ILLINOIS POLLUTION CONTROL BOARD
May 30,
1985
MOHENRY COUNTY
LAt’TDFILL,
INC.,
an Illinois Corporation
Petitioner,
PCB 85—56
COUNTY BOARD OF MdHENRY
)
COUNTY,
ILLINOIS,
Respondent.
and
ARTHUR T.
McINTOSH
& CO~,
)
VILLAGE OF LAKEWOOD, VILLAGE
)
OF HtJNTLEY, HUNTLEY FIRE
)
PROTECTION
DISTRICT,
LANDFILL
)
EMERGENCY
ACTION
COMMITTEE
)
(LEAC) AND McHENRY COUNTY
)
DEFENDERS,
Cross Petitioners—
)
Objectors,
v..
)
PCB 85—61 through
)
PCB 85—66
(consolidated)
McHENRY COUNTY LANDFILL,
INC.
AND,
COUNTY BOARD OF McHENRY COUNTY,
Respondents~.
ORDER OF THE BOARD (by
J,. Anderson):
On May 3,
1985 six ~Notices
of Cross—Appeal” were filed by
various persons, municipalities
and other entities (“the
Objectors”) each bearing
the
docket
number
PCB
85—56.
As noted
by the Board
in
its Order
of May 16, 1985,
to avoid
administrative confusion,
each of these filings was renumbered,
and a separate docket nunth~rhas been assigned
to each
as
reflected
in the capti~nof this Order.
64-151
—2—
A motion to
si:rike each of these “cross—appeals”
was filed
on May
7,
1985 by McHenry County Landfill, Inc.
(the
“Landfill”).
A motion to amend this filing was made May
23,
1985,
the sole amendment being inclusion in the motion of the
McHenry County Defenders petition;
the motion is granted.
In this case, McHenry County denied
the Landfill’s
application, finding that three
of the criteria of
39.2 of the
Act had not been satisfied.
The Landfill has appealed
the denial
on these criteria~,while various Objectors
to the landfill who
had participated
the County~shearing now seek
to challenge
the County’s dete
~~ation
that three
of the criteria had been
satisfied.
The Board pr~~’~.i~ra1
rules do not explicitly provide for
cross—appeals
in ~
action.
SB 172
(P.A.
82—682) does not, by
its terms, provide
cross—appeals.
While
this attempt at
a
cross—appeal
is
a
~:~er
of first impression before the Board,
the Board
has addr~s~dthe question of the rights of landfill
opponents who inte.~:s’~ein an applicant’s appeal
of
a denial
in
Waste Management o~~llino±s v. County Board
of Will County,
et
al.,
PCB 82—141, Ap::~l7,
1983.
In that case the Board observed
that:
“Section 40.1(a)
of the Act provides that only an
applicant may appeal county denial of approval,
in
contrast
to Section 40.1(b)
which provides that grant of
approval may be appealed by a third party.
What the
intervenors have
in essence attempted to do
is
to cross—
appeal those elements of the County’s decision which
amount to
a
grant..
It can be argued that to permit this sort of action
furthers the
intention of P,A.
82—682,
since
if the
Board were
to overrule the County’s findings on the
criteria which
serve as the basis
for denial,
the
approval would be granted without Board review of the
remaining criteria.,
However,
as
the maxim states, an
intervenor must “take the case as he
finds
it,”
and the
issues
on appeal at the time these intervenors entered
into this action concerned only criteria #1 and
#2.
Absent additional specific legislative authorization for
a cross—appeal of
the
additional criteria, or
of a
legislative mandate
that the Board review a County
decision as
to all criteria once any person has
challenged a decision on one of
them,
the Board cannot
provide for expansion of statutory appeal
rights,
Landfill,
Inc.,
v.. PCB,
74 I1l.2d 541,
387 N.E.2d 258
(1978).”
(p.5)
The Landfill asserts that the various Objectors have no
standing to pursue
a cross—appeal,
since under
the scheme of SB
172 they do not
he~co~e
“parties” at the County hearing level,
the
applicant being
the
only party.
The Landfill contrasts this with
84-152
—3—
the legislative proviso
in
39,3(d)
of the Act, which allows any
person who may be adversely affected by an Agency determination
concerning a hazardous waste facility permit application to be
admitted as
a party—intervenor at the Agency’s Administrative
Procedures Act contested case—type hearing
on the permit.
The
Landfill further asserts
that, even if the County could have made
the Objectors party—intervenors, upon petition, that the
Objectors here made no such petition to
the County.
It
is the
Landfill’s position,
then, that the Objectors here can gain party
status only upon
a successful petition to the Board for leave
to
intervene.
The Objectox.~
~o
not directly address
the
Landfill’s
argu:aents concern;.~their
lack of party status at the County
level.
The essenc~of the Objectors’
position
is that it would
be fundamentally
~iair
for the Board
to fail to entertain cross—
appeals
in this ty~~
of action,
because the County’s findings
that three criteri.~ ~iadbeen met would be rendered “absolute,
final
and unappealab’e,” which would not be
the case had the
County found
that ~l
six criteria had been satisfied,
They
state that “tb
dei~y
the right of cross—appeal
is arbitrary and
unreasonable becauso
it wholly
fails
to provide
a mechanism by
which
the citizenry ~uayhave redress of grievances”
Notices,
5(d).
In a case more recent than Waste Management,
supra,
-—
Board
of Trustees of Casner Township et al.,
v,.
County of Jefferson and
Southern
Illinois
Landfill,
PCB
84—175,
176,
April
4,
1985
——
the
Board was faced with the question whether, absent
a specific
legislative directive to do so,
the Board had jurisdiction
of
Objectors’
appeals of
a site location suitability approval
“deemed approved” pursuant to Section 39.2(e)
as
a result of
a
County
Board’s
deadlock
rendering
the
County
incapable
of
action
within
the
120
day
decision
deadline..
The
Board
found,
in
its
Order
of
January
l~ i~)8,
that:
“Absent
a compe:Lling demonstration that the
statutory language requires or the General Assembly
intended that “deemed approved” requests be treated as
different from act:Lve approvals,
the Board cannot
extinguish
the third
party”s statutory right to appeal
in Section 40.1(b),
***
if Board jurisdiction
to review
third party appeals were disallowed
in these cases,
the
symmetry of the SB 172 system would be destroyed.
Not
only does this create the spectre of manipulation of the
process and third party’s rights by the local
body,
it
would also produce a situation in which the site
suitability which was
of
fundamental concern
to the
General Assembly could never by reviewed
or
assured.
This
would
cert:ainly he an absurd consequency
in light
of
the elaborate public participation and review
processes SB
172
created to ensure complete review of
these quest!
.~“
(p.
6—7)
84-153
—4-..
The Board finds that denial
of cross—appeals concerning
those portions of the application
“approved” by the County as
meeting particular
criteria would similarly frustrate SB 172’s
policy of reviewability of all local decisions,
upon petition by
applicant.s and Objectors alike,
Formal party status at the
County level does not lie
at. the heart of SB
:L72 procedures;
participation at
the ~Qufl~y~5hearing
is
the
determinant
for
subsequent
appeal
rights.
Therefore,
the
Board
finds
that
these
cross—appeals
should
proceed.
To
the
extenL
that
this
holding
is
contradictory
to
the
dicta
contained
in
the
last
sentence
quoted
from
the
Waste
~~eme~
decision
quoted
at
p.2
herein,
that
dicta
is overruled.
The
cross
appeals
are
hereby
consolidated
with
PCB
85—56
for
hearing
and
decision..
Finally,
the
cross—appeals
also
contain
various
motions.
The
motion
to
strike
“Petitioners’
proposed
Resolution/Findings”
from
the
County’s
Record
(filed
May
25,
1985)
is
denied.
The
motion
contains
various
unsupported
factual
assertions
which
cannot
properly
be
considered
unless
ventilated
in
the
record
in
this action
at
the
Board~s hearing.
The
motion
may
be
renewed
at
such later
time0
The motion
to
strike and dismiss Section III of the
Landfill’s petition as vague
is also denied..
While
the petition
does not
contain, for example, names of Objectors and County
Board Members who allegedly participated
in ax parte contacts,
application may be made to
the Rearing Officer for discovery
concerning matters relating to fundamental
fairness which do not
appear
in
the
County’s
Record.,
The
May
23~. i985~ motion
fox:
subpoena made
by
objector
McIntosh
and
the
LandfLiI~s
May
29,
reply
are
referred
to
the
Hearing
Officer
for
disposition;
all
othur
d:Lscovery
motions
should
also
be
addressed
to
the
Hearinq
Officer
and
not
the
Board.
The Board notes, however, that
any
discovery
process
in
these
matters
cannot
be
pro1onged~
as
dec:Lsion
in
this
matter
is
due
on
August
13,
1985..
IT
IS
SO ORDERED~
J.
Theodore
Meyer
dissented,
64-154
I, Dorothy
M.
Gunn,
Clerk
of the Illinois Pollution
Control
Board hereby certify that the above Order was adopted
on
1985 by
a
vote
&hyM..
Gunn,
Clerk
Illinois Pollution Control Board
64~455