ILLINOIS POLLUTION CONTROL BOARD
August
13,
1992
STEPHEN A.
SMITH, d/b/a ABC
)
SANITARY HAULING, JOHN APPL,
d/b/a
APPL SANITARY SERVICE, LAWRENCE
)
W. BOLLER II, d/b/a AREA GARBAGE
)
SERVICE, CHARLES H. MILLER, d/bfa
)
C.H. MILLER SANITARY, CHRIS
)
JOHNSON,
d/b/a CHRIS’S SERVICE CO.,
)
EDDIE L.
COOK,
SR.,
d/b/a COOK’S
)
SANITARY HAULING, DON CORY, d/b/a
)
CORY SANITARY HAULING, RONALD E.
)
HAYDEN, d/b/a HAYDEN SANITARY SERVICE,
)
GORDON FICKLIN, d/b/a ILLINI SANITARY
)
SERVICE,
CHRIS YAGER, d/bfa KLEAN-WAY
DISPOSAL, GEORGE McLAUGHLIN,
d/b/a
)
MCLAUGHLIN SANITARY,
CHERYL MANUEL,
)
d/b/a ROLLAWAY WASTE,
RONALD W. MANUEL,
)
PCB 92-55
d/b/a RON MANUEL SANITARY, RUSSELL
)
(Landfill Siting
SHAFFER, d/b/a SHAFFER SANITARY CO.,
)
Review)
WILLIAM
C. UDEN, d/b/a UDEN
& SONS
)
SANITARY HAULING, and WILLIS SANITARY
)
HAULING,
INC.,
)
Petitioners,
v.
CITY OF CHAMPAIGN,
ILLINOIS,
)
INTERGOVERNMENTAL SOLID WASTE DISPOSAL
)
ASSOCIATION,
and
)
XL DISPOSAL CORPORATION,
Respondents.
GLENN A. STANKO,
of RENO,’ O’BYRNE & KEPLEY, APPEARED ON BEHALF OF
PETITIONERS;
TRISHA A. CROWLEY APPEARED ON BEHALF OF RESPONDENT THE CITY OF
CHAMPAIGN; and
JEFFREY
W. TOCK,
of TOCK
& MILLER,
LTD., APPEARED ON BEHALF OF
RESPONDENTS INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION
AND XL DISPOSAL CORPORATION.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on an April 15,
1992
petition for review of the March
3,
1992 action of respondent the
0135-0303
2
City of Champaign (Champaign).
Petitioners Steven A.
Smith,
d/b/a ABC Sanitary Hauling,
et al.
(collectively,
petitioners)
are all engaged
in the sanitary hauling business in Champaign,
the City of Urbana, and/or the unincorporated sections of
Champaign County.
Petitioners ask this Board to review
Champaign’s action on a request for site location approval of a
material recovery/transfer facility.
The petition for review is
brought.pursuant to Section.40.1 of the Environmental Protection
Act (Act).
(Ill.Rev.Stat.
1991,
ch.
111½,
par.
1040.1.)
This
Board held a public hearing on the petition for review on June
15,
1992,
in Champaign.
PROCEDURAL HISTORY
On September 16,
1991, pursuant to Section 39.2 of the Act
and a Champaign city ordinance, respondents Intergovernmental
Solid Waste Disposal Association
(ISWDA) and XL Disposal
Corporation
(XL)
jointly filed an application with Champaign for
siting approval of a material recovery/transfer facility.
(C.
1-
467.)1
ISWDA, which is an Illinois municipal joint action agency
whose members are Champaign, Urbana, and Champaign County, was
identified as the owner of the proposed facility.
XL,
an
Illinois corporation, was identified as the operator of the
facility.
(C.
6.)
The facility is proposed to be located on a
25 acre site within Champaign’s city limits,
immediately north of
a forging company and immediately west of a railroad right-of-
way.
(C.
10.)
Hearings on the application were conducted by an
appointed hearing officer on December 16,
17,
19,
and 20,
1991.
Oral public comment was heard on January 2,
1992,
and written
comments were accepted through February 3,
1992.
The Champaign City Council held study sessions on the
application on February
13 and 20,
1992.
On March 3,
1992, the
city council considered Council Bill No.
92—58, entitled. “An
Ordinance Granting Site Approval to the Material
Recovery/Transfer Facility (ISWDA—XL)”.
(C.
1612-1625.)
The
council was advised that the statutory deadline for final action
on the application was March 15,
1992.
(C.
1626—1627.)
One
council member, Gary Shae,
read a letter stating that he had
decided to abstain because of an ex parte communication which had
such an influence on him that he was unable to ignore it and make
a decision based on the record.
(C.
1628.)
The vote on the
proposed ordinance was one vote “yes”, two votes
“no”,
and six
abstentions.
(C.
1634-1635.)
The city council’s rules of order
The record of the local proceedings will be denoted by
“C.”, references to the transcripts of the
June
15,
1992
Board
hearing will be indicated by “Tr.”,
and references to the
exhibits introduced at that Board hearing will be denoted by
“Pet. Exh.”.
0 I35-030L~
3
require that all ordinances be passed by affirmative votes of no
less than five members.
(Pet.
Exh.
2,
§2.64(c).)
The mayor,
Dannel McCollum, declared
a temporary loss of quorum, based on
the six abstentions.
(C.
1635.)
Pursuant to the council’s rules
of order,
a temporary lack of quorum results in postponement of
the matter under consideration until the next regular meeting.
(Pet.Exh.
2,
S 2.64(j).)
The next meeting was scheduled for
March 17,
1992,
two days after the March
15 decision deadline.
A
motion to reconsider the vote failed, with four “yes” votes,
four
“no” votes,
and one abstention.
(C.
1638-1640.)
On March 16,
1992,
counsel for ISWDA and XL advised Champaign that the
applicants considered the application to be approved as of March
15,
1992 “as a result of the City of Champaign’s lack of taking
final action within the 180 days allowed by Ill.Rev.Stat. ch.
111½, par.
1039.2(e).”
(C.
1608.)
Petitioners filed the instant
appeal on April
15,
1992.
STATUTORY
FRAMEWORK
At
the
local
level,
the
siting
process
is
governed
by
Section 39.2 of the Act.
Section
39.2(a) provides that local
authorities are to consider as many as nine criteria when
reviewing an application for siting approval.
These statutory
criteria are the only issues which can be considered when ruling
on an application for siting approval.
Only if the local body
finds that all applicable criteria have been met by the applicant
can siting approval be granted.
The local decisionmaker must
make its decision within 180 days.
Section 39.2(e)
states in
part:
If
there
is
no
final
action
by
the
county
board
or
governing body of the municipality within 180 days
after the filing of the request for site approval the
applicant may deem the request approved.
(Ill.Rev.Stat.1991,
ch.
111½,
par.
1039.2(e).)
When reviewing a local decision on the criteria,
this Board
must determine whether the local decision is against the manifest
weight of the evidence.
(McLean County Disposal v. County of
McLean
(4th Dist.
1991),
207 Ill.App.3d 352,
566
N.’E.2d 26.)
Additionally,
the Board must review the areas of jurisdiction and
fundamental fairness.
Section
40’.l of the Act requires the Board
to review the procedures used at the local level to determine
whether those procedures were fundamentally fair.
(E & E
Hauling,
Inc.
v. Pollution Control Board
(2d Dist.
1983),
116
I1l.App.3d 586,
451 N.E.2d 555,
562, aff’d
in part
(1985)
107
Ill.2d
33, 481 N.E.2d
664.)
0135-0305
4
DISCUSSION
Compliance with Local Siting Ordinance
Petitioners
first
contend
that
Champaign
improperly
accepted
and
filed
the
siting
application.
Petitioners point to
Champaign’s ordinance establishing the procedural framework for
siting proceedings in the city.
Among other requirements, that
ordinance requires that an application for siting approval
include a statement that the applicant has presented the proposed
site to Champaign County “for a determination of compliance with
the Champaign County Solid Waste Management Plan,
if such plan
has been adopted..”
(Pet.
Exh.
1,
§2(C) (13).)
Petitioners note
that the instant application contended that Champaign
County
had
delegated the required determination to ISWDA.
Petitioners filed
a motion to strike the application.
That motion was denied.
Petitioners now argue that acceptance of the application was
improper, that since ISWDA is one of the applicants for siting
approval
it can hardly summarily conclude that it had been
delegated the authority to make the determination, and that the
motion to strike the application should have been granted.
In response, ISWDA and XL maintain that Champaign County has
indeed delegated to ISWDA the power to implement the county’s
solid waste management plan, including determining whether a
particular siting application complies with that plan.
Additionally, ISWDA and XL contend that petitioners have not
alleged any violation of the Act which would raise a
jurisdictional issue, and have not shown any prejudice which
would show a violation of fundamental fairness.
ISWDA and XL
argue that the motion to strike was properly denied.
This Board has previously held that we are without statutory
authority to compel enforcement of a local ordinance, and that
review of the sufficiency of an application is limited to
jurisdictional issues-—whether the application met the
requirements of Section 39.2(a)
of the Act.
(Citizens for
Controlled Landfills v. Laidlaw Waste Systems
(September 26,
1991), PCB 91—89 and 91—90
(cons.), slip op.
at 5—6; ~
Gallatin
National
Co.
v.
Fulton County Board
(June
15,
1992), PCB91—256,
slip op.
at 17.)
Of course, ‘where a petitioner contends that an
alleged failure to comply with
a. local ordinance rendered a
proceeding fundamentally unfair, the Board will review the
alleged failure on that basis.
In this case, petitioners admit
that they do not contend that this
is a jurisdictional issue.
(Reply Br. at 3.)
Instead, they state that, although they do not
believe that any showing of prejudice is necessary,
such
prejudice is evident in this case.
Petitioners state that the
absence of Champaign County’s imprimatur is a factor upon which
petitioners have relied in opposing the application.
Petitioners
state that
if nothing else,
they have been misled.
0135-0306
5
Assuming that petitioners’ contention raises a fundamental
fairness issue, the Board finds that petitioners have failed to
demonstrate any prejudice.
Section 39.2(a)
clearly requires that
the local decisionmaker determine whether an application complies
with any applicable solid waste management plan.
That duty
cannot be delegated to any other decisionmaker.
In other words,
regardless of whether ISWDA or Champaign County has the authority
to make the statement required by the local ordinance,
the
Champaign City
Council was still obligated to make the final
determination as to compliance.
Petitioners clearly could have
presented proof that the application did not comply with the
plan, no matter what the county might have indicated.
Petitioners’
contention that they were “misled” does not
demonstrate prejudice
from
any
failure
to
obtain
the
statement
required by the local ordinance.
The Board finds no violation of
fundamental fairness.
(~gGallatin National
(June 15,
1992),
PCB 91—256,
slip op. at
17.)
Final Action
Petitioners
next
argue
that,
considering
all
actions
by
the
city
council
in
combination, the city council took “final action”
on
the
application in a timely fashion, such that the request for
siting
approval
should
not
be
deemed
approved
pursuant
to
Sect•ion
39.2(e).
Petitioners
cite
McHenry
County
Landfill
v
Illinois
Environmental
Protection
Agency
(2d
Dist.
1987),
154 Ill.App.3d
89,
506
N.E.2d
372,
where
the
appellate
court
stated
that
the
“final
action”
which a local decisionmaker must take within the
statutory
deadline
“need only be sufficiently final to justify an
appeal
to
the
(Board.
(McHenry
County
Landfill,
506
N.E.2d at
378.)
Petitioners also cite a concurring opinion
in Guerrettaz
v.
Jasper County
(January 21,
1988), PCB 87—76, where two Board
members addressed the issue of “final action”
in the context of a
tie vote.
Petitioners argue that the city council’s action in
this
case
includes
all
of
the
elements
of
“final
action”
identified
in
McHenry
County
Landfill and Guerrettaz.
Petitioners maintain that:
1)
all of the council’s actions
through March
3,
1992 were within the statutory deadline;
2)
the
vote on the original motion to approve siting and the vote on the
motion for reconsideration concluded Champaign’s adjudicative
process such that an appeal would not be disruptive;
and 3)
legal
consequences could and did result from the March
3 vote,
in that
the application failed to command a majority.
Thus,
petitioners
allege that the applicants failed to satisfy their burden of
proof
so that the application was denied.
Petitioners contend
that if the application is
deemed approved, the facility would be
sited without an affirmative vote by the majority of the city
council members.
Petitioners allege that such a result is
unconscionable.
In response,
ISWDA and XL argue that it is clear that the
city council did not take final action prior to the expiration of
0135-0307
6
the statutory decision period.
ISWDA and XL contend that none of
the cases cited by petitioners are supportive of their argument
that
final
action
was
taken,
since
none
of
the
cases
involve
a
situation where the vote on whether to approve an application was
continued to a date beyond the 180 day limit.
ISWDA and XL
maintain that the city council’s vote on the ordinance to approve
siting was really a “non—vote”,
since the abstentions resulted in
a loss of quorum.
ISWDA and XL argue that this “non—vote” and
the subsequent denial of the motion for reconsideration were by
their very nature not final actions,
since by council rule,
the
“non—vote” continued the action to the next regular council
meeting.
ISWDA and XL assert that the city council’s actions on
March
3 did not conclude the adjudicative process such that an
appeal would not be disruptive, because Champaign had up to and
including March 14 to hold a special meeting and take final
action on the application.
ISWDA and XL further contend that the
only legal consequence that resulted from the city council’s
March
3 actions was that action on the siting decision was
continued to March
17.
ISWDA and XL maintain that the facility
was neither approved nor disapproved on March
3,
and that there
was no tie vote that could be interpreted as final action under
the dicta of the Guerrettaz concurring opinion.
ISWDA and XL
state that the Board must recognize and honor the plain language
of Section 39.2(e), recognize that the city council did not take
final action within the 180 day deadline,
and hold that the
siting application has been approved.
Champaign also argues that the city council’s March
3
actions did not conclude the adjudicative process,
since the
direct effect of the vote on the motion to approve the
application was to place the item on a subsequent council agenda.
Champaign further contends .that the legal consequences of the
March
3 actions resulted from the expiration of the 180 days,
and
not from the actions themselves.
Finally, Champaign notes that
the statute does not make siting automatic only if there is ~
action by the local decisionmaker.
Rather, the application is
deemed approved if there
is no final action.
Champaign states
that the city council took action on this application, but that
it did not take “final action” within the statutory period.
After a review of the statute, the record, and the arguments
of the parties, the Board finds that Champaign did not take final
action within the statutory 180 day decision period.
As ISWDA
and XL point out, McHenry County Landfill involved a case where
the application was originally denied by the county, and after
appeal to this Board,
was remanded back to the county to correct
an error.
Thus,
the applicant argued that the decision had not
been’ made within the statutory time period
(then 120 days).
The
appellate court held that the initial county decision constituted
the final action required by Section 39.2(e).
The Guerrettaz
concurring opinion cited by petitioners
is dicta, since that case
was actually decided on the grounds that the required notice of
0 135-0308
7
the filing of the application was deficient.
The majority
opinion
never
discussed
the
question
of
“final
action”
or
the
effect
of
the
tie
vote
in
that
case.
(Guerrettaz
v.
Jasper
County (January 21,
1988),
PCB
87-76.)
In
fact,
none
of
the
cases discussed by petitioners resolve the situation presented by
this
case.
Even assuming that this Board should apply the “three step”
analysis advanced by petitioners, the Board finds that the
actions taken by Champaign do not constitute “final action.”
The
March
3 action was taken within the statutory decision period.
However, the Board rejects petitioners’ claims that the vote on
the motion to approve the application and the vote on the motion
for reconsideration concluded Champaign’s adjudicative process
such that an appeal would not be disruptive.
Under the city
council rules,
the vote on the motion to approve the application
automatically continued the item to the next regular council
meeting.
Additionally, Champaign could have scheduled a special
meeting to consider ‘the matter at any time up to March 15.
Given
these two facts,
it seems clear that the March
3 votes cannot be
construed to have concluded the city council’s adjudicative
process.
Likewise, the March
3 votes did not have legal
consequence, except to place the matter on the agenda for the
March
17 meeting.
As Champaign notes,
it is the expiration of
the 180 day deadline which had legal effect, not the votes
themselves.
The Board simply cannot see how a series of actions,
none of which was conclusive in itself, can result in “final
action” on the application.
Section 39.2(e)
clearly states that
if
a
local decisionmaker
does
not
take
final
action
within
180
days,
“the
applicant
may
deem the request approved.”
(Ill.Rev.Stat.
1991,
ch.
111½, par.
1039.2(e).)
Therefore,
the Board rejects petitioners’ claim that
the application was denied because the application failed to
command
a
majority
vote.
The
statutory
language
also
repudiates
petitioners’
argument
that
an
approval
without
an
affirmative
vote
by
a
majority of council members would be unconscionable.
Section
39.2
gives
local
governments
the
power
and
the
responsibility
to
rule
upon
an application for siting approval.
The statute clearly contemplates a situation,
such as this,
where
the local decisionmaker fails to take final action within the
statutory
deadline.
The
remedy
provided
by
the
legislature
is
that the application is deemed approved.
This case fits the
statutory scheme perfectly:
Champaign failed to take final
action within 180 days, and therefore the application for siting
approval is deemed approved.
The Board notes that petitioners argue that. if the
application is deemed approved, petitioners have been denied
fundamental fairness.
Petitioners contend that:
1)
they were
denied a decision based on the weight of the ‘evidence and, the
relevant
criteria,
and
were
not
given a statement of reasons for
0 135-0309
8
the
decision;
2)
the
provision
allowing for “deemed approved” was
manipulated in a fashion not intended by the legislature,
because
the mayor “engineered” the abstentions when it was clear that the
application would be rejected; and
3) approval is being claimed
for an applicant and a facility which no longer exist.
None of
these arguments, however,
leads to a conclusion that the
procedures used by Champaign were not fundamentally fair.
Petitioners’
first claim,
that they were denied a decision
based on the criteria and a statement of reasons for the
decision, once again ignores the statutory provisions of Section
39.2(e).
Quite simply,
the statute does not provide for these
protections ma
situation, such as this,
where the local
decisionmaker fails to take final action within 180 days.
Instead, as discussed above, the application is deemed to be
approved.
The second claim, that the abstentions were improperly
“engineered”, ignores a long line of case law that one cannot
invade the mind of the decisionmaker.
(Land and Lakes Co.
v.
Village of Romeoville
(June
4,
1992), PCB 92—25, slip op.
at 4;
Dirnagglo v. Solid Waste Agency of Northern Illinois
(January 11,
1990), PCB 89-138, slip op.
at
5: City of Rockford’ v. Winnebago
County (November 19,
1987), PCB 87—92,
slip op. at
9,
aff’d
(2d
Dist.
1989)
186 Ill.App.3d 303,
542 N.E.2d 423.)
The extensive
discussion of conversations between the mayor and the council
members before the March
3 meeting is irrelevant.
The inquiry is
whether there was final action,
not whether some council members
may have been encouraged by another voting member of the council
to vote
a particular way.2
The Board points out that petitioners
do not claim that the abstentions were based on improper ex parte
contacts from those outside the decisionmaking body.
Finally,
the argument that approval is being improperly claimed for an
applicant
and
facility
which
no
longer
exist
does
not raise a
fundamental fairness issue.
As stated above, the Board is to
review the fundamental fairness of the procedures used by the
city council.
Nothing the city council did,
or did not do,
relates to any subsequent problems between the applicants.
In sum, the Board finds that Champaign failed to take final
action on the application within 180 days of the filing of the
2
The Board specifically rejects petitioners’ statements
that “the reasonable inference from the objective facts is that
the 180—day provision was manipulated by the use of abstentions”,
and “if
the council members abstained for some other legitimate
reason, then it was incumbent upon the respondents to adduce
those reasons in order to rebut petitioners’
case.”
(Reply Br.
at 9.)
As stated above, one cannot invade the mind of the
decisioninaker.
Except for the limited situations
,
such as ex
parte contacts,
a council member’s reasons for his or her vote
are irrelevant.
0135-0310
9
request.
Therefore, pursuant to Section 39.2(e)
of the Act, the
application is deemed approved.
Constitutional Claims
Petitioners next argue that the statutory provisions
providing for “deemed approved”,
as applied to petitioners, deny
them due process of law and equal protection of the law,
in
violation of the federal and state constitutions.
Petitioners
note a series of appellate court decisions holding that
constitutional guarantees of due process do not apply to
participants in site approval proceedings, but state that those
conclusions are “arguable.”
In any event, petitioners contend
that
they
stand
in
a
markedly
different
position.
Petitioners
note
that
existing
flow
control ordinances would require them to
use
and
pay
for
the
proposed facility.
Thus,
petitioners contend
that
they
have
a
property interest for due process purposes.
Illinois
case
law
is
quite
clear
that
.objectors
to
a
proposed
facility
do
not
have
a
constitutionally protected
interest
in
the
continued non—existence of such a facility on
another’s
property,
and
that
the
grant
of
site
approval
does
not
trigger
the
application
of
due
process
guarantees.
(E
&
E
Hauling,
Inc.
v.
Pollution
Control
Board
(2d
Dist,.
1983),
116
Ill.App.3d
586,
451
N.E.2d
555,
563—564,
aff’d
(1985),
107
Ill.2d
‘33,
481
N.E.2d
664;
Fairview
Area
Citizens
Taskforce
v.
Pollution
Control
Board
(3d
Dist.
1990),
198
Ill.App.3d
541,
555
N.E.2d
1178,
1180;
Tate
v.
Pollution
Control
Board
(4th
Dist.
1989),
188
Ill.App.3d
994,
544
M.E.2d
1176,
1193.)
Petitioners’ claim that
these
decisions
are
“arguable” does not “~onvincethe Board to act
differently
in
this
case.
As
to
petitioners’ contention that they have a property
interest
for
due
process
purposes,
the
Board
points
out
that
it
is
not
the
siting
decision
which
arguably affects any property
interest,
but
the
local flow control ordinances.
As ISWDA and XL
point
out,
flow
control
is not involved in siting decisions under
Section
39.2,
and
siting
approval
of
the
material
recovery/transfer
facility
does
not
require
that
petitioners use
the facility.
The flow control ordinances are separate and
distinct
from
the
local
site
approval
process,
and
‘this
Board
cannot review those local flow control ordinances.
Finally, the
Board rejects petitioners’ claim that Section 39.2 creates two
classifications of objectors in local site approval proceedings
(based upon the diligence or lack thereof of the local
decisionmaker),
such
that the statute violates the equal
protection
clause.
Criteria
and
Manifest
Weight
Petitioners state that any review of the evidence in this
case,
as
it
applies
to
the
nine
criteria
of
Section
39.2(a),
0135-0311
10
should use a weight of the evidence standard.
Petitioners claim,
however, that approval of the application cannot even survive
scrutiny using a “manifest weight” standard.
ISWDA and XL cite
the Board’s decision in Board
of
Trustees
of
Casner
Township
v.
County of Jefferson (January 10,
1985 and April
4,
1985), PCB 84—
175
and
84—176
(Cons.)
(Casner
Township),
and
contend
that
“approval of the applicable criteria” was not against the
manifest weight of the evidence.
In
Casner
Township,
the
Board
was
presented
with
the
first
instance
where
a
local
decisionmaker
failed
to
reach
a
decision
on
a
siting
application
within
the
statutory
decision
period
(then
120
days),
so
that
the
application
was
deemed
approved
by
operation
of
law.
The
Board
was
then
faced
with
the
question
of
whether
the
Board
has
jurisdiction
to
hear
an
appeal from a
“deemed
approved”
result.
After
briefing on the issue, the Board
found
that
it
does
have
jurisdiction to hear such appeals.
In
its order deciding that issue, the Board stated:
The
county
(board
is deemed to have approved the
application by operation of law and the applicant
should find himself in the same position he would have
been had the (county
(board
approved the request by
written decision.
Specifically, the same presumptions
and burdens of proof apply here and the Board will
review the record using the manifest weight standard
articulated in earlier (siting
cases.
(Casner
Township (January 10,
1985),
PCB 84—175 and 84—176
(Cons.),
slip
op.
at
8.)
However,
when
making
the
final
decision
in
the
case,
the
Board
held that procedural irregularities at the local hearing rendered
the proceedings fundamentally unfair, and remanded the case to
the local decisionmaker.
(Casner Township,
(April
4,
1985), PCB
84-175 and 84-176. (Cons.).)
Thus, the Board never actually
reviewed the record.
After further consideration, the Board finds that we erred
in determining that we should conduct a review of the record
where
a siting decision has been deemed approved.
The statute
provides that an application
is automatically deemed approved, by
operation of law, when a local decisionmaker fails to reach a
decision within the statutory timeframe.
Therefore, by
definition,
there is no local decision on the criteria for this
Board to review.
Section 40.1 and the accompanying case law are
clear that this Board’s function is to review the local decision,
not to make an initial determination as to whether the applicable
criteria of Section 39.2(a) have been met.
It is impossible to
apply a ‘manifest weight of
the’ evidence review to a non—existent
decision.
Thus,
the Board overrules Casner Township, to the
extent that that decision states that in a deemed approved
situation this Board will review the record for compliance with
‘0135-0312
11
the applicable criteria.
The Board specifically reaffirms its
findings in Casner Township that we’ have jurisdiction to hear
appeals from a “deemed approved” result.
The Board can,
and’
must,
review
the
areas
of
jurisdiction
and
fundamental
fairness
in such “deemed approved” cases.
However, the Board cannot
review a non—existent decision on the criteria.
This opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The Board finds that the City of Champaign failed to take
final action on the September 16,
1991 application for site
approval filed by the Intergovernmental Solid Waste Disposal
Association and XL Disposal within 180 days of the filing of that
application.
Pursuant to Section 39.2(e)
of the Act, the
application is deemed approved.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Il1.Rev.Stat.
1991,
ch.
111½
,
par.
1041) provides for the
appeal of final Board orders.
The Rules of the Supreme Court of
Illinois establish filing requirements.
(But see also 35
Ill.Adm.Code 101.246 “Motions for Reconsideration” and Castenada
v.
Illinois Human Rights Commission
(1989),
132 Ill.2d 304,
547
N.E.2d 437.)
B.
Forcade concurred, and J. Marlin abstained.
I,
Dorothy N. Gunn,
Clerk
‘of the Illinois Pollution Control
Board, hereby certi~ythat the abov
opinion and order was
adopted on the /i~
day of
‘
,
1992,
by a vote
of
4-’~,.
~
Dorothy
M.
4’unn,
Clerk
Illinois
P~lution
Control
Board
0135-0313
