ILLINOIS POLLUTION CONTROL BOARD
November 29, 1990
RICHARD WORTHEN, CLARENCE BOHM,
)
HARRY PARKER,
GEORGE ARNOLD, CITY
)
OF EDWARDSVILLE, CITY OF TROY,
)
VILLAGE OF MARYVILLE,
and VILLAGE
)
OF GLEN CARBON,
)
Petitioners,
)
PCB 90-137
(Landfill Siting
V.
)
Review)
)
VILLAGE OF ROXANA and
LAIDLAW
)
WASTE SYSTEMS
(MADISON),
INC.,
)
Respondents.
GEORGE
J.
MORAN,
SR.,
CALLAHAN
& MORAN,
P. C., APPEARED ON BEHALF
OF PETITIONERS~
LEO
H.
KONZEN
AND BRIAN
KONZEN,
LUEDERS,
ROBERTSON,
&
KONZEN,
APPEARED ON BEHALF OF RESPONDENT LAIDLAW WASTE SYSTEMS
(MADISON),
INC..
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter
is before the Board
on a July
23,
1990 petition
for hearing to contest the June 18,
1990,
decision of respondent
the
Village
of
Roxana
(Roxana).
Petitioners
Richard
Worthen,
Clarence
Bohm,
Harry
Parker,
George
Arnold,
the
City
of
Edwardsville, the City of Troy, the Village of Naryville,
and the
Village
of Glen Carbon
(collectively,
petitioners)
ask that this
Board review Roxana’s decision granting site approval to respondent
Laidlaw Waste Systems
(Madison),
Inc.
(Laidlaw)
for expansion of
its Cahokia
Road
landfill.
The petition
for review
is
brought
pursuant to Section 40.1 of the Environmental Protection Act (Act).
(Ill.Rev..Stat.
1989,
ch.
111
1/2,
par.
1040.1.)
This Board held
a public hearing on the petition for review on October
2,
1990.
PROCEDURAL HISTORY
On
January
2,
1990,
pursuant
to
Section
39.2
of the
Act,
Laidlaw filed an application with Roxana for siting approval of a
vertical and horizontal
expansion
of
its existing
Cahokia
Road
landfill.
This proposed facility had previously been the subject
of a siting proceeding before the Madison County Board in late 1987
and early
1988.
On February
8,
1988,
the Madison
County Board
denied siting approval.
A second application for siting approval
was
filed with
the Madison
County
Board
in
June
1988,
but was
116—2
83
2
withdrawn
by
the
applicant
before
a
decision
was
made.
(Application for Regional Pollution Control Facility Site Approval
for
the
Cahokia
Road
Sanitary
Landfill,
Village
of
Roxanna,
Illinois
(hereafter
“App.”),
Vol.
I,
p.
27.)
The
site
of
the
facility
was
subsequently
annexed
to
Roxana,
pursuant
to
an
agreement between Laidlaw and Roxana.
Public hearings on the instant application were held by the
Roxana Regional Pollution Control Hearing Committee on April
3,
4,
5,
6,
10, and 11, 1990.
A hearing officer, Thomas Immel, conducted
the hearings.
On
June
18,
1990,
the Roxana
Board
of
Trustees
adopted
the
hearing
committee’s
findings
of
fact
and
approved
Laidlaw’s
request
for
siting
approval
for
expansion
of
the
facility.
MOTION TO DISMISS PARTIES
On August 10,
1990, Laidlaw filed a motion seeking to dismiss
four
of the eight
named petitioners
as
parties
to this
appeal.
Specifically,
Laidlaw seeks to dismiss Richard Worthen,
City of
Troy,
Village
of
Maryville,
and Village
of
Glen
Carbon
on
the
grounds that those four petitioners are not located
so
as
to be
affected by the proposed facility.
These
four petitioners
filed
their
answer
to
the motion
to
dismiss
on
August
22,
1990.
On
August 30,
1990,
this Board issued an order stating that it would
take the motion with the case.
The Board believed that there was
insufficient
information
before
it
at
that
time
to
determine
whether the four petitioners are located so as to be affected by
the proposed facility, and thus directed the parties to address the
motion at hearing
and
in their
briefs.
The motion must now be
decided.
Section
40.1(b)
of
the
Act,
which
governs
this
appeal,
provides that this Board shall hear the appeal of any third party
who participated in the local hearings and is so located as to be
affected by the proposed facility.
Laidlaw asks that the Board
dismiss the petitioners because they are not located
so as
to be
affected
by
the proposed
faci1ity.~
In
support
of
this
claim,
Laidlaw states that:
1) the City of Troy is located 7.5 miles from
the proposed facility,
and its municipal water supplies are over
9 miles from the proposed facility;
2) the Village of Naryville is
located
6.2 miles
from the proposed facility,
and its municipal
water
supplies are 5.2 miles
from the proposed facility;
3)
the
City of Glen Carbon is
3 miles from the proposed facility, and its
municipal water supplies are 5.7 miles from the proposed facility,
1
Laidlaw
does
not
contend
that
the petitioners
did
not
participate at the local level, as required by Section 40.1 of the
Act. As the Board noted
in its August
9,
1990 Order
in this case,
it
appears
that
the
petitioners
did
indeed participate
in
the
hearing below.
116—284
3
and
the
City
of
Edwardsville
is
located
between
the
proposed
facility and Glen Carbon; and
4) Richard Worthen lives in the City
of
Alton,
which
is
located
6.5
miles
to the northwest
of
the
proposed
facility.
Therefore,
Laidlaw
asserts
that
these
petitioners are not located so as to be affected by the proposed
facility,
and must be dismissed.
In response,
the
four petitioners
contend that Laidlaw has
waived its right to argue that the four petitioners are not proper
parties to this appeal when Laidlaw failed to raise this claim at
the
local
hearings before the Roxana Regional Pollution Control
Hearing Committee.
Petitioners also maintain that they are indeed
located so as to be affected by the proposed facility.
The Board first notes that although it specifically asked the
parties to address this issue at the Board hearing, the parties did
not do so.
Thus,
there is no more evidence on the factual issues
of this motion
before the
Board than there was at the time the
motion was
filed.
The Board must rule on the motion,
however.
Initially,
the Board finds that Laidlaw did not waive its claims
by failing to raise the issue at the local level.
The requirement
that a person who appeals a local decision be located so as to be
affected
is found only
in Section 40.1 of the Act.
All activity
at the local level is governed by Section 39.2 of the Act, and that
section does not limit participation to those who are located so
as to be affected by the proposed facility.
Therefore, there was
no
basis
for
Laidlaw
to
object
to
the
four
petitioners’
participation
at the local
level.
In other words,
there was no
issue
as to
a person’s standing at the
local
level,
and Laidlaw
properly raised the issue for the first time before the Board.
The
Board reached this same result
in Valessares
v. The County Board
of Kane County,
79 PCB 106,
115—117
(PCB 87—36,
July 16,
1987)
Laidlaw’s arguments on the substance of its motion to dismiss
are based on the distance that the four challenged petitioners are
located from the facility.
Laidlaw contends, and the petitioners
have not disputed, that those challenged petitioners are located
between
3
and
9 miles from the proposed facility.
Laidlaw thus
concludes
that
the
petitioners
are
not
located
so
as
to
be
affected.
The Board
rejects
that
claim,
and
denies
Laidlaw’s
motion
to dismiss the
four challenged petitioners.
On the one
hand,
Laidlaw contends that the petitioners are not located so as
to be affected, while on the other hand it is undisputed that the
four challen2ged petitioners live within the service area as defined
by
Laidlaw.
The Board
does not
see how petitioners
who
live
2 The Board notes that there is some dispute as to whether the
intended service area of the proposed facility is the three-county
area
of Madison,
St.
Clair,
and Monroe
Counties,
or whether the
intended service area
is a 100—mile radius of the facility.
This
dispute has no bearing on the Board’s
ruling
on the motion
to
116—285
4
within the service area are not “so located as to be affected by
the proposed facility.”
Again, the Board reached the same result,
under very similar
facts,
in Valessares.
79
PCB
106,
117—119.
The Board also notes that Laidlaw’s implication that the challenged
petitioners’ water supplies are not affected by the facility is not
persuasive,
since
the
effect
of
a
proposed
facility
on
water
supplies is not the only issue to be considered in a local siting
proceeding.
Laidlaw’s
motion
to
dismiss
the
four
challenged
petitioners
is denied.
STATUTORY FRAMEWORK
At the local
level,
the siting approval 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.
Only if the local body finds
that all applicable criteria have been met can siting approval be
granted.
The Roxana Village Board of Trustees found that Laidlaw’s
application met all of the applicable criteria, and thus granted
siting approval
for the proposed expansion.
(Ordinance No.
582,
adopted June
18,
1990.)
When reviewing a local
decision on the
criteria, this Board must determine whether the local decision was
against the manifest weight of the evidence.
E
& E Hauling,
Inc.
v. Illinois Pollution Control Board, 116 Ill.App.3d 586, 451 N.E.2d
555
(2d Dist.
1983),
aff’d
in part 107 Il1.2d 33,
481 N.E.2d
664
(1985); Waste Management of Illinois,
Inc.
v.
Illinois Pollution
Control Board,
122 Ill.App.3d 639, 461 N.E.2d 542
(3d Dist.
1984)
In this case, petitioners have not challenged Roxana’s findings on
the substantive criteria of Section 39.2,
so there are no issues
on the criteria before the Board.
Additionally,
the
Board
must
also
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.
The
parties
in
this
proceeding
have
framed
all
of
the
issues
as
fundamental fairness issues.
However, the Board believes that one
of
the
issues
is
a
jurisdictional
issue,
and will address that
issue first.
JURISDICTION
In
their
petition
for
hearing,
petitioners
contend
that
Laidlaw is barred from receiving site approval because the instant
application for site approval violated the “two—year” restriction
of Section 39.2(m).
That subsection states:
An applicant may not file a request for local
siting approval which is substantially the same
dismiss, because the petitioners are all located in Madison County.
116—286
5
as a request which was disapproved pursuant to
a finding against the applicant under any of
criteria
1 through 9 of subsection
(a) of this
Section within the preceding two years.
(Ill.Rev.Stat.
1989,
ch.
111
1/2,
par.
1039.2 (m)
.)
This
contention--that
Laidlaw
filed
its
application before
the
Roxana Board in violation of this subsection——was part of a motion
to dismiss raised at the local
level.
That motion to dismiss was
denied
by the hearing
officer.
(Tr.
4—3—90,
pp.
40-44.)~ Both
parties
subsequently
argued
this
issue
before
the
Board
as
questions of fundamental fairness:
whether fundamental fairness
was denied when the hearing officer made a finding on the issue,
rather than the Roxana hearing committee,
and whether fundamental
error occurred when the Roxana hearing committee failed to make a
finding on the issue.
However, this Board believes that the issue
is properly framed as a jurisdictional issue.
If the application
was filed in violation of subsection
(m), then the Roxana Board of
Trustees had no jurisdiction to consider the application.
The facts on this issue are undisputed.
On August 19,
1987,
GSX Corporation of Illinois filed an application for approval of
expansion of the “Barton Landfill”.4
GSX Corporation of Illinois
is now known
as Laidlaw Waste
Systems
(Madison),
Inc.
(Tr.
4-3—
90,
p.
80; App. Vol.
I,
pp.
24,
27.)
That application was denied
by
the
Madison County Board on February 8,
1988.
(App. Vol.
I,
p.
27; Vol. II, Appendix C, pp.
C3-C9.)
The landfill was subsequently
annexed to Roxana,
pursuant to
an
agreement between Laidlaw and
Roxana.
On January 2,
1990, Laidlaw filed the instant application
with
Roxana
for
siting
approval
of
a
vertical
and
horizontal
expansion of the landfill.
The petitioners argue that this 1990
application was
filed
too
early,
in violation of the
two
year
restriction of subsection
(m).
Petitioners contend that the two
year period begins to run on the date that the first
application
is disapproved--in this case, February 8,
1988.
On the other hand,
Laidlaw maintains that the two year period begins on the date the
first application is filed——here, August 17, 1987.
If petitioners’
interpretation
of the
statute
is
correct,
this
application was
filed 36 days too soon, and violates subsection
(in).
If Laidlaw’s
interpretation
is
correct,
this
application was
filed
several
months after the expiration of the two year period.
“Tr.” and the applicable date will be used to refer to the
transcripts of the local hearings.
The name “Barton Landfill” apparently arose from the fact
that the landfill was originally operated by Donald Barton.
This
is
the
same
facility
which
is
now known
as
the
Cahokia
Road
Sanitary Landfill.
(App. Vol.
I,
p.
27.)
116—287
6
Neither the Board
nor the courts
have addressed the
issue
presented here:
whether the two year period between applications
for siting approval begins to run on the date of
filing of the
first
application
or
on the
date
of
disapproval
of
the
first
application.
Subsection
(m) was added to Section 39.2 by P.A. 85-
945, effective July
1,
1988.
When construing a statute, one looks
first at the plain language of that statute.
(Kirwan v. Welch,
133
Ill.2d
163,
549
N.E.2d
348,
139
I1l.Dec.
836
(1989);
American
Country Insurance Co.
v. Wilcoxon, 127 Ill.2d 230,
537 N.E.2d 284,
130 Ill.Dec.
217
(1989).)
The language of subsection
(in),
as it
relates to the time period,
states:
An applicant may not file a request for local
siting approval which is substantially the same
as a request which was disapproved.
.
.within the
preceding two years.
(emphasis added.)
The Board believes that this language hinges on the disapproval of
the first application.
The statute states that an applicant cannot
file
a
second application which
is
substantially the
same
as
a
request which was disapproved within the preceding two years.
The
phrase
“within the preceding two years” must
be given its plain
meaning.
That phrase refers back to the disapproval of the first
application, not to the filing of the first application.
In other
words,
if a substantially similar application has been disapproved
at any time within the two years prior to the filing of the second
application, that second application is barred by subsection
(in).
The
Board
finds
that
the
two
year
prohibition
on
filing
a
substantially similar application for siting approval begins to run
on the date of disapproval of the first application,
not on the
date
of
filing
of
the
first
application.
Therefore,
because
Laidlaw filed the instant application for siting approval within
two years of the disapproval of the first application, the second
application violated subsection
(in).
The
Board
notes
that
there
are
two
other
factors
to
be
considered
in applying subsection
(in)
to this
case.
First,
the
statute prohibits the filing of a request which is “substantially
the same” as an earlier request.
Although Laidlaw did contend,
in
response to petitioners’ motion to dismiss at the local level, that
the two applications are not substantially similar, Laidlaw has not
raised this claim before this Board.
The Board has reviewed the
record,
and
believes
that
the
two
applications
are
indeed
“substantially similar.”
Both applications seek expansion of the
same
facility.
Second,
the two applications
in this case were
brought before two different local decisiorimaking bodies--the first
before the Madison County Board and the second before the Roxana
Board
of Trustees.
Laidlaw does not contend that subsection
(in)
is
limited to two substantially similar applications before the
same decisionrnaking body,
and the Board does not believe that the
subsection is so limited.
The language of the statute speaks only
116—288
7
of substantially similar requests for siting approval, filed within
two years of the disapproval
(on the merits)
of the first request.
There is no requirement that both applications be before the same
decisionmaker.
Because Laidlaw’s application was filed within the two year
prohibition
of
subsection
(in),
the Board
finds
that the Roxana
Board
of Trustees had no jurisdiction to consider the
request.
Because the jurisdictional issue is dispositive of this proceeding,
the Board will not consider the other issues raised by petitioners.
ORDER
The Board finds that Laidlaw’s application for siting approval
was filed less than two years after the disapproval of the first,
substantially similar request for siting approval,
in violation of
Section
39.2(m)
of
the
Act.
Therefore,
the
Roxana
Board
of
Trustees had no jurisdiction to consider the application.
Roxana’s
decision granting site approval
is reversed.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that t~ above Opinion and Order was adopted
on
the
/~
day
of
________________,
1990,
by
a
vote
of
7—0.
~
Dorothy M. ,~ünn, CI’erk
Illinois PcI~LutionControl Board
116—28
9