ILLINOIS POLLUTION CONTROL BOARD

October

4,

1973

KATHRYN O’CONNOR,

 ET AL,

Complainants,

vs.

)

PCB

 73-3

THE CITY OF ROCKFORD, A MUNICIPAL

CORPORATION,

Respondent.

MAYNARD

 & BRASSFIELD

 ON BEHALF OF COMPLAINANTS

A.

 CURTIS WASHBURN, ASSISTANT CITY ATTORNEY, ON BEHALF OF CITY

OF

 ROCI(FORD

OPINION AND ORDER OF THE BOARD

 (by Mr.

 Henss)

Comnlaint was filed by Kathryn O1Connor

 and others, against

the City

 of Rockford,

 alleging

 that

 a permit authorizing the City

to install and operate

 a solid waste disposal

 site

 in the unin-

corporated area of Winnebago County was improperly

 issued by the

Environmental

 Protection Agency.

 The permit was issued on May

26,

1972

at

 a time when the Rules and Regulations

 for Refuse Disposal

Sites and Facilities were in effect.

 Those Rules provided:

Rule

201

‘~Al1refuse disposal site locations shall conform to

applicable

 State laws and county or municipal

 zoning

laws and ordinances”.

Rule 2.03

“Access roads

 to the disposal site shall be

 of all-

weather construction

 and negotiable

at

all

 times by

trucks and other vehicles.”

Complainants contend that the reauirements of

 Rules

 201 and

Rule 2.03 were not met and request

the

entry of

 a temporary cease

9—

391

—2—

and desist order pending hearing on the merits of the Complaint,

the revocation of the permit, and the entry of a permanent cease

and desist order preventing installation or operation of a solid

waste disposal site on the land involved.

The Supreme Court of Illinois in O’Connor v. City of Rockford,

52

 Ill.

 2nd 360, has entered

 a decision involving the same land

and

the

same parties

 as in the instant complaint.

 The present

permit was not involved in the Supreme Court decision.

We

directed the parties

 to submit briefs discussing the legal impli-

cations of the Supreme Court Opinion in the context of the instant

complaint.

 In addition, we granted the Environmental Protection

Agency leave to file a brief amicus curiae.

 An appearance was

filed by Bartholomew

 & Meyer on behalf of South Suburban Land

Development Company, purportedly under Rule 106 but without prior

motion or Order of the Board.

 Briefs were received from the parties

and the Environmental Protection Agency.

Condition

 8 of

the

permit in question states:

“This permit is void one year from the date of issue

unless installation of this project has started on or

prior to the date of expiration.”

On August

1,

 1973 the Attorney General informed us that Condition

8

of the permit had not been met, that the permit had lapsed and that

the controversy so far as the present complaint is concerned is moot.

A letter from complainants counsel does not dispute the mooting of

the present controversy, but states that a new application for permit

has been filed by

the

City with the EPA, and that the same issues

raised in the present complaint conceivably would again beraised

should a new permit be granted.

 The EPA has apparently not yet

ruled upon the new application for permit.

At

this point it should be noted that we adopted new Solid Waste

Regulations on July 19,

 1973.

 The current Regulations do not contain

the language which had formerly been included in Rule 201 and Rule

2.03.

 Therefore,

 it would be entirely a matter of speculation to

say that the same issues are presented in the new permit proceeding.

The Board can act only on the basis of what

 is before it and

cannot render advisory or declaratory opinions respecting the legal

consequences of future events, which may or may not occur.

The

May 26, 1972 permit is all

that

is presently before us and it appears

 to have expired by its own terms, assuming that no installation had

been initiated prior to May 26,

 1973.

 While similar issues may be

involved as a consequence of the issuance of a new permit,

 if the

May 26, 1972 permit has lapsed there is presently nothing before the

Board for adjudication.

9— 392

—3—

We have received nothing from the City of Rockford which speci-

fically indicates whether it has abandoned such rights as it

may

 have

possessed under the

May

26, 1972 permit, or whether Condition 8 is

not applicable because of installation having been initiated prior to

the expiration date.

If the City of Ikockford contends that the permit is still in

force

and

 effect, we should be so advised and will enter such further

orders as

may

 be appropriate.

 If, on the other hand, we are advised

by the City of Rockford that it acquiesces in the view expressed by

the

Attorney

General

behalf

the

Environmental

Protection

Agency

that

the

permit

has

lapsed,

we will

dismiss

the

present

proceeding

moot.

Such

issues

might

arise

when

the

EPA

grants

denies

new

permit

pursuant

 new application, can only be adjudicated after

the

event

and

new

 proceeding filed relating to the application or

permit

then

contention.

Our

present

jurisdiction

based

solely

the

May

26,

1972

permit.

We direct the City of Rockford to advise the Board, within 15 days

from

 the receipt of this Order, of its position with respect to

whether the May 26, 1972

 permit

 is still in force and effect, and if

so, the reasons therefore, or whether the permit has lapsed by its

own

terms.

Upon

 receipt of this information,

shall

enter

such

further

orders

 as are appropriate.

ORDERED.

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

certify

the

above

Opinion

and

Order

was

adopted

the

dayof

,l973byavoteof

4’

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