ILLINOIS POLLUTION CONTROL BOARD
May 14,
 1987
IN THE MATTER OF:
 )
REQUEST FOR SITE APPROVAL FOR
 )
 PCB 87—51
A.R.F. FACILITY FILED BEFORE
 )
 87—57
THE
 COUNTY
 BOARD
 OF
 LAKE
 COUNTY
 )
CONCURRING
OPINION
 (by B.
 Forcade):
I concur that the cross—appeal
 in PCB 87—57 must be
dismissed, but believe additional explanation
 is warranted.
Historically,
 the Board allowed third parties (anyone other
than the landfill applicant or the local government decision—
maker)
 to appeal
 a local government decision to approve
 siting.
The Board also allowed third parties to cross—appeal or
 intervene
in a proceeding brought by the landfill applicant to challenge a
siting denial.
 In part,
 that prior philosophy was based
 on the
somewhat vague statutory language and
 in part it was based on the
theory that the General Assembly intended
 to grant third parties
the right to participate
 in and
 to appeal decisions granting
local siting approval whether those decisions were made by the
local government or made by this Board
 in overturning a local
government denials.
 That approach to allowing third party cross—
 appeals
 in siting denials was changed by the Second District’s
holding in McHenry County Landfill
 v.
 IPCB
 (Second District, Slip
Opinion,
 March 30,
 1987).
The court
 in McHenry County evaluated the statutory language
of Section 40.1 of the Environmental Protection Act (hereinafter,
the RAct~)and the factual scenario which brought the case
 to the
Second District.
 In the factual scenario, the County Board of
McHenry County denied
 an application of McHenry County Landfill
for site location approval on October 15,
 1985
 (after
 a prior
remand from this Board
 in PCB 85—56,
 September 20,
 1985),
 and
NcHenry County Landfill appealed that October denial to this
Board
 (PCB 85—192).
 Several objectors also filed cross—appeals,
which
 the Board accepted.
 On March 14,
 1986, this Board affirmed
the October
 15,
 1985, denial
 of site location suitability
approval.
 The McHenry County Landfill appealed that decision to
the Second District and
 the third parties
 (also called objectors)
cross—appealed.
 Thus, when the case arrived at the Second
District,
 the McHenry County Board had denied site location
approval and this Board had affirmed denial.
 With this factual
background,
 the Second District reviewed the statutory language
 and concluded the objectors had
 no standing
 to appeal
 to this
Board
 or the Second District.
78-26
—2—
Section 40.1
 of the Act, which governs appeals
to the Pollution Control Board provides:
W1f
 the
 county
 board
 ...
 refuses
 to
 grant
(site)
 approval
 ...
 the
 applicant
 may
petition
 for
 a
 hearing
 before
 the
 (PCb)
 to
contest the decision...
(b)
 If
 the
 county
 board
 ...
 grants
 (site)
approval
 ...
 a
 third
 party
 other
 than
 the
applicant
...
 may petition the
 (PCB)
 ...
 for
 a
hearing
 to contest the approval
...
 (Ill. Rev.
Stat.
 1985,
 ch. 1l~/~par. 1040.1(a),
 (b)).
The
 Act
 thus
 does
 not
 provide
 for
 a
 third—
party
 appeal
 where
 the
 PCB
 has
 refused
 to
grant
 site approval.
 (See.
 E
 &
 E Hauling
 v.
Pollution
 Control
 Board,
 (1985),
 107
 Ill.
 2d
33,
 41
 (concluding that Section
 40.1 as writ-
ten
 adequately
 recognizes
 arid
 protects
 the
rights of
 third parties).)
 The PCB
 is power-
less to expand its authority beyond that which
the
 legislature
 has expressly granted
 to
 it.
(Landfill,
 Inc.
 v.
 Pollution
 Control
 Board,
(1978),
 74
 Ill.
 2d
 541,
 557—58;
 see
 also,
Schalz
 v.
 McHenry County Sheriff’s Department
Merit
 Corn.
 (1986), 113 Iii.
 2d l9d,
 204.)
 We,
therefore,
 conclude
 that
 the
 PCB
 improperly
permitted
 the
 objectors
 to
 become
 parties
 to
the
 proceeding
 before
 it.
 The
 objectors
therefore
 have
 no
 standing
 to
 appeal
 to
 this
court
 under
 Section
 41
 of
 the Act
 (Ill.
 Rev.
Stat.
 1985,
 ch.
 l11l/~, par.
 1041),
 and
 their
cross—appeals are hereby dismissed.
This language
 is certainly dispositive
 in the
 instant
proceeding.
 The County Board of Lake County did,
 in fact, deny
site location approval and William Alter
 and the LaSalle National
Bank, as third—parties, are precluded from cross—appealing
 to
this Board.
 The larger
 issue of whether
 a third party can seek
review if this Board grants approval (by overturning
 a County
Board denial)
 is less clear.
The Second District
 in McHenry County did not dismiss the
objectors from the Second District proceeding because of the
action of the County Board,
 but rather because of the action of
this Board:
The
 Act
 thus
 does
 not
 provide
 for
 a
 third—
party
 appeal
 where
 the
 PCB
 has
 refused
 to
grant site approval
 (Citation Omitted).
 Slip
Opinion at
 7.
78-27
—3—
At page six of the Slip Opinion, the court states that standing
to appeal
 a decision of this Board
 under Section 41(a)
 of the Act
depends on whether one
 is adversely affected by the decision of
the Board:
We will first consider Landfill’s motion to
dismiss the cross—appeals.
 Due process
 of law
does
 not
 encompass
 the
 right
 to
 appeal
 an
administrative
 decision,
 and
 affording
 that
right
 is
 the
 exclusive
 prerogative
 of
 the
legislature.
 (Board
 of
 Education
 v.
 Gates
(1974),
 22
 Ill.
 App.
 3d
 16,
 20.)
 Section
41(a)
 of
 the
 Act
 (Ill.
 Rev.
 Stat.
 1985,
 ch.
luLl2,
 par.
 1041(a))
 permits
 appeals
 only
 by
those
 who
 have
 been
 denied
 a
 hearing,
variance,
 or
 permit
 by
 the PCB
 —
 clearly not
applicable
 to
 the
 objectors
 —
 or
 persons who
are parties
 to
 a PCB hearing
 or are adversely
affected by
 a
 final order
 or determination
 of
the PCB.
The
 PCB
 found
 that Landfill
 had met
 its
burden
 in
 establishing
 four
 of
 the statutory
criteria for
 site approval, but had
 failed
 to
establish the remaining two.
 It then affirmed
the
 county
 board’s
 denial
 of Landfill’s
 site
approval
 request.
 The
 objectors
 oppose
 the
landfill,
 and
 thus
 cannot
 have
 been directly
adversely
 affected
 by
 that
 decision.
 (See
Dolnick
 v.
 Redmond
 (1972),
 4
 Ill.
 App.
 3d
1037,
 1040
 (noting
 that
 the
 adverse
 effect
must
 be
 direct
 to
 confer
 standing
 to
appeal).)
 The objectors thus have no standing
to appeal unless they were properly parties to
the PCB hearing.
These two sections of McHenry County seem
 to imply that
third parties may have
 a right to appeal
 a decision of this Board
to an appellate court
 under Section 41(a)
 of the Act if this
Board grants site approval by overturning a County Board
denial.
 At present however,
 the law in this area would have
 to
be described as uncertain.
78-28
—4—
I, Dorothy
 14. Gunn, hereby ce
 ify that the above Concurring
Opinion was submitted on the
 ~
 day of
 ~7’h
~
1987.
 /
Dorothy N. Gum, Clerk
Illinois Pollution Control Board