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12/06/88 John Stark, v. the Pollution Control

December 6, 1988

JOHN STARK, PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

532 N.E.2d 309, 177 Ill. App. 3d 293, 126 Ill. Dec. 624 1988.IL.1756

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE EGAN delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

This is an appeal from an order of the Illinois Pollution Control Board dismissing the petition of John Stark for review of a decision of the Cook County board which granted conditional site approval for a proposed balefill in an unincorporated area of Cook County and a conditional special use permit to the respondent Northwest Municipal Conference. The ground for dismissal ascribed by the IPCB was that it lacked jurisdiction to review actions of the Cook County board.

The only pertinent record before us is the petition for review filed before the IPCB. For the purposes of this appeal the factual allegations of the petition will be taken as true.

Alex Seith, the chairman of the Cook County Zoning Board of Appeals, conducted hearings on the application of the Northwest Municipal Conference for issuance of a special use permit for construction of a new regional pollution control facility known as the Bartlett balefill. The proposed balefill consists of 410 acres in an unincorporated area of Cook County about one mile from the Village of Bartlett.

During the hearings, Mr. Seith took the position that matters of health, safety and welfare were not the concern of the zoning board of appeals or the Cook County Board of Commissioners and prevented attorneys for the City of Elgin, the Village of South Elgin, and the Village of Bartlett from adequately and fully developing a record to show the dangers to health, safety and welfare posed by the proposed balefill. Mr. Seith specifically denied that the Cook County Zoning Board of appeals had jurisdiction over safety considerations relating to the proposed balefill and that such considerations were within the "exclusive jurisdiction" of the Environmental Protection Agency.

The petitioner, John Stark, resides in the Village of Bartlett, Du Page County, and has been a resident of Bartlett for approximately eight years. He lives about five miles from the site of the proposed balefill "so as to be affected by its construction and operation." He personally attended all but one of the hearings held by the county zoning board of appeals and at one hearing presented objections to the proposed balefill. He also introduced, on behalf of a citizens' action group, the testimony of an assistant professor of pharmacology who testified regarding the dangers of toxic waste at the site of the proposed balefill.

On November 16, 1987, the Cook County Board of Commissioners approved the site location of the proposed balefill and granted approval of a special use permit to the defendant, Northwest Municipal Conference, which consists of a group of municipalities. The approval was based on the hearings held by the Cook County Zoning Board of Appeals.

The petition for review further contended that the approval by the Cook County board of the application for the special use permit was generally in violation of one or more of seven specific criteria expressly set forth in section 39.2(a) of the Illinois Pollution Control Act for determining the suitability of a new regional pollution control facility. The petitioner asked the IPCB either to reverse the approval of the Cook County Board of Commissioners or, alternatively, to remand the matter to the Cook County board or the Cook County Zoning Board of Appeals for further hearings and proceedings.

In its dismissal of the petition for review, the IPCB relied on section 39.2(h) of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(h)). The Act provides that no permit may be granted by the Illinois Environmental Protection Agency unless the applicant has received approval by the county board of the county where the facility is located. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039(c).) Section 40.1 provides that the grant or denial of approval by the county board shall be subject to review by the IPCB. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1.) Any appeal from the IPCB shall be made directly to the appellate court. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041.) However, section 39.2(h) of the Act provides as follows (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(h)):

"Nothing in this Section shall apply to any existing or new regional pollution control facility located within an unincorporated area of any county having a population of over 3,000,000 or within the corporate limits of ...


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