ILLINOIS POLLUTION CONTROL BOARD

October 14,

1976

COMMITTEE TO SAVE

OUfl ENVIRONMENT, et al.,

)

Complainants,

V.

HARRY A. CARLSON and DONALD F. KREGER, d/b/a

SOUTH SUBURBAN LAND DEVELOPMENT CO.,

and

the ENVIRONMENTAL PROTECTION AGENCY,

Respondents;

)

PCB 75-443

PCB 76-8

PEOPLE OF THE STATE OF ILLINOIS,

)

(CONSOLIDATED)

Intervenors,

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

V.

HARRY A. CARLSON and DONALD F. KREGER,

d/b/a

)

SOUTH SUBURBAN LAND DEVELOPMENT CO.,

)

Respondents.

INTERIM OPINION AND ORDER OF THE BOARD

(by Mr. Zeitlin):

This matter

is presently before the Board on a Motion for

Dismissal,

filed with the Board on September 20,

1976,

by Respondents

Harry A. Carison and Donald

F. Kreger, d/b/a South Suburban Land

Development Co.

hereinafter,

“Southern.

A response in opposition

to that Motion was received from the original Complainants

in

PCB 75-443

hereinafter,

collectively,

t1Committee”.

No response

to Southern’s Motion has been received from Intervenors People of

The State of Illinois

hereinafter,

I!Peop1e~~, or the Environmental

Protection Agency

Agencyl,

Respondents

in PCB 75-443 and Complainant

in PCB 76-8.

This matter was originally commenced by a Complaint filed

November

12, 1975,

by Complainant Committee,

et al., alleging in

essence

that:

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1.

A Permit issued by the Agency on May 29,

1975

to Southern,

for the development of

a solid waste manage—

ment site in Orland Township,

Cook County, constituted a

violation of the Act and our Regulations,

in that the

Agency gave no consideration to land use and zoning classi-

fications,

or to other similar issues, as required by the

Illinois Supreme Court’s decision in Carison v. Village

of Worth, decided September 26,

1975.

(Subsequent to the

initiation of PCB 75-443,

the Supreme Court issued a

Supplemental Opinion on Denial of Rehearing,

dated

February

5,

1976.)

343 N.E,2d 493

(1975,

1976).

2.

The development and operation

by Southern of

the solid waste management site has caused and will

continue to cause environmental damage

in violation of

the Act.

The Board has dealt with this case

on

several occasions,

principally in an Interim Opinion and Order entered January 22,

1976.

Also,

on January 22 the Board proposed a Regulation

to provide

single—site consideration under Carlson v. Village of Worth,

supra,

for the solid waste management site in issue here,

The Board’s

Statement of Need in connection with

R76--’2 included the following:

Pending the promulgation of qenerally

applicable Regulations

to guide the Agency

in

its permit—issuing capacity, we see no reason

to hold in abeyance the consideration of the

suitability of this site.

In this mariner the

“unified statewide”

system of

regu1~ition

envisioned in Carlson,

~

cr~: U:; effectu-

ated immediately.

It is hoped that all of those who have

expressed an interest

in this site,

in PCL 75-443

and PCB 76-8, will participate fully in this

Regulatory matter.

In an Order entered April

8,

1976,

the Board further stayed

PCB 75—443 and PCB 76-8 for

75 days,

on a Motion by Intervenor

People.

Thoughout the pendency of these causes,

the Circuit Court of

Cook County has had before

it,

in a separate proceeding,

a similar

case.

Carlson

v. EPA and County of Cook,

No.

75 L 12530

(Cir.

Ct.

Co. Cty.,

Ill.,

Aug.

9,

1976).

Although the entire history of that

proceeding need not be given here, we do note

that the Circuit

Court’s dismissal order of August

9,

1976 was on Stipulation of

Southern and the Agency.

That Stipulation,

filed with Southern’s

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Motion to Dismiss herein,

indicates that the Agency,

on May

21,

1976,

issued

to Southern a “Supplemental Permit’

for the site

in

question;

that “Supplemental Permit” being based on Agency consideration of

various land use and zoning data,

as well

as other information deemed

relevant by the Agency.

That information was submitted to the Agency

by Southern and other parties pursuant to the Circuit Court’s Interim

Remand Order of March 22,

1976.

Inasmuch as Complainants Committee,

et al.

do not dispute

Southern’s allegations as to the Agency’s consideration with regard

to its “Supplemental Permit,” and inasmuch as the Agency has not

responded to Southern’s Motion to Dismiss, the Board finds that

PCB 76-8

(originally brought by the Agency against Southern)

should

properly be dismissed.

With regard to PCB 75-443,

Southern argues that because the

Agency has now made a “site suitability determination” with respect

to Southern’s

site, and has issued its “Supplemental Permit” there-

upon,

this cause should be dismissed as moot.

In response, Complainant

Coniniittee, et al. argues that:

1.

They,

not being parties to the Circuit Court

suit, are not bound by its dismissal.

2.

The Agency’s issuance of that “Supplemental

Permit” does not resolve the basic issues herein.

3.

The propriety of the Agency’s issuance of

a

permit during the pendency of R76-2

is questionable.

4.

They have relied on the pendency of R76-2 to

provide

a forum concerning the suitabiH~y of Carison’s

site.

In deciding whether to grant Southern’s Motion to Dismiss

PC13 75-443, we note that Complainant Committee,

et al., alleged as

the essence of their Complaint that the Agency gave no consideration

to land use,

zoning or any other quoslion regarding

he

suitability

of Southern’s site.

(Complaint,

¶15).

Such consideration has now

apparently been given.

The remaining allegation

in the Complaint,

supra,

that development and operation under the permit issued by

the Agency to Southern will cause

“environmental damage”

(as well

as other damage described in language taken directly from Section 20

of the Act)

is not sufficiently specific

to state a cause of action

independent of the allegation that the Agency gave no consideration

to land use,

etc.

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However, Complainants’ statement that they relied on the

pendency of P76-2

to provide a “forum”

for their arguments and

position

concerning

the

suitability

of

Southern’s

site

leads

us

to

the

conclusion

that

immediate

dismissal

is improper at this time.

While the original cause of action herein has indeed been mooted by

the Agency’s issuance of the “Supplemental Permit,” Complainants’

response

in opposition

to Southern’s Motion for Dismissal

indicates

that the central issue in this case

——

the suitability of landfill

operations to Southern’s site

——

remains

in issue.

The original Complaint in PCB 75-443 (~13,

17)

also indicates

generally that Complainants dispute the site’s suitability for

landfill operations.

To allow Complainants a “forum”

to provide

proof of that contention, and to prevent duplication of effort, we

shall grant leave for appropriate amendment of the Complaint now

before us.

Assuming,

as we must,

the propriety of the Agency’s decision

in granting Southern’s “Supplemental Permit,” and avoiding as we

properly may,

a decision on the propriety of the Aqency’s

“Supple--

mental Permit” issuance during the pendency of P76-2, which is not

before us here,

we shall also dismiss R76~2 in a separate Order today.

By dismissing P76-2,

and allowing Complainants

an opportunity

to

meet their strict burden of proof in the face of the Agency’s

presumably correct permit decision, we shall avoid duplication of

effort while nonetheless allowing all parties

a full and fair

opportunity within the adjudicatory framework provided by the Act.

Complainant shall be granted leave to amend its Complaint within

30 days of the date of this Order in conforni±’;ywith the foregoing,

or as may otherwise be proper herein.

Re~or ~ent Southern’s Motion

for Dismissal may be renewed if no such f~

is forthcoming.

The

Agency’s Enforcement case against Southern, PCB 76—8,

shall

be

dismissed for failure to prosecute the action, and as a result of

the Agency’s failure to respond to Southern’s Motion for Dismissal.

IT IS THE INTE1~IMORDER

OF’ Tilt POLLUTTON CONTROL BOARD

that

1.

PCB 76-8 be, and hereby

is, dismissed.

2.

Action on Respondent’s Motion for Order of

Dismissal shall be deferred for thirty

(30)

days

in

conformity with the foregoing Interim Opinion.

Mr.

James Young abstained.

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I, Christan

L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby c~rtifythe abo e

nterim Opinion and Order

we~eadopted on the

~

day of

1976,

by

a vote of

Christan

L. Moffett, Clerk

Illinois Pollution Control Board

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