ILLINOIS POLLUTION CONTROL BOARD
    May 24,
    1990
    CARGILL,
    INC.
    Petitioner,
    v.
    )
    PCB 87—89
    (Permit-Appeal)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and VILLAGE
    OF CARPENTERSVILLE,
    Respondents.
    ORDER OF THE BOARD
    (by J.
    Marlin):
    On December
    27,
    1987,
    the Board issued
    its Opinion and Order
    in this appeal
    of
    a permit
    issued May
    20,
    1987.
    Among other
    issues
    in the case was whether
    the Agency correctly imposed a
    condition requiring the stack on Cargill’s liquid waste
    incinerator
    to be
    raised
    to
    100 feet,
    and whether
    the permit
    condition preempted a zoning ordinance of
    the Village of
    Carpentersville which would
    limit
    the stack
    height
    to
    35
    feet.
    The Board did not
    reach the first
    issue.
    The Board
    found
    that
    the permit condition preempted
    the ordinance’s
    35 foot height
    restriction.
    The Board went on
    to state:
    “Cargill’s position
    is that
    if
    the Board
    find~s
    for Cargill on the
    issue of preemption,
    it has
    no objection
    to
    the 100 foot stack
    requirement.
    Since
    the Board has
    found
    that
    the Agency’s permit condition preempts the
    effect of Carpentersville’s ordinance
    restricting
    the stack height
    to
    35
    feet,
    the
    Board need not
    look at the question of whether
    the 100 foot
    stack height
    is
    indeed necessary
    for the operation of
    the incinerator
    to
    be
    in
    compliance with the Act and i~s regulations”.
    Cargill,
    tnc.
    v.
    IEPA and Villaae
    of
    Carpentersville,
    PCB 87—89,
    84 PCB 649,
    657
    (Dece~nber
    7,
    ~987).
    Due
    to the effect of
    its
    ruling on CarDentersville’s
    ordinance,
    the Board
    joined
    the Village
    (which had not previously
    appeared in the case)
    as
    a party pursuant
    to Section
    41
    of
    the
    Act
    35
    Ill.
    Adm.
    Code
    103.121 and 103.141.
    The Village appealed.
    The Second District Appellate Court
    ii
    1—:377
    —2—
    and the Supreme Court
    reversed the Board’s Opinion and Order
    in
    Village of Carpentersville
    v.
    IPCB,
    IEPA,
    and Cargill,
    Inc.,
    176
    Ill.
    App.
    3d 668,
    531 N.E.2d 400
    (2d Dist.
    1988),
    affd.
    ____
    Ill.
    2d_____
    ,
    ____N.E.2d_____
    (No.
    68074, March
    29, 1990).
    The
    Supreme Court found that
    the plain language of Section
    39(c)
    “makes clear
    that permits
    issued under
    the Act no longer preempt
    local
    zoning ordinances”.
    (No. 68074,
    slip op.,
    p.4).
    On May
    9,
    1990 the Second District
    issued its mandate
    remanding the matter back
    to the Board with
    instructions:
    “to make
    a finding
    as
    to whether
    the 100—foot
    stack requirement
    is necessary
    for the
    operation of the incinerator
    to be
    in
    compliance with
    the Act and the regulations.
    531 N.E.2d at
    403”.
    Consistent with this
    remand order,
    the parties are directed
    to file a statement,
    to be
    received in the Board’s Offices
    on or
    before June 15,
    1990,
    indicating
    their views as
    to how this
    matter should best proceed,
    addres:ing whether
    they believe
    additional briefing or hearing
    is required
    in
    this matter.
    IT
    IS SO ORDERED.
    I,
    Dorothy
    M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify
    that the above Order was adopted on.
    the
    ~
    ~
    ‘
    day of
    _________________
    ,
    1990,
    oy
    a vote of
    _____
    Dorothy M.
    Gunn,
    Clerk
    Illinois Pollution Control Board
    111—378

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