ILLINOIS POLLUTION CONTROL BOARD
June
4,
1992
COUNTY OF OGLE,
)
)
Complainant,
)
v.
)
AC 91—45
(91—R—1003)
(Administrative Citation)
ROCHELLE DISPOSAL SERVICE,
)
INC.,
and CITY OF ROCHELLE,
)
ILLINOIS,
)
Respondent.
ORDER OF THE BOARD
(by J.C. Marlin):
This action was initiated on September 27,
1991 by the filing
of an administrative citation
(AC) by the County of Ogle (County).
The AC charges Rochelle Disposal Services (Rochelle Disposal) and
the City of Rochelle (City)
with violation of Section 21(p) (5)
of
the Act..1
Both respondents filed a petition for review on October
11,
1991.
Hearing was held
in this matter
on April
29,
1992,
despite the pendancy of
several motions preliminary
to hearing
which
are the
subject
of this
Order.
Pursuant
to the parties
request at hearing as repeated in the County’s Nay 15, 1992 motion
to supplement and reserve ruling, the Board has delayed decision on
the pending motions until its receipt of the hearing transcript and
exhibits.2
The pending motions
are Rochelle Disposal’s
April
6,
1992
motion
for
leave
to
file
instanter accompanied
by
a
motion
to
strike and dismiss the complaint and its April
8,
1992 motion to
supplement the April
6 motion.
The County filed motions to strike
and dismiss Rochelle’s motions on April
9 and 15,
1992.
On April
15,
1992,
Rochelle
Disposal
moved
for
leave
to
respond
to
the
County’s motions
and
also
filed
the
response.
Rochelle Disposal also filed a motion for summary judgment.
The
County filed a response in opposition on April 22.
~Section 21
of
the Act was
amended
by
Public Act
87-752,
effective
January
1,
1992.
As
a
result,
the
two
subsections
enforceable through the administrative citation process have been
changed from 21(p)
and 21(q) to 21(o)
and 21(p)
respectively.
21n the interests of consistency, the Board has also delayed
decision on similar motions pending in two other appealed AC cases
involving these parties:
AC 91-32 and AC 92—26.
134—107
2
The basis for Rochelle Disposal’s motion to dismiss is that it
is not
a proper
party to this
action.
The County’s motion
to
strike
is based on the allegation that the motion is not timely
filed.
The Board first addresses the County’s motion.
Section
103.140 provides that motions to dismiss
shall
be
filed within
14
days after
receipt of the complaint.
Rochelle
Disposal’s motion was not filed until some six months thereafter.
Rochelle Disposal asserts that
it had not previously
filed
the
motion based on conversations and correspondence with the State’s
Attorney to the effect that prosecution of this matter would be
reviewed in
light of IEPA v.
City of Rochelle, AC 89-68,
a case
from which Rochelle Disposal had been dismissed as
a respondent
upon stipulation of the parties.
The County does not dispute this
contention,
but
states
that
“no
specific
statements
were made
waiving the time restrictions” pursuant to Board rules.
The
Board
finds
that
under
these
circumstances
Rochelle
Disposal
could
reasonably
have
construed
and
relied
upon
its
ongoing communications with the County as a waiver of any objection
to late filing.
Rochelle Disposal’s April
6 motion for leave to
file the motion
to dismiss
as well
as
its April
8
motion
to
supplement are hereby granted.
The County’s motion to strike and
dismiss is denied.
Respondent’s April 15 motion for leave to file
a response is hereby granted.
The result of these rulings are that
all filings are accepted.
The Board now turns to the motions to dismiss and for summary
judgment.
As hearing has been held in this matter, the motion for
summary judgment is denied.
As to the motion to dismiss, Rochelle
Disposal
argues
that
it
is
not
a
proper
party
to this
action
because the City is the person which holds the permits for this
site, and becaus~eit was previously dismissed as a party to AC 89—
68 pursuant to stipulation.
There
is no dispute that the City
holds all permits at the site, or that Rochelle Disposal conducts
waste disposal operations at the site on the City’s behalf pursuant
to contract.
The County argues that Section
21(p)
of the Act,
under which Rochelle Disposal
is
charged,
is
not
by
its terms
limited to holders
of
permits.
The
Section
in pertinent part
provides that “no person (emphasis added)
shall conduct a sanitary
landfill
operation
which
is
required
to
have
a
permit
under
subsection (d) of this Section, in a manner which results in any of
the following conditions”.
The preamble to the contract between the City and Rochelle
Disposal provides that it is “for the operation of the City owned
landfill”.
Article
I goes on to provide that Rochelle Disposal is
to “furnish all equipment and labor necessary for the collection of
garbage within
the City...together
with the
landfill operation
necessary to dispose of all the solid waste in conformance with”
the Act and Board regulations, as well as other requirements (City,
April 22,
1992 Response to Motion,
Contract,
p.
1).
134—108
3
The Board agrees with the County that, under the circumstances
of this case, Rochelle Disposal is properly a party to this action
as a person conducting a waste operation at a permitted site.
The motion to dismiss is hereby denied.
IT IS SO ORDERED.
I, Dorothy H.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi
that the above order was adopted on the
~
day of
_________________,
1992,
by a vote of
7~
~YT~4M~
/~-~-‘~
Dorothy M. 4tunn, Cerk
Illinois P&llution Control Board
134—109