RECEIVED,

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARDCLERK’s

OFFjcr

LOWE TRANSFER,

INC. and

MARSHALL LOWE,

Co-Petitioners,

COUNTY BOARD OF McHENRY

COUNTY, ILLINOIS

)

SEP

152003

STATE OF

ILLINOIS

No.

PCB

03-221

PolIutto,, Control Board

)

(Pollution

Control Facility Siting Appeal)

NOTICE

OF FILING

TO:

See List Referenced in Proofof Service

PLEASE TAKE NOTICE that on

September

12,

2003, we filed with

the Illinois Pollution

Control Board,

the attached Co-Petitioners’

Motion

to Deem Lowe’s Site Location Application

Approved Due

to the Board’s Failure to Comply with the Act’s Publication and Notice

Requirements

and

Memorandum

in Support of Motion to Deem Lowe’s Site Location

Application Approved Due to the Board’s Failure to Comply with

the Act’s Publication and

Notice Requirements

in the above entitled

matter,

a copy

of

which is attached hereto.

LOWE TRANSFER, INC.

and MARSHALL LOWE

David

W.

McArdle

PROOF

OF

SERVJCE

oath state

that

I

served

the foregoing documents

on the

following parties

by

depositing

12h

day of September,

2003.

I, a non-attorney,

on

same

in the

U.

S.

mail on

this

Charles F.

Heisten

Hinshaw and Culbertson

100 Park

Avenue, P.O. Box 1389

Rockford,

IL 61105-1389

SUBSCRIBED and

SWORN

to before

/

/

Notary Public

David W,

MeArdle

Attorney Registration No.

06182127

ZUKOWSKJ ROGERS FLOOD & MCARDLE

50

Virginia

Street;

Crystal Lake,

Illinois 60014

(815) 459-2050

U;\HAHARKIN~L0WE\N0TFILE7.TRANSFER.wpd

Bradley

P.

1-taltoran

Illinois Pollution Control Board

James It Thompson Center,

Suite

11-500

100 West Randolph Street

Chicago~

IL

60601

(also

viafacsimile)

vs.

Respondents.

)

,1

“OFFICI$.L SEAL”

JOSEPHII’4E 000LEY

Notary

Public,

State

of Illinois

My Commission Expires

09/10/06

This document is printed on

recycled paper.

---

LAW OFFICES

ZUKOWSKI,

ROGERS, FLOOD & McARDLE

50

Virginia Street

Crystal Lake,

Illinois

60014

(815) 459-2050

FAX

(815) 459-9057

FAX MESSAGE

DATE:

September

12, 2003

TO:

Bradley P. Halloran

312/814-3669

FROM:

David

W.

McArdle

NOTE:

THIS

TRANSMISSION

CONTAiNS

____

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INCLUDING

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THAT IS PRIVILEGED. CONFIDENTIAL, AND/OREXEMPTFROM DISCLOSURE UNDERAPPLICABLE LAW.

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---

TRANSMISSION

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SEP

12 2003

12:42

ZUKOWSKI

ROGERS

FLOOD MCARDLE

8154599057

DOCUMENT

#

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TIME

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09. 12

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DEPARTMENT

---

RECEIVE1

CLERK’S

OFF7r~r

BEFORE

THE

ILLINOIS POLLUTION

CONTROL BOARD

s~

LP

I

~

?OQj

LOWE TRANSFER, INC.

and

)

ST4TE OF

ILL/Net5

MARSHALL LOWE,

)

~Of/at(~,1

~

BOQ;7,

Co-Petitioners,

)

No.

PCB

03-221

)

vs.

)

(Pollution Control Facility

Siting Appeal)

)

COUNTY BOARD

OF McHENRY

)

COUNTY, ILLINOIS

)

Respondent

)

MOTION TO DEEM LOWE’S SITE

LOCATION

APPLICATION APPROVED

DUE TO THE

BOARD’S

FAILURE TO

COMPLY WITH

THE

ACTS

PUBLICATION AND

NOTICE

REQUIREMENTS

Co~Petitioners,Lowe Transfer,

Inc.

and

Marshall Lowe (“Lowe”),

moves the Pollution

Control

Board,

pursuant to 415

III. Comp.

Stat. 40.1(a), to deem Lowe’s site location

application

approved on

the grounds that

the hearing in

this matter was not

held

in compliance with the

notice and publication

provisions ofSection 40.1(a) of the

Illinois Environmental Protection Act

(“Act”), 415

III. Comp.

Stat.

5/40.1(a), and the Board

lacks authority to make a final decision on

the merits

of the appeal.

In support of this motion,

Lowe attaches their Memorandum in Support

of this Motion as Exhibit

I and states

the

following.

Background

I.

On

November

20,

2002, Lowe filed

a

local siting approval application with the

McHenry County Board (“County”) for the

Northwest

Highway Transfer Facility, a municipal

solid waste transfer

station,

located in unincorporated McHenry County.

THIS

FILING

PRINTED ON

RECYCLED PAPER

---

2.

On May

6,

2003,

the County denied Lowe’s local siting approval application

citing

failure to meet Criteria (ii), (iii),

and (v).

3.

On June 5,

2003,

Lowe filed

a petition

(“Petition”) with the Board for a hearing to

contest the decision of the County denying

Lowe’s application

for

local siting approval for the

Northwest Highway Transfer Facility.

4.

On June

19,

2003, the Board issued

an order advising the parties of the hearing

procedures, that the statutory deadline for the Board’s decision on the Petition was October 2,

2003, and

that if the Board “fails to take final action by the decision deadline, the petitioners

‘may deem the site location approved.”

5.

On July

24,

2003, the Board

caused to be published a notice

for the Lowe hearing

in

the Pioneer Press’s Northwest Zone newspapers.

6.

The

public hearing on Lowe

‘s Petition

was held on August

14, 2003.

Grounds

for

Motion

7.

Section

40.1(a) of the

Act states: “The Board shall

publish

21

day notice of the

heanng

on the appeal

in a newspaper of general circulation published

in that county.”

415

III.

Comp.

Stat.

5/40.1(a).

This requirement

is mandatory and jurisdictional,

and failure to

comply

with

it nullifies

a subsequent hearing taking place upon defective notice.

8.

Under the

Act,

the

Board

is

required

to

issue

a

final decision within

120 days of

its

receipt of Lowe’s Petition

for hearing appeal,

and

following a duly noticed public

hearing.

415

Ill.

Comp.

Stat.

5/40.1(a).

9.

The

Board’s notice

for the hearing on Lowe’s Petition was defective because

it

was not published

in a newspaper of general circulation published

in McHenry County.

THIS FILING

PRINTED

ON RECYCLED PAPER

2

---

10.

Because the notice for Lowe’s hearing was defective, and notice in accordance

with thc

Act is mandatory

and jurisdictional,

the hearing held Lowe’s Petition is a nullity.

11.

Absent a

valid

hearing undertaken pursuant to statutory notice, the Board is

without

authority to

issue a final decision on

the merits of this appeal.

12.

Administrative agencies

exercise power strictly

provided by statute and possess

no

inherent or common law powers.

Any action taken outside of its statutory authority is without

jurisdiction, void and

is considered a nullity from its inception.

Daniels

v,

Industrial

Commission.,

201

Ill.2d

160.

13.

In order to address the merits of the appeal

and issue

a final decision, the Board

must have both

a valid hearing and

statutory notice.

If both are not present, the Board

lacks

authority to

issue a final decision on the

merits.

Illinois

Power Co.

v.

Illinois Pollution Control

Bd.,

137

lll.App.

3d,

450

(4th

Dist.

1985).

14,

The Board’s failure

to comply with the mandatory

notice and publication

provision

of

the Act

rendered void the hearing.

There is no provision in the Act for a

final

decision to

issued

following a hearing held pursuant to

defect notice. Thus, to do

so would be

ultra vu-es

and void.

15.

Section

40.1(a) provides in part that:

If there is no

final action by the Board

within

120 days after the

date on which

it received the Petition, the petitioner may deem the

site location approved

415

Ill.

Comp.

Stat.

5/40.1(a).

If there is

no

final action by

the Board within

120

days, the

petitioner may deem the site

location approved.

Waste Management ofIllinois, Inc.

v.

Pollution

Control Board,

201

Ill.App.

3d

614

(I~t

Dist.

1990).

THIS FILING

PRINTED

ON RECYCLED

PAPER

3

---

16.

The notice

for the public hearing held

on August

14,

2003,

was

defective and

in

violation ofthe mandatory requirements of Section 40.1(a)

ofthe

Act

and, therefore,

is

a

nullity.

17.

Where the 21-day notice can no

longer be provided beforc the lapse of the

120-

day time period, no hearing can legally be held.

See Illinois Power Company

v. illinois Pollution

ControlBd.,

137

Ill App.

3d 449,

450

(4u~Dist.1985).

18.

Because there is no longer sufficient time before the statutory

120-day decision

deadline

for the Board

to

hold a public

hearing on Lowe’s Petition with proper 21-day notice,

there

is

no

time before

the mandated decision dcadline

for the Board

to meet the requirements of

Section

40.1(a).

19.

The Act

requires both

a public hearing and a final decision within

the required

time

frame.

If either is not

forthcoming within that

time,

then

the permit or siting approval

is

deemed

issued

under the Act.

Marquette Cement Ma.nufacturing

Company

v. illinois

Environmental Protection Agency,

84 Ill.App.

3d 434

(3T~

Dist).

20.

The Board

lacks authority to dispense with the hearing or to

violate wither the

statutory notice requirement or the

120-day decisional

limit under the Act.

Accordingly, the

Board

is not

authorized to issue

a final decision, and

pursuant to

section 40.1(a), the

site

application must deemed approved as a matter of law.

WHEREFORE,

for the reasons set forth above, the Petitioners request

that the Board

issue

an order (1) finding that the hearing notice was

defective and

the Board

lacks authority

to

THIS

FILING

PRINTED CN RECYCLED PAPER

4

---

issue

a final decision on the

merits,

and (2) deeming

Lowe’s site location application approved in

accordance with 415

III. Comp.

Stat.

5/40.1(a).

Respectfully

submitted,

LOWE TRANSFER,

INC.

and MARSHALL LOWE

By: Zukowski,

Rogers, Flood

& McArdle

m

_____

David W.

McArdle, one of their attorneys

David

W.

McArdle

Attorney No:

06182127

ZUKOWSKI, ROGERS, FLOOD & MCARDLE

Attorney

for LOWE Transfer,

mc,

and Marshall LOWE

50

Virginia Street

Crystal

Lake, Illinois

60014

815/459-2050; 815/459-9057 (fax)

THIS

FILING

PRINTED

ON RECYCLED

PAPER

5

---

RECEIVED

CLERK’S

OFFICE

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

SEP

1.

52003

LOWE TRANSFER,

INC.

and

)

Po!lutton

Control

Board

MARSHALL LOWE,

)

)

Co-Petitioners,

)

No. PCB

03-221

)

vs.

)

(Pollution

Control Facility

)

Siting Appeal)

)

COUNTY BOARD OF

McHENRY

COUNTY, ILLINOIS

)

)

Respondent

)

CO-PETITIONERS’ MEMORANDUM

IN

SUPPORT OF MOTION

TO

DEEM

LOWE’S

SITE LOCATION APPLICATION

APPROVED

DUE TO THE BOARD’S FAILURE

TO COMPLY WITH

THE

ACT’S PUBLICATION AND

NOTICE REQUIREMENTS

Co-Petitioners, Lowe Transfer, Inc.

and Marshall Lowe (“Lowe”) have moved this Board

to deem Lowe’s site location application approved on the grounds that the hearing in

this matter

was

not held in compliance with

the notice and publication provisions of Section 40.1(a) of the

Illinois

Environmental Protection Act (“Act”), 415

111. Comp.

Stat.

5/40.1(a),

and the Board

lacks authority to make a final

decision on

the merits of Lowe’s appeal.

The grounds

for Lowe’s

motion are that:

(1) the hearing in this matter was not

held in

compliance with

the notice and

publication provisions

of Section 40.1(a) of the Illinois Environmental Protection Act

(“Act”),

415

Ill.

Comp.

Stat.

5/40.1(a),

and is thus void, and

(2) the Board lacks authority to make a final

decision on the merits of the appeal absent compliance with

the notice and hearing provision of

the Act.

Upon the receipt

of Lowe’s petition

for a hearing, the Board is required to hold

a duly

noticed

hearing and

to

issue

a

final decision within

120 days of its receipt of Lowe’s petition.

THIS HLING PRINTED

ON RECYCLED

PAPER

---

The Act mandated that Lowe’s hearing notice be published in

a newspaper of general circulation

published in McHenry County.

The notice published by the Board was defective because it was

not published in

a newspaper of general circulation in McHenry County, nor one published

in

McHenry County.

Because the notice for Lowe’s hearing was

defective, and

notice in

accordance with the Act is

mandatory and jurisdictional, the hearing held on Lowe’s appeal

was

a nullity.

Absent a properly noticed hearing, the Board is without authority to issue a final

decision on the merits.

Background

On November 20,

2002, Lowe filed a

local siting approval application with the McHenry

County Board (“County”)

for the Northwest Highway Transfer Facility, a municipal solid waste

transfer station,

located in unincorporated McHenry County.

On May 6, 2003, the County

denied Lowe’s local siting approval application

citing failure to meet Criteria (ii),

(iii), and

(v).

On June 5, 2003, Lowe filed

a petition (“Petition”) with the Board for a hearing to contest

the decision of the County denying Lowe’s application for local

siting approval for the Northwest

Highway Transfer Facility.

On June

19, 2003,

the Board issued

an order

advising the parnes of

the hearing procedures,

that the

statutory deadline for the Board’s decision on the Petition was

October

2, 2003, and

that if the Board “fails

to take final action by the decision by the decision

deadline, the petitioners

‘may deem the site location approved.”

A

true and con-ect copy of the

Board’s

6/1 9/03

Order is attached here as Exhibit

A. On

July 24, 2003.

the Board caused

to be

published

a notice

for the hearing in the Pioneer Press’s Northwest Zone newspapers

-

A true

and correct copy of Pioneer Press’s Certificate of Publication for the notice is attached as Exhibit

B.

The public hearing on Lowe’s siting

location appeal

was held on August

14,

2003.

THIS

FILING

PRINTED

ON RECYCLED

PAPER

2

---

Argument

A.

The Board Failed

To Comply With

the Section

40.I(a)’s Mandatory and

Jurisdictional Publication Notice Requirements

Publication and notice in accordance with the Act is mandatory and jurisdictional,

and

the

notice

and publication

for the hearing on Lowe’s appeal was

defective.

Section 40.1(a) of the

Act states:

The Board shall

publish

21

day notice

of; the hearing on

the appeal

in

a newspaper of general circulation published

in that county.

415

Ill. Comp.

Stat.

5/40.1(a).

This requirement is mandatory and jurisdictional,

and failure to

comply with

it nullifies

a

subsequent hearing taking place upon defective notice.

1,

Compliance with

Section

40.1(a)

is mandatory

and jurisdictional.

Section 40.1(a)’s requirement that the Board “shall publish” the specified notice

is

mandatory.

See People

v.

Youngbey,

82

Ill.

2d

556

(1980).

The

tern-i “shall” is mandatory

where it is used with reference to

any right or benefit to anyone and

the right or benefit depends

on the giving

a mandatory meaning to the term.

See PACE

i&

RTA,

2003

WL 21694403

(2nd

Dist.

2003), citing

Armstrong v.

Nec/lund Corp.,

316 Ill. App.

3d

1097,

1106 (3d Dist.

2000).

See also

~

Application of Rosewell,

97

Ill.

2d 434 (1983);

Ogle E’ounty Board

v. Pollution Control

Board,

272

Ill. App.

3d

184 (2~

Dist.

1995);

Browning-Ferris Industries of Illinois, Inc.

v

Pollution

Control

Board,

162

111.

App.

3d

801

(5th

Dist.

1987).

Section 40.1(a)

provides the

petitioner with

a

right to petition

for a hearing before the Board

to contest local denial

of a site

location application.

Section 40.l(a)’s

notice

requirement is

in

place solely

to protect the

petitioner’s right to

a hearing with due process,

as well as the rights ofthe citizens of McHenry

County to attend

the hearing and present their positions.

THIS

FILING

PRINTED

ON

RECYCLED

PAPER

3

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Administrative agencies such as the Pollution Control Board derive power solely from

their enabling statutes, and

they may not disregard

the prerequisites in such enabling statutes

for

the exercise ofsuch power.

See Illinois Power Conipany

v.

Pollution Control Board,

137

111.

App.

3d 449, 450

(41h

Dist.

1985),

citing

Spray v.

Illinois

Civil Service Corn.,

114

111. App.

3d

569 (1~

Dist.

1983).

Illinois courts

have consistently ruled

statutory notice requirements are a

jurisdictional matter.

Id.;

Kane County Defenders, Inc.,

v. Pollution Control Board,

139

III. App.

3d

588 (2~

Dist.

1985).

A

failure to comply with statutory notice requirements,

such

as that

in

Section 40.1(a)

is

a violation of the Act,

and

any

action premised upon such violation

is void.

See

Id.;

Village ofMundelein

v. Ilartnett,

117111. App.3d

1011

(1983).

2.

Section

40.1(a) required

that notice of the hearing on Lowe’s appeal

be

published

in

a newspaper ofgeneral circulation

and published

in

County.

Section 40.1(a) mandates that the Board shall

publish

the 21-day notice of the hearing on

the appeal in

a

newspaper of “general circulation

published

in

that county.”

415

Ill.

Comp.

Stat.

5/40.1(a).

The Board did not comply with that publication

requirement.

a.

not

in

a newspaper published

in

Mdllenry County.

The

Board published notice in the in the Northwest Zone of the Pioneer Press

newspapers.

Exhibit B.

The Northwest Zone ofthe Pioneer Press includes the following

Pioneer Press newspapers:

•

ALGONQUIN

COUNTRYSIDE

‘ARLINGTON HEIGHTS POST

BARRINGTON

COURIER-REVIEW

BUFFALO

GROVE

COUNTRYSIDE

CARY-GROVE

COUNTRYSIDE

ELK GROVE

TIMES

HOFFMAN ESTATES

REVIEW

LAKE-IN-THE-HILLS

COUNTRYSIDE

‘LAKE ZURICH COURIER

‘PALATINE

COUNTRYSIDE

ROLLING

MEADOWS REVIEW

•SCHAUMBURG REVIEW

WHEELING COUNTRYSIDE

THIS FlUNG

PRINTED ON

RECYCLED

PAPER

4

---

Exhibit B.

Of these thirteen newspapers which contained the legal notice

for the public hearing

on the Lowe siting

location appeal,

onlyfive

are distributed

and circulated

within McHenry

County,

and such distribution and circulation

is confined to

limited

area in

southeastern part of

the County.

Those

papers are

the following:

Pioneer Press

and

circulated

in

Mel-lenry County

ALGONQUIN COUNTRYSIDE

BARRINGTON COURIER-REVIEW

CARY-GROVE COUNTRYSIDE

LAKE-IN-THE-HILLS COUNTRYSIDE

LAKE ZURICH COURIER

Exhibit C, ~ 3(a).

All Pioneer Press newspapers are printed and bundled for distribution at its Northfield

facility in

Cook County,

Illinois,

After bundling and separation of the newspapers by final

destination, an independent private

company delivers the newspapers to the post offices

and

newsstands

appropriate for each newspaper.

Exhibit C,

¶

3(b).

The delivery

site ofeach olthe

five

newspapers that have some connection

to McHenry County is as

follows:

Newspaper

Delivery

Site

County of Delivery Site

CARY-GROVE

COUNTRYSIDE

Cary Post Office

McHenry County

ALGONQUIN

COUNTRYSIDE

Algonquin

Post Office

McHenry

County

LAKE-IN-THE-HILLS COUNTRYSIDE

Algonquin

Post Office

McHenry

County

BARRINGTON COURIER-REVIEW

Barrington

Post

Office

Lake County

LAKE

ZURICH

COURIER

Lake Zurich

Post

Office

Lake County

THIS FILING

PRINTED

ON RECYCLED PAPER

5

---

From these post offices the various

editions of the Pioneer Press are circulated to

their specific

target communities,

After dropping the newspapers at the various

local

post offices, the private

company delivers the remaining newspapers to only those newsstands contracted with

Pioneer

Press within each targeted community.

Exhibit C,

¶

3(c).

It

is long-established law in Illinois that

a newspaper is “published where it

is first

issued

to the public.”

O’Connell

v.

Read,

256111.

408, 410(1912) (“the place of publication

ofa

0

newspaper is the place where it is

first put

into circulation, where it is first issued

to be delivered

or sent, by

mail or otherwise, to

its subscribers”).

A newspaper can have only one place of

publication:

“Publication occurs at the place where the newspaper is first issued

to the public,

i.e.,

where actual

distribution ofbulk deliveries of the newspaper originates.”

See

1981

111.

Atty.

Gen.

Op.

91

(No.

81-037),

1981

WL 37187

(III. AG.);

1992

III. Atty. Gen. Op.

No. 92-010;

1992 WL469749 (Ill. AG.)

Copies of law

attached as Exhibit D.

The simultaneous

circulation

of a newspaper within several communities

is not

the equivalent of publication

in

each

community.

Garcia

v.

Tully,

72

111.

2d

1(1978).

The

place where the newspapers are first put into circulation is Pioneer Press’

Northuleld

facility because all five of the Pioneer Press newspapers circulated within McHenry County are

delivered to separate

and distinct post offices with

two of those post offices actually located in

Lake County.

The place of publication for the Pioneer Press is Northfield, Illinois—a location in

Cook

County

—

not

McHenry County,

The notice

for the statutorily mandated public hearing on Lowe’s siting appeal

was

published outside of McHenry County in

direct violation of Section 40.1(a) of the Act.

For this

reason,

the notice of July 24,

2003

is jurisdictionally defective.

THIS FILING

PRINTED ON

RECYCLED PAPER

6

---

b.

not in

a

newspaper ofgeneral circulation

in

Mdllenry

County.

The mandatory publication

requirement of Section 40.1(a) requires that “the Board

shall

publish

21

day notice of the hearing on the appeal

in

a

newspaper of general circulation

published

in that county.”

415

III. Comp.

Stat.

5140.1.

Lowe’s siting application

was

for

property

in unincorporated McHenry County and was required to be

filed and decided by the

McH~nry

County Board in compliance with the Act’s requirements.

Lowe’s application

notice

was published in the Northwest Herald,

a newspaper of general circulation published

in

McHenry

County.

See Exhibit

E.

Lowe’s siting location application was

not an application

for only

certain communities within McHenry County; it was

a county-wide application.

The population

of McHenry County was 260,077

people in 2000.

See

C0000 1,

§

1,

p.

1-5.

The only

newspapers where the notice for the Lowe public hearing was published were

the Northwest Zone papers ofthe Pioneer Press.

According to

Frank Carlton, Circulation

Operations Manager ofthe Pioneer Press, at present, the total

number of subscriptions ofthe

Pioneer Press newspapers

in McHenry County is only

5,203.

See Exhibit F.

This

fact is

confirmed on the Pioneer Press Internet website.

See Exhibit 0.

The McHenry County

circulation of Pioneer Press newspapers in McHenry County is insignificant

(see attached Exhibit

H,

a McHenry County

map depicting the area of Pioneer Press distribution)

and

does not

establish these five papers

as newspapers of“general circulation” in the County of McHenry.

Clearly, publication of the hearing notice

in the Pioneer Press’s Northwest Zone weekly

newspapers does not

satisfy

Section 40.1(a)’s

requirements, nor

the

intent ofthe Act.

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7

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The Act requires that publication

occur in

a newspaper of“general circulation” in the

County.

Under the plain

meaning of the terms, the requirement can not be

satisfied for a

McHenry County application by publication in

a newspaper which

is not circulated throughout

McHeniy County.

It is well

settled that

in construing statutes

one must

ascertain and

give effect to the

intent

of the legislature.

Madigan v,

Dixon-Marquette

Cement,

Inc.,

2003 WL 22049138

(III. App.

2

Dist.), citing

Harris

v. Manor Healthcare corp.,

11

IIl.2d 350.

In ascertaining the intent of the

legislature, one examines the statutory enactment and seeks” ‘to

determine the objective the

statute sought

to accomplish and the evils it desired to

remedy’

“Madigan

at

5,

citing

Harris,

111

Ill.2d at 362.

The courts presume that the General Assembly,

in passing legislation,

did not

intend

absurdity, inconvenience,

or injustice.

Madigan

at 5, citing

Harris,

111111.

2d

at 363.

The purpose of requiring publication of notice in newspapers of general circulation

in

the

county

is to

enable the provisions of the notice to become known to the inhabitants of the county.

Second Federal Savings and Loan Association

of Chicago

v.

Home Savings

and Loan

Association,

60

Ill. App. 3d

248 (F’ Dist.

1978), citing

People cx ret

Chicago Heights

i~

Richtan

(1969), 43

III.

2d

267; Garcia

v.

Tully

(1978),

72

III. 2d

I.

Notice and opportunity to be heard

are essential elements

of

due process of law.

Illinois Crime Investigating Commission

v.

Buccieri,

(1967),

36111.

2d

556,

citing

People

)~

Lavcndowski,

329

Ill.

223;

Coe v.

Armour

Fertilizer

Works,

237 U.

S. 413.

Moreover,

in interpreting a statute, the courts use the plain meaning ofthe

language of the

statute.

The word “general” is

universally understood

to

mean available to

all,

as opposed to

available

to only a

few. For example,

Black’s Law Dictionary contains the following definition:

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“General”— universal, not particularized, as opposed to

special;

principal or central,

as opposed to

local; open

or available to

all, as

opposed to

select; universal or unbounded,

as opposed

to

limited~

comprehending the whole or directed to

the whole, as distinguished

from anything applying to or designed for a portion only

Blacks Law Dictionaty

(7fh

Ed.

1999).

The only notice

provided was

to residents of the

Cary area surrounding the proposed site

--who

are opposed to

the siting for

purely parochial (“NIMBY”)

reasons,

The rest of McHeniy

County’s residents were not notified of the hearing.

As such, the greater portion of McHeniy

County was prevented

from

attending and participating in

the hearing, whether to

support or

oppose the proposed location.

The publication

in the Pioneer Press

limited the extent of the

notice of the

Lowe public hearing in a manner that clearly prejudiced Lowe.

The failure

to

publish notice is the Northwest Herald,

a daily newspaper published, delivered and circulated

throughout McHenry County is

inexplicable

and inexcusable.

See Exhibit I.

The notice for the statutorily mandated public hearing on

Lowe’s siting appeal was not

published

in

a

newspaper of general

circulation within McHenry County

in direct violation of

Section 40.1(a) of the

Act.

For this reason, the July

24,

2003 published notice was

jurisdictionally defective.

B.

The Board Lacks Authority to Issue

a Final

Decision

Where the Hearing

Is

Conducted

Following a Defectively Published

Application

Approved

By Operation of Law

Section 40.1(a) of the Act outlines the procedure for appeal

to the Board from a denial of

an application for local site approval.

Section 40.1(a) requircs that

upon

a petition for hearing by

an applicant,

a hearing and

final decision take place within

one hundred twenty days of the

Board’s receipt of the petition

for a hearing.

415

111.

Comp.

Stat.

5)40.1 (a).

See Illinois Power

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9

---

Co.

v.

Pollution Control Board,

137

III.

App.

3d 449

(41h

Dist.

1985);

Marquette Cement

Manufacturing

Co.

v.

Illinois Environmental Protection Agency,

84

III. App.

3d 434,

(3Td

Dist.

1980).

Because the notice for the hearing on

Lowe’s Petition was

defective, the Board lacks

authority to

issue a final decision, and the Board

must deem Lowe’s application

approved by

operation of law.

1.

The Board Lacks Authority

to Issue

a Final Decision

on

the Merits of the

Appeal

in

the Face of a

Defectively Noticed Hearing.

There is no provision in the Act for a

final decision

to

issued following a hearing held

pursuant to

defect

notice,

Thus, to do so

would

be

ultra vires

and

void.

Administrative agencies

exercise power strictly provided by statute and possess no

inherent

or common law powers.

In

re

the Abandonment of Wells Located in Illinois by Leavell,

2003

WL

21977009.

See also

Ford

Motor Co.

V Motor

Vehicle Review Board,

338 I1l.App.

3d 880 (an administrative agency

is a

statutory creature with no general

or common law power and is powerless to

act unless

statutory

authority exists).

Any action taken outside of its

statutory authority is withoutjurisdiction

and is

void and a nullity from

its inception.

Daniels

v. Industrial Commission.,

201

Ill.2d

160.

The Board’s failure to comply with the mandatory notice

and publication provision of the

Act rendered void the hearing.

See Illinois Power Company

v.

Pollution Control Board,

137

III.

App.

3d

449

(4th

Dist.

1985)

(the failure to

comply with

a mandatory provision of a statute

renders void the proceeding to which the provision relates), citing

Village ofMundelein

v.

Hartnett,

(1983),

117111.

App. 3d

1011 (2~

Dist.

1983).

See Exhibit D.

In order to address the

merits ofthe

appeal

and

issue

a final decision, the Board must have both a valid hearing and

THIS

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statutory notice.

If both are not

present, the Board lacks authority

to issue

a final decision on the

merits.

Illinois

Power Co.,

137 III. App.

3d

at 450.

See Exhibit

D.

To interpret the Act in any other manner would

eviscerate the due process protections in

the Act.

The

General Assembly has determined the public should

be notified before the Board

holds a hearing on

a petition

from the denial of a site location application.

The Board cannot

simply disregard

this directive.

The statute is clear in its mandate; “The Board shall publish 21

+

day notice of the hearing on the appeal

in

a newspaper ofgeneral

circulation published in that

county.”

415 Ill.

Comp.

Stat.

5/40.1(a).

The Illinois

Supreme Court has made it

clear that the

use ofthe word “shall” advises of a mandatory intent.

See

People

t.

Younghey,

82

ill.2d

556,

562

(1980);

Illinois Power Co.,

137

III.

App.

3d

at 450.

The failure to

comply with

a mandatory

provision ofa

statute renders

void the proceeding to

which it relates.

Village ofMundelein

v.

Hartnett,

117111. App.3d

1011(1983).

Thus, because the Board here failed to

comply with the

mandatory notice provision of the Act, the hearing is void,

and the Board lacks authority to

issue

a final decision

on the merits of Lowe’s appeal.

2.

Under Section 40.1(a), the Board Must Deem

Lowe’s Application

for Site

Location Approved by Operation ofLaw.

In order

to address the merits of the appeal

and issue

a final decision, the Board

must

have both

a valid hearing and statutory

notice.

If both are not present,

the Board

tacks authority

to

issue a final decision on the merits.

Illinois Power (o.,

137 Ill.

App.

3d

at 450.

The Board’s

failure to comply with

the mandatory notice and publication provision of the Act rendered void

the hearing.

There

is no provision in the Act for a

final decision to be

issued following a

hearing held pursuant to

defect notice.

Thus, to do

so would be

ultra

vires

and void.

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Section 40.1(a) provides in part that:

If there is no

final action by the Board within

120 days afier the

date on which it received the petition, the petitioner may deem the

site location approved

415

III.

Comp.

Stat.

5/40.l(a).

If there is

no

final action by the

Board within

120 days, the

petitioner may deem the site location approved.

Waste Management ofillinois,

Inc.,

v. Pollution

Control Board,

201

Ill.

App. 3d

614 (1”Dist.

1990).

The notice

for the public

hearing held on August

14,

2003

was defective and

in violation

of the mandatory requirements of Section 40.1(a) of the Act and,

therefore,

is

a nullity.

Where

the 21-day notice can

no longer be provided before the lapse ofthe

120-day time period,

no

hearing can legally be held.

See Illinois Power Corn v Illinois Pollution Control Ed,

137

Ill

App. 3d

449,

450

(4E’~

Dist.

1985).

Because there is

no

longer sufficient time before

the statutory

120 day decision deadline for the Board

to hold

a public hearing on

Lowe’s Petition with proper

21

day notice,

there is no time before the mandated decision deadline for the Board

to meet the

requirements of Section 40.1(a),

The Act

requires both

a public hearing and

a final decision within

the required time

frame.

Marquette Cement Manufacturing

Company

v. Illinois Environmental Protection Agency,

84 Iii.

App. 3d 434 (3~

Dist).

See Exhibit D.

If either is not forthcoming

within

that time,

then

the permit or siting approval

is deemed

issued

under the Act.

Id.

The Board

lacks authorily

to

dispense with the hearing orto

violate either the statutory notice

requirement or the

120-day

decisional

limit under the Act.

Accordingly, the Board

is not authorized

to issue

a

final decision,

and pursuant to section 40.1(a), the site application must deemed

approved

as

a matter of law.

THIS FILING

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ON RECYCLED

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12

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CONCLUSION

For the

forgoing reasons, Petitioners request that the Board issue an order (1) finding that

the hearing notice was

defective and

the Board lacks authority

to issue a final decision on the

merits,

and

(2) deeming Lowe’s site location application approved

in

accordance with

415

Ill.

Comp. Stat.

5/40.1(a).

Respectfully submitted,

LOWE TRANSFER, INC.

and MARSHALL

LOWE

By: Zukowski, Rogers, Flood

& McArdle

David

W.

McArdle, one oftheir attorneys

David

W.

McArdle

AttorneyNo:

06182127

Z1JKOWSKI, ROGERS, FLOOD &

MCARDLE

Attorney for LOWE Transfer, mc,

and Marshall LOWE

50

Virginia Street

Crystal Lake, illinois

60014

815/459-2050; 815/459-9057 (fax)

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13

---

EXHIBIT LIST

A

Board’s June

19, 2003

Order

B

Pioneer Press’s Certificate of Publication

C

Dianne

Roberta Turnball’s Affidavit

D

Supporting Case Law

E

Lowe’s Certificate of Publication

F

Frank Carlton’s E-Mail Dated

September

8,

2003

G

Pioneer Press

Website Pages

H

McHenry County Map Depicting Area of Pioneer Press Distribution

I

Northwest Herald Circulation Data

Ti-us

FILING IS PRINTED

ON

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---

Exhibit

A

---

ILLINOIS

POLLUTION CONTROL BOARD

June

19,

2003

LOWE TRANSFER, INC.

and MARSHALL

)

LOWE,

)

)

Petitioners,

)

)

v.

)

PCBO3-221

)

(Pollution

Control Facility

COUNTY BOARD

OF MCHENRY

)

Siting Appeal)

COUNTY, ILLINOIS,

)

)

Respondent.

)

ORDER OF

THE BOARD (by G.T. Girard):

On June

5,

2003, Lowe Transfer,

Inc.

and Marshall

Lowe (petitioner~)

timely filed a

petition asking

the Board to review the May 6, 2003

decision ofCounty Board ofMchenry

County, Illinois (McHem-y County).

See

415 ILCS

5/40.1(a) (2002);

35 Iii. Adm. Code

107.204.

McHenry County denied the petitioner’s request for application

to site a pollution control facility

located on U.S. Route 14 McHenry County.

Section 40.1(a) ofthe Environmental Protection Act

(415 ILCS

5/40.1(a) (2002))

authorizes the petitioners appeal to the Board.

The petitioners appeal on the grounds that

McHenry County’s decision to deny citing was against the manifest weight ofthe evidence.

The

petitioner’s petition meets the content requirements of35

Ill. Adm.

Code

107.208.

The Board

accepts the petition for hearing.

The petitioners have the burden ofproof

415

ILCS

5/40.1(a) (2002);

see

also

35111.

Adm.

Code

105.506.

Hearings will be based exclusively on the record before McHenry County.

415 ILCS

5/40.1(a) (2002).

Hearings will be scheduled and completed in

a

timely manner,

consistent with the decision deadline

(see

415 ILCS

5/40.1(a)

(2002)), which only thepetitioners

may extend by waiver (35

Ill. Adrn. Code

107.504;

see

also

35 Ill.

Adm.

Code

101.308).

If the

Board fails to take final action by the decision deadline, the petitioners “may deem the site

location approved.”

415

JLCS

5/40.1(a) (2002).

Currently, the decision deadline is October 2,

2003

(the

120th day after June

5,

2003).

See

35 Ill. Adm.

Code

107.504.

The Board meeting

immediately before the decision deadline is scheduled for September

18, 2003.

McHenry County must file the entire record ofits proceedings within 21

days after the

date ofthis

order.

The record must comply with the content and certification requirements of 35

Ill.

Adm. Code

107.304,

107.308.

The petitioners must pay to McHenry County the cost of

preparing and certifying the record.

415

ILCS

5/39.2(n) (2002);

35

111. Adm.

Code

107.306;

see

also

35

III. Adm.

Code

107.502(b).

IT IS

SO ORDERED.

---

2

I, Dorothy M.

Gunn,

Clerk ofthe Illinois Pollution Control Board,

certify that the Board

adopted the above order on June-19, 2003,

by a vote of 6-0.

Dorothy M. Gunu, Clerk

Illinois Pollution Control Board

---

Exhibit

B

---

8— ,3—O~

12:

1

1PM

TO:

2oS~

7

Pollution Control Board

James

R.

Thompson

Center

100

West Randolph

Street

Suite

11-500

Chicago,

Illinois

60601

312-814-3620

312-814-3669

http://www.ipcb.state.iL

us!

For

your review

LI

Rep/yASAP

fl

Please Comment

This

facsirnfle contains CONFIDENTIAL INFORMATION

which

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LEGALLY

PRIVILEGED and

which

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intended only

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use of the Addressee(s) named

above.

If you

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__________

ILLINOIS

POLLUTION

CONTROL

BOARD

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2.9.2007

TOTRL

P.01

---

Exhibit

C

---

BEFORE THE 1LLJNOIS POLLUTION CONTROL BOAR!)

LOWE TRANSFER,

INC.

and

)

MARSHALL LOWE,

)

)

Co-Petitioners,

)

No.

PCB

03-221

)

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

COUNTY BOARD OF MeHENRY

)

COUNTY, ILLINOIS

)

)

Respondent

)

AFFiDAVIT

NOW

COMES the aftiant, Dianne Roberta Turnball, and after being

duly sworn, states:

I

am a

consultant retained

by Zukowski, Rogers, Flood & McArdle on behalfof

Lowe Transfer,

Inc. and Marshall Lowe.

I assisted on

a

daily basis in the

preparation

ofthe

Siting Location Approval

Application and participated in the

underlying Pollution

Control

Facility Siting hearings

held by the McHensy

County

Board.

2.

On behalfofZukowski, Rogers, Flood and McArdle and Lowe, I had a telephone

conversation with Mr.

John G.

Bieschke, Legal Advertising Manager ofthe

Pioneer Press newspapers on September 3, 2003.

In

that telephone conversation,

Mr.

Bieschke advised

me that Frank Canton, Circulation Operations Manager,

was

the employee

at Pioneer Press with personal knowledge regarding circulation and

distribution of Pioneer Press

newspapers within McHenry County.

3.

Subsequently,

on

several

occasions

beginning

on September 3, 2003,

1

had

telephone conversations with Frank Carlton,

Circulation Operations Manager of

Pioneer Press.

In

these conversations, I discussed

with Mr.

Carlton the extent of

the Pioneer

Press newspaper circulation within McHenry County, Illinois and the

distribution of the newspapers to McHenry County.

If called

to testif~j,

I would

testif~j

that Mr.

Canton confirmed the following facts with regard

to the Pioneer

Press

newspaper circulation within McHenry County and

its distribution:

a).

Ofthe thirteen Pioneer Press

newspapers in the Northwest

Zone,

only five

(5)

of the newspapers

are distributed

and circulated within

some parts ofMcHenry County.

Algonquin

Countryside,

---

Barrington Courier-Review, Cary-Grove Countryside, Lake-in-the-

Hills

Countryside and Lake Zurich Courier

h).

All ofthe

Pioneer Press newspapers are printed and

bundled

for

distribution

at

the Pioneer Press Northfield facility, Cook

County,

Illinois.

Mer bundling and

separation

of the

newspapers by final

destination,

an

independent private company delivers the

newspapers

to

the

post offices and newsstands

appropriate for each

distinct and

separate newspaper.

c).

The Cary-Grove Countryside is delivered to the Cary Post

Office;

the Algonquin Countryside and the Lake-in-the-Hills

Countryside

are delivered

to

the Algonquin

Post

Office; the Barrington Courier-

Review

is delivered to the Barrington Post Office located

in Lake

County

and

The Lake Zurich Courier

is delivered to the Lake

Zurich Post Office

also

located in

Lake County.

From these post

offices the

various editions of the Pioneer

Press are circulated to

their respective communities.

After dropping the newspapers at the

various local post offices, the private

company delivers the

remaining newspapers to every newsstand contracted with

Pioneer

Press

within each community.

~

~½~L

~-~3~iI.

Dianne Roberta Turnball

SUBSCRIBED AND SWORN

to before

me

this

JJ~?~

day of September,

2003

SEAr

Public

CYNTHIA

M. ANDERSEN

~‘jetay

Pub~C

State e~

UUnoiS

I

~v

ccn~rnss~0~

E~P~1eS 0E3/24/°49

---

Exhibit

D

---

Copr.

(C)

West

2003

No

Claim

to

Orig.

U.S.

Govt.

Works

1981

ill.

Any.

Gen.

op.

91

(Cite

as:

1931

WL 37187

~IlLA.G.))

Offlce

of the

Attorney General

State

of Illinois

*1

File No.

31-037

December

10,

1981

PUBLIC RECORDS

AND INFORMATION:

Publication

of Legal

Notices

Honorable

Chris

E.

Reese

State’s Attorney

Moultrie

County

Courthouse

Sullivan,

Illinois 61951

Honorable Michael

C.

Carroll

State’s Attorney

Douglas

County

Courthouse

Tuscola,

illinois

61953

Gentlemen:

I have your letters wherein you

raise questions concerning

the publication of legal

notices

in the Arthur

Graphic

Clarion newspaper.

Mr.

Freese

asks whether the Arthur

Graphic

Cation

is

published

in Moultrie County

and

thus

a proper medium for the publication of legal

notices by units of local government in Moultrie County.

Mr.

Carroll

asks whether,

if the

Arthur Graphic

Clarion

is

published in Moultrie County,

it

is eligible

to publish the

legal

notices of

units

of local government in Douglas County.

For

the reasons hereinafter

stated,

it

is my opinion

that the Arthur

Graphic

Clarion is published in Moultrie County

and not in Douglas County.

The only

unit of

local government

in Douglas County

which may publish legal

notices

in the Arthur

Graphic

Clarion

is

the village

of Arthur.

SectionS of ‘AN ACT

tu

revise the law in relation to notices’ (Ill.

Rev. Stat.

1979,

ch.

100, par.

5)

defines

the

term

‘newspaper’

for the purpose

of publishing

notice required by law or contract:

‘When

any

notice

is

required by law

or contract to

he

published

in

a newspaper

(unless otherwise expressly

provided in the contract),

it

shall

be

intended to

be

in a secular newspaper of general

circulation,

published in the

city,

town

or cotinty,

or some

newspaper

specially

authorized by

law

to publish legal notices,

in the city,

town,

or county.

~‘

*

~‘

The rule with respect to publication of

a newspaper in Illinois was

stated

in

the

case of

People v.

Read (1912),

256 Ill.

408, 410,

as

follows:

*

*

*

It

is

immaterial

where

the printing

is

done,

but

the place of publication of a newspaper is

the place

where

it

is

first

put

into circulation,--where

it

is first

issued

to

be

delivered or sent,

by mail or otherwise, to

its

subscribers.

*

*

*‘

The

term ‘first’

is

defined in the case of In

re Estate of

LaPs (1935).

281

J1I.App.

124,

133,

as

follows:

‘~

*

~ ‘pteceding all

others;

first in time or

a

series, position, or rank;

earliest in time or succession;

foremost

in position;

in front of,

or in advance of,

all

others;

foremost in rank,

importance,

or worth.’

*

*

V/here

a

newspaper is

circulated in different

communities or counties,

the one in

which

it

is

first circulated

is

the

place

of publicarion.

People v.

Read (1912),

256 Ill.

408,

410.

---

It

is

clear that there is

only

a single

publication of

a

newspaper,

publication occurring

at

the place

where the

newspaper is

first

issued to

the public,

i.e.,

where actual

distribution

of

bulk deliveries

of

the newspaper

originates.

This

conclusion

is in accordance

with opinion File No.

5-1050,

issued by my

predecessor

on

February

26,

1976.

1976 Ill.

Arty

Gen.

Op.

96.

*2

In their affidavit,

the owners

and publishers of the

Arthur

Graphic

Clarion,

state that the newspaper

is

printed in Villa Park,

Douglas

County, Illinois.

There

are 2,250

copies of the

newspaper printed weekly with

approximately

1,400

being distributed

pursuant to paid

mail subscriptions,

and

683

being distributed

pursuant to

newsstand

sales.

The majority of the

copies are distributed

in Douglas and

Moultrie Courmes, with both

counties

receiving

approximately

the

same number of newspapers.

Mr.

Reese

states in his letter that the

newspapers are first

taken to

the Post Office in Moultrie County for mailing to

subscribers

and then are

delivered

to

newsstands in Mouhrie

County and Douglas County with the first newsstand deliveries

being

made in

Moultrie County.

On

the basis

of these facts,

it

is

clear that

the Arthur

Graphic

Clarion

is

published in Moultrie

County

and not in Douglas County.

In regard to the

question raised

by

Mr.

Carroll,

sectionS of ‘AN ACT

to revise the law

in relation

to notices’

requires

that the newspaper be

published in the city, town

or

county giving

the notice.

Section

2

of ‘AN ACT

requiring certain

custodians of public

moneys

to file and publish statements of the receiprs

and disbursements

thereof’

(Ill.

Rev.

Stat.

1979,

ch.

102, par.

6)

is

to

the same effect:

‘Such

public officer shall

also,

within

30

days

after

the expiration of such

fiscal year,

cause

a true,

complete

and

correct copy of such

statement to

be

published one time in

a newspaper published in the town,

district

or

municipality in which such public officer holds his office,

or,

if

no

newspaper is

published in such town,

district

or

municipality,

then in

a newspaper printed in the English language

published in the county in which

such

public

officer resides.

*

*

*‘

The

purpose of limiting publication of

notices to newspapers

meeting certain

standards is

to insure

that the

published material will come to the attention of a substantial number of persons

itt

the area

affected.

(1976

P1.

Att’y Gen. op.

96,

98.)

There

is

no

restriction in section

5

of ‘AN ACT to revise

the law in relation to notices’

which would

prevent

a

unit of local

government, such

as

the village of Arthur,

which

extends

into

two or more

counties,

from publishing

a

legal notice in any

newspaper published within the unit’s boundaries.

On

the basis of the above

discussion,

it

is

my opinion

that the

only unit of local

government in Douglas County

which may publish legal

notices in the Arthur

Graphic

Clarion

is

the village of Arthur.

Very

truly yours,

Tyrone

C.

Fahner

Attorney

General

1981

III.

Atty.

Gen. op.

91,

1981

WL 37187 (111.A.G.)

END

OF DOCUMENT

---

Copr.

(C) West 2003

No Claim to Orig.

U.S.

Govt.

Works

1992

WE

469749 (1l1.A.G.)

(Cite

as:

1992 WL

469749

(Th.A.G.))

Office of the Attorney

General

State of Illinois

*1

File No.

92-010

June

19,

1992

REVENUE:

Publication of

Assessment Lists

Honorable

Michael

Curran

Chairman,

House State

Government

Adrninistcation Committee

1121

Stratton Building

Springfield,

Illinois 62706

Honorable

Gary Johnson

State’s Anorney,

Kane

County

719

South Batavia

Avenue

Geneva,

Illinois 60134

Gentlemen:

I have your letters

wherein

you

inquire

whether

the schedule of fees

set

out in section

103 of the Revenue

Act

of

1939

(lll.Rev.Stat. 1991,

ch.

120, par.

584) for the publication of assessment

lists in counties of less than

2,000,000 inhabitants

is

mandatory,

or represents only

the maximum

rates which may be

paid

for publication.

State’s Attorney Johnson has

also inquired whether

a newspaper may be

“published”

simultaneously in several

townships,

for purposes of the same

section.

For

the reasons hereinafter

stated,

it

is

my opinion that the fee

schedule

set out in section

103

is

mandatory,

and does not merely

set maximum rates.

Further,

in response to

Mr.

Johnson’s

second question,

it

is

my opinion

that there

is

only one

publication of

a

newspaper,

which occurs

at

the place where the actual distribution of bulk

deliveries of

the newspaper originates.

The

final paragraph of section

103 of the

Revenue Act of

1939 provides:

The

newspaper

shall furnish

to

the local

assessment officers

as

many copies of

the paper containing

the

assessment list

as

he or they may require.

The

newspaper shall

be

paid a

fee for publishing

the assessment list

according to the following schedule:

(I)

For

a

parcel

listing including

the name of

the property owner,

an

index

number and the total

assessment,

SOcents

per parcel;

(2)

For

a parcel

listing including

the

name of the

property owner,

an

mdcx number,

the

assessed

value of

improvements and

the total assessment,

Si .20 per parcel;

(3)

For

a parcel

listing including

the name of the property owner,

a

legal

description of

the property and

the

total assessment,

$1.20

per parcel;

(4)

For

a parcel

listing including

the name of

the property owner,

an

index number,

a

legal

description

and the

total assessment.

$1.60 per parcel;

(5) For

a parcel listing including

the

name of the property owner,

a

legal

description,

the assessed

value

of

improvements

and the

total assessment,

$1.60

per parcel;

(6)

For

a parcel listing including

the name

of the property owner,

an

index number,

a

legal

description,

the

assessed

value of improvements

and

the total assessment,

$2.00

pet parcel;

and

(7)

For

the preamble,

headings,

and

any

other

explanatory matter either

required by

law, or

requested by the

supervisor of assessments, to

he

published,

the newspaper’s

published

rare for

such advertising.’

---

Although

there

is

support for either

interpretation,

it is my opinion that the

use

of the phrase

“shall

be

paid”

in

section

103 indicates

a legislative

intent to

set

mandatory,

rather

than maximum,

publication rams.

*2 The

last

paragraph of section

103

was rewritten by Public Act 84-1031,

effective

November 21,

1985.

Prior

to that date,

that paragraph had provided

that newspapers which published

assessment

lists

“shall

be

entitled to

a

fee of 30cerits

per column line

~

(See

lll.Rev.Srat. 1983,

ch.

120, par.

584.)

The

brief legislative remarks

prior

to

the passage of House Bill

1680 (which was enacted

as Public Act 84-1031)

indicate

that the amendment

was

intended to

be

revenue

neutral, but

to reflect

a different

basis

used by newspapers for calculating

advertising

rates.

(Remarks of Senator

Netsch,

Senate Debate

on

House Bill

1680,

June 18,

1983,

at

166,

and

October 30,

1985,

at 30-31.) In addition

to changing the basis for calculating

the fee,

the amendment also

changed the

language

“shall

be entitled” to

‘shall

be paid’.

Attorney

General

Scott, in

opinion

No.

8-1404,

issued January

10,

1979

(1979 III.

.Att’y Gen.Op.

4),

construed the former provision

as providing only for

a maximum

rate,

thereby permitting counties

to contract for

a lower price.

My

predecessor

found

support for his position in several

cases

reported in other jurisdictions.

(See

e.g.,

Cook

v.

Payne (Okla.1944),

148 P.2d

174; Democrat Printing Co.

v. Logan

(Ark.1933),

56 S.W.2d

1013;

Wisner

v.

Morrill

County

(Neb.1928),

220 NW.

280.) As will

be

explained more fully below, however,

I

disagree with

the conclusion expressed

in opinion No.

S-1404.

The

Illinois

Supreme Court

has

held that the General Assembly

has- the right to fix the rate for publication of

assessment lists,

pruvided that the rate

set

is

not so unreasonabte as to

be

unconstitutional.

(Lee Publishing

Co.

v.

County of St.

Clair (1930),

341

Ill.

257,

262.) In that case,

the court

treated

the phrase

“shall be entitled”

in

section

26

of the Revenue Act of

1898

(see

11l.Rev.Stat. 1929,

cli.

120, par.

308), the predecessor of section

103

of the Revenue

Act of

1939,

as mandatory,

requiring the payment of the rate of

lOcents per line for publication

of assessment

lists.

Citing that

case,

Attorney

General

Clark,

in opinion

No,

VP 993,

issued September 9,

1963,

concluded that the rate

set in section

103

was mandatory.

‘While

it is

true,

as Attorney

General Scott later

suggested,

that the word

“shall”

can

be

construed

as permissive,

depending

upon

the legislative intent,

when

“shall”

is

used in a

statute with reference

to

any right

or benefit,

and the right or benefit

depends upon giving

the

word

a mandatory

meaning, it

cannot be

given a permissive meaning.

Andrews v.

Foxworthy

(1978),

71

lll.2d

13.

Moreover,

as previously

noted,

the last paragraph of section

103 was amended significantly

after

the issuance

of opinion No.

5-1404.

In

the atnendatory language, the General

Assembly continued

the

use of the term

“shall”,

but changed the phrase

“shall

be entitled” to

“shall be paid”.

The

latter phrase connotes not only

a private

entitlement

to

payment for the publisher,

but also

a command to

the several

assessors, supervisors of assessment

and hoards

of

assessors,

as

the

case

may be,

to pay

those

amounts specified in the statute.

Where the term

“shall”

is

used in

a

statute

directing the performance of an

act by public

officials,

it will he

accorded

a

mandatory

and

imperative meaning.

See DeYoung v.

DeYoung (1978),

62

lll.App.3d 837,

841;

People v. Nicholls

(1977),

45

Ill.App.3d 312, 316.

~‘3In view of

the authorities

which have construed the section

as mandatory,

as well

as

the recent

amendment

thereto whkh

used language

generally construed

as mandatory,

it

would

be

contrary

to

the established rules of

statutory construction and

the apparent legislative intent

to

construe section

103

otherwise.

A mandatory

construction,

based

upon similar language,

has

also

been followed in other jurisdictions.

(See

Steuben

Advocate

v.

Bd.

of Supervisors

(1957),

161 N.Y.S.26

199;

Hoffman v.

Chippewa Co.

(Wis.1890),

45

N.W.

1083.)

Therefore,

it

is

my opinion

that the rate

schedule

fixed

in section

103 of the

Revenue Act of

1939

is

mandatory,

and

that

a county

is

required to

pay

the requisite fee for publication of

its

assessmettt

lists.

Mr. Johnson’s

second

question

relates

to the place of publication of

a newspaper which

is

printed outside

the

county,

shipped

to

a

township within the county

and

there labeled

and sent to

various post offices

in other

townships for distribution

by mail,

The

last sentence

of the

third paragraph of

section

103

of

the Revenue

Act of

1939

provides:

t~’~

In

every

township or assessment distnct

in which there

is

published one or more oesvspapers of general

circulation,

the list of

assessments) of such

township

shall

he

published

in one of the newspapers.

The

publisher contends

that

“publication”,

for purposes of section

103,

occurs in each township

in whtch

the

publisher’s truck delivers

the papers

to

a post office.

This contention

was rejected in opinion No.

F-l287,

issued

November

6,

1964 (1964

111. Att’y

Gen.Op. 249),

wherein

Attorney

General

Clark conciuded

that

a

newspaner

could have only

one place of publication.

The

publication of a newspaper takes place where it

is

first

issued to

the public,

i.e.,

where

the first

actual distribution of hulk

deliveries

of

the newspaper originates.

This conciusica

---

is supported

by the opinion in Garcia v.

Tully

(1978),

72

1l1.2d

1,

wherein

the

court distinguished between

‘publication”

and

“circulation”

of a newspaper, concluding that simultaneous circulation of a newspaper within

several

townships is

not the

equivalent of publication in

each township.

Accordingly,

it

is

my opinion that

the

newspaper in question is

published,

for purposes of section

103

of the Revenue Act of

1939,

only in the

township to

which it

is

delivered for labeling

and distribution

to

post offices.

Respectfully yours,

ROLAND W.

BURRIS

Attorney

General

1992

WL

469749 (Ill.A.G.)

END

OP

DOCUMENT

4

---

Copr.

©

West 2003

No Claim to Orig.

U.S. Govt.

Works

484

N.E.2d

898

(Cite

as: 137 Ill.App.3d 449,

484 N.E.2d

898,

92

I1.Dee,

167)

KeyCite

History

Appellate Court of Illinois,

Fourth District.

ILLINOIS

POWER COMPANY,

Petitioner,

ILLINOIS

POLL hJTION CONTROL

BOARD

and

Illinois Environmental Protection

Agency,

Respondents.

No.

4-84-0803

Oct.

10,

1985.

Rehearing

Denied Nov.

19,

1985.

Power

company

appealed

from

order

of

the

Pollution

Control

Board

which

affirmed

a

decision

of

the

Environmental

Protection

Agency

denying

permit

for

one

unit

at

powes’

plant

and

issuing

a

permit for

another

unit

subject

to conditions.

The

Appellate Court,

McCullough,

1.,

held that

Board’s

action

was

invalid

because

Board

failed

to

give

requisite

statutory

notice of

its

hearing

to

members

of

the public

and the General Assembly,

and

since

a

valid

hearing

was

not

held

within

90

days

of

company’s

petition,

permits were

deemed

issued.

Reversed.

West 1-leadnotes

I

Administrative Law

and Procedure

k305

ISAItO 05

While circuit

courts

derive their jurisdiction directly

from

the

Constitution,

an

administrative

authority

derives

its power

solely from

statute by which it

was

created.

2

Administrative Law

and Procedure

k305

15Ak305

3

Environmental

Law

k18

l49Ek18

Failure

of

Pollution

Control

Board

to

follow

statutory notice procedure on

appeal of permit denial

and

grant

of

permit

with

conditions

rendered

its

action

upholding

Environmental

Protection

Agency

invalid,

and

because

a

valid

hearing

was

not

held

within

90 days

of power

company’s petition,

permits

would

be

deemed

issued.

5.1-l.A.

ch. Ill

1/2

,

¶

1040(a).

v*39~*450

***167

Sheldon A.

label,

Carolyn A.

Lown,

Sehiff,

Flat-din

&

Waite,

Chicago,

for

petitioner.

Neil

F.

Hartigan,

Atty.

Gun.,

Springfield,

Jill

Wine-Banks,

Sol.

Gen.,

Chicago,

Greig

R.

Seidor,

Asst.

Atty.

Gen., Springfield,

for respondents.

McCULLOUGH,

Jostice:

Illinois

Power

Company

(IPC)

appeals

from

an

order

of

the

Illinois

Pollution

Control

Board

(Board),

which

affirmed

a

decision

of

the

Illinois

Environmental

Protection

Agency

(Agency).

The

Agency

had derided

to

deny

a permit

for

Unit

2

at

PC’s

Vermilion

power

plant.

The

Agency

had

also

issued

a permit for Unit I

subject to conditions

which

PC

found

objectionable.

On

appeal,

IPC

contends:

(1)

The

Board’s

action

was

invalid

because

the

**899

***168

Board

failed

to give

the

requisite

statutory

notice of

its

hearing

to

members

of

the

public

and

the

General

Assembly;

(2)

the

Board’s

action

was

invalid

because

the

Board

violated

its

own

provision for notice to parties;

and

(3)

the

Board’s

decision

was

against

the

manifest

weight

of

the

evidence.

Due

to

our disposinon

of

the first

issue, we need not address

the latter

two.

On

July

28,

1982,

the

Agency

denied

two

permit

renewal

applications

for

IPC’s

Units

1

and

2

at

irs

Vermilion

power

plant.

Pursuant

to

section

40

of

the

Environmental

Protection

Art

(lll.Rrv.Stat. 1983,

ch.

ill

1/2

,

par.

1040),

IPC

appealed

the

permit

denials

to

the

Board.

The

Board

derided

the

Agency

had

incorrectly

denied

the

pemtits

and

remanded

the

case

for

review

consistent with

its

opinion.

The

IPC appealed,

but

this

court

dismissed

the

appeal,

holding

that

the

Board’s

order

was not

final.

On

October 2,

1983,

the Supreme Court

denied

leave

to

appeal.

Failure

to

comply

with

statute

will

render

proceeding to which the

a

mandatory

provision

of

a

void

the

administrative

provision relates.

(Formerly

199k25.5(9)

Health

and

Environment)

PC

filed

additional permit

applications

for Units

1

---

and 2

on

February

8,

1984.

On June

8, the agency

denied

a permit

for

Unit

2.

The

Agency

issued

a

permit

for

Unit

I

subject

to

certain

operating

conditions.

IPC

appealed

these

decisions

to

the

Board on

July

13,

1984.

Section

40(a)

of

the

Act outlines

the procedure

for

permit appeals:

“(1) if

the

Agency

refuses to grant

or grants with

conditions

a

permit under

Section

39

of this

Art,

the

applicant

may,

within

35

days,

petition

for

a

hearing before the Board

to contest

the decision

of

the Agency.

The

Board

shall

give

21

day

notice

to

any

person

in

the

county

where

is

located

the

facility in

*45J

issue

who

has

requested

notice of

enforcement

proceedings

and

to

each

member of

the General

Assembly in

whose legislative district

that

installation

or property

is

located;

and

shall

publish

that

21

day

notice

in

a

newspaper

of

general

circulation

in

that

county.

The

Agency

shall

appear

as

respondent

in

such

hearing.

At

such

hearing

the

rules

prescribed

in

Sections

32

and

33(a) of this Act

shall

apply,

and the

burden

of proof shall

he

on the petitioner.

(2)

Except

as provided in paragraph (a)(3), if there

is

no

final

action

by

the

Board

within

90

days,

petitioner

may

deem

the

pertuit

issued

under

this

Act

*

*

‘L’

lll.Rev.Stat.1983,

ch.

111

1/2

,par.

1040(a).

The

Board

assigned

the

case

to

a hearing

officer

on

September

24,

1984.

On

September

25,

the

hearing

officer

notified

the

Board

that because

21-

day

notice

could

no

longer

be

provided

before

the

lapse

of

the

90-day

period,

he

was

of the

opinion

that

no

hearing

could

legally

be

held.

The

Board

directed

the hearing

officer

to

hold

the hearing,

and

the

hearing

was

scheduled

for

October

3.

Both

parties

received notice of

the

hearing

on

September

28.

At

the

hearing,

PC

filed

what

it

called

a

special

appearance.

PC

contended

the hearing

was

illrgal

because

the

proper

statutory

and

regulatory

notice

was

not provided.

PC

declined

to present

any

evidence

at

the hearing.

JPC

also

declined

to

nate

how

it

had

been

prejudiced

by

the

lack

of

notice.

The

Agency

presented

its

record

of

the

application pertaining to

Units

1

and

2.

On

October

12,

1984,

the

Board

affirmed

the

Agency’s

decisions.

The

Board

fotind

the

21-day

statutory

notice

provision

was

not

wet,

but

tt

also

derided

1PC

lacked standing

to challenge

the -failure

to

comply.

The

Board

also

held the

regulatory

21-

day

notice

to

the

parties

had

net

been

met.

The

Board

however,

decided

the

error

was

not

prejudicial

to

IPC.

Finally,

the

Board decided PC

had

not

met

its

burden

of

demonstrating

the

invalidity

of

theAgency’s decision.

Two dissenters

believe

the

complete

lack

of

notice

to

the

persons

specified

in section

40(a)

deprived

the Board

of

the

authority

to adjudicate

the merits of the

controversy.

Through

an

administrative

oversight,

rho

Board

found

itself

faced

with

a

dilemma.

In

order

to

address

the

merits

of

the

permit

appeal,

the

Board

had to

dispense with

the hearing or

violate either

the

statutory

notice

requirement or the

statutory

90-day

decisional

limit.

In

Marquette

Cement

Manufacturing

Co.

v.

Pollution

Control

Board

(1980),

84

lJi.App.3d

434,

39

PUce.

759,

405

N.E.2d

512,

the court

held

section

40

contemplates

both

a

hearing

and

a

final

**9Qf)

***169

decision

within

90

days,

and

*452

if

either

is

not

forthcoming

within

that time,

the permit

is

deemed

issued

as

a matter of law.

The

effect of inaction

by

the

Board

for

90

days

simply

protects

the

party

seeking

review from

charges

of operation

without

a

permit,

a

violation of

both

state

and

federal

law.

The

permitree

is

still

vulnerable

to any

other charge

for

illegal

violation,

and

the

Ageccy may

still

bring

an

eoforcement

action.

(Illinois

Power

Co.

v.

Pollution

Control

Board

(1983),

112

Ill.App.3d

457,

462,

68

lll.Dec.

176.

180,

445

N.E.2d

820,

824.)

In

view

of

Marquette

£ement,

the

Board

decided

to

hold

a

hearing

and

tender

a

decision

within

90

days.

The

Board,

therefore,

dispensed

with

the notice required by the statute.

I2

IPC contends

the

Board’s

failure

to

give the

statutory

notice

renders

the

hearing

invalid.

PC

concludes

the

permits

issued

as

a

matter

of

law.

The

Board

notes

PC

suffered

no

prejudice by

the

failure

to

give notice

and

argues

1PC

lacks

standing

to

raise

the

issue.

The

Board

also

contends

any

error

was

technical

arid,

therefore,

does not

require

reversal.

(Ill.Rev.Stat. 1983,

cIt.

110,

par.

3-

111(b).)

Rather

than

a

matter

of

standing

or

technical

error,

we

deem

the

statutory

notice

requirement

to

be

a jurisdictional

matter.

While

circuit

courts derive their jurisdiction

directly

from

the

constitution

(In

re Estate

of Mears

(1982),

110

l0.App.3d

1133,

66

111.0cc.

606,

443 N.E.2d 289),

an

administrative

authortty

derives

its

power

solely

from

the

statute

by

which

it

was

created

(Spies

v.

illinois

Civil

Service

Coin.

(1983’),

114

lll.App.3d

569,

70

Il.Dec.

302,

449

N.E.2d

176).

The

legislature

has

determined

that

certain

of

its

members

and

the

public

should

he

notified

before

the Board holds

a hearing on

a permit

appeal.

The

Board

cannot

simply

disregard

this

directive.

The

---

statute

requiring the notice to

he

given slates in partt

‘The

Board

shall

give

21

day

notice

*

*

*;

and

shall publish

*

*

~h”

(Ill.Rev.Stat.1983,

ch.

111

1/2

par.

1040(a).)

The

Illinois

Supreme

Court

in

People

v.

Youngbey

(1980),

82

Jll.2d

556,

562,

45

Jll.Dec.

938,

941,

413 N.E.2d

416, 419,

stated

that

the

use

of the word

“shall’

is regarded

as

indicative

of

a

mandatory

intent.

(Also

see

in

i-c

Application

of Rosevvell

(1983),

97

111.2d

434,

73

lil.Dec.

748,

454

N.E.2d

997.)

The

failure

to

comply

with

a

mandatory provision of

a

statute will render void

the

proceeding

to which the provision

relates.

Village

of

Mundelein

v.

Hartnett

(1953),

117

lll.App.3d

1011,

73

lll.Dec.

285,

454

N.E.2d 29.

3J

The

state

agency

and,

in

this

instance,

the

Pollution

Control

Board

cannot

ignore

the

mandatory

requirements

of

notice

in

an

effort

to

evade

the responsibility to complete

a hearing

within

the

required

time,

i.e.

90

days

from

the

time

of

filing.

The

Board

failed

to

follow

the

stattttory

procedure.

Becattse

a

valid

hearing

was

not

held

within

90

days

of

PC’s

petitiou,

the

permits

are

deemed

issued under section 40.

*453

For the

foregoing reasons, the decision

of the

Illinois Pollution Control Board is reversed.

Reversed.

WEBBER

and TRAPP, ii.,

concur.

484

N.E.2d

898,

137

Ill.App.3d

449,

92

111.0cc.

167

END OF

DOCUMENT

---

Copr.

©

West 2003

No Claim to Orig.

U.S.

Govt.

Works

405 N.E.2d

512

(Cite as:

84 Ill.App.3d 434,

405 N.E.2d 512,

39

KeyCite

Citations

Appellate

Court of Illinois,

Third District.

MARQUETTE

CEMENT MANUFACTURING

COMP.ANY,

Petitioner-Appellant,

v.

ILLINOIS

ENVIRONMENTAL PROTECTION

AGENCY and

Illinois

Pollution Control

Board,

Respondcnts-Appellees.

No.

79-851

May30,

1980

Petitioner

sought

review of Pollution

Cotttrol

Board’s order dismissing petition

for review of

Environmental

Protection

Agency’s decision

denying

petitioner’s application for air

operating

pcrtnit for petitioner’s cement plant.

The

Appellate

Court,

Third

District,

Alloy,

P.

J., held

that:

(1)

where Board failed to hold hearing

within

90

days

alier petition for review of Agency’s decision,

permit would

be

deemed

to

have been

issued;

(2)

dismissal of petition for review of Agency’s

decision could

not

be

sustained on

basis of

fact

that

additional data

submitted

by Agency

indicated

possible violations by petitioner’s plant;

and

(3)

fact

that petitioner filed

a summary judgment motion

requesting Board

to

issue permit on

basis of record

before it

did not constitute

a waiver of petitioticr’s

right to

have Board hold

a hearing

within 90

days.

Reversed.

West Ileadnotes

1

Environmental I~w k294

I49Ek294

(Formerly

l99k25.6(8)

Health

and

Environment)

Where

Pollution Control

Board failed

to hold

hearing

within 90

days

after

applicant filed petition

for review of Environmental

Protection

Agency’s

denial

of application

for air

operating permit for

applicant’s

cement plant and where there

was

no

delay on

part of applicant,

permit would

be

deemed

to

have been

issued;

Board’s breach of requirement

that hearing

be

held within

90

days

was not cured

by making

final

decision within

90

days,

but

without

a

hearing.

5.11

A.

ch.

1111/2,

§

1040.

Iil.Dcc.

759)

2

Environmental

Law k294

l49Ek294

(Formerly

199k25.6(8)

Health and

Environment)

In

proceeding

in which Pollution Control

Board

dismissed the petition for review of Environmental

Protection Agency’s

denial of application for air

operating permit

for applicant’s

cement plant,

in

which Board

failed to hold hearing

on petition

within 90

days

as statutorily required and in which

applicant

satisfied

its

initial burden

of production

with

regard to

a showing that no

violations would

be

caused

by

issuance of permit,

the dismissal

could

not

be

sustained

on basis of fact

that additional data

submitted by Agency indicated

possible violations

by the plant.

SEA.

ch.

1111/2

,

§

1040.

3

Environmental

Law k290

I

49Ek290

(Formerly I 99k25 .6(8)

Health

and

Enviromnent)

Pollution Control

Board’s decision must be

based

on

the record

and findings

of fact

must

he

supported

in rhe evidence.

4

Envirornuental

1.2w k294

l49Ek294

(Formerly

199k25.6(8)

Health and

Environment)

Fact

that applicant,

which

sought

review of

Environmental

Protection

Agency’s denial of

application for air

operating permit for applicant’s

cement plant, filed

a summary judgment

motion

requesting

Pollution Control

Board to

issue permit

on

basis of record

before

it

did not constitute

a

waiver of applicant’s

right to

have

Board hold

a

hearing within

90

days

after petition for review was

filed,

in light of

fact

that such

motion

was

a

defensive move by

applicant

in face of Board’s

indication

that no

hearing

would

be

held and

that

the

matter would he

decided without

a hearing.

*434 *513

***759

Johnine

Brown

Hazard

and

Joseph

S.

Wright,

Jr., Rooks,

Pitts,

Fullagar

&

Poust,

Chicago,

for petitioner-appellant.

*435

George

Wm.

Wolff and

Wifliam

Blakney,

Astir.

Attys.

Gen.,

William

J.

Scott, Atty.

Gen.,

---

Environ.rnental

Control

Division,

Chicago,

Michael

Mauzy,

Illinois Environmental

Protection Agency,

Springfield,

for respondents-

appellees.

ALLOY, Presiding

Justice:

Petitioner

Marquette

Cement

Manufacturing

Company

(hereinafter

Marquette)

appeals

from

the

order of the Pollution Control

Board (hereinafter

PCB) dismissing Marquette

s

Petition

for Review of

the Illinois Environmental

Protection

Agency’s

decision, denying Marquene’s permit application.

Review in this

Court

is

pwsuant

to Section

41

of

the Illinois Environmental

Protection

Act

(hereinafter Act).

Ill.Rev.Stat. 1977,

ch.

1111/2,

par.

1041.

~.‘Iarquettc

had filed

an

application for

an

air

operating permit for its

Ogleshy

cement plant

with

the

Agency.

The

Agency

denied

the permit

application,

specifying

as

its

principal

reason the

fact that Marquette had

not sufficiently shown that

the

plant’s operations would

not cause violations of

air quality

rules

and regulations.

Review of the

Agency’s denial

was

sought

before the

PCB.

(lll.Rcv.Stat.1977,

ch.

1111/2,

par.

1041.) Due,

however,

to scheduling problems,

the requested

and

required hearing

before

the PCB

was not

set within

the 90

days provided by statute.

(IlI.Rev.Stat. 1977,

ch.

1111/2,

par.

1040.)

When

the Board sought

a

waiver of the 90-day

provision from petitioner,

Marquette

refused to waive the 90-day requirement.

Thereafter,

fearing

dismissal of

the Petition for

Review without

a hearing,

Marquette

filed

a

motion,

designated

a summary judgment

motion,

with the

PCB.

In

that motion,

Manquotte

requested

that the PCB order

the permit to

issue

on

the basis

of the record

before

it

at that time.

In

a

3-2 vote,

after

discussion of

the

case

at

the PCB’s

meeting,

the PCB thereafter dismissed Marquette’s

Petition

for Review, for lack of

a hearing and for

an

alleged

dcficiency

in

the Petition.

Frotn

that dismissal

Marquette

appeals.

It

raises three

issues:

(1)

whether the

PCB erred

in dismissing the petition for

review for lack of

a hearing;

(2)

whether the PCB

erred in dismissing the petition

for

review

as

deflcient;

and (3)

whether,

given the record,

the

PCB

and

the Agency

erred

in not g:-anting

Marquette

its

requested

operating permit.

The

record

reveals

that

Marquette

owns

and

operates

a portland cement manufacturing facility

known

as

the

‘Oglesby plant,’ near

the city of

Q~i~shy

in LaSalle County.

Operation of

the plant

generates particulate

matter which is

emitted

into

the atmosphere.

The plant

is

equipped with a

variety of air pollution control

devices.

The

plant

is

also

subject to

the requirements of the Illinois

Environmental Protection

Act provisions

(Ill.Rev.Stat.

1977,

ch.

1111/2,

par.

1001,

ct seq.),

specifically,

in the instant

case,

to the permit

requirements

thereunder.

*436 Marquette

first

applied to

the Agency

for

an

air

operating pennit in May,

1973.

A permit was

thereafter deemed

issued by operation of law

on

August

1,

1973.

Again **5J4 ***761

in June,

1976,

Marquette

applied

for

a permit and it

was

deemed

issued by operation of law.

Then,

on April

9,

1979,

Marquette

asked that its

1976 application

for

an

air operating permit for the Oglesby plant

again

be

acted

upon.

At

the

time of the April,

1979

permit application, Marquette

and the

Agency had

been

co-operating to implement

a proposed

settlement

agreement which included

a progratn

to

improve

the control and

monitoring of particulate

emissions

at

the Ogleshy plant.

The

proposed

agreement grew

out of an

enforcement proceeding

brought by the Agency in

1977,

Illinois

Environmental Protection

Agency v.

Marquette

Cement Manufacturing

Company, PCB 77-25.

The

program

was designed to conclusively establish

Marquette’s compliance with the Act

and the

Board’s regulations and to

end the

dispute with the

Agency.

By

letter

dated

May 8,

1979,

the Agency

denied

Marquette’s

application for a permit,

alleging in

the

denial

letter the possibility

of air pollution

violations,

the

existence of citizen complaints,

and

the lack of information from

Marquette

about

whether

emissions

from

the plant

caused

or

contributed

to

ambient air

quality violations

in the

immediate

area.

Marquette

then

filed,

on

June 28,

1979,

a Petition for Review of

the denial with the

PCB

and thereby

sought

a hearing

on

the

Agency’s

actions.

Under

Section

40 of the

Act,

the PCB

must take final

action

on

a petition within

90

days

of the date on

which the petition

is

filed.

(fll.Rcv.Stat.

1977,

ch.

1111/2,

par.

1040.) If the

Board

does not

do

so,

then Section 40

provides that

a default permit

is

thereafter

deemed

issued.

Under

the

90-day statutory

requirement,

a

final

PCB

decision

in the instant

case

was

due on or before

September 26,

1979.

Section

40 of

the Act

also

requires

a hearing

on

the

Petition for Review,

which hearing

must

be

conducted

only

after

the

Board

has

provided 21

days

notice to

the public

and

the parties.

1ll.Rev.Star. 1977,

ch.

1111/2,

par.

---

1040.

No hearing

was held,

although Marquette engaged

in substantial discovery in preparation for such

a

hearing.

Due to scheduling difficulties of an

unspecified

nature,

the Roaring Officer appointed

by

the Board

to hear

the ease, unilaterally,

on

September 4,

1979,

set

a hearing

date for October

3,

1979.

That

date allowed for compliance with the

21-day public

notice provision of

the statute,

hut it

did not comply with

the requirement for Board

action within the statutorily specified 90-day period.

According

to

affidavits in the record,

a Board

officer

then

suggested

that

Marquette file

a

waiver

of the 90-

day

requirement so that

a hearing

could

be

held in

October.

Marquette

declined

to

file

a

waiver.

The

bases fur their

refusal

to

such

a

waiver

wore

(1)

that the Hearing

Officer could have

complied

with all

requirements by setting

the

hearing

*437 on

September 25,

instead of October

3;

(2)

that the

unnecessary delay,

caused

by the

Hearing Officer,

was

prejudicial

to their interests,

given porential civil penalties

in

the enforcement

proceeding then pending;

and

(3)

that the Act

neither authorizes nor requires

an

extension of

the

90-day period.

Marquette

also took the position that

the

PC13

could order

issuance of

the permit on

the

merits,

given the record

before it,

even without

a

hearing.

Thereafter, on

September

18,

1979,

prior

to the

running of

the 90-day period,

Marquette filed

a

motion

with

the PCB,

asking

for

summary judgtnent

on

their Petition

for Review.

Marquette

requested

that the PCB order the permit

issued on

the basis of

the record

before

it.

Marquette’s

petition

and

motion

wore considered at

the

Board’s

September

20,

1979,

meeting.

After

a discussion between the

five Board members on

the best approach

to take in

the matter,

the Board

voted

3-2 to

deny the

Petition

for

Review without

prejudice. The

asserted

grounds

for

their

di~ntissalwore

the lack of

a hearing

and

an

alleged

deficiency

in the Petition.

From

this

decision by the

PCB,

Marquette

appeals.

(i)

Marquette

first

argues that the PCB erred in

dismissing

its

petition for lack

of hearing.

Under

Section

40 of

the Act,

a hearing

is

required to

be

held

by the Board,

upon

petition

hy

an

applicant

who

has

been

denied

a permit by the Agency.

If

there

is **515

***762

no

final

action

by

the Board

within

90

days from filing

the petition,

then

a

petitioner

may deem

the permit

issued under

the

Act,

except for certain

inapplicable exceptions.

The

statute

clearly contemplates and requires

that both

the

hearing

and

final

agency

action shall occur

within

90 days

from

the filing

of

the Petition for

Review.

According

to

the statutory

timetable,

as

applied in

the

instant

case,

a hearing

and

final

decision should

have both

been forthcoming

by

September 26,

1979.

In

the

instant

case,

however,

the

PCB, through its

appointed Hearing

Officer,

had

set

the date

for

a

hearing

on

October 3,

1979,

almost

a

week beyond

the 90-

day limit set in the statute.

There

is

no

assertion made

that the delay in rhe date for a

hearing

was

caused

by petitioner Marquette,

nor

does the PCB deny

that compliance with

the stawtc

was possible.

The

reason for setting the October

date

was

a perceived inability to meet

the 21-day

notice requirement within the

90-day limitation

period.

Whatever the reasons

behind setting

the

October

date,

by selling

October

3

as

a hearing

date,

the Hearing Officer,

and through him the

PCB, clearly

indicated

to Marquette

that there

would

be

no

hearing

for them within the required

90-day period.

The

solution to the problem,

so far

as

the PCB

and the Agency

wore concerned,

was

for Marquette

to file

a waiver of irs

right to

a

decision within

90

days.

Marquette

refused to

make

any

such waiver, arguing prejudice in the

enforcement action

and the fact

that the delay

was

not occasioned by

them

at all.

*438

According to

the

uncontradicted affidavit of

Marquette’s counsel,

attached

to the motion

before

the

PCB,

Marquette

was then

informed by

an

official of

the PCB that “if by

September 20,

1979

(the

next tnecting of

the Pollution Control

Board)

Marquette

does not file

a

waiver of its

right to

a

90-

day

decision by the Board,

the Board will deny

Marquette’s

petition

for review without a hearing.’

Faced,

it

believed,

with the prospect of having

its

petition

denied

without

a

hearing,

and

as

a punitive

measure

for

refusing to waive

its

right to

a hearing

within

90

days,

Marquette

responded by

filing

a

motion for summary jtidgment with the PCB,

reqtiesting

that it

grant the Petition

for Review

amid

order

the

Agency to issue

the air

operating permit.

The

record

shows

that this

action by

Marquette

was

a

defensive move seeking

to force

the

issue

on

the

Beard,

in

the face of

the threat

to dismiss

the

petition without a hearing.

Marquette

argued

in the

motion that the recnrtl

as it

stood

at

that drno

was

sufficient to

show

that it

had

met the requircirionts

for

issuance of

the permit,

and

it

asked the PCB

to

crier

the permit

issued.

Thereafter,

on

September 20,

1979,

the P03 held

---

its

scheduled meeting.

Marquette’s

Petition for

Review and

motion

came up, although

the record

indicates

that the Board members did

not fully

apprehend

the nature of summary judgment

motions

as

utilized in

the circuit

courts.

At

the meeting,

the

Chairman of the PCB opened

discussion

among

beard

members by noring

that

no

hearing

had

been

held

and that the

90 days

was going to

run

out

without

a hearing.

He recommended,

at

the outset,

that

the PCB either

dismiss

the petition without

prejudice or remand it

to

the Agency.

His

stated

grounds for the dismissal

were the lack of

a hearing

and,

secondarily,

the Petirion’s

alleged lack of

conformity with

Procedural Rule 502(a)(2)(iv) ef

the PCB.

His

recommended dispositions

expressly

did not reach the merits

of the Petition for Review.

In

the discussion that followed three board

members,

including

the Chairman,

expressed their

firm

beliefthat

a hcaring

was necessary, prior

to

any decision on the

Petition,

iii

order

to

ensure

a

complete

record wirh full factual doveloprnent.

The

Agency had apparently

presented

the Board with

data opposing the permit on

the day of

the hearing.

No

discussion of the petition itself took place.

After seine

discussion

on

how

best to

address the

“procedural goof up,”

and

after the three members

indicated

their unwillingness

to grant the petition

without more information

by way of

a hearing,

the

Chairman put it to

Marquette directly:

“Well,

it

seems

to me to

be very simple.

Eirher

Marquette

waives

and

gives

us **5l6

***763

time for the

hearing, or we have to make

some

kind

of decision today.”

Thereafter,

the members voted

3-2 to dismiss

the

petition without prejudice.

In

a brief discussion

after

the vote,

one of the

Board members *439

voting with the

majority

stated

that

‘the only

reason” he

cvas voting

to

deny

the petition

was the

fact

that the hearing

had

not been held.

What

the record

in this

case

reveals

is

unfortunate

and

regrcttable

conduct

en

the part of the

Beard.

We

find

that

Marquette

has sufficiently

established

that the

true basis

fur the Beard’s

action in

dismissing their peution was

the

failure to

have

a

hearing.

Yet responsibility for that failure lay not

with Marquette,

hut

with the

PCB

and

its

Hearing

Officer.

It

is

evident that the

PCB’s action

dismissing

the Petition for Review,

as

it

did,

effectively

punished

Marquette for failure

to waive

its

rights

and

also

punished Marqueue for the

PCB’s

own failure

to

satisfy

the

statutory

requirement of

a hearing

and

a decision within

90

days.

The

action taken

by

the PCB

was

a

transparent aneinpt to circumvent the

requirements

of the statute

and should

be

reversed

as arbitrary,

capricious

and unreasonable

under

the

circumstances.

See Illinois Coal

Operators

Association

v.

Pollution

Control

Board (1974),

59

I1l.2d

305,

310,

319 N.E.2d 782;

SCA Services v.

Illinois Pollution Control

Board (4th

Dist.

1979),

71

Ill.App.3d 715,718,27

Jll.Dec.

722,

389

N.E.2d

953.

Marquette had

a right to

a hearing

and to

a

final

decision

\vithin 90

days

from filing

the

petition,

absent

their own delay or

other

extraordinary

circumstances not present in this

case.

When

the PCB indicated

its

unwillingness

to

provide the hearing within that time,

which

it

did by

setting

the October

3 hearing

date,

it

thereby

breached

the requirements of the statute.

The permit

should have been

deemed

issued as of September

26,

1979,

the final

day

of the 90-day period.

The

Beards

attempt to

cure

its

breach of the statutory

requiremenr of

a hearing by making

a final

decision

within

90

days, hut without

a hearing,

caimut

stand.

The

statute

contemplates

both

a hearing

and

a

final

decision

within

90

days.

If either

is

not

forthcoming

within that time,

then

the permit is

deemed

issued under the Act.

In

rhe

instant

case,

the hearing

was nnt held,

and

the permit is,

therefore,

deemed

to have issued.

(2)

The

Beard

seeks

to support

its

dismissal

order

with its

alternate finding,

that Marquette

failed to

comply

with Rule

502(a)(2)(iv),