ILLINOIS POLLUTION CONTROL BOARD
    May 21,
    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/b/a 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)
    WILLIAN C.
    UDEN, d/b/a
    TJDEN & SONS
    )
    SANITARY HAULING, and WILLIS SANITARY
    )
    HAULING,
    INC.,
    )
    )
    Petitioners,
    )
    v.
    )
    CITY OF CHAMPAIGN,
    ILLINOIS,
    )
    INTERGOVERNMENTAL SOLID WASTE DISPOSAL
    )
    ASSOCIATION,
    and
    )
    XL DISPOSAL CORPORATION,
    )
    Respondents.
    ORDER OF THE BOARD
    (by J.
    Theodore Meyer):
    This matter
    is before the Board on its own motion.
    This
    case is
    a third-party appeal of respondent the City of
    Champaign’s decision on
    a request for site location approval of a
    material recovery/transfer facility.
    Petitioners Steven A.
    Smith,
    d/b/a ABC Sanitary Hauling,
    et al.,
    (collectively,
    petitioners), object to Champaign’s failure to vote a majority
    decision on the merits of the application within the 180-day
    statutory deadline for Champaign
    ~to
    take final action.
    That
    deadline expired on March
    15,
    1992.
    Petitioners filed this
    appeal with the Board on April
    15,
    1992.
    On April 20,
    1992, respondents Intergovernmental Solid Waste
    Disposal Association
    (ISWDA)
    and XL Disposal Corporation
    1 33—545
    2
    (collectively,
    ISWDA)
    filed a “cross appeal from ruling of
    hearing officer.”
    In its cross appeal,
    ISWDA challenges a
    ruling by the hearing officer at the local hearings on the siting
    application.
    ISWDA objects to the local hearing officer’s denial
    of ISWDA’s request that he preclude certain testimony and
    evidence which ISWDA alleges
    is irrelevant and immaterial to the
    siting process.
    ISWDA contends that petitioners will rely upon
    that evidence and testimony in their appeal before this Board.
    In its April 23,
    1992 order accepting this case for hearing,
    the Board specifically reserved ruling upon who may be proper
    parties
    in this case, and stated that it would entertain any
    motions to dismiss improper parties.
    No motions to dismiss have
    been received.
    However,
    on its own motion,
    the Board finds that
    ISWDA’s “cross—appeal”
    is not proper.
    ISWDA challenges only
    a
    hearing officer’s ruling on a motion made prior to the start of
    the local hearings.
    ISWDA raises no challenges to any action or
    inaction by the Champaign city council.
    Section 40.1 of the
    Environmental Protection Act (Ill.Rev.Stat.
    1989,
    ch.
    ill 1/2,
    par.
    1040.1)
    allows for appeal in only two instances.
    Where the
    local decisionmaker
    (in this case,
    the Champaign city council)
    refuses to grant site approval, the applicant
    (here,
    ISWDA) may
    appeal.
    Where the local decisionmaker grants site approval,
    a
    third party other than the applicant may appeal.
    Section 40.1
    gives this Board jurisdiction to consider appeals of actions
    taken by local decisionmakers.
    Nowhere does the statute allow
    the Board to consider appeals solely from local hearing officer
    rulings.
    Because ISWDA has not challenged any action
    (or
    inaction)
    of the local decisionmaker,
    the “cross—appeal”
    is
    dismissed.
    ISWDA may participate in this proceeding as a
    respondent,
    but not as a “cross—petitioner.”
    The Board notes that this case is unusual,
    in that Champaign
    did not pass a majority decision on the merits of the siting
    application.
    Therefore,
    one of the major issues in this
    proceeding
    is the effect of that inaction--whether the
    application is deemed approved.
    Ordinarily,
    a party who prevails
    below, whether an applicant or third—party objector, cannot
    appeal to this Board.
    (Cf.
    McHenry County Landfill,
    Inc.,
    v.
    Illinois Environmental Protection Agency
    (2d Dist.
    1987),
    154
    Ill.App.3d 89, 506 N.E.2d 372,
    106 Ill.Dec.
    665.)
    Thus,
    if
    it
    were clear in this case that the siting application had been
    approved,
    ISWDA’s cross—appeal would be disallowed on those
    grounds.
    However, because the effect of Champaign’s inaction is
    in dispute, this Board cannot
    say,
    at this point, which party
    prevailed at the local level.
    We emphasize that the Board’s
    action in dismissing the cross-appeal
    is based upon ISWDA’s
    failure to challenge any action of the Champaign city council.
    Additionally, the Board notes that petitioners named J.M.
    Jones Company
    (Jones)
    and Duke
    & Associates
    (Duke)
    as respondents
    in this appeal.
    The petition states that Jones and Duke both
    1:33—546
    3
    entered their appearance through counsel and participated in the
    local proceedings, but does not further identify Jones and Duke.
    Section 40.1(b) of the Act specifically states that the local
    decisionmaker and the applicant shall be named as co—respondents
    in a third—party appeal.
    Neither Jones nor Duke is named as an
    applicant for siting approval,
    and they are clearly not the local
    decisionmaker.
    Therefore, both Jones and Duke are dismissed as
    respondents in this case.
    The caption has been amended to
    reflect this dismissal.
    IT IS SO ORDERED.
    J. Marlin abstained.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    -2-’~--~
    day of
    _________________,
    1992, by a vote of
    -~
    C’
    /~~/
    Dorothy M. ,e~inn, Clei’k
    Illinois Pd~/lutionControl Board
    133—547

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