ILLINOIS

POLLUTION

CONTROL

BOARD

May

18,

1984

TOWN

OF

ST~ CHARLES,

)

Petitioner,

v.

)

PCB 83—228

KANE

COUNTY

BOARD

AND

)

ELGIN

SANITARY

DISTRICT,

)

Respondent.

CITY OF

AURORA,

Petitioner,

)

v.

)

PCB 83—229

KANE

COUNTY

BOARD

AND

ELGIN SANITARY DISTRICT,

)

Respondents.

KANE COUNTY DEFENDERS,

INC.,

)

ETAL,

)

Petitioners,

v,

)

PCB 83—230

KANE COUNTY BOARD

AND

)

ELGIN SANITARY

DISTRICT,

)

)

Respondents.

ORDER OF THE

BOARD

(by

J.

Marlin):

This

matter

comes before

the

Board

upon

a

motion

entitled

~Motion to

Vacate

or

Modify

Order

or

For

Rehearing” timely

filed

by

Petitioners

on

April

25,

1984.

This

will be considered

as a

motion for

reconsideration.

Approximately

7

days

after

the

motion

was

filed,

a

Board

assistant

received a cal.

from a

secretary to one

of

respondents~attorneys

stating that

the

attorney handling

the response

was

on

vacation.

All

such

matters

are properly handled

by written

motion.

The response was

filed

May

14,

1984

past the

14 day deadline of 35

n..

Mm. ~

1O3~24O~

58431

---

—2—

The

Board frowns upon

late

filings.

An explanation and

motion to

file the response instanter should have been provided.

Although

the response was late and the procedure followed was

irregular,

the Board will accept the response when, as here,

the

late

~Ll:Lng

does not interfere with the deliberative processes of

the Board.

The Board

has

considered

all

of

the

arguments

presented by the petitioner but will only consider some of

them.

The first contention of the petitioner is that the Board

applied an incorrect standard for ex parte contacts.

Petitioner

alleges

that

the controlling standard was enunciated by the

Illinois

Supreme Court in Pioneer Processing,

Inc.,

et

al.

V.

Pollution

Control

Board,

et

al.,

Docket No.

58083,

58238,

58239,

consolidated (March 23,

1984),

2 days after the Board~s

decision in this matter, PCB 83—228,

229, and 230

(March

21,

1984).

Petitioner’s argument assumes that the Kane County Board

is an agency under the Administrative Procedure Act

(APA)

Ill.

Rev.

Stat.

1983,

ch.

127, par.

1001

et

seq.,

which

it

is

not,

The

definition

of

agency

in Section 1003.01 of the APA

specifically excludes

local units of government.

Additionaliy~~

Section 39.2(f)

of the Environmental Protection Act,

Ill. Rev.~

Stat.

1983,

ch.

111½, par.

1039.2(f) provides that its

procedures

control

in the siting approval process.

The

issue

in

Pioneer

was whether the contested case provisions of

the APA

applied to Illinois Environmental Protection Agency

(Agency)

hazardous waste permit appeal hearings.

Pioneer was

a permit

appeal,

not

an SB 172 case.

The state action in Pioneer is

lacking

in

the present SB 172 situation.

Second, petitioner claims that the Board sould have

considered whether the cumulative effect of ex parte contacts

con~titutedan irrevocable

taint on the decision—maker’s process

with

resulting undue prejudice as

to petitioner.

The Board

has

airead

considered

this

issue

at

page

17

in

PCB

83—228,

229,

23~)

(March

21,

1984).

There are no new

arguments

as

to

this

issue

to

merit

reconsideration.

Third, and once again, petitioner requests an opportuntiy to

de1~ieinto the mental processes of the Kane County Board

members

a~to e~parte contacts.

As

stated before, although fundament~i

i~trne~i demands

some

inquiry

into

ex

parte

contacts,

this

~~nnui~vis limited.

Integrity of the decision—making process

~

that the

ex

parte

inquiry

not

extend

into

the

mental

~r:esses

of

the decision—maker.

Fourth,

petitioner claims that the Board made findings of

fact and

law which have no basis in the record.

The main

contention

was

that

although

the

Board

found

that

there

was

public

knowledge of the site before notice publication, that

the

record

did not support such a conclusion.

The possible use of the

quarry

site

was publicly known before formal notice publication.

58432

---

Fifth,

the

other

claims

of

petitioner

are

not

supported

by

the

record

and

are

attempts

to

introduce

new

issues

into

this

proceeding.

The petitioner has failed to provide the Board with

sufficient evidence

to warrant reconsideration.

Therefore,

the

Board hereby denies the Motion to Vacate or Modify Order or for

Rehearing.

IT

IS SO ORDERED.

Board Member

3.

D. Dumelle dissented.

I,

Christan L.

Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Order was adopted on

the

/8

~

day of

,

1984

by

a

vote

of

~/

Christan L. ~

Illinois Pollution Control Board