ILLINOIS POLLUTION CONTROL BOARD

February 7, 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 January 16, 1991, Will County filed a petition for leave

to intervene in support of the refusal by the Village Board of

Romeoville, Will County, Illinois to grant siting approval to the

above—captioned petitioners. In its Order of January 18, 1991

accepting the matter for hearing, the Board noted the January 16,

1991 filing in its Order of January 18, 1991 but did not rule on

the motion, allowing time for a response to be filed. On January

8, 1991, Petitioners filed a response in opposition to Will

County’s Motion to intervene. On January 

28,

1991, Respondent,

the Village of Romeoville, filed its response to Will County’s

motion, stating that it “takes no position either for or against

the Petitions for Leave to Intervene”.

As the Board noted in its Order of January 24, 1991 denying

the motion of various individuals to intervene in this matter,

Section 40.1(a) of the Environmental Protection Act (“Act”) does

not provide for third party intervention where landfill siting

has been denied. See Waste Management of Illinois, Inc. 

Pollution Control Board, 160 Ill. App. 3d 434, 513 N.E.2d 592,

598 (2d Dist. 1987); McHenry County Landfill, Inc. 

Environmental Protection Agency, 154 Ill. App. 3d 89, 506 N.E.2d

372, 376 (2d Dist. 1987). The Board, however, did grant amicus

curiae status to the objectors. The issue before the Board is

whether Will County has standing to join in this appeal or

whether Will County should be held to be in the same position as

the third party objectors.

In the petition for leave to intervene the state’s attorney

for Will County argues 1) that Will County participated at the

hearing before the Village of Romeoville; 2) that Will County,

“pursuant to explicit statutory authority, has adopted and has

had in force at all relevant times, a solid waste management

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plan, ...effective within the Village of Romeoville”; 3) that

Will County has a delegation agreement with the Illinois

Environmental Protection Agency for inspections and enforcement

of the Act and Board regulations; 4) that Will County has an

interest in the siting of such a facility within the County based

on its interest in protecting the health and environment for the

People of Will County; 5) that most of the land around the

facility is in unincorporated Will County, subject to its police

power; 6) that the Village of Romeoville has an annexation

agreement, which provided for siting review and revenue

considerations, and this agreement and the Village of

Romeoville’s findings may inadequately represent the interests of

the People of Will County; and 7) that the People of Will County

will be affected and bound by this Board’s determination. It is

this last consideration which most critically focuses this

Board’s attention on whether the State’s Attorney should be

permitted to intervene.

In The People of the State of Illinois v. PCB, 113 Ill. App.

3d 282, 446 N.E.2d 915 (3d Dist. 1983), the Attorney General was

held to be without standing to appeal the Board’s decision

affirming the grant of a construction permit for a hazardous

waste disposal site. Citing section 41 of the Environmental

Protection Act, the Court stated that “(t)he Attorney General was

not a party to the Board proceedings and, therefore, had no

statutory right to obtain judicial review of the Board’s

decision.” 446 N.E.2d at 922. However, on appeal, the Illinois

Supreme Court upheld the Attorney General’s right to intervene,

finding that the Attorney General, as the state’s chief legal

officer, “has the duty and authority to represent the interests

of the People of the State to insure a healthful environment.”

Pioneer Processing, Inc. v. EPA, 102 Ill.2d 119, 464 N.E.2d 238,

247 (1984).

The Judiciary is established by Article 6 of the Illinois

Constitution. Article 6, para. 19, provides that a State

Attorney shall be elected in each county. Article 5 establishes

the Executive branch, and Article 5, para. 15, provides that

“(t)he Attorney General shall be the legal officer of the State,

and shall have the duties and powers that may be prescribed by

law. The case law reveals that the State’s Attorney’s function

is very closely aligned with that of the Attorney General.

In People ex rel. Kunstman v. Shinsaku Nagano, 389 Ill. 231,

59 N.E.2d 96 (1945), the Illinois Supreme Court concluded that

the State’s Attorney was a “constitutional officer” whose rights

and duties were analogous to those of the Attorney General.

Although the rights and duties are not identical, the state’s

attorney was responsible for representing the County or people in

matters affected with a public interest. As a constitutional

officer, the powers of the State’s Attorney have been held to be

executive powers. People v. Vaughn, 49 Ill. App. 3d 37, 363

N.E.2d 879 (1977).

118—282

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The Attorney General’s role in protecting the public

interest clearly extends to environmental matters. Pioneer

Processing, 102 Ill.2d. 119. See also Scott v. Briceland, 65

Ill.2d 485, 359 N.E.2d 149 (1976). When the State’s Attorney

acts on behalf of the county, it is not as a county official but

as an officer of the judicial branch of government of the State

of Illinois. Stokes v. City of Chicago, 660 F. Supp. 1459 (N.D.

Ill. 1987).

In The People of the State of Illinois v. Sharon L. Pine, et

al.., 129 Ill.2d 88, 542 N.E.2d 711 (July 19, 1989) the issue of

whether the Secretary of State had standing to appeal a trial

court order was resolved, in part, by the Illinois Supreme

Court’s reliance on its earlier decision in Pioneer Processing,

464 N.E.2d 238. We note there is no counterpart to the Secretary

of State as a constitutional officer in the county setting.

The issue of standing before us involves the

Secretary of State, a public official and

member of the executive branch of the

government, and not a private citizen.

...(I)n Pioneer Processing, Inc. v.

Environmental Protection Agency (1984) 102

I11.2d 119, 79 Ill. Dec. 640, 464 N.E.2d 238,

we granted the Attorney General standing to

appeal a decision of the Pollution Control

Board, even though he had not participated in

the administrative proceeding. The holding

was based on the “strong public interest in a

healthful environment” and the Attorney

General’s duty and authority, as the State’s

chief legal officer, to represent the people

for the protection of that interest. (102

Ill.2d at 138—39, 79 Ill. Dec. 640, 464 N.E.2d

238.) Just as the Attorney General is

involved in and responsible for a number of

areas of public interest, the Secretary is

intricately involved in the area of driving

privileges and protecting the public from

violations of the Illinois Vehicle Code.

People v. Pine, 542 N.E.2d at 713 (emphasis

added).

Clearly, it is incumbent upon this Board •to acknowledge

that, in matters of standing, the Illinois Supreme Court has

distinguished the role of a state official, representing the

public interest, from that of a private citizen. The State’s

Attorney for Will County is representing a legitimate public

interest, just as the Secretary of State or Attorney General has

118—28 3

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been found to represent. Additionally, the Board notes that in

the Act itself the roles of the State’s Attorney and the Attorney

General are frequently interchangable, particularly in matters of

enforcement actions to protect the public welfare. See, e.g.,

Sections 42(e) and (f), 42(a), 44.l(f)(2) and (g). The issue of

standing must be resolved accordingly.

In response to Will County’s motion, Petitioners made

virtually identical arguments to those made in its response to

the motion of the third party objectors. Petitioners cited the

Waste Management and McHenry County cases cited above and

E & E Hauling, Inc. v. PCB, 107 Ill.2d 33, 41 (1985) for the

proposition that the objectors may not join as parties.

Petitioners, however, do not respond at all to the issue of the

governmental interests of Will County in landfills located within

its boundaries, and the particular interests of Will County in

preserving the integrity of its solid waste management plan,

which, in fact, must be reviewed by this Board. See Section

39.2(a)(8) of the Act.

The Board finds that the State’s Attorney, acting on behalf

of the People of Will County, has interests analogous to those

asserted by the Attorney General for the State of Illinois, and

that the interests of the People of Will County may be adversely

affected by the Board’s decision in this matter. The Board

hereby grants the motion to intervene entered by the State’s

Attorney for Will County.

IT IS SO ORDERED.

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

Board hereby certif~’ that the above Order was adopted gn

the

____ ,

day of ~      

1991, by a vote of ~

I

llution Control Board

118—284