ILLINOIS POLLUTION CONTROL BOARD

November 26, 1984

~JA~TE MANAGEMENT,

INC.,

)

Petitioner,

v.

)

PCB 84—45

I

PCB 84—61

tc~LiN0IS

ENVIRONMENTAL

)

PCB 84—68

~ROT~CTION AGENCY,

)

Consolidated

Respondent.

CONCtIRRING

OPINION

(by

J.

D. Dumelle):

in determining the issue of whether third parties should

have

the

right to intervene in this permit appeal proceeding, the

majority

frames

the

ultimate question as “whether the citizens by

right

may

initiate

or participate in the anticipated appeal of

this

case.~

That is not the question before the Board, however.

Rather,

the

question is whether the citizens may be allowed to

intervene

in

a permit appeal which has already been initiated

before

the

Board.

I feel that they should.

The majority relies heav~.lyon Landfill,

Inc.

v.

PCB, 74

I11~

2d 541,

387 N.E.

2d 258 (1978).

The thrust of that

case,

however,

is

that

the Board cannot enlarge its jurisdiction

beyond

that

which

is

granted by its enabling act, and since the

Environmental

Protection Act (Act) does not provide for third

party

appeals

of

permits which have been granted, the Board

cannot

allow

auch

appeals by rule.

In

the instant case, the

permit

was

denied, not granted,

and

was properly appealed by the

app:ticant

and certain citizens request intervention.

Landfill,

Inc.

is,

therefore, certainly not dispositive.

The

majority also bases its decision

on

the lack

of

specific

language

in

the Act allowing intervention in permit appeals,

noting

that

the Act specifically allows intervention in RCRA

permit

appeals

and landfill site location suitability appeals,

but

not

for

other permits.

What the majority ignores, however,

is

that intervention

is also

not

specifically allowed

in any en

-

forcement actions

(except where the use

of

a community sewer or

water

facility

is at issue).

The Board has always allowed inter-

vention,

if

timely,

in

enforcement

cases

Thus,

the majority’s arguments against

intervention

are

less

than compelling and there are good reasons to reach the opposite

result.

First,

one of the hallmarks of the Act is that

it

grants

liberal

public

participation rights.

Second, as the majority

notes,

the

Board “has been liberal

in its allowance of intervention

rights,

in

fact

having previously allowed intervention in the

61-gig

---

2

case of a permit granted for development of a sanitary landfiu,”

and

that is not the only such case.

Third,

35 Iii. Mm. Code

1O5.102(a)(6)

and 103.142 of the Board’s procedural

rules

establish

a right of intervention in permit appeal proceedings.

I believe that the Board should continue to be liberal

~n its allowance of intervention rights and should not cut off

such

rights

unless

there

are

strong

reasons

to

do

so.

I

see

~io

such

strong

reasons

in

this

case.

/

Jacob D. Dumelle

Chairman

I,

Dorothy

M.

Gunn, Clerk of the Illinois Pollution Control

3oard, hereby certify that the above Concurring Opinion was

sibriitted on the

~

day

of

______________

1984.

;~i

,~‘4~t-

~-i-~.

Dorothy M.

.øünn, Clerk

Illinois Pollution Control Board