ILLINOIS POLLUTION CONTROL BOARD
August 26,
1991
LAND
AND LAKES COMPANY, JMC
)
OPERATIONS,
INC., and NBD
)
TRUST COMPANY OF ILLINOIS
)
AS TRUSTEE UNDER TRUST NO.
)
2624EG,
Petitioners,
PCB 91-7
v.
)
(Landfill Siting)
VILLAGE OF ROMEOVILLE,
)
)
Respondent,
COUNTY OF WILL,
and
)
PEOPLE OF THE STATE OF
)
ILLINOIS,
Intervenors.
DISSENTING OPINION (by -J.D.
Dumelle):
I dissent in this case because I am of the opinion that Land
and Lakes failed to comply with section 39.2(b) of the Act in that
the company did not notify all property owners within 250 feet of
the subject
property.
Ill.
Rev.
Stat.
1989,
ch.
111-1/2,
par.
1039.2(b).
Consequently,
I
would
hold
that
the
Village
of
Romeoville was without jurisdiction to render a decision on the
merits of Land and Lakes’
application.
The Kane County Defenders,
Inc.,
PCB, County Board of Kane County,
Illinois Sanitary District
of Elciin and City of Aurora,
139 Ill. App. 3d 588
(2nd Dist.
1985).
Additionally, assuming that the majority’s Section 39.2(b) analysis
is correct,
I would find that failure to notice the legislators in
accordance with Section 39.2(d)
is not jurisdictional, but rather
directory,
such that this procedural defect does not render the
proceedings void.
In today’s case, the majority found that “the evidence clearly
indicates that Land and Lakes did not notify that two property
owners of its intent to file its site location.”
(PCB 91-7 at 10).
The majority also found that these property owners were located
directly across the street from parcel
B.
For
some reason,
the
majority chose
to distinguish between parcels
A,
B
and
C
even
though all three parcels were submitted as part of Land and Lakes’
application.
The question then posed by the majority was whether
parcels B and C are part of the subject property as that phrase in
used in section 39.2(b)
of the Act..
(PCB 91-7 at 10).
The majority opinion then states:
Land
and Lakes
argues that the
subject
125—50 1
site referred to in Section 39.2(b)
is limited
to the actual sanitary landfill which, in this
instance,
is confined to Parcel A.
(Pet.
Br.
pp.
18-21; Reply Br.
pp.
6-9).
In support of
its
position,
Land
and
Lakes
cites
to
the
definition
of
the
term
“regional
pollution
control
facility”
that
is
found
in Section
3.32(a)
of the Act.
(Pet.
Br.
p.
18).
That
section defines a regional pollution control
facility as:
.any waste storage site,
sanitary landfill,
waste disposal
site,
waste transfer station,
waste
treatment
facility
or
waste
incinerator.
We
agree
with
Land
and
Lakes
that
the
definition
of
“regional
pollution
control
facility” equates the term “subject property”
with a “sanitary landfill”.
Section 3.42 of
the
Act
defines
“sanitary
landfill”
as
follows:
.a
facility
permitted
by
the
Agency for the disposal of waste on
land meeting the requirements of the
Resource Conservation
and Recovery
Act..
.
and
regulations
thereunder,
and without
creating
nuisances
or
hazards to public health or safety,
by
confining
the
refuse
to
the
smallest
practical
volume
and
covering it with a layer of earth at
the
conclusion
of
each
day’s
operation,
or by such other methods
and
intervals
as
the
board
may
provide by regulation.
The
above
definition
indicates
that we must
look to the activities
taking place
at each
parcel
in
order
to
determine
which
parcels
contain the sanitary
landfill and thus,
the
subject property.
There
is no question that
Parcel A contains the existing landfill
and
proposed
expansion,
and
was
so
identified
throughout these proceedings.
Thus,
it is
a
part
of
the
subject
property
for
Section
39.2(b)
notice
purposes.
Although
one may
argue
that
Parcels
B
and
C
should
be
considered
as
part
of
the
diversion
and/or
borrow
purposes,
it
would
be
difficult
to
construe
(and we do
not
so
construe)
these
125—502
3
non—contact, ancillary activities
as part of
the
definition
of
“sanitary
landfill”
in
Section 3.42 of the Act.
Based on the above, we conclude that only
Parcel
A
contains
the
regional
pollution
control facility.
The scope of
Romeoville’s
siting authority in Section 39.2(a) of the Act
is expressly limited to the regional pollution
control facility.
In other words, the subject
property for notice purposes
is the property
(or
properties),
as
legally
recorded,
that
encompassed
the
regional
pollution
control
facility.
The
250
foot
notice
is
to
be
computed from the lot line of that property.
As
a result,
Land and Lakes was not required
to notify the two property owners
in question
of
its
application
because
their
properties
are
more
than
250
feet
from
the
“subject
property”.
(PCB 91—7 at 11—12)
I am unable to see why the majority equates “subject property”
with
a
“regional pollution control
facility.
Nor am
I
able to
understand
how
“subject
property”
is
likened
to
a
“sanitary
landfill”.
The majority has apparently made this analogy without
the benefit of any authority.
If the legislature intended the term “subject property” to be
akin to “regional pollution control facility”,
it would have used
that term.
Had the legislature intended to restrict the notice
requirement
to
those
persons
within
250
feet
of
a
“regional
pollution control
facility” or the “sanitary landfill”,
it would
not have used
a
broader term
such
a
“subject
property”.
The
purpose of Section 39.2(b)
is to notify all landowners within 250
feet of the “subject property” that a company is proposing to use
the land as a garbage dump.
If notice is restricted to only that
land used as a sanitary landfill,
it
is entirely possible that an
applicant could position the sanitary landfill in
such a way that
notice would not be required to any adjacent landowners.
In other
words,
an
operator could simply buffer its actual landfill with
surrounding land which would not be a “sanitary landfill” per se,
thereby avoiding the notice requirements of Section 39.2(b).
Such
a result could not possibly be the intent of Section 39.2(b).
Moreover,
the majority’s analysis fails when it equates the
“subject property” to a sanitary landfill.
Section 3.42 of the Act
defines
a
sanitary
landfill
as
“a
facility
permitted
by
the
Agency..
.“
One
need
go no
further
than this
because
Section
39.2(b)
relates to the notice of landowners by a company which is
requesting site approval.
If a “sanitary landfill”
is defined by
125—5
03
4
statute as a permitted entity,
I fail to see how it can be equated
with
the
“subject
property”
which,
by
its
very
nature,
is
unpermitted.
Indeed,
the
operator
of the
subject property
is
precluded from applying for
a permit until
it has received site
approval pursuant to Section 39.2.
Finally, the Board has specifically considered the language
at issue in prior cases.
In Madison County Conservation Alliance,
et al.
v. Madison County and Environmental Control Systems,
Inc.,
PCB
90-239,
April
11,
1991,
the
Board held that notice by the
petitioner
was
deficient
and
vacated
the
decision
of
Madison
County.
In a similar issue concerning distinct parcels and notice
requirements, we held that “the Board cannot interpret the Section
39.2(b)
language
‘lot line of the subject property’ to mean that
only certain portions of the subject property are relevant”.
(PCB
90-239 at 8).
It is the applicant, by its application, who defines
the “subject property”.
The Board cannot say that,
for purposes
of notice,
parcel A,
at the exclusion of the remaining parcels,
constitutes
the
“subject
property”.
Nor
can
it
grant
siting
approval for parcel A only.
Land and Lakes petitioned for siting
approval of parcels A, B and C.
Either all three parcels,
or none,
are granted site approval.
Likewise,
all landowners within
250
feet of Land and Lakes application must be noticed.
Accordingly,
I
would
hold
that
Land
and
Lakes’
notice
was
defective.
Consequently, the Village of Romeoville did not have jurisdiction
to enter
its decision on the
application.
Wabash
and Lawrence
Counties Taxpayers and Water Drinkers Association v. The County of
Wabash and K/C Reclamation, mc,
144 Ill. Dec. 562
(5th Dist 1990).
As such, Romeoville’s decision should have been vacated.
*
*
*
In
addition
to
the
latter
issue,
I
disagree
with
the
majority’s ruling as it pertains to the interpretation of Section
39.2(d)
.
Section 39.2(d)
states:
...At
least
one public
hearing
is
to be held by
the
county board or governing body of the municipality no
sooner than 90
days but no
longer than 120 days from
receipt of the request for site approval,
such hearing
to be preceded by published notice
in
a newspaper of
general
circulation
published
in
the
county
of
the
proposed
site,
and
notice
by
certified
mail
to
all
members
of the General
Assembly
from the district
in
which the proposed
site
is located and to the Agency.
The public hearing shall develop a record sufficient to
form the basis
of appeal of the decision in accordance
with Section 40.1 of this Act.
Ill. Rev.
Stat.
1989,
ch.
111—1/2, par.
1039.2(d)
Based
on this provision,
the majority held that the Village
of
125—504
5
Romeoville had a duty to notify the members of the General Assembly
and that Romeoville’s failure to do so amounted to a jurisdictional
defect which caused Land and Lakes application to be granted by
operation of
law.
~,
Ill.
Rev.
Stat.
1989,
ch.
111-1/2
par.
1039(e)
To reach this conclusion,
the majority relies upon Illinois
Power Company v.
PCB,
137 Ill. App.
3d 449
(4th Dist.
1985).
In
that permit appeal case,
the
court held that the failure of the
Board to provide Section 40 notice of its hearing to the public and
the General Assembly was a jurisdictional defect which rendered the
Board’s decision invalid.
While both Illinois Power
and the
instant case present
an
issue of statutory construction,
Illinois Power is distinguishable
from the case at bar.
Section 40, which was at issue in Illinois
Power, imposes a duty upon the Board to notify the public.
Section
39.2(d),
the disputed subsection
in the case mandates that the
lcoal governing body (i.e. Romeoville) publish notice in the paper
and notify these members of the General Assembly whose constituency
will be affected.
As
in Illinois Power,
the question posed
by
today’s case
is whether the duty
imposed by Section
39.2(d)
is
mandatory (i.e.,
jurisdictional)
or directory (i.e., procedural).
Should it be held to be mandatory,
any failure to adhere to the
requirements would be fatal because jurisdiction would not attach.
Should it be deemed directory, however, the deficiency would only
amount to a procedural defect and the Board need only analyze the
harm incurred by Romeoville’s failure
to perform
its
statutory
duties.
In Illinois Power, the court emphasized that Section 40 of the
Act provides that “the Board shall give 21 days notice.
.
.and shall
publish
notice”
in
concluding that
the
notice
requirements
of
Section 40 are mandatory.
Here, the statute at issue does not use
the word “shall”.
I recognize that the use of the word shall
is
not dispositive; there are many cases which hold that despite use
of the word “shall”, statutes or a part thereof were directory.
People v. Ponter, 141 Ill. Ap.
3d, 208 (1st Dist. 1986);
People’s
Independent
PartY
v.
Petroff,
191 Iii.
App.
3d.
706
(5th
Dist.
1989),
Bartholomew
v.
U.S.,
740
F.
2d
526
(7th
Dist.
1984).
However in construing a provision as mandatory or directory, courts
look to the legislative intent as well as the consequences which
would result from a given construction.
Board of Library Trustees
of Frankfort Public Library Dist.
v. Board of Library Trustees of
Mokena Public Library Dist., 158 Ill. App. 3d 830 (3rd Dist.
1987);
Shipley v. Stephenson CountY Electoral Board, 130 Ill. App. 3d. 900
(2nd Dist.
1985); Ballentine v.
Bardwell,
132
Ill. App.
3d,
1033
(1st
Dist.
1985).
Such
an
analysis
is
lacking
in
both
the
majority’s opinion and the Illinois Power decision.
Looking at the aforementioned cases, it is clear that courts
weigh
the
injury
caused
by noncompliance
with
the
statute
in
125—5 05
6
conjunction with the effect of that noncompliance.
These factors
are considered equitably in order to reach a conclusion vis—a—vis
the directory or mandatory nature.
In the case at bar, there was
no injury caused by Romeoville’s failure to notify the legislators.
Indeed, there were 13 public hearings.
On appeal, the petitioner,
the Village of Romeoville, the Will County State’s Attorney and the
Attorney General have
all
participated.
In
short,
the public
participated
at
great
length
in the
process
of
this
case
and
therefore the intent of Section 39.2(d) was satisfied.
On the other
hand,
the majority’s
construction
of
39.2(d)
causes the landfill to issue by operation of law.
In so doing, the
merits of the county board decision are not even considered.
In
fact, as a matter of law, there was no decision.
Given the extreme
consequences of this decision,
I am unable to join the majority.
I
would
have
held that
Section
39.2(d)
is
directory and
then
addressed the merits.
In conclusion,
I wish to emphasize that
I would have never
reached the Section 39.2(d)
issue.
Pursuant to the first part of
this dissent,
I would have held Land and Lakes application to be
deficient in regards to the mandate of Section 39.2(b).
For these two reasons,
I respectfully dissent.
Jacob D.
Dumelle, P.E.
Board Member
I,
Dorothy M.
Gunn,
C erk of the Illinois Pollution Control
Board,
hereby
certify~t~at the
above
~issenting
Opinion
was
submitted on the
____________
day of
41Lt~~XJ~~1
,
1991.
Control Board
125—506
