ILLINOIS POLLUTION CONTROL BOARD
October
7,
1993
LEONARD
CARMI
CHAEL,
)
)
Petitioner,
)
v.
)
PCB 93—114
)
(Landfill Siting Review)
BROWNING-FERRIS
INDUSTRIES
)
OF ILLINOIS, INC.
AND
OGLE
)
COUNTY BOARD, FOR
AND
ON
)
BEHALF
OF
THE
COUNTY
OF
OGLE,
)
STATE
OF
ILLINOIS,
)
)
Respondents.
KIM D. KRAHENBUHL APPEARED ON
BEHALF
OF PETITIONER, LEONARD
CARMICHAEL;
FRED C. PRILLANAN APPEARED
ON
BEHALF
OF
RESPONDENT,
BROWNING-
FERRIS
INDUSTRIES
OF
ILLINOIS,
INC.;
and
GLENN
C.
SECHEN
APPEARED
ON
BEHALF
OF
RESPONDENT
OGLE
COUNTY
BOARD.
OPINION
AND ORDER
OF
THE
BOARD
(by
C.
A.
Manning):
This matter is before the Board on a petition for review
filed on June 16, 1993,
by Leonard Carmichael, pursuant to
Section 40.1(b)
of the landfill siting section of the
Environmental Protection Act (Act).
(415 ILCS 5/40.1(b)
(1992).)
The petition for review seeks the Board’s review of the County of
Ogle’s (County) May 10,
1993 siting approval of the expansion of
Browning—Ferris
Industries’
(BFI)
regional
pollution
control
facility pursuant to Section 39.2 of the Act.
(415
ILCS
5/39.2
(1992).)
A hearing was held before Hearing Officer Todd S.
Parkhurst on August 23,
1993 in Oregon,
Illinois.
The hearing
was attended by members of the public.
The Hearing Officer briefing schedule ordered petitioner’s
brief to be filed with the Board on September 2,
1993, and
answer briefs be filed by September 16,
1993.
In addition, the
petitioner was allowed to file a reply brief on September 23,
1993.
The petitioner filed a reply brief on September 22,
1993,
raising a new argument that was not raised in its brief or the
answer briefs.
On October 1,
1993,
BFI filed a motion to strike
portions of the reply brief that concerned this new argument,
or
alternatively leave to file a supplemental brief instanter to
address this argument.
This matter is to be decided by the Board
before October
7,
1993 pursuant to Section 40.1 of the Act.
(415
2
ILCS 5/40.1
(1993).)
As
a result, pursuant to 35
Ill. Adm. Code
101.241(b)
the Board will grant the motion to strike within the
seven
(7) day response time.
We find that undue delay and
material prejudice to the Board’s decision-making process would
result
if we withhold ruling on the motion.
The Board grants the
motion to strike those portions of the reply brief which raise
new arguments concerning the Forcible Entry and Detainer Act.
The Board’s responsibility in this matter arises from
Section 40.1 of the Act.
The Board is charged, by the Act, with
a broad range of adjudicatory duties.
Among these is
adjudication of contested decisions made pursuant to the local
siting approval provision for new regional pollution control
facilities,
set forth
in Section 39.2 of the Act.
FACTS
On November 13,
1992, BFI filed with the County an
application for site location approval for an expansion of a pre-
existing regional pollution control facility located in Ogle
County.
(County Hearing Record at 3220.)1
The BFI facility has
a service area which would encompass all of Ogle County.
(C. Rec
at 3223.)
Public hearings were held before the County on February 17,
18,
19, and 25,
1992.
On May 10,
1993,
the County Board granted
the approval of the landfill siting request at a special meeting
and on May 20,
1993, the County entered its written decision
approving the landfill expansion.
The County found that it had
jurisdiction over the application and that BFI established
compliance with the applicable criteria.
(C. Rec.
at 3223.)
At the County hearing, BFI introduced registered mail “green
cards” which were postmarked October 27,
1992,
for Mr. Pfab,
an
adjacent landowner to the landfill,
and Senator Harlan Rigney
whose legislative district at that time encompassed the landfill.
(BFI’s Exhibit
1 at 5,11.)
Those same registered mail “green
cards” are signed as received by Mr. Pfab on November 3,
1992,
and as agent by Rebecca Hansen for Senator Rigney on November 2,
1992.
(BFI’s Exhibit
1 at 5,11.)
BFI’s request for approval was
received by the County on November 13,
1992.
On May 10,
1993, the County held a meeting to vote on the
BFI application for the expansion of the landfill.
Pursuant to
their obligation to make findings on each of the nine
(9)
separate criteria required by Section 39.2(a)
of the Act the
1
The County Hearing Record will be referenced as “C. Rec.”
3
County Board discussed and voted
on each criterion.2
(415 ILCS
5/39.2(a)
(1993).)
The County Board vote on the need criterion
initially resulted
in
a tie.
A motion for reconsideration was
made and conversations between the board members and the County’s
lawyers and consultants took place.
(C.
Rec. at 3219 at 134).
After these conversations, another vote was taken finding by a
vote of
14 to 10 that the expansion was needed.
The County
approved the landfill siting by a vote 15 to
9.
(C. Rec. 3219 at
138.)
Issues on appeal before the Board are Carmichael’s
allegations that the County did not have jurisdiction to proceed
on BFI’s application, and that the conversations between the
initial vote and the reconsideration vote were fundamentally
unfair.
(Petitioners Post Hearing Brief at 1.)
In addition,
Carmichael’s petition alludes to BFI’s failure to demonstrate
compliance with the criteria set forth in Section 39.2 of the
Act.
However, Carmichael has not addressed these claims and did
not raise these issues in his post-hearing brief.
ANALYSIS
The notice requirements of Section 39.2(b)
are
jurisdictional prerequisites to the local decision-makers power
to hear a siting proposal.
The issue of jurisdiction may be
interposed at any time in the course of the proceedings.
(Concerned Citizens.
Inc.
v. M.I.G.
Investments, Inc.
(2nd Dist.
1986),
144 Ill.App.3d.
334,
98 Ill.Dec.
253,
494 N.E.2d 180.)
The fact that Carmichael raised the issue at the Board hearing
held on August 26;
1993, does not preclude a determination by the
Board on this issue.
Due to the jurisdictional nature of the
notice requirements of Section 39.2 of the Act, whether or not
actual prejudice was shown to have resulted from failure to meet
the notice requirements, the county lacks jurisdiction to act on
the siting request if the notice requirements are not met.
(Id.
at 807).
The appellate court has stated that it is appropriate
for any person to raise the issue of jurisdiction.
(Concerned
Citizens~Inc.
v. M.I.G.
Investments,
Inc.
(2nd Dist.
1986),
144
Ill.App.3d.
334,
98 Ill.Dec.
253, 494 N.E.2d 180.)
The notice
requirements of Section 39.2 are to be strictly construed as to
timing,
and even a one—day deviation in the notice requirement
renders the county without jurisdiction.
(Browning—Ferris
Industries of Illinois,
Inc.
v.
IPCB (5th Dist.
1987),
162
2
Section
39.2(a)
of
the Act requires
the
unit
of
local
government that
is making
the determination
on the request for
landfill
siting
to
decide
if
the
applicant
has
demonstrated
compliance with certain criteria.
One such criterion is that the
landfill facility to accommodate the waste needs of the area it is
intended to serve,
referred to as the “need” criterion.
4
Ill.App.3d 801,
516 N.E.2d 804.)~
Section 39.2(b) provides,
in relevant part, as follows:
b.
No later than 14 days prior to a request for
location approval the applicant shall cause written
notice of such request to be served either in person
or by registered mail,
return receipt requested,
on
the owners of all property within the subject area
not
solely
owned
by
the
applicant,
and
on
the
owners
of all property within 250 feet in each direction of
the lot line of the subject property, said owners
being such persons or entities which appear from the
authentic tax records of the County in which such
facility is to be located.
Such written notice shall also be served upon
members of the General Assembly from the legislative
district in which the proposed facility is located.
(Emphasis added.)
A plain reading of the Act places a burden on the applicant
to serve written notice (either in person or by registered mail)
no later than 14 days prior to a request for location approval.
It is undisputed that BFI filed a request for landfill expansion
with the County on November 13,
1992, and that written notice was
received by Mr. Pfab on November
3,
1992 and by Senator Rigney’s
office on November 2,
1992,
11 and 12 days prior to that request.
“Service” clearly means receipt unless otherwise stated.4
Considering
the
language
of
Section
39.2(b), notice was perfected
when Mr. Pfab and Senator Rigney
(by agent Rebecca Hansen)
signed
See also Kane County Defenders.
Inc. v. Pollution Control
Board,
(2nd Dist.
1985)
139 Ill.App.3d 588,
487 N.E.2d 743, where
failure to publish the appropriate newspaper notice 14 days prior
to the request for site approval resulted in the court’s vacating
the
county
board’s decision
and
the PCB’s
affirmation
of
that
decision.
The
court
applied
the
reasoning
of
Illinois
Power
Company v. Pollution Control Board,
(4th Dist.
1985)
137 I11.App.3d
449,
484 N.E.2d 898, which found that the PCB’s failure to publish
notice
as required by
Section
40(a)
of
the Act divested
it
of
jurisdiction.
“Service” is defined by Black’s Law Dictionary to be the
“exhibition or delivery of a writ, summons and complaint, criminal
summons, notice,
order,
etc., by an authorized person, to a person
who is thereby officially notified of some action or proceeding in
which he
is
concerned,
and
is thereby advised or warned
of some
action or step...” Black’s Law Dictionary 1227
(5th Ed.
1971).
5
the “green cards”
as received.
The Board has held that the date
of mailing
is not the date of service.
(Wabash and Lawrence
County Taxpayers and Water Drinkers Assoc.
v.
County of Wabash,
(December 3,
1987), PCB 87—122.)
Taking Section 39.2(b)
alone,
service as defined in the Illinois landfill siting sections of
the Act was not perfected.
While the Board’s procedural rules do not apply to the
County’s proceedings,
the Board has in the past looked to its
own
procedural rules as persuasive authority in some landfill siting
cases.
The Board’s general procedural rules at 35
Ill.
Adin.
Code
101.144(c)
create a rebuttable presumption that service is
complete four days after mailing by First Class mail,
and 35 Ill.
Adm. Code 101.144(b)
states that service is complete for
registered
or
messenger
mail
on
the
date
specified
on
the
registered mail receipt or messenger mail receipt.
Even looking
to the Board’s procedural rules and prior cases,5 the prior
notice requirement of Section 39.2(b) of the Act was not met.
In City of Columbia
v. County of St.
Clair,
April
3,
1986,
PCB 85—223(Consolidated),
a case very similar to the instant
case,
the applicant filed a request for siting approval
13 days
after newspaper publication of the intent to file, rather than
the 14 days required by statute, and initiated service of notice
to adjacent landowners 15 days prior to filing the request for
siting approval with the county.
The Board held that the
initiation of service by registered mail 15 days in advance of
the filing date of the request with the county did not meet
statutory requirements, was unreasonable and
therefore, created
defective notice in violation of Section 39.2(b)
of the Act.
The
action was dismissed by the Board as the County of St. Clair
lacked jurisdiction to hear the request for the siting approval.
(I~.
at 19.)
In another case, Waste Management of Illinois
v. Village of
Bensenville,
(August
10,
1989), PCB 89_28,6 the applicant filed
the request for siting approval on July 22,
1988,
thereby making
City of Columbia,
et.
al.
v. County of St. Clair
,
(April
3, 1986), PCB 89-223 (Consolidated), Browning—Ferris Industries of
Illinois,
Inc. V.
Illinois Pollution Control Board,
162 Ill. App.
3d.
801 (1987),
Waste Management of Illinois, Inc.,
v. Village of
Bensenville, (August 10, 1989), PCB 89—28,
DiMaggio v. Solid Waste
Agency of Northern Cook County,
(January 11,
1990), PCB 89-138.
6
Waste Management of Illinois
v. Village of Bensenville
was appealed on other grounds where the Appellate Court reversed
the Board and then the Supreme Court affirmed the Board.
(201 Ill.
App.
3d 614,
558 N.E.2d 1295,
146 Ill. Dec.
961,
(1st Dist.
1990)
Board reversed,
145
Ill.
2d.
345,
585 N.E.2d
606,
165 Ill.
Dec.
875,
(Sup.
Ct.
1991)
Board affirmed.)
6
the 14—day notice deadline July
8,
1988.
On July
1,
1988,
the
applicant initiated notice by registered mail service.
On July
6,
1988,
the applicant left a notice under the door of the
adjacent landowner.
When the notice was left on July
6,
1988,
the individual attempting to serve the adjacent landowner noticed
a sign saying that the he was on vacation and would return on
July 11,
1988.
The registered mail receipt was signed on July
11,
1988.
The Board held that mailing by registered mail 21 days
prior to the date of filing of the request was sufficient to
expect receipt of notice and thus notice was not defective.
The
Board in its reasoning stated that it was not going to allow the
process to be frustrated by individuals who refuse service or are
absent, and therefore will look to the reasonableness of the
service process.
Thus,
in the special circumstances of that
case, the Board held that the notice requirements of Section
39.2(b)
of the Act were fulfilled.
Here,
BFI’s request for approval was received by the County
November
13, 1992.
Therefore the 14—day deadline for notice
pursuant to Section 39.2(b)
of the Act was October 30,
1992.
BFI
initiated notice by registered mail on October 27,
1992,
17 days
prior to the filing of the siting request.
Mr. Pfab and Senator
Rigney signed the “green cards” as received on November 2,
1992
and November
3,
1992,
11 and 10 days prior to the filing of the
request for siting approval.
We find that notice was not
properly given pursuant to Section 39.2(b)
of the Act.
In
addition,
it is unreasonable to expect that service has been
perfected when notices were mailed 17 days prior to filing the
request for siting approval.
Therefore,
the notice requirement
pursuant to Section 39.2(b)
of the Act was not fulfilled and the
County lacked jurisdiction to hear the request for siting
approval for the expansion of the landfill.
The courts and the Board have held that lack of jurisdiction
at the local level is dispositive of the case which makes it
unnecessary to review any additional requirements.
(Kane County
Defenders,
Inc.
V.
Pollution Control Board,
(2nd Dist.
1985)
139
Ill.
App.
3d 588,
487 N.E. 2d 743, Concerned Citizens of
Williamson v.
Bill Kilber Development Corp.,
(May 20,
1993), PCB
92-204, LeRoy Brown and Sons,
Inc.
v.
County Board of NcDonough
County,
(February 4,
1993), PCB 92-132.)
Therefore, we will not
address the issues of fundamental fairness raised by Carmichael.
Further,
we make no findings regarding the criteria claims which
were mentioned Carmichael’s petition but not addressed at hearing
or in the briefs.
This opinion constitutes the Board’s finding of fact and
conclusions of law.
ORDER
For all the foregoing reasons, the County of Ogle’s May 10,
1993,
decision granting siting approval to Browning Ferris
7
Industries of Illinois
is vacated,
on the grounds that the County
lacked jurisdiction to hear the application due to BFI’s failure
to provide notice as required by Section 39.2(b)
of the Act.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041) provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a~ov~opinionand order was
adopted on the_7~day of
_________________,
1993,
by a vote
of
~7-O
.
Dorothy M./punn, Clerk
Illinois ~llution
Control Board