ILLINOIS POLLUTION CONTROL BOARD

October

6,

1988

RICK MOORE, LEONARD MORRIS

and EDITH SIMPSON,

)

Petitioner,

V.

)

PCB 86—197

WAYNE

COUNTY BOARD and

)

DAUBS LANDFILL,

INC.,

)

Respondents.

DISSENTING OPINION (by J.D.

Dumelle):

I dissent from the majority decision denying Petitioner’s

motion to vacate the Board’s June

2,

1988, Opinion and Order.

For the reasons set forth

below,

I would have granted

Petitioner’s motion to vacate that order

for lack

of

jurisdiction.

On June

2,

1988,

the Board adopted

an Opinion and Order

upholding

the decision of

•the Respondent Wayne County Board

granting site approval ?oDaubs

Landfill

Inc.

On July

7, 1988,

Petitioners Rick Moore and Leonard Morris filed

a motion to

vacate the June

2,

1988 Order alleging that

a landowner required

to be served with notice

of

the siting approval application was

in fact not served, thereby defeating

the jurisdiction

of

the

Wayne County Board

to review the application and,

further,

of

this Board

to review the decision of the County.

Attached

to

Petitioners’

motion as “Exhibit A” was

a Certification of Tax

Record Ownership of Property,* signed by the Supervisor

of

Assessments

of Wayne County.

This Certification states that the

owner of

two parcels

of property within

the, subject site,

as

shown by the authentic tax records

for 1986, was the Wayne County

Bank

& Trust Company.

Petitioners allege,

and the record does

not contradict,

that the Wayne County Bank

& Trust Company was

not served with notice of the application as

required by Section

39.2 of the Environmental Protection Act.

Section

39.2(b)

states:

*

The argument has been advanced that this Certification was

not part

of the County record upon which the Board must render

its decision,

therefore

the Board cannot consider

it.

I do not

agree.

The Certification

is intimately associated with the

notice requirement aspect of the application, which

is part of

the record.

I do not know how better

to evidence

a

jurisdictional defect than by such

a Certification.

However,

I

would require

that such Certifications

be notarized.

93—15

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—2—

No

later

then

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

and

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,

Petitioners argue that failure to serve

the Wayne County Bank

constitutes

a jurisdictional defect,

which may be raised

at any

time,

“divesting” the County Board and

this Board

of

jurisdiction.

On August

4,

1988,

the Board issued

an order

requesting

additional information with respect

to this jurisdictional

issue.

In response, Petitioners submitted

their brief on August

25,

1988,

and Respondent submitted its brief on September

14,

1988.

Petitioners cited cases

to support the proposition that

the right

to assert a jurisdictional

issue exists at any time and

in any proceeding,

directly or collaterally.

Respondent cited

cases which stand for the proposition

that although subject

matter jurisdiction maybe contested at any time, jurisdiction of

the subject matter does not mean simple jurisdiction of the

particular

case, but jurisdiction of the class

of cases to which

the individual

case belongs.

Further, Respondent cites,

and the

majority reiterates, People ex rel.

Person for the proposition

that where

the subject matter of the litigation

is within the

general

jurisdiction of

the tribunal,

the claim of want

of

jurisdiction by reason of special circumstances. canjiot

be raised

for the first

time on appeal.

Although the majority correctly

recognizes that these cited cases involve proceedings before

a

trial court and not an administrative agency,

the majority relies

on these

cases

to support

its view that

it

is now too late

to

consider

such

a jurisdictional claim.

The majority indicates

that the appropriate

time

to raise

such

a claim

is before the

County Board or

in

a petition to this Board

for review of the

siting approval.

With respect

to the facts of this case,

I do not agree.

Section

39.2(b)

of the Act sets forth

the notice requirements of

a site location suitability application.

These requirements have

been held

to be jurisdictional.

Wabash and Lawrence Counties

Taxpayers

and Water Drinkers Association and Kenneth Phillips

v.

The County of Wabash and K/C Reclamation,

Inc.,

PCB 87—192

(December

3,

1987), citing Kane County Defenders,

Inc.

v.

Pollution Control

Board,

139

Iii.

App.

3d

588,

487 N.E.2c3

743

(2nd Dist.

1985); Browning—Ferris Industries,

Inc.

v.

Illinois

93—16

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—3—

Pollution Control Board,

No. 5—86—0292,

____

Ill.

app.

3d

____

N.E.2d

___

(5th dist.

1987).

Concerned Boone Citizens,

Inc.

v.

M.I.G. Investments,

Inc.,

144

Ill.

App.

3d

344,

494, N.E.2d 180

(2nd Dist.

1986); The Village

of Lake

in the Hills

v.

Laidlaw

Waste Systems,

Inc.,

143

Ill.

App.

3d 285,

492 N.E.2d

969

(1986);

See also McHenry County Landfill,

Inc.

v.

Environmental

Protection Agency,

154 Ill.

App.

3d 89,

506 N.E.2d 372

(2nd Dist.

1987).

Kane County Defenders clearly states that the notice

requirements of the Act must be met before jurisdiction

is vested

with the County.

In Wabash County,

the Board

found the County

to

be without jurisdiction where written notices

of the application

were sent, but service of the notices was accomplished one day

late,

i.e.,

13 days before the application was filed.

Consistent

with the strict interpretation of the notice requirements as

jurisdictional requirements articulated

in the above—cited cases,

I believe

that

if indeed the Wayne County Bank was the owner

of

parcels of the subject site,

as evidence by the authentic tax

records

of the County,

and the Wayne County Bank was not served

with notice,

then the Wayne County Board was without jurisdiction

to hear the application and grant

its approval thereon.

Likewise,

this Board

is without jurisdiction to

review the Wayne

County approval.

In other words,

I would

hold that the County’s

action on the application

is void

ab

initio.

The majority,

however, does not address

the merits

of the

jurisdictional challenge.

Rather,

the majority opts

to decide

that

it

is now too late

to advance such

a challenge.

This seems

to me like putting the cart before the horse.

If notice was

defective,

the Board

is without jurisdiction not only to review

the application but also to determine

that

it

is

too late

to

contest jurisdiction.

In other words,

if jurisdiction never

vested with

the County Board and then with this Board,

all

of

the

County Board’s and this Board’s actions are null

and void for

lack of jurisdiction, the majority’s decision today included.

The majority cannot now find jurisdiction where

it did not

previously exist.

In arriving at this conclusion,

I am not unsympathetic to

the majority’s position that a motion

to vacate filed nearly

two

years after

the County Board’s decision

is untimely.

I recognize

that at some point .after the siting approval process

is complete,

jurisdictional

challenges may need to be cut off.

But

in this

case,

it

is not enough

to say that the motion

to vacate

is

untimely because

it was filed nearly two years after

the County

decision.

This

ignores the fact that the Board’s review period

had not yet expired.

The Board

rendered its decision on June

2,

1988.

Section 103.240 of the Board’s Procedural Rules

(35 Ill.

Adm. Code 103.240) permits motions subsequent to entry of final

orders within

35 days after

the adoption of

a final

order.

The

Petitioner’s motion was filed with that

35 day period.

I believe

Petitioner’s motion

to vacate was therefore timely filed.

Had

it

been filed

after

the

35 day period permitted

by Section 103.240,

I might believe differently.

93—17

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—4—

I,

therefore, would have held that the motion to vacate was

not untimely filed.

Further

I would have requested,

at

a

minimum,

a notarized Certification from the Wayne County

Supervisor

of Assessments and would have considered scheduling a

hearing to permit Respondent

to cross—examine such Supervisor,

if

such was requested by Respondent.

Once the record was complete,

I would have vacated the June 2, 1988 Order and dismissed.

For

these reasons,

I respectfully dissent.

~Y.Jacob

D. Dumelle,

P.E.

Chairman

I, Dorothy

M. Gunn, Clerk

f the Illinois Pollution Control

Board,

hereby certify that the above Dissentin

Opinion was

submitted on the

/J’~

day of

_____________,

1988.

Dorothy M/Gunn,

Clerk

Illinois Pollution Control Board

93—18