ILLINOIS POLLUTION CONTROL BOARD
    April 21, 1988
    WASTE MANAGEMENT OF ILLINOIS, INC.
    Petitioner,
    v.
    )
    PCB 88—39
    MCHENRY COUNTY BOARD,
    Respondent.
    ORDER OF THE BOARD (by LI. Anderson):
    This action involves the appeal by Waste Management of
    Illinois, Inc. (WMI) of the County Board’s denial of S8172
    approval, which denial was based on a finding that criteria 2 & 3
    only had not been satisfied. On March 11, 1988, the McHenry
    County Defenders (Defenders) filed a cross—appeal of the County’s
    finding that criterion 1 had been satisfied.
    On March 24, 1988, the Board issued an Order dismissing the
    Defenders’ cross—appeal based on Section 40.1 of the Act, as
    interpreted by the Illinois Appellate Court (Second District) in
    McHenry County Landfill v. Pollution Control Board, 154 Ill. App.
    3d 89 506 N.E.2d 372 (2d Dist. petition for leave to appeal
    denied, 511 N.E.2d 430 (1987). The Court found that Section 40.1
    “does not allow cross—appeals by objectors in the case of a
    denial of an SB172 site location suitability approval.” The
    Board’s Order also forbids the Defenders from filing an amicus
    curiae brief on criterion #1 issues. Id. at 3.
    On April 6, 1988, the Defenders moved the Board to certify
    for immediate interlocutory appeal pursuant to Supreme Court Rule
    308(a), two specific questions of law flowing from the March 24
    Order. WMI filed a response in opposition on April 13, 1988.
    Supreme Court Rule 308(a) provides that a “certificate of
    importance” may be granted where an order “involves a question of
    law as to which there is substantial grounds for difference of
    opinion and that an immediate appeal from the order may
    materially advance the ultimate termination of the litigation.”
    Ill. Rev. Stat., ch. llOA, Section 308(a), 335. The Board has
    authority to issue such certificates, and has occasionally done
    so. City of Rockford v. Winnebago County Board, PCB 87—92,
    Order, p. 1 (November 25, 1987; People of the State of Illinois
    v. Santa Fe Park Enterprises, PCB 76—84, Order, pp. 1—2 (December
    29, 1983); See, Getty Synthetic Fuel v. PCB~T04 Ill. App. 3d 285
    (1st Dist. 1982).
    88—319
    —2—
    In this case, the Board finds that neither of the 308(a)
    tests have been met, and so denies the motion.
    The Defenders have failed to persuade the Board that the
    interpretation of Section 40.1 made by the Board in accordance
    with the Second District’s decision in the McHenry County case
    involves a question as to which “there is substantial ground for
    difference of opinion”. The statute by its terms does not permit
    cross—appeals. As WMI points out, it is well established that
    appeal rights are only those which are articulated in the
    statute. The Board may not extend or infer such rights. Given
    the availability of enforcement actions pursuant to Section 31,
    it has been further held that due process requirements are
    satisfied even if no right to appeal permit grants exists, a
    situation which is analogous to that presented here. Landfill
    Inc. v. PCB, 74 Ill.2d 541, 387 N.E.2d 258, 262—64 (1978); see
    also E & E Hauling, Inc. v. PCB, 107 Il1.2d 33, 481 N.E.2d
    664,667 (1985) (citing Landfill, Inc.
    Since entry of the Mdllenry County decision in March, 1987,
    no other Court has addressed this issue, so that this matter does
    not present conflicting judicial interpretations in need of
    resolution.
    The Defenders have similarly failed to persuade the Board
    that certification of its proposed questions will “materially
    advance the termination of the litigation”. The Defenders assert
    that immediate resolution of its appeal status would promote
    “more efficient and orderly administrative
    proceedings and by avoiding piecemeal
    litigation. An expedited appeal could be
    completed prior to the PCB’s 120—day statutory
    deadline for reviewing the County Board’s
    decision. If the Defenders succeed in that
    “immediate appeal,” the PCB could rule at one
    time on all relevant issues (including
    criterion #1) and avoid a second proceeding to
    review criterion #1 alone that would be
    necessary if the Appellate Court were to hear
    the Defenders’ appeal later and then reverse
    the PCB’s Order dismissing the Defenders’
    cross—appeal.”
    Decision in this matter is due on June 23, 1988, roughly 60
    days from today, and the hearing is scheduled for tomorrow, April
    22. Certification of issues for interlocutory appeal would
    seriously prejudice the Board’s ability to render a timely
    decision in this matter, as the Board’s timeclock is not
    automatically tolled during the pendancy of any appeal. Based on
    experience, the Board doubts the accuracy of the Defenders
    assertion that an interlocutory appeal can be heard within 60
    88— 320
    —3—
    days. The Board further doubts that WMI would be willing to
    waive the decision date to allow for an appeal which it opposes.
    Additionally, the Board agrees with WMI’s observation that
    review of the County’s decision on criterion #1 will in no way
    advance the Board’s deliberation on criterion 2 & 3.
    Again, for all of the foregoing reasons, the Defenders’
    motion to certify is denied.
    IT IS SO ORDERED.
    B. Forcade concurred.
    3. T. Meyer dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted 9fl
    the ~/44day
    of
    ______________,
    1988, by a vote of
    _________
    Dorothy M. dunn, Clerk
    Illinois Pollution Control Board
    88—321

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