February

2,

SERVICE,

Petitioner,

V.

)

PCB 88—195

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

DISSENTING

OPINION

(by

3.

Marlin):

Given

the circumstances of

this

case,

I must

disagree with

the majority’s dismissal

of

this matter.

I

believe

that

the

proper course

of action, given

the available alternatives,

is

to

move forward with

the

instant permit

appeal proceeding.

The facts

in

this matter

are undisputed.

The Fourth

District’s decision

in Citizens Aaainst

the Randoich Landfill

(CARL)

v.

Pollution Control Board,

No.

4—88—0247

&

4—88—0251

cons., December

28,

1988,

reversed and remanded the Board’s

decision

in PCB 87—133 which

had held that McLean County Disposal

Service,

Inc.

(MCD) application

for site

location suitability

approval was granted

by operation

of

law.

The Fourth District

has

not

issued

a mandate

for

its December

28,

1988 decision.

Neither

the Board

nor

the ~.o~ellate Court

has granted

a stay

of

the Board’s decision

in P03 87—133 pending

the

appeal

of that

decision.

Section 39(c)

of

the Environmental Protection

ct

(Act)

provides:

No

permit

for

the

development

or

construction

of

a

new

regional

pollution

control facility may

be

granted

by

the Agency

unless

the

applicant

submits

proof

to

the

Agency

that

the location

of

the

said facility

has

been

aporoved

by

the

County

Board...or

governing

body

of

the municipality....

The

instant proceeding concerns

the Agency’s denial of MCD’S

application for

a developmental permit.

The statutory decision

deadline for this matter

is April

5,

1989.

A hearing

is

scheduled

for February 23,

1989.

If

the Board

fails

to decide

this matter

by April

5,

1989, MCD’s permit request would

be

granted

by operation of

law pursuant

to Section

40(a)

of

the Act.

Given

these circumstances,

I

believe

that

the

most prudent

course of action

for

the Board would

be

to grant

a stay of

this

instant permit

appeal pending

the issuance of

a court mandate

96—31

---

2

concerning

the Board’s decision

in PCB 87—133.

Such

a tack would

allow

the judicious expediture

of

the Board’s limited

resources.

Since

the ~.gency may not grant

a development permit

without an applicant demonstrating that

it has already

received

site location suitability approval,

the Board would

not need

to

make

a decision on the merits

of the

instant appeal

if the

Board’s decision

in PCB 87—133

is overturned

by

a court

and

a

mandate

is

issued.

However,

since

a decision

in this matter must

be

rendered

by

the Board

by April

5,

1989,

the Board effectively

cannot grant

a stay absent a waiver

of

the decision deadline

by

MCD.

Because MCD has not granted any waiver

and

no mandate

has

issued,

it appears

to me that

the

only proper course

of action

is

to proceed

to

a decision on

the merits of

the instant permit

appeal.

For

these reasons,

I respectfully dissent.

c

A/~~

3~hnC.

Marlin

foard Member

I, Dorothy

M.

Gunn, Clerk

of

the Illinois Pollution Control

Board,

hereby certify,~~atthe abov~Dissenting Opinion was

submitted

on the

/~

day of

~~---~--.—-,

,1989.

/

/

C

~

/

/

Dorothy

‘A.

Gunn, Clerk

Illinois Pollution Control Board

96—32