ILLINOIS POLLUTION CONTROL BOARD

April 11, 1991

LAND AND LAKES COMPANY, JMC

)

OPERATIONS, INC. and NED

)

TRUST COMPANY OF ILLINOIS,

)

AS TRUSTEE UNDER TRUST

)

NO. 2624EG,

)

Petitioners,

v.

)

PCB 91-7

)

(Landfill Siting)

VILLAGE OF ROMEOVILLE,

)

Respondent.

ORDER OF THE BOARD (by B. Forcade):

On March 25, 1991, Land and Lakes Co., JMC Operations, Inc.

and NED Trust Company of Illinois, as Trustee under Trust No.

2624EG (“Land & Lakes”) filed a Motion for Certification of

Interlocutory Appeal. The issue on appeal is the intervention by

the People of Will County, represented by the State’s Attorney

for Will County (“Will County”), which intervenor status was

granted by the Board in its Order of February 7, 1991. The Board

granted Land & Lakes motion to reconsider that decision and

affirmed the decision to allow intervention in its Order dated

March 24, 1991. On April 10, 1991 Will County filed a response

to Land & Lakes’ motion for Certification of Interlocutory

Appeal, requesting that the Board deny the motion.

Supreme Court Rule 308(a) provides as follows:

When the trial court, in making an interlocutory

order not otherwise appealable, finds that the

order involves a question of law as to which there

is substantial ground for difference of opinion and

that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation, the court shall so state in writing,

identifying the question of law involved. Such a

statement may be made at the time of the entry of

the order or thereafter on the court’s own motion

or on motion of any party. The Appeallate Court

may thereupon in its discretion allow an appeal

from the order.

Ill. Rev. Stat. 1989, ch. 11OA, par. 308(a)

(emphasis added).

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The Board, through its own procedural rules and judicial

interpretation, has authority to issue the requested

certification for appeal. (See 35 Ill. Adm. Code 101.304; People

v. PCB, 129 Ill. App. 3d 985 (1st Dist. 1985); and Getty

Synthetic Fuel v. PCB, 104 Ill. App. 3d 285 (1st Dist. 1982)).

To do so, the Board must find that a two pronged test has been

satisfied: a) that its decision involved a question of law

involving a substantial ground for difference of opinion and b)

that immediate appeal may materially advance the ultimate

termination of the litigation.

First, the Board notes that its initial decision to grant

intervenor status was by unanimous vote of the Board, and that in

this same case that status was denied by the Board to citizens

and to the Forest Preserve District who sought third party

intervenor status. In denying those requests to intervene, the

Board granted leave to file amicus curiae briefs. In allowing

Will County to intervene, the Board considered that the State’s

Attorney is a constitutional officer whose duties extend to

environmental issues and whose participation in various matters

is provided for in the Environmental Protection Act. This being

the case it was appropriate to allow more than the filing of an

amicus curiae brief to the State’s Attorney, who now may

participate fully in the Board’s public hearing.

Nonetheless, since the matter of the intervention by the

State’s Attorney is one of first impression for the Board, it is

possible to conclude that a substantial difference of opinion on

the question of law could exist.

The second issue relates to the ultimate termination of the

litigation. Here, the Board is uniquely constrained in that the

statute requires the Board to render its decision within 120

days, unless Land & Lakes itself elects to give the Board a

waiver which extends the date for the action’s ultimate

disposition. Thus, the disposition of the case cannot be delayed

by the Board’s decision regarding intervention.

This is a matter of standing before the Board. The parties

have intertwined the issues of standing and subject matter

jurisdiction. This Board has often noted that the Board’s review

is limited to the record before the local government, and that

record is certified to the Board and defines the scope of review.

Allowing intervention does not imply that the State’s Attorney

can dispute criteria on appeal which were not raised by Land &

Lakes in its appeal of the Village of Romeoville’s denial of

siting approval.

Land & Lakes argues that interlocutory appeal would frame

the issues on appeal with respect to which criteria are to be

reviewed on appeal and “assure that only the appropriate criteria

are considered in this appeal”. Motion at

.

4. Land & Lakes

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also asserts that expanding the criteria to be reviewed would

extend the length of the hearings and the briefs to be filed.

Motion at p. 5. In response Will County states that “no hardship

exists if as Land & Lakes argues it will be required to show

support in the record for the findings favorable to Land & Lakes

with the State’s Attorney of Will County as a party”. Response

at p. 3. The Board does not agree that the grant of intervenor

status reopens the decision with respect to every criterion or

that this would impose no additional burden.

This Board finds that allowing intervenor status does not

enlarge the scope of review beyond the challenged criteria, which

here are criteria 1 and 2. Furthermore, the possible addition of

some hours of hearing time or preparation of briefs associated

with Will County’s intervention and the Board’s review of such

record are not so significant in the 120 day statutory decision

timeframe that this Board could conclude any hours so saved would

“materially advance the ultimate termination of the

litigation”. The Board must review the record below and, in

fact, is limited to that record. The Board’s hearing officer may

not admit evidence outside the record except with regard to

jurisdiction and fundamental fairness. See DiMaggio v. Solid

Waste Agency of Northern Cook County, PCB 89—138, 107 PCB 49

(January 11, 1990) and Madison County Conservation Alliance v.

Madison County and Environmental Control Systems, Inc., PCB 90-

239 (April 11, 1991).

The Board finds that Land & Lakes has not shown that

interlocutory appeal would satisfy the requirements of Supreme

Court Rule 308(a). Therefore, the motion is denied.

IT IS SO ORDERED.

J. C. Marlin and J. Anderson dissented.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certifies that the above Opinion was adopted on

the

_________

day of

____________________,

1991, by a vote

of

~c—.:~

.

~

Dorothy M.,~unn, Clerk

Illinois P6llution Control Board

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