ILLINOIS POLLUTION CONTROL BOARD

January 21,

1993

RICHARD WORTHEN, CLARENCE

BOH~, HARRY

PARKER,

GEORGE

ARNOLD, CITY OF EDWARDSVILLE,

CITY OF TROY, VILLAGE OF

MARYVILLE,

and

VILLAGE

OF

GLEN

CARBON,

Petitioners,

v.

)

PCB 90—137

(Landfill Siting

VILLAGE OF ROXANA and

)

Review)

LAIDLAW WASTE SYSTEMS

)

(MADISON),

INC.

)

Respondents.

ORDER OF THE BOARD

(by

J. Theodore Meyer):

This matter is

before the Board on a remand order from

the

appellate court.

The Board originally issued its final decision

in this landfill siting appeal on November 29, 1990.

Respondent

Laidlaw

Waste

Systems

(Madison),

Inc..

(Laidlaw)

did not file a

motion for reconsideration.

On January

‘3,

1991, the Board

received Laidlaw’s notice of appeal in

the appellate court.

The

appellate

court

issued

its

decision on

June 18, 1992, reversing

the

Board’s decision, and remanding the aatter to the Board.

(Laidlaw Waste Systems

(Madison).

Inc.

v.

Pollution Control Board

(5th Dist.

1992),

230 Ill.App.3d 132,

‘595

N.E.2d 600, 172

IliDéc.

239.)

The individuals and municipalities that were

petitioners before the Board filed a petition for leave to appeal

with the ‘supreme court.

That petition for leave to appeal was

denied in September 1992.

The Board received the appellate

court’s mandate on November

9,

1992.

In its November 1990

opinion and order, the Board reversed

the Village of Roxana’s decision granting site approval to

Laidlaw for expansion of Laidlaw’s Cahokia Road landfill..

The,

Board found that because Laidiaw’s application for siting

approval had been filed within two years of the disapproval of a

previous application that was substantially

the

same as that

application, Roxana had no jurisdiction to consider the,

application pursuant to Section 39.2(m) of the Environmental

Protection Act

(Act).

That subsection states:

An applicant may not file a request for local siting

approval which is substantially the same as a request

which was disapproved pursuant to a finding against the

applicant under any of criteria

(i)

through

(ix)

of

subsection

(a)

of this Section within the preceding

2

0138-0395

---

2

years.

(l11.Rev.Stat.

1989,

ch.

111½,

par.

1039.2(m).)

On appeal, the appellate court reversed the Board’s decision

and remanded the case to the Board.

The appellate court upheld

the Board’s finding that the two-year period referred to in

Section 39.2(m) begins to run as of the disapproval of a previous

application.

However, the appellate court overturned the Board’s

finding that the two applications in

this

case were

“substantially the same.”

The

court construed the Board’s

decision as stating that where two applications for local siting

approval seek approval for expansion of the same facility, those

facilities are “substantially

the

same.”

The court found that

conclusion to be erroneous, and remanded the case

to

the Board

“for further proceedings not inconsistent with this order.”

After reviewing the appellate court decision, and the record

in this case, the Board finds that it must remand this proceeding

to Rôxana.

As the appellate court noted, it

is

not clear what,

if any,

factual determination was made by Roxana with respect to

the issues raised in subsection

(a).

The

hearing officer who

presided over the local hearing found

both

that the present

application was not filed within two years of

the

previous

application, and that the two applications were notsubétantially

the same.

It is impossible to tell from

the

record whether

Roxana adopted either or both of these findings when approving

Laidlaw’a application.’

The Board•finds, after reviewing the

appellate court decision, that

the

issue of whether an

application is “substantially

the

same”

as

a previous application

pursuant to subsection

(m)

is -a question of- fact that must be

determined by the local decisionmaker——in this case, the Roxana

Village Board.

Therefore, this case is remanded to Roxana for a

decision whether the application at issue in

this

proceeding is

“substantially the

same”

as the previous application.

This remand is limited to a decision on

this

issue.

The

Village Board’s decision is to be

based

only on the written

record developed at the local level,.and no further hearings or

arguments are to be held.

If the Village needs to refer to the

record it filed with the Board, Roxana should contact the Clerk

to make arrangements for the return

at

the

local record.

The

Clerk is hereby authorized to release that record if necessary.

Roxana’s determination on this issue shall be made within 90 days

of the date of this order, and shall be sent, in writing, to the

Board.

The Board notes that Laidiaw did not raise the issue

of

whether the applications were substantially similar before the

Board, and that the Board’s finding that the applications were

substantially the

same

was based on the Board’s own review of the

record.

0138-0396

---

3

Finally, the Board notes that after it made its

determination in this case, Laidlaw filed another application for

expansion approval with Roxana.

Roxana approved that

application, and that decision was appealed to the Board.

On

October 10,

1991, this Board affirmed that decision.

(Worthen

V.

Village of Roxana (October 10,

1991), PCB 91—106.

(Roxana II.))

The-petitioners in Roxana II appealed the Board’s decision, and

the case is currently pending in the Fifth District.

Because no

decision has yet been finally reached in Roxana II, the Board

does not believe that the instant proceeding is moot.

(~,gMoore

v

Wayne County Board

(June 2, 1988), PCB ‘88—24, anneal dismissed

(March 5,

1991), No. 5—88—0684.)

IT IS SO ORDERED.

I, Dorothy N. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby cert

that the above order was adopted on the

~

day of

______________,

1993,

by a vote of

‘~‘

Dorothy N. $~nn,Clerk

Illinois Pd~LutionControl Board

01.38-0397