ILLINOIS POLLUTION CONTROL BOARD

May 20,

1993

CONCERNED CITIZENS OF

)

WILLIAMSON

COUNTY,

and

)

R.S.

BLAKELY

and

MAX

)

STUCKER,

members

)

Concerned

Citizens

)

Williamson County,

)

Petitioners,

)

v.

)

PCB

 92—204

(Landfill Siting Review)

BILL KIBLER DEVELOPMENT

CORP., a/k/a KIBLER

)

DEVELOPMENT CORP., and the

)

WILLIAMSON COUNTY BOARD OF

)

COMMISSIONERS,

Respondents.

KENNETH

 A. BLEYER APPEARED ON BEHALF OF PETITIONERS;

THOMAS

 ~I.IMMEL APPEARED ON BEHALF OF RESPONDENT BILL KIBLER

DEVELOPMENT CORP.; AND

LISA BEATY APPEARED ON BEHALF OF RESPONDENT WILLIAMSON COUNTY

BOARD OF COMMISSIONERS.

OPINION AND ORDER OF THE BOARD

 (by J. Theodore Meyer):

This matter

 is before the Board on a December 14, 1992

petition for review,

 filed by Concerned Citizens of Williamson

County,

 and R.S. Blakely and Max Stucker as members of Concerned

Citizens of Williamson County (collectively,

 Citizens).

In

 response to a Board order, Citizens filed an amended petition on

 January 27,

 1993.

 Citizens seeks review of a November 13,

1992

decision of respondent Williamson County Board of Conunissioners

(County Board) granting site approval to respondent Bill Kibler

Development Corporation

 (Kibler) for a new regional pollution

control facility.

 A public hearing on the petition for review

was held on April

2,

 1993,

 in Marion,

 Illinois.

For reasons articulated below, the Board finds that a defect

in the newspaper notice required by Section 39.2(b)

 of the

Environmental Protection Act

 (Act)

 (415 ILCS 5/39.2(b))

 is a

jurisdictional defect,

 and vacates the county board’s decision.

L~2-U573

2

PROCEDURAL

HISTORY

On April 25,

 1992,

 Kibler published a “public

notice” in the

Southern Illinoisan,

 a newspaper of general circulation, which

stated that “in

 14 days from the date of this publication”,

Kibler would submit an application for site approval for a new

regional pollution control facility.

 (C0020.)

 The notice stated

that Kibler proposes to develop a recycling center,

 transfer

station, and landfill disposal site within a single solid waste

management facility.

 On May 19,

 1992,

 24 days after publication

the

newspaper

 notice, Kibler filed its application for site

approval with the Williamson County Clerk.

 (C0030-C0121.)

The

County Board held public hearings on the application on September

10,

11,

 and 14,

 1992.

 (C0402—C0903.)

 On November

13,

 1992,

the

County Board issued its decision granting Kibler’s request for

site approval.

 (C1248—1249.)

 Citizens filed the instant

petition for review with the Board on December 14,

 1992,

and

filed an amended petition on January 27,

 1993.

STATUTORY FRAMEWORK

 the local level, the siting process

 is governed by

Section 39.2 of the Act.

 Section 39.2(a)

 provides that local

authorities are to consider as many as nine criteria when

reviewing an application for siting approval.

 These statutory

criteria are the

only issues which can be considered when ruling

on an

application for siting approval.

 Only if the local body

finds that all applicable criteria have been met by the applicant

can siting approval be granted.

When reviewing a local decision on the criteria,

 this Board

must

determine

whether

the

local

decision

against

the

manifest

weight

the

evidence.

(McLean

County

Disoosal.

Inc.

County

of McLean

 (4th Dist.

 1991),

 207 Ill.App.3d 352, 566 N.E.2d 26,

29;

 Waste Management of Illinois,

 Inc.

 v. Pollution Control

Board

 (2d Dist.

 1987),

 160 Ill.App.3d

434,

 513 N.E.2d

592;

E

& E

Hauling,

 Inc.

 v. Pollution Control Board

 (2d Dist.

 1983),

116

I1l.App.3d

 586,

 451 N.E.2d

 555, aff’d

 in part

 (1985)

 107 Il1.2d

33,

 481 N.E.2d 664.)

 Additionally, the Board must review the

areas

 of jurisdiction and fundamental fairness.

 Section 40.1 of

the Act requires the Board to review the procedures used at the

local level to determine whether those procedures were

fundamentally fair.

(E

&

 E Hauling,

 451 N.E.2d at 562.)

 Citizens

raise four claims of procedural error, including a jurisdictional

claim.

 Because jurisdiction is a threshold issue, we will

address that claim first.

JURISDICTION

The notice requirements of Section 39.2(b) are

jurisdictional prerequisites to the local county board’s power to

~2-O57L~.

3

hear

landfill

proposal.

this

basis,

the

lack

jurisdiction at the county board level made it unnecessary to

review

petitioners’

other

arguments

 Kane County Defenders

v.

Pollution Control Board

 (2d Dist.

 1985),

 139 Ill.App.3d 588,

487

N.E.2d 743,

 93 Il1.Dec. 918.

 In that case,

 failure to publish

the appropriate newspaper notice

14 days prior to the request for

site

approval

resulted

 the court’s vacating the county board’s

decision.

The

appellate

court

applied

the

reasoning

Illinois

Power

Company

Pollution

Control

Board

(4th

Dist.

1985),

137

Ill.App.3d

449,

484

N.E.2d

898,

Ill.Dec.

167,

which

found

that

the

Board’s

failure

publish

notice

required

Section

40(a)

 of the Act divested the Board of jurisdiction.

The

notice

requirements

Section

39.2

are

strictly

construed

 as to timing,

 and even a one day deviation in the

notice requirement renders the county without jurisdiction.

(Browning-Ferris

Industries

Illinois

Pollution

Control

Board

 (5th Dist.

 1987)

 162 Ill.App.3d 801,

 516 N.E.

 2d 804,

114

Il1.Dec.

 649;

 Concerned Boone Citizens,

 Inc.

 v. M.I.G.

Investments

 (2d Dist.

 1986),

 144 Ill.App.3d

 334,

 494 N.E.2d

 180,

98 Ill.Dec.

 253.)

Citizens

argues

that

the

newspaper

notice

published

Kibler

 is void.

 Citizens points to Section 39.2(b)

 of the Act,

which

states

part:

later

than

days

prior

request

for

location

approval the applicant shall cause written notice of

such request to be served

***

 on the owners of all

property

***

 within 250 feet in each direction of the

lot line of the subject property

Such written notice shall also be served upon members

of the General Assembly from the legislative district

in which the proposed facility is located and shall be

published in a newspaper of general circulation

published in the county in which the site is

 located.

Such notice shall state the name and address of the

applicant,

 the location of the proposed site, the

nature and size of the development, the nature of the

activity proposed, the probable life of the proposed

activity, the date when the request for site approval

will be submitted, and a description of the right of

persons to comment on such request as hereafter

provided.

415 ILCS 5/39.2(b)

 (1992).

Citizens maintains that the newspaper notice did not state any

date on which the application would be submitted,

 and that the

implication that the application would be filed 14 days after

publication was not followed.

 Citizens states that although the

r’r

4~LJ3

newspaper notice, which stated that the application would be

submitted “in 14 days” was published on April 25, the application

was not filed until May

19.1

 Citizens argues that because the

application

was

submitted

than

 14 days after publication of

 the newspaper notice, the notice is void and does not meet the

requirements of the Act.

 Citizens cites several appellate court

cases for the proposition that failure to properly give notice

under Section 39.2 is jurisdictional.

 (Kane County Defenders,

139 I11.App.3d 588; Browning—Ferris Industries,

 162 Il1.App.3d

801; Concerned Boone Citizens,

 144 Ill.App.3d 334.)

 Citizens

maintains that a jurisdictional defect requires no showing of

prejudice, and thus contends that the siting procedure at the

local level

 is void.

In response, Kibler argues that filing an application after

14 days has passed is not error.

 Kibler acknowledges that case

law establishes that an application cannot be submitted less than

14 days after notice

 is given, but contends that the cases cited

by Citizens do not hold that filing an application after the 14

day statutory period has passed creates

 a jurisdictional defect.

Thus, Kibler maintains that the Board should reject Citizens’

argument.

Initially,

 the Board

notes that the parties seem to be

arguing different issues.

 Citizens contends that the

jurisdictional defect arises from the discrepancy between the

newspaper notice

 (which stated that the application would be

submitted “in 14 days”)

 and the actual date of filing,

 24 days

after notice was published.

 On the other hand,

 Kibler views the

issue as whether it is error to submit an

application

than

14 days

 (the minimum notice period established by Section 39.2)

after notice

 is given.

 After reviewing the record and the cases

cited, the Board believes that the issue

 in this case is properly

stated as:

 where a newspaper notice states that an application

will be submitted “in 14 days”,

 but the application is submitted

24 days after publication, does that notice comply with the

provision of Section 39.2(b) that the notice include “the date

when the request

...

 will be submitted”?

In

sum, the statutory

provision at issue here is not the minimum 14 day notice period,

but the requirement that the notice include the date when the

request will be submitted.

The text of the notice clearly includes the statement that

the application was to be submitted “in 14 days from the date of

1

 In both its initial brief and its response brief,

Citizens refers to the date of filing of the application as April

19.

The

record

clearly

reflects

that

the

application

was

filed

on May 19.

 The Board assumes that the reference to April

 is a

typographical

error.

~2-O576

this publication.”

 (C0020.)

 The Board finds that this statement

is sufficient to fulfill the statutory requirement that the

notice

include

“the

date

when

the

request

for

site

approval

will

be submitted”.

 (415 ILCS 5/39.2(b)

 (1992).)

 It is easy to

calculate the anticipated date of submittal from that

information.

 However, the problem in this case is that the

application was not submitted on the date given in the newspaper

notice.

 The record clearly shows that the application was

submitted to the county clerk on May 19,

 24 days after the

newspaper notice was published.

 (C0030.)

 In other words,

the

notice did include a date when the application was to be

submitted,

 but the application was not submitted on that date.

After reviewing the case law established on the issue of

notice pursuant to Section 39.2(b), the Board finds that Kibler’s

failure to submit its application on the date included in the

newspaper notice renders that notice void.

 We believe that the

requirement that the notice include the date on which the

application will be submitted is intended to allow interested

persons to easily ascertain when the local decisionmaking

procedure, with its statutory deadlines for hearings, public

 comments,

 and final decision,

 will begin.

 This allows interested

persons to begin to prepare to participate in the procedure.

A

situation,

 such as this,

 where an applicant includes the required

date in the notice, but then fails to follow that date, does not

fulfill that purpose.

 Thus,

 although the text of the notice may

have complied with the requirements of Section 39.2(b), the

applicant did not comply with the representations made in that

notice.

 Thus,

 the Board finds that because Kibler’s subsequent

actions in submitting the application did not comport with the

information in the notice, the newspaper notice is void.2

The case law is quite clear that failure to follow Section

39.2(b)

 notice procedures

 is a jurisdictional defect,

 •such that a

local decisionmaker is not vested with jurisdiction to hear an

application for siting approval.

 (Kane County Defenders,

139

Ill.App.3d 588; Browning—Ferris Industries,

 162 Ill.App.3d 801;

Concerned Boone Citizens,

 144 Ill.App.3d 334.)

 As the court

stated in Kane County Defenders:

The notice requirements contained in section 39.2(b)

of

the Environmental Protection Act citation

are

jurisdictional prerequisites which must be followed in

2

 For example,

 if an administrative agency, such as the

Board, published notice stating that a public hearing that was to

 be held on January

 1, but the hearing was not held until January

12,

 that notice would also be void.

 The notice itself might

comply with the applicable statutory requirements, but the

representations made in that notice were not carried out.

L~2-O577

6

order to vest the county board with the power to hear a

landfill proposal.

 Citations.

 Thus,

the

applicant’s

 failure to publish appropriate newspaper

notice and notice of the date it filed the site

location request rendered the county board hearing

invalid for lack of jurisdiction.

 (Kane County

Defenders,

 93 Ill.Dec. at 921—922.)

Therefore, we find that the Williamson County Board did not have

jurisdiction to consider Kibler’s request for site approval,

because

the

newspaper

notice

published

 prior to the submittal of

that application was void.

The Board notes that Kibler argues that Citizens did not

claim

any

 prejudice and did not suffer any prejudice.

 However,

Citizens

points

out,

the

 issue of prejudice is not relevant to

a jurisdictional inquiry.

 The applicable notice requirements

must be met in order to confer jurisdiction on the local

decisionmaker, regardless of whether any party is, or claims to

 be, prejudiced by a failure to meet the notice provisions.

Additionally,

 the Board notes that Kibler has not raised any

contention that it was prevented,

 in some way,

 from submitting

its application on the date included in the newspaper notice.

An

applicant has complete control over when an application is

submitted to a local decisionmaker.

CONCLUSION

In sum, the Board finds that because Kibler did not submit

its application on the date contained in the newspaper notice,

that notice was void.

 Thus, the County Board lacked jurisdiction

to consider the Kibler’s application for site approval.

As

previously stated, the courts have held that lack of jurisdiction

at the local level makes it unnecessary to review any additional

arguments.

 (Kane County Defenders,

 93 Ill.Dec. at 922.)

 Thus,

we will not address Citizens’ three other contentions.

This opinion constitutes the Board’s findings of fact and

conclusions of law.

ORDER

The Board finds that the Williamson County Board of

Commissioners

lacked

jurisdiction

hear

Bill

Kibler

Development

Corporation’s

application

 for site approval, because the

newspaper notice was void.

 Therefore, the November 13,

1992

decision

the

Williamson

County

Board

Commissioners,

granting

site

approval,

vacated.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

 (415 ILCS

1~.2-Q578

5/41)

provides

for

the

appeal

final

Board

orders.

The

Rules

of the Supreme Court of Illinois establish filing requirements.

(See also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board,

 hereby certify that the above opinion and order was

adopted

the

2~’~Z day

_______________,

 1993,

 by a vote

Dorothy M. G9~n,Clerk

Illinois Po13A.ltion Control Board

~2-0579