ILLINOIS POLLUTION CONTROL BOARD
    August
    5,
    1993
    LEONARD CARMICHAEL,
    )
    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.
    ORDER OF THE BOARD
    (by C.
    A. Manning):
    This matter is before the Board on
    a petition for review
    filed by Leonard Carmichael, pursuant to Section 40.1(b) of the
    Environmental Protection Act (Act).
    (415 ICLS 5/40.1(b)
    (1992).)
    The petition for review seeks the Board’s review of the County
    of Ogle’s May
    10,
    1994 siting approval of the expansion of
    Browning—Ferris Industries’
    (BFI)
    regional pollution control
    facility pursuant to Section 39.2 of the Act.
    (415 ICLS 5/39.2
    (1992).)
    As explained in detail below, the respondents, BFI and
    Ogle County Board
    (Ogle County),
    filed separate motions to
    dismiss the petition for review.
    For the reasons stated below,
    the Board denies those motions.
    The petitioner filed his petition pursuant to Section
    40.1(b)
    which provides,
    in relevant part:
    If
    the
    county
    board
    or
    the
    governing
    body
    of
    the
    municipality as determined by paragraph (c) of Section 39
    of this Act, grants approval under Section 39.2 of this
    Act,
    a
    third
    party
    other
    than
    the
    applicant
    who
    participated
    in
    the
    public
    hearing
    conducted
    by
    the
    county
    board
    or
    governing
    body
    of
    municipality
    may
    petition
    the
    Board
    within
    35
    days
    for
    a
    hearing
    to
    contest the approval
    of the county board
    or governing
    body of the municipality.
    Unless the Board determines
    that such petition is duplicitous or frivolous,
    or that
    the petitioner is so located as to not be affected by the
    proposed facility, the Board shall hear the petition...
    On June 14,
    1993 Leonard Carmichael mailed this petition for
    review of
    a landfill determination made by Ogle County pursuant

    2
    to Section 39.2 of the Act.
    On July 8,
    1993,
    BFI filed a motion
    to dismiss or strike,
    or alternatively, to strike certain
    portions of the petition for failure to state
    a cause of action.
    On July 2,
    1993, Ogle County filed
    a Motion Directed at the
    Petition requesting the Board to dismiss the petition.
    In
    addition, Ogle County filed a motion regarding standing and
    jurisdiction on July 27,
    1993, requesting the Board to dismiss
    for lack of jurisdiction or grant summary judgment on the issue
    of standing.
    The respondents both claim that the petition was not timely
    filed within 35 days after Ogle County’s approval of the siting
    as set forth above.
    Section 101.102(d)
    of the Board’s procedural
    rules state that the time of filing
    is to be construed to be the
    time of mailing
    if a petition is received by the Board after the
    due date.
    The Ogle County decision was made on May 10,
    1993 and
    therefore the “due date” was June 14,
    1993.
    The petitioner
    mailed his petition for review on June
    14,
    1993.
    It was received
    in the Board’s Chicago office on June 16,
    1993.
    Based upon the
    Board’s procedural rules, therefore,
    the petition for review was
    timely filed on June 14,
    1993, and the Board finds no merit to
    the timeliness arguments raised by respondents.
    Ogle County argues that the Board lacks jurisdiction to hear
    the matter because the petitioner lacks standing to file the
    petition for review based upon the proviso in Section 40.1(b)
    that the Board may dismiss a petition when the petitioner is “so
    located as to not be affected by the proposed facility.”
    Section
    40.1(b)
    states preliminary requirements for a petitioner to file
    pursuant to this section.
    The Board has addressed this
    issue of
    standing in two previous Board decisions.
    (Worthen v. Village of
    Roxana, November 29,
    1990,
    PCB 90—137.)
    In Valessares
    v.
    The
    County Board of Kane County,
    (July 16,
    1987), PCB 87-36,
    79 PCB
    106,
    118, the Board found that a person who lived 5-6 miles from
    the landfill met this criteria and stated:
    “The Board
    is unable
    to determine how facilities located over 30 miles away would
    “affect” the need criteria, while
    a resident located over 5—6
    miles away would not be “affected” by the need criteria.”
    In
    reading Carmichael’s deposition taken on July
    14,
    1993, we find
    sufficient facts that Carmichael
    is so located as to be affected
    by the proposed landfill.
    Carmichael lives approximately 10
    miles from the facility and has business interests in the service
    area.
    (Discovery Deposition of Leonard Carmichael pages 24-32.)
    Alternatively, BFI moves the Board to strike portions of the
    petition for review for failure to state
    a cause of action, while
    Ogle County argues that petitioner fails to allege any harm
    resulting from the Ogle County decision-making process and moves
    the Board to strike certain paragraphs of the Petition for Review
    and dismiss.
    The respondents,
    in making their arguments for
    dismissal, state that the proceedings were fundamentally fair,
    or
    that petitioner was not prejudiced by the proceedings.

    3
    Respondent’s arguments raise questions of law and fact which are
    best decided after the hearing process.
    Accordingly, the Board
    denies the motions.
    Hearing in this matter shall proceed on
    August 19 as scheduled.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certi,y that the above order was adopted on the
    ~~Y-day of
    _________________,
    1993, by a vote of
    (
    /
    Thorothy N. G~nn”, Clerk
    Illinois Pollution Control Board

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