ILLINOIS POLLUTION CONTROL BOARD
December 5,
1985
McHENRY COUNTY LANDFILL,
INC.,
)
)
Petitioner,
)
v.
)
PCB 85-192
COUNTY BOARD OF McHENRY
)
COUNTY,
ILLINOIS,
Respondent,
)
and
)
)
ARTHUR T.
McINTOSH & CO.,
)
eta?.
)
)
Respondent-Objectors.
ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon a November
15, 1985
Petition to Review and Hearing to Contest the October 15, 1985
decision of the McHenry County Board
(County)
filed by McHenry
County Landfill,
Inc.
(Landfill)
which denied Landfill site
suitability
approval
for a new regional pollution control
facility.
The Board, on September 20,
1985 remanded PCB 85-56
(involving an earlier County Board denial of site location
suitability for Landfill) to the County Board directing it to
apply the
~properstandard of
proof to Landfill’s application for
site suitability approval.
The County Board, asserting that
it
in fact applied the proper standard of proof, denied Landfill’s
application for
a second time on October 15,
1985,
and it
is this
decision Landfill
is appealing.
On November 21,
1985, Objector
Arthur
T.
McIntosh & Co.. (McIntosh) filed a cross-appeal
in this
proceeding with a Motion to Consolidate this proceeding with the
Board’s earlier proceeding of PCB 85-56.
Objector Village of
Huntley
(Huntley) also filed a Motion to Dismiss and Deny
Petition for Review on November
21,
1985.
On November
22,
1985,
Objector Village of Lakewood (Lakewood)
filed
a response to
Landfill’s petition for review which adopts all the objections,
motions, pleadings,
cross-appeal and arguments of the other
Objectors.
Lastly,
Landfill filed a response to these motions on
December
2,
1985.
The Motion to Consolidate
is hereby denied.
In large
part
‘the motion is moot
in that the Board’s November 21, 1985 Order
in
this matter incorporated the record of the prior proceeding into
this one.
The scope of that incorporation was intended to
include the County’s record, the hearings before
the Pollution
Control Board and all exhibits submitted at
those hearings, and
67-51
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the Board’s opinions and orders.
Other pleadings and briefs are
specifically not incorporated.
To the extent that
the present
parties desire to reassert arguments which are included
in
pleadings and briefs from the earlier proceeding,
these must
be
resubmitted,
This proceeding is entirely separate and distinct
from the proceeding in PCB 85-56.
A petition for review of
the
County Board’s Order of October 15,
1985
is
a new action before
the Board and was accordingly docketed separately.
While the
same piece of land and many of the same parties are involved,
the
substantive issues may well differ, and certainly new allegations
regarding fundamental fairness have been put forth.
Landfill also argues that Objectors McIntosh, Lakewood and
Huntley are not parties to this action since they neither were
granted permission
to intervene nor had the right to file
cross-appeals.
The Board,
in McHenry County Landfill,
Inc.
v.
McHenry County Board,
IL.,
et al., PCB 85-56 and PCB 85-61
through PCB 85-66 (consolidated) May 30,
1985,
found that denial
of
a cross-appeal under SB-172 would
“frustrate SB-172’s policy
of reviewability of all local decisions and that participation at
the County’s hearing is the determining factor for subsequent
appeal rights.”
The Board
sees no reason to reach
a contrary
result in this proceeding.
The filings by Objectors McIntosh and Lakewood are allowed
as cross-appeals.
Huntley’s Motion to Dismiss is hereby
denied.
Its request
to Deny Petition for Review is construed as
a cross-appeal and
is allowed.
In its response, Landfill argues
that any appeal filed under Section 40.1 of the Environmental
Protection Act (Act) must be filed within thirty-five days after
the County Board’s decision and that this requirement was not met
by any Objectors.
The Board does not agree.
Under
Section 40.1(a)
of
the Act, once the county board denies
site-suitability approval,
the applicant has thirty-five days
in
which to file an appeal with the Board.
If the applicant waited
until
the last day of its thirty-five day period, it could
effectively cut off any opportunity for a cross appeal to be
timely filed.
The Board believes that the Objectors
should be
afforded adequate time
in which to respond
to Landfill’s petition
for review and finds that such cross-appeals were
timely filed.
Given the denial of the motion to consolidate which arguably
would have had the effect of bringing all of
the parties
in
PCB 85-56 into this proceeding,
and the fact that the question of
when
a cross-appeal can be filed before
the Board
is one of first
impression, the Board will allow cross-appeals by parties
to
PCB 85-56 to be filed
up to and including 10 days from the date
of service of this Order upon them.
This allows more time than
Supreme Court Rule 303(a)(3) which allows
10 days from the date
of
service of the appeal.
The Board believes the Supzeme Court
Rule
to be reasonable and will
in the future require filing of
cross-appeals within that time frame.
IT IS SO ORDERED.
67-52
—3-.
Board Member J. Theodore Meyer dissented.
I,
Dorothy M.
Gunn, Clerk oE the Illinois Pollution Control
Board h&eby
certify that the above Order was adopted on
the
‘~-5
day of
~
,
1985 by a vote of
~-/
Dorothy N. Gunn, Clerk
Illinois Pollution Control Board
67-53