ILLINOIS POLLUTION CONTROL BOARD

April 30,

1987

PETER VELASSARES

and

)

EDWARD

F., HElL,

)

Petitioners,

RICHARD L. COOPER,

PETER

COOPER and TOBEY COOPER,

Intervenors,

v.

)

PCB 87—36

THE COUNTY BOARD OF KANE

)

COUNTY,

ILLINOIS,

and WASTE

)

MANAGEMENT OF ILLINOIS,

INC.,

)

Respondents.

ORDER OF THE BOARD

(by B. Forcade):

On April 7,

1987,

Waste Management of Illinois,

Inc.,

(“WMI”)

filed a motion

to dismiss petitioners Peter Valessares

(“Valessares”)

and Edward

F. Heil

(“Hell”).

Petitioners

responded on April

15, 1987.

The Board, by Order dated April

16,

1987, set

a briefing schedule on the issues raised

in the motion

and response.

WMI, Heil and Valessares all filed briefs on April

27, 1987.

WMI argues that Heil did not participate

in the county level

proceedings

in

a manner that confers standing to appeal under

Section 40.1(b)

of the Environmental Protection Act

(“Act”), as

Hell did not participate

in the county level hearing.

Additionally, WMI contends that Hell’s post—hearing written

filing was not

a true written comment on the appropriateness of

the proposed

WMI

site.

Hell responds that he participated

in the

manner prescribed

in Section 39.2(c)

of the Act and

in accordance

with the procedures suggested by the Kane County hearing officer

at the hearing.

Heil also states that his post—hearing written

public comment was docketed and incorporated as part of the

record of proceedings before the Kane County Board.

WMI’s motion to dismiss against Valessares contends that

Valessares has no standing to appeal because he

is

so located as

to not be affected by the proposed facility.

WMI speculates that

Valessares cannot make the requisite factual showing that will

convey standing.

Valessares responds that he

is a resident of

Kane County and will be affected economically by the proposal.

Additionally, valessares contends that all Kane County citizens

77~272

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—2—

are affected by the alleged lack of fundamental fairness

in the

hearing process.

WMI’s motion to dismiss Heil and Valessares

is denied.

It

is apparent from the motions and briefs that the issues raised

involve mixed questions of law and fact.

While the parties

provided a limited stipulation of facts in order

to dispose of

these

issues,

the factual

record before the Board

is presently

inadequate.

The issue

of Heil’s participation is

in factual

dispute regarding both degree and effect and could be intertwined

with the fundamental fairness of the hearing procedure, in light

of the hearing officer’s statements on “participation”

(R,

6,

7,

123,

124).

The issue regarding the effect of the proposed

facility on Valessares

is almost exclusively factual.

WMI

speculates as

to Valessares ability to make a requisite factual

showing.

These factual issues should be addressed at the

scheduled Pollution Control Board hearing.

WMI is at liberty to

renew its motion to dismiss after

an opportunity to develop a

sufficient factual record has been afforded.

IT

IS SO ORDERED

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

Jct1- day of _______________________,

1987, by a vote

of

~-o

.

/

Dorothy M. ~unn, Clerk

Illinois Pollution Control Board

77-273