ILLINOIS POLLUTION CONTROL BOARD
    February
    2,
    1989
    McLEAN COUNTY DISPOSAL
    SERVICE,
    INC.,
    Petitioner,
    v.
    )
    PCB 88—195
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by 3.
    Theodore Meyer):
    This matter
    is before the Board
    on
    a motion filed by
    respondent the Illinois Environmental Protection Agency (Agency)
    on January
    30,
    1989.
    The Agency asks the Board
    to dismiss,
    or
    in
    the alternative stay, petitioner McLean County Disposal’s
    (MCD)
    appeal of the Agency’s denial of MCD’S application
    for a
    developmental permit
    for
    a landfill.
    MCD filed
    its objections
    to
    the motion on February
    2,
    1989.
    The Agency’s motion
    is •based upon
    a claim that MCD does not
    have local
    siting approval
    for
    the landfill,
    as
    is required by
    Sections 39(c)
    and 39.2 of
    the Environmental Protection Act
    (Act).
    (Ill.
    Rev.
    Stat.
    1987,
    ch.
    111
    1/2, pars.
    1039(c)
    and
    1039.2.)
    On January 21,
    1988,
    the Board held that MCD had
    received local
    siting approval by operation of law.
    McLean
    County Disposal,
    Inc.
    v.
    McLean County Board, PCB 87—133,
    January
    21,
    1988.
    MCD then filed
    its application
    for
    a developmental
    permit with
    the Agency, who denied
    the permit on November
    7,
    1988.
    MCD filed
    this appeal of that permit denial on December
    5,
    1988.
    On December
    28,
    1988,
    the Fourth District Appellate Court
    vacated
    the Board’s finding
    that local
    site approval was granted
    by operation of
    law.
    Citizens Against
    the Randolph Landfill
    (CARL)
    v.
    Pollution Control
    Board, Nos.
    4—88—0247
    & 4—88—0251
    cons., December
    28,
    1988.
    MCD filed
    a petition for rehearing
    of
    that decision
    in the appellate court on January
    17,
    1989.
    In support
    of its motion
    to dismiss or stay, the Agency
    argues that because the appellate court vacated
    the Board’s
    decision,
    MCD does not have local
    siting approval, and thus,
    pursuant
    to Section 39(c),
    that it
    (the Agency)
    cannot issue a
    developmental permit to MCD.
    The Agency contends that until MCD
    obtains local siting approval
    the Board has no authority
    to order
    the Agency to
    issue
    a permit.
    The Agency maintains that any
    further
    action on the permit appeal
    is
    a waste
    of Board and
    96—29

    —2—
    Agency resources
    until
    the issue
    of local siting approval
    is
    finally decided.
    In response, MCD notes that the appellate
    court’s mandate has not yet issued, and thus contends that the
    Board’s decision stands,
    leaving MCD with local
    siting
    approval.
    MCD argues that there
    is no basis
    for dismissal,
    and
    states that
    a stay of the proceedings would place
    the Board
    at
    risk of default on
    the statutory deadline for decision of the
    permit appeal.
    MCD states that
    it has not waived the 120—day
    decision deadline.
    This motion presents
    a difficult case
    for
    the Board.
    As
    noted
    by both MCD and the Agency, MCD has not waived the 120—day
    decision deadline
    in this proceeding.
    Ill.
    Rev.
    Stat.
    1987,
    ch.
    1111/2,
    par.
    l040(a)(2).
    The statutory decision date
    for this
    appeal
    is April
    5,
    1989,
    but the decision must be made
    at the
    March
    23,
    1989 Board meeting, since
    the first April Board meeting
    is April
    6,
    1989.
    It
    is very unlikely that the local
    siting
    approval
    issue will be
    finally decided before the decision
    deadline.
    Thus, because MCD has not waived the deadline,
    the
    Board cannot stay these proceedings.
    To do
    so would create
    a
    very real possibility that the decision deadline would be missed,
    resulting
    in
    issuance of the permit by operation of
    law.
    Ill.
    Rev.
    Stat.
    1987,
    ch.
    111
    ~-/2,
    par.
    1040(a)(2).
    The Board cannot
    take such
    a risk.
    However,
    the Board agrees that proceeding with
    this case would
    be
    a waste
    of resources when
    it cannot grant the
    relief MCD is seeking:
    an order
    that the Agency issue
    a
    developmental
    permit.
    Therefore,
    the Agency’s motion
    is granted,
    and this permit appeal
    is dismissed.
    This dismissal constitutes
    final
    action within the 120—day decision period,
    as
    required by
    Section 40(a)(2)
    of the Act.
    IT
    IS SO ORDERED.
    J.
    Anderson and
    J. Marlin dissented.
    I,
    Dorothy
    M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify
    ~,.hatthe above Order was adopted
    on
    the
    ~
    day of
    ~
    ,
    1989,
    by
    a vote of
    -~
    ~
    Dorothy M.4~unn, Clerk
    Illinois Po’2Jution
    Control Board
    96—30

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