ILLINOIS POLLUTION CONTROL

BOARD

January

22, 1976

COMMITTEE

TO SAVE OUR ENVIRONMENT,

ETAL.,

)

Complainants,

V.

HARRY A. CARLSON and DONALD F. KREGER,

)

d/b/a SOUTH SUBURBAN

LAND

DEVELOPMENT

)

CO., and the ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondents;

)

PCB 75-443

PCB 76—8

ENVIRONMENTAL PROTECTION AGENCY,

)

(Consolidated)

Complainant,

v.

)

HARRY A. CARLSON and DONALD F.

KREGER,

)

d/b/a SOUTH SUBURBAN LAND DEVELOPMENT

CO.,

Respondents.

INTERIM OPINION

AND

ORDER OF THE

BOARD

(by Mr.

Zeitlin):

This matter

is presently before the Board on a

number

of

preliminary motions and procedural matters, enumerated as

follows:

1.

Motion to Dismiss filed December 10,

1975,

by Respondents CARLSON and KREGER, d/b/a SOUTH

SUBURBAN

LAND

DEVELOPMENT CO.,

(hereinafter,

collectively, “SOUTHERN”).

2.

A Petition for Leave to Intervene filed on

December 22,

1975, by the Attorney General for the

People of the State of Illinois.

3.

A Motion to Stay Permit filed by the

original Complainants,

hereinafter,

collectively,

“COMMITTEE”.

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733

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4.

An additional new case, PCB 76-8, filed

on January

8,

1976, by the Environmental Protection

Agency,

hereinafter,

“AGENCY’1),

brought against the

remaining original Respondents in PCB 75-443,

SOUTHERN.

5.

A Motion to Consolidate filed by the Agency

on January

8,

1976.

6.

A Motion to Realign Parties, also filed by

the Agency on January

8,

1976.

I.

NOTION TO DISMISS

Southern’s December 10,

1975 Notion to Dismiss raised five

separate grounds on which it sought to have this case terminated.

The

Notion

is denied,

and each of the five grounds offered is found to be

without merit.

1.

The Complaint is not duplicitous.

Southern alleged that the

issues raised in this case “duplicate” questions raised and decided by

the Board

in the Board Regulatory matter Proposed Solid

c’~asteRegulations

R 72-5,

8 PCB 575(1973)

(Opinion at

8 PC~695);the Board Permit AppeaI’

adjudication Browning-Ferris Industries v.

EPA, PCB 75—194,

18 PCB

320

(1975); and the Circuit Court of Cook County’s decision in Carison, et al.,

v.

Briceland,

et al.,

75 L 12530

(November 20,

1975).

The Board finds

that the issues raised

in

the instant case are not duplicative of those

considered by the courts or the Board in those cases.

We find that the

Complaints herein are neither duplicitous or frivolous.

2.

The Board does not lack jurisdiction.

The cases cited

in Complainants’ Memorandum in Opposition,

filed December 22,

1975,

correctly state the rule here:

Rule 205(j) of the Solid Waste Regulations

properly gives a necessary remedy to private citizens whom may. be affected

or have their rights under the Environmental Protection Act prejudiced by

the Agency’s issuance of a.permit.

It was the intent of the legislature

in the Environmental Protection Act to assure a clean and healthful

environment for all citizens;

it was also the intent of the legislature

in the Act that each citizen be able to enforce the rights granted there

through the mechanisms of proper actions before this Board or

in

the

Courts.

Rule 205(j) merely provided a formal procedure for the enforce-

ment of such rights before the Board.

3.

The original pleading herein is adequate as an Enforcement

Complaint,

in a matter which the Board

is competent to adjudicate under

Title

8 of the Act.

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—734

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4.

The Complaint does specifically allege conduct in violation

of the Act.

The Complaint alleges that the Agency issued, and Southern

is operating under,

a permit issued in violation of the requirements

of the Act as explained in Carlson v. Village of Worth.

5.

Neither laches nor equitable estoppel bar the instant complaint

or the ~elief asked,

i.e.,

the revocation of the permit.

The Board

distinguishes the facts alleged here from those in Wachta v. Pollution

Control Board,

8

Ill. App.

3d 436

(1972), or any of the other,

similar

cases citedEy Southern on the issue of equitable estoppel.

Nor do we

find that Complainants have slept on their rights so as to give rise to

the doctrine of laches.

In summary, we find that none of the grounds alleged by Respondents

in the Notion to Dismiss have merit.

II.

THE PEOPLE’S NOTION TO INTERVENE

The People’s Notion to Intervene is herewith granted.

III.

MOTION TO STAY PERMIT

The Board has no authority to enter or enforce,

in situations of

this type,

temporary injunctions or restraining orders.

Since a request

that the Board do so is the essence of this Notion,

it must be denied.

IV.

THE NEW CASE, PCB 76-8

The Complaint filed by the Agency is adequate, and is docketed

as shown.

V.

MOTION TO CONSOLIDATE

The Agency’s Motion to Consolidate PCB 76-8 and PCB 75-443 shall

be granted.

VI.

MOTION TO REALIGN PARTIES

The Agency’s Motion to Realign is denied.

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735

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—4—

The Supreme Court in Carlson v. Village of Worth characterized

the Agency,

the permit-issuing authority,

as the party to properly

evaluate the complex issues of sanitary landfill siting.

The Act

states that the Agency is to issue such permits within a regulatory

scheme enacted by the Board.

This

is consistent with various statements

made by the Agency since the Supreme Court decided O’Connor v. Rockford

in

1972.

See, Browning-Ferris,

supra, Opinion at

4;

Ex.

48 to R 12-5,

supra (app~~edto Respon~Ients’Notion to Dismiss in PCB 75-443).

The Board will,

in a separate action today, set for hearing a

Regulatory Proposal to consider the siting criteria appropriate for the

sanitary landfill in issue here.

We shall limit the issues to be

considered in that proposed Regulation to thosebearing on Southern’s

site, in relationship to the various factors enumerated in the Act.

During the pendency of the Regulatory procedure, the one—year limitation

for commencement of development contained in Southern’s permit is tolled.

This procedure is consistent with the concept of statewide regulation

envisioned in the Act and Carlson v. Village of Worth, but is limited to

the narrow facts before us in

this

case.

On our own Motion, we shall stay these consolidated cases pending

the outcome of the Regulatory proceeding described above.

This Interim Opinion and Order constitutes the findings of fact

and conclusions of law of the Board

in this matter.

INTERIM

ORDER

1.

Motion to Dismiss filed December

10, 1975

by Respondents Carison and Kreger, d/b/a South Suburban

Land Development Co.,

is denied.

2.

Petition for Leave to Intervene filed by the

Attorney General on December 22,

1975 is granted.

3.

Motion to Stay Permit filed by Complainants

Committee to Save our Environment et al., on December 29, 1975,

is denied.

4.

Motion to Consolidate cases PCB 75-443 and

PCB 76-8,

filed by the Environmental Protection Agency

on January 8,

1976,

is granted.

5.

Notion to Realign Parties filed on January

8, 1976,

by the Environmental Protection Agency is denied.

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735

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—5—

6.

On the Board’s Motion, the consolidated

cases PCB 75-443 and PCB 76-8 are stayed pending

resolution of the Regulatory matter,

R 76-2,

in

conformity with the foregoing Interim Order.

The

one—year limitation for commencement of development

contained in Respondents’ permit No.

1975-39-DE is

tolled pending completion of that Regulatory proceeding.

IT

IS SO

ORDERED.

Mr.

James Young abstained.

Dr. Donald Satchell abstained.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Interim Opinion and

Order was adopted on the 22nd day of January,

1976, by

a vote of

i-~

Clwistan. L.

~

Clerk

Illinois Pol1utiof~ontro1Board

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