No. 3--04--0649

(Consolidated with No. 3--04--0655)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

BACKGROUND

On September 26, 2003, Waste Management filed an applicationwith the KCB for a second site location for a proposed expansionof the Kankakee landfill. After public hearings in which Karlockand Watson participated, KCB denied Waste Management'sapplication. Waste Management then appealed the denial to IPCB. Three months later, Watson filed a motion to intervene in WasteManagement's appeal before IPCB. Watson owns over 500 acres ofproperty that abut the proposed site. According to Watson, hisproperty is adjacent to the site location on two sides. Watsonalso filed a motion to file an amicus brief. On July 1, 2004,Karlock, who is also an adjacent property owner, filed a motionto intervene, as well as an alternative motion to file an amicusbrief, and participate in the hearing during the public commentperiod. IPCB denied both Karlock's and Watson's motions tointervene. This appeal followed.

In November of 2004, Waste Management and KCB filed motionsto dismiss Karlock's and Watson's appeal to this court for lackof jurisdiction. Petitioners responded to the motions by citingCitizens Against the Randolph Landfill v. Pollution Control Board(178 Ill. App. 3d 686, 533 N.E.2d 401 (1988)) for the propositionthat a denial of a motion to intervene in an IPCB proceeding is afinal and appealable order. On December 14, 2004, we denied themotions to dismiss and directed the parties to address the issuein their briefs.

ANALYSIS

There are two issues before this court. The first iswhether this appeal should be dismissed for lack of jurisdiction. The second is whether IPCB properly denied Karlock's and Watson'smotions to intervene.

Section 41(a) of the Environmental Protection Act (the Act)(415 ILCS 5/41(a) (West 2002)) provides that "any party adverselyaffected by a final order or determination of the Board *** mayobtain judicial review, by filing a petition for review within 35days from the date that a copy of the order or other final actionsought to be reviewed was served upon the party affected." (Emphasis added.) 45 ILCS 5/41(a) (West 2002). Only finalorders of the board are subject to judicial review. Landfill,Inc. v. Pollution Control Board, 74 Ill. 2d 541, 549, 387 N.E.2d258, 260 (1978). A final order of IPCB is one that "determinesthe litigation on the merits so that, if affirmed, the onlythings [sic] remaining is to proceed with the execution of thejudgment." Archer Daniels Midland v. Pollution Control Board,149 Ill. App. 3d 301, 304, 500 N.E.2d 580, 582 (1986). "Finalitymust be based upon a determination that the judgment fully andfinally disposes of the rights of the parties so that no materialcontroverted issue remains to be determined." People v.Pollution Control Board, 190 Ill. App. 3d 945, 947, 547 N.E.2d647, 649 (1989).

Karlock and Watson argue that in Citizens Against theRandolph Landfill v. Pollution Control Board, 178 Ill. App. 3d686, 533 N.E.2d 401 (1988), the appellate court held that thedenial of a motion to intervene in a Pollution Control Boardproceeding is final and directly appealable; therefore, thiscourt has jurisdiction. However, in that case, IPCB disposed ofboth the motion to intervene and the entire case on the merits inthe same order. Citizens Against the Randolph Landfill v.Pollution Control Board, 178 Ill. App. 3d at 689, 533 N.E.2d at404. Since IPCB's order was a final disposition of the entirecase, the appellate court had jurisdiction over all issues raisedin the case, including whether the motion to intervene wasproperly denied. The court did not specifically address whethera denial of a motion to intervene, standing alone, would havebeen an appealable final order. Citizens Against the RandolphLandfill v. Pollution Control Board, 178 Ill. App. 3d at 692, 533N.E.2d at 406. Therefore, we find that Randolph Landfill offersno help to petitioners.

In Miller v. Pollution Control Board, 267 Ill. App. 3d 160,164, 642 N.E.2d 475, 480 (1994), the court held that an IPCBorder, which did not determine the full amount of costs, was notfinal for purposes of appeal. The court stated that "[a]n orderis final only if it terminates the litigation between the partieson the merits or disposes of the rights of the parties, eitherupon the entire controversy, or upon some definite and separatepart thereof." Miller v. Pollution Control Board, 267 Ill. App.3d at 164, 642 N.E.2d at 480 (1994).

Here, IPCB's order did not determine the merits of the controversy or dispose of the rights of the parties. Karlock andWatson are not parties. IPCB proceedings were not terminated bythe entry of the order denying Karlock and Watson leave tointervene. Therefore, IPCB's order was neither final norimmediately appealable. This court does not have jurisdiction. Thus, we can not address the merits of IPCB's decision to denyKarlock's and Watson's motions to intervene at this time. Ouronly option is to dismiss the appeal.

Appeal dismissed.

SLATER, P.J., and HOLDRIDGE, J., concur.