ILLINOIS POLLUTION CONTROL
BOARD
April 9,
1992
L~AND
AND
LAKES
COMPANY,
JMC
)
)PERATIONS,
INC., and NBD TRUST
)
OMPANY
OF ILLINOIS AS TRUSTEE
)
JNDER TRUST NO.
2624EG,
)
)
Petitioners,
)
PCB 92—25
)
(Landfill Siting Review)
VILLAGE OF ROMEOVILLE,
)
Respondent,
COUNTY
OF WILL,
)
)
Intervenor.
DRDER OF THE BOARD
(by M.
Nardulli):
This matter is before the Board on respondent village or
Romeoville’s
(Romeoville) motion to dismiss filed February 26,
1992;
petitioner Land and Lakes’ response filed March 6,
1992,
the County of Will’s response filed March 19,
1992, the County of
will’s motion to cite additional authority and Land and Lakes’
objection to the motion to cite additional authority.
A brief procedural history of this case is needed to
understand the instant motions.
On January 15,
1991 Land and
Lakes filed a petition seeking review of Romeoville’s decision
denying site location approval for Land and Lakes’ expansion of
its regional pollution control facility.
On August 26, 1991 in
PCB 91-7, the Board entered a final opinion and order finding
that Romeoville’s failure to give proper notice of the hearing in
accordance with Section 39.2(d)
of the Environmental Protection
Act
(Act)
(Ill. Rev.
Stat.
1989,
ch.
111 1/2, par. 1039.2(d))
rendered its decision void resulting in site location approval.
On September 27,
1991, Romeoville filed a motion for
reconsideration.
On December 6,
1991, the Board entered an order
reversing its prior determination that proper notice had not been
given to General Assembly members and remanding the case back to
Romeoville for clarification as to whether Land and Lakes had met
its burden of proving need for the proposed facility in
accordance with Criterion
1 of Section 39.2(a)(1).
(PCB 91-7.)
The Board closed docket PCB 91-7 and directed Land and Lakes to
file a new petition for review challenging Romeoville’s decision
on remand.
(PCB 91-7 (January 23,
1992).)
On January
8,
1992,
Romeoville entered its decision on Criterion 1.
On February 11,
1992,
Land and Lakes filed its petition seeking review of
Romeoville’s January
8,
1992 siting decision under docket PCB 92-
25.
132— 135
2
Initially,
the Board addresses the County of Will’s motion
to cite additional authority filed March 19,
1992.
By its
response of March
6,
1992, the County of Will joins in
Romeoville’s motion to dismiss.
The County of Will seeks to cite
Waste Management of Illinois v. PCB
(1st Dist.
1990),
201 Ill.
App. 3d 614, 558 N.E. 2d 1295, rev’d on other grounds,
145 Ill.
2d 345 (February 3,
1992)
as additional authority for its
position that Land and Lakes’ petition should be dismissed.
Land
and Lakes objects to the County of Will’s motion correctly noting
that the County has failed to identify any reason why this
authority was not timely cited in the initial response.
The
County of Will has failed to establish why it was unable to cite
the Waste Management case in its response.
Waste Management,
a
1990 case, was certainly available at the time the County’s
response was filed.
Absent some justification as to why citation
to this authority was not possible at the time the response was
filed, the Board denies the motion to cite additional authority.
The Board now addresses Romeoville’s motion to dismiss.
Romeoville seeks dismissal of Land and Lakes’ February 11,
1992
petition for review.
As noted above, the County of Will joins in
the motion to dismiss.
Romeoville argues that Land and Lakes’
notice of appeal,
filed in the appellate court on February 7,
1992,
vests jurisdiction of this matter in the appellate court
and deprives the Board pf jurisdiction over Land and Lakes’
petition for review.
Land and Lakes contends that its appeal of
the Board’s December 6,
1991 and August 26,
1991 opinions and
orders pending in the appellate court does not divest the Board
of jurisdiction over the petition for review of Romeoville’s 1992
decision reached after remand.
The Board will not comment upon the viability of Land and
Lakes’ appeal to the appellate court;1 Land and Lakes apparently
filed its notice of appeal to protect its right to review of the~
Board’s decision in PCB 91—7.
(Pet. Response at
3.)
However,
the Board finds that Land and Lakes’ appeal does not divest the
Board of jurisdiction over Land and Lakes’ petition for review
from Romeoville’s January
8,
1992 decision on Criterion 1.
The
Board took final action for purposes of Section 40.1(a)
of the
Act2 in PCB 91-7 on August 26,
1991 and, upon the motion of
1
In Clean Quality Resources. Inc. v. PCB No. 5-91-0156
(May 6,
1991), the Board’s motion to dismiss landfill
siting applicant Clean Quality Resources’ motion to
dismiss for lack of a final and appealable order was
granted.
2
“Final action” for purposes of Section 40.1(a)
of the
Act is not necessarily tantamount to a final and
appealable order.
Waste Management of Illinois.
Inc.
v. PCB (1991),
136 Ill.2d 556, 567 N.E.2d 344.
132—136
3
Romeoville,
reconsidered that decision on December 6,
1991.
rhese two Board opinions and orders set forth the Board’s
conclusions on several issues raised by Land and Lakes January
15,. 1991 petition for review. The Board’s December 6,
1991
opinion and order in PCB 91-7 makes clear that the sole issue
before Romeoville on remand was whether Land and Lakes had met
Criterion 1.
The Board’s January 23,
1992 order makes clear that
docket PCB 91-7 was closed and that Land and Lakes needed to file
a new petition for review to challenge Romeoville’s decision on
Criterion 1.
Therefore, the instant petition for review
cha1leng~sonly Romeoville’s 1992 decision after remand.
Because
the Board has not yet ruled on whether Romeoville’s finding on
Criterion 1 is against the manifest weight of the evidence, all
arguments challenging Romeoville’s finding on Criterion 1 must be
raised in the instant proceeding.
Any decision made by the Board in PCB 92-25 will not affect
the Board’s prior decisions which are the subject of the appeal
in the appellate court.
Therefore, consistent with Clean Quality
Resources, Inc. v. Marion CountY Board
(April 11,
1991)
(see
also,
Clean Quality Resources,
Inc.
v. Marion County Board
(August 26,
1991)), the Board concludes that the notice of appeal
filed in the appellate court from the Board’s December 1991
decision does not divest the Board of jurisdiction over Land and
Lakes’ petition seeking review of Romeoville’s 1992 decision on
Criterion 1.
Therefore,
Romeoville’s motion to dismiss Land and
Lakes’ petition for review is denied.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Bo~d,hereby certify that the above order was adopted on the
~
day of
(~~A~c-~
,
1992 by a vote of
7’— ~
~
~7,
Dorothy M.
unn, Clerk
Illinois
.0
lution Control Board
132—137