ILLINOIS POLLUTION CONTROL BOARD
rlarch 24, 1988
RICK MOORE, ELEANOR MORRIS and
LEONARD MORRIS,
Petitioners,
v.
)
PCB 88—24
WAYNE COUNTY BOARD and
DAUBS LANDFILL, INC.,
Respondents.
ORDER OF THE BOARD (by B. Forcade):
On January 25, 1988, Rick Moore, Eleanor Morris, and Leonard
Morris (hereinafter “Petitioners”) filed a petition for review of
the Wayne County Board’s (hereinafter “Wayne County”) December
22, 1987 approving the proposed location of Daubs Landfill, Inc.
(“Daubs”) Landfill No. 3 in that county. The petition for review
was timely filed with this Board. By its Order of February 4,
1988, this Board mandated a public hearing which is scheduled to
occur March 25, 1988 in Wayne County. Absent receipt of a waiver
from Daubs, this matter is due for decision within a few days
after this Board’s May 19, 1988 meeting. Final filings are
currently due no later than April 14, 1988, after which this
matter will be first ripe for decision.
Facts
This appeal is of the second of two approvals by Wayne
County of the proposed Daubs Landfill No. 3. The first approval
by Wayne County occurred September 30, 1986, on a request for
landfill siting approval filed by Daubs on April 8, 1986. Wayne
County held hearings on that first petition on July 15, 16, 17
and 18, 1986. A group of affected third parties appealed that
first approval to this Board on November 3, 1986 (“Daubs 1”).
That group of three affected third parties included two of the
three present Petitioners in PCB 88—24 (“Daubs 2”). Daubs 1 was
assigned PCB 86—197 and a public hearing occurred on December 30,
1986. The PCB 86—197 appeal included issues of fundamental
fairness and a substantive attack on the’September 30, 1986
decision of Wayne County to approve the proposed landfill site.
This Board vacated the Daubs 1 Wayne County approval by its Order
of February 19, 1987. This Board (2 members dissenting)
determined that Daubs’ published notice of a proposed filing of a
petition for landfill siting was defective: the accurate
narrative description of the proposed landfill location did not
cure the defect in the legal description of the site. This Board
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held that the defective legal description predominated, so Wayne
County lacked jurisdiction to approve the landfill site. Daubs
appealed the Daubs I decision, and the Fifth District Appellate
Court reversed and remanded the case to this Board in an Opinion
dated February 19, 1988. The court held that the accurate
narrative description of the proposed site constituted the
substantial compliance required by such jurisdictional statutory
notice provisions which do not mandate use of a legal description
of the affected property. The Fifth District still holds the
record in the Daubs 1 proceedings and has only in the past day
issued its mandate vesting this Board with jurisdiction in that
case.
Daubs filed its second request for landfill approval for
Landfill No. 3 with Wayne County on July 8, 1987, ostensibly to
correct any defects in its initial petition. Wayne County
conducted hearings on this second request for approval on
November 9, 10, and 18, 1987. Wayne County approved the proposed
landfill site on December 22, 1987, and the petitioners filed
this present appeal with this Board, now designated PCB 88—24
(“Daubs 2”). Observing the apparent duplicative nature of this
second appeal during the pendency of Daubs 1 a February 25, 1988
Order of this Board requested the parties to brief certain issues
before March 17, 1988:
1. Whether both Daubs 1 and Daubs 2 involve
the same facility;
2. What differences exist between the two
proceedings if they involve the same
facility;
3. Whether this Board has authority to
entertain two parallel proceedings
involving the same facility; and
4. Which proceeding this Board should
dispose of if it cannot entertain both,
and how it should do so.
Daubs responded to this Order on March 7, 1988. It stated
that both Daubs 1 and Daubs 2 indeed involve the same proposed
facility, but highlighted the different postures of the two
proceedings:
1. In Daubs 1 the approval was based on an
8—4 vote of Wayne County, whereas it was
based on a 12—3 vote of a county board of
different composition in Daubs 2;
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2. Daubs 1 involved fundamental fairness and
substantive issues, but fundamental
fairness does not appear central to Daubs
2;
3. Although both Daubs 1 and Daubs 2 both
include two common petitioners, each
includes an additional petitioner who is
not a party to the other;
4. Different attorneys represent the
petitioners in the two proceedings;
5. The record is already closed in Daubs 1,
but hearings have not yet occurred in
Daubs 2; and
6. This Board must act within the mandate of
the Fifth District in Daubs 1.
Daubs believes that this Board could not terminate Daubs 2
without violating the rights of the parties and that this Board
must proceed to decide Daubs 1 because of the appellate court’s
mandate. Daubs felt there was no authority to support denying
the petitioner’s right to a full decision on the merits in either
case. Further, Daubs felt consolidation of these two appeals
would create procedural difficulties as a result of their
different postures.
The Daubs 2 Petitioners responded to the Order on March 16,
1987 by requesting dismissal of Daubs 1. The Petitioners stated:
The Board apparently has authority to
entertain two proceedings, but under the
doctrines of mootness, waiver and estoppel,
fundamental fairness and administrative
efficiency, the Board should not simultane-
ously entertain two proceedings.
The Petitioners conceded “that there are substantial procedural
differences in the postures of the two proceedings
...,“
and
“that consolidation of the two proceedings would result in a
‘procedural morass’ and that consolidation would not be in the
best interests of the parties, nor in the interest of judicial
economy, and
...
would prejudice the rights of petitioners
...“
The Petitioners focused on the fact that both Daubs 1 and Daubs 2
concern the same facility and site. They maintained that the
record in Daubs 2 will include “more current data pertaining to
site suitability than that of the prior application filed in
PCB 86—197.” They conceded that “each proceeding is apparently
identical but that the application, evidence, and exhibits
...
is
substantially different
...,
including different expert
87—20 1
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witnesses.” The Petitioners’ major legal argument in favor of
dismissal of Daubs 1 is that in correcting the defective notice
in its first application for siting approval by filing its second
application (Daubs 2) Daubs mooted any controversy in Daubs 1
and/or raised an estoppel to Daubs’ continued prosecution of that
initial application. They expressed their intent to file a
motion to dismiss Daubs 1 on behalf of the two common petitioners
when this Board receives the mandate of the Fifth District in
that case. The Petitioners conceded that although named as
appellees in the Fifth District appeal of Daubs 1, they chose not
to appeal that decision. They claim that the opinion of the
Fifth District should be vacated and dismissed as a matter of
law, and expressed an intent to petition that court for
dismissal. The Petitioners cite Concerned Boone Citizens, Inc.
v. M.I.G. Investments, Inc., 144 Ill.App.3d 334, 494 N.E.2d 180
(1986) in support of their argument that by filing its second
application for landfill siting (PCi3 88-~24), Daubs mooted the
proceedings regarding the first (PCB 86—197).
Neither Wayne County nor the Wayne County State’s Attorney
have responded to the February 25, 1988 Order.
Discussion
The statutory provision for review of county board approvals
of landfill
sitings greatly fetters the discretion of this
Board. By mandatory language, it states that this Boar3 “shall
hear” a petition for review “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...” Ill.Rev.Stat. ch. 111—1/2, section 1040.1(b)
(1987). The statute constrains review to the record before the
county board, Id., and consideration to the written county board
order, the hearings transcripts, and the “fundamental fairness”
of the procedures employed by the county board. Ill.Rev.Stat.
ch. 111—1/2, section 1040.1(a) (1987). Any evidence extrinsic to
the record before the county board may not enter the
considerations of this Board during review. Id. No specific
language currently in the statute prohibits or limits the filing
of multiple requests for landfill siting approval with the
appropriate county board.* The conclusion that this Board must
subsequently hear the ensuing petitions for review would ~o1low
the mandatory language of Section 40.1 of the Act. Only if one
of the three statutory criteria are arguably present should this
Board deny review:
~SB—749, P.A. 85—945, 1987 Ill.Law 445 (December 2, 1987,
effective July 1, 1988), has a provision that bars the filing of
a second application within two years of a denial. This new
provision provides no guidance in the present case.
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1.
The petition for review is “frivolous”;
2. The petition is “duplicitous”; or
3. The petitioners are not “affected” by the
county board action.
While review of both Daubs 1 and Daubs 2 is still co—pending,
neither petition is frivolous. This Board is still capable of
granting the demanded relief. This situation might change,
however, after this Board would affirmatively decide either
case. It appears from the statute that Daubs needs only a single
valid approval of siting from the county board. Ill.Rev.Stat.
ch. 111—1/2, section 1039(c) (1987).
Neither the petition in Daubs 1 nor that in Daubs 2 is
“duplicitous” in the sense that it includes resolution of issues
from multiple Wayne County orders or proceedings. Each
proceeding has an independent record, constitutes independent
orders, and is based on independent petitions for siting approval
and petitions for review. The respective decisions of this Board
are therefore based on independent considerations. The
prohibition against consideration of evidence extrinsic to the
record developed by the county board would operate to enhance the
independence of Daubs 1 and Daubs 2. It appears that this Board
could not dismiss one petition for review in favor of the other,
nor could it readily consolidate them for decision. Further, any
attempt to do so could risk violating the statutory time limit on
decision. Ill.Rev.Stat. ch. 111—1/2, section 1040.1(a) (1987).
Finally, the petitioners in both proceedings appear
“affected” third parties within the meaning of Section 40.1(b) of
the Act. In Daubs 2, one common petitioner purports to reside on
and own property within the Section 39.2(b) zone of the proposed
landfill site. The other common petitioner purports in Daubs 2
to reside within 3/4 mile of the site. In Daubs 1, all
petitioners purport to reside “in the immediate vicinity” of the
proposed site. Dismissal is not warranted on this basis.
Although the possibility of dismissing either Daubs 1 or
Daubs 2 bears some appeal for the resulting reduced workload of
this Board, the only issue currently before this Board is the
possible dismissal of Daubs 2. Both Daubs and the Petitioners
concede that this Board has authority and jurisdiction to
continue with Daubs 2 Both maintain that this Board cannot now
dismiss Daubs 2 without prejudice to the rights of the
Petitioners. Both agree that consolidation of Daubs 2 with Daubs
1 is inappropriate. This Board agrees. The Petitioners’
arguments in favor of the dismissal of Daubs 1 are inapposite to
the present issue of proceeding with Daubs 2. Further, they
ignore two vital facts about Daubs 1: this Board may only decide
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that case within the mandate of the Fifth District, and that case
is a petition for review of a county board siting approval. The
effects of these issues, of those raised in the Petitioners’
response to the February 25, 1988 Order, and of the filing of the
Daubs 2 application on the justiciability of Daubs 1 are best
reserved for when this Board receives the record in Daubs 1 from
the Fifth District so that it may proceed according to its
mandate. This Board cannot proceed unit it receives the record.
For the stated reasons, dismissal of Daubs 2 is
inappropriate. This Board will not interfere in the independent
progress of Daubs 2 at this time. This decision does not
consider or affect this Board’s jurisdiction over Daubs 1.
IT IS SO ORDERED
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the ?~‘~dayof _______________________, 1988, by a vote
of
(.-o
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
87—204