authority to allow third parties to appeal the decisions by the
    Agency on air permits. Third parties may appeal the decision of the governing body in pollution
    control facility siting proceedings (
    see
    415 ILCS 5/40.1(b) (2002)). The statutory differences
    between permit appeals and pollution control facility siting cases do not justify automatic
    application of case law from one type of case to another. Even if Reichold did not overrule
    Caterpillar, the Board finds that Caterpillar does not support remand in this proceeding.
     
     
    The parties have not cited any other authority that supports remanding a pollution control
    facility siting proceeding without the Board deciding the merits of the case. Further, the Board
    has found no authority to support remanding this proceeding to the Kankakee County Board.
    The Board has also received a number of public comments that oppose remand of this matter and
    support the Kankakee County Board’s decision to deny siting approval.
    See e.g.
    PC 24, 26, 28.
    The Board finds that there is no statutory or case law basis for remand in this case and, therefore,
    denies the motion to remand.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on June 16, 2005, by a vote of 5-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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