ILLINOIS POLLUTION CONTROL BOARC
July
16,
1987
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
a Delaware Corporation,
Petitioners,
v.
)
PCB
87—75
LAKE COUNTY BOARD,
)
Respondent.
ORDER
OF ThE BOARD
(by R.
C.
Flemal):
On June
16,
1987, AR.F. Landfill Corporation
(“A.R.F.”)
filed
its Appearance
in
this matter.
In response,
the Board
on
June
25,
1987, entered an Order
in this docket expressing its
confusion regarding the purpose
of A.R.F.’s Appearance.
The
Board at that time requested that AR.F.
inform the Board as
to
A.R.F.’s purpose
in
appearing, and as
to the authority of
the
Board
to permit
it to appear
in this proceeding.
A.R.F.
filed
a memorandum
in
support of
its appearance on
July
10,
1987.
A.R.F.
contends that
it is “entitled
to
participate
in this appeal
as
a matter
of right”
under Section
40.1 of the Environmental Protection Act
(“Act”)
and 35
111. Adm.
Code 103.142.
A.R.F.
correctly points out that
it has been
a longstanding
Board practice
to allow
third parties the opportunity to appear
and/or participate
at Board hearings held pursuant
to Section
40.1(a)
of the Act.
The hearings mandated by that section are
public hearings at which any person may appear
and participate,
subject
to that section’s prohibition against presentation of new
or additional
evidence.
To this extent,
A.R.F. ‘s filing
ot
a
formal
appearance is unnecessary.
However, A.R.F.’s July
10, l9~7,memorandum indicates that
A.R.F.
is interested
in participating
in this proceeding
to a
more complete extent than simply appearing
at hearing.
A.R.F.
states that
in addition to appearing at,
and participating
in the
hearing,
it also wishes
to receive pleadings, participate
in
discovery,
and
file
a post-hearing brief.
The right
to
participate
in these
latter activities
is generally reserved
for
persons who have status as parties.
A.R.F. cannot be afforded
these privileges, because,
for the
following reasons,
it does not
have and cannot obtain
intervenor status
in this proceeding.
Sections
40.1
of the Act establishes procedures pertaining
to the appeals
of decisions made by county boards or
79.139
2
municipalities on requests
for the siting of new regional
pollution control facilities.
Section 40.1(a) enumerates the
process
to
be followed during
the appeal
of cases
in which site
location suitability was denied;
Section 40.1(b) outlines the
processes applicable to appeals Of cases where site location
suitability was approved.
Only Section 40.1(b) explicitly
provides the right of appeal
to
a third party other
than the
applicant.
The case at bar
involves
a county board’s refusal to
grant site approval; therefore the provisions
of Section 40.1(a)
control
in this instance.
A.R.F.
specifically points out that
it is not at this time
attempting
to become a party by asserting
a cross—claim against
the Petitioner.
Nevertheless, A.R.F. has stated
its desire
to
participate fully in this matter,
in fact
to a level virtually
identical to that of
a party.
Since
the Illinois Appellate Court
has recently held that the Act does not provide
for a third—party
appeal where
a county
board refuses
to grant
site approval, and
that where
the Board allowed persons other than the applicant to
cross-appeal,
the Board
improperly permitted
such persons
to
become parties
(McHenry County Landfill,
Inc.
v. The Illinois
Pollution Control Board,
154 Ill. App.
3d
89
(1987)),
the Board
finds that A.R.F. may not be provided
the rights which would
be
commensurate with party status.
For the aforementioned reasons, A.R.F.
may not participate
in discovery or
file
a post-hearing brief.
Similarly,
the 8oard
will not direct
the parties
in this matter
to file copies
of
pleadings with A.R.F.
A.R.F. may appear
and participate at
hearing, pursuant
to the limitations of Sections 40.1(a),
32,
and
33(a)
of the Act.
To this limited extent, A.R.F.’s appearance
is
accepted.
A.R.F.
additionally argues that its right
to
appear
and
participate
in this matter
is permitted by 35
Ill. Adm. Code
103.142.
The Board
notes
that where
the provision of the Act and
the Board’s procedural
rules are
in conflict,
the provisions of
the Act must take precedence.
The Board
is powerless to expand
its authority beyond that which the legislature has expressly
granted
to it.
Landfill,
Inc.
v.
Pollution Control Board,
74
Ill.
2d
541,
557—558
(1978).
As the legislature specifically
refrained from providing
the right
of third-party appeals in
cases such as the case at bar, a Board procedural rule cannot be
relied on
to provide such.
The Board further
notes
its acknowledgement
of A.R.F.’s
interest in participating
in this matter for the purposes of
“ensuring the health and
safety
of its property and
its
employees”.
The Board appreciates the importance
of these
interests,
and believes that this Order
allows A.R.F.. to protect
them within the confines allowed by the Act.
79-140
3
Finally, on July
14,
1987,
Respondent Lake County Board
filed
a motion
to strike Petitioner’s proposed interrogatories
to
Lake County Board members.
That motion
is referred
to the
Hearing Officer
for decision.
IT
IS SO ORDERED.
J. Theodore Meyer dissented.
I, Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify
at the above Order was adopted on
the
/~~day of
______________,
1987, by
a vote
of
~—/
-
/
Dorothy
M.
Gunn, Clerk
Illinois Pollution Control Board
79.141