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