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.
STEPHEN F. HEDINGER APPEARED ON BEHALF OF PETITIONERS,
LAWRENCE C. TIEMAN APPEARED ON BEHALF OF RESPONDENT,
GLENN
C. SECHEN,
MATTHEW M.
KLEIN, AND BARBARA J.
SMILES APPEARED
ON BEHALF OF THE COUNTY OF WILL,
RICHARD KAVANAGH APPEARED ON BEHALF OF THE FOREST PRESERVE
DISTRICT OF WILL COUNTY, AND
MARK W. MONROE APPEARED ON BEHALF OF VARIOUS LANDOWNERS.
OPINION
AND
ORDER OF THE BOARD
(by J. Anderson):
This matter
conies before the Board upon the January 15, 1991
filing of a petition for hearing by Land and Lakes Company,
JMC
Operations,
Inc., and NBD Trust Co.
of Illinois, as Trustee under
Trust No. 2624EG
(“Land and Lakes”).
Land and Lakes contests the
refusal of the Board of Trustees of the Village of Romeoville
(“Romeoville”)
to grant approval to Land and Lakes for location
of an expansion of its regional pollution control facility
pursuant to Section 40.1(a)
of the Environmental Protection Act
(“Act”)(Ill.
Rev.
Stat.
1989,
ch.
111½,
par.
1041.1(a)).
1There
is
some
confusion
in
the
record
as
to
whether
Romeoville denied Land and Lakes’
request
for site approval
or
whether it conditionally approved the request.
Please refer to the
section
entitled
“Procedural
History”
for
a
more
thorough
125—483
2
PROCEDURAL HISTORY
On December 21,
1989, Land and Lakes entered into an
annexation agreement with Romeoville.2
In that agreement,
Romeoville obtained landfill siting decision—making authority and
Land and Lakes made certain commitments to Romeoville concerning
the landfill siting proceeding.
On May14,
1990,
Land and Lakes
filed with the Clerk of Romeoville an Application for Site
Location Approval,
in which it requested siting approval for a
proposed expansion to its regional pollution control facility.
(C-001-2804).
Public hearings were held in Will County on the
following dates:
September 24, 25,
26, and 27,
1990; October
2,
3,
4,
8,
9,
10, and 17, 1990; and December
6 and 12,
1990.
At its December 12,
1990 meeting, Romeoville’s Hearing
Officer drafted two alternate resolutions.
One resolution
denied siting approval because Criterion 1 had not been satisfied
and the other granted siting approval because all of the criteria
had been satisfied.
(C—9927~. Each resolution also contained
five conditions to approval.
(C-9928).
At that meeting, the
Village Board unanimously voted to add a sixth condition, which
stated that,
if approved, the facility would restrict solid waste
received to waste originating in Will County and/or communities
partly in Will County.4
(C—9929—9934, —9938—9939,
—9961—9962).
When asked to respond to the conditions, Land and Lakes stated
that it did not agree with Condition
2
(requiring a full-time
independent engineer to oversee daily landfill operations for
quality control and assurance to be paid for by Land and Lakes
and approved by Romeoville) or to Condition
6, but that it agreed
discussion.
2At our May
3,
1991 hearing,
Land and Lakes presented the
Hearing Officer with a Motion to Supplement the Record, asking that
the annexation agreement be added to the Village Board’s record.
(R.
9).
In
support
of
its motion,
Land and Lakes
stated that
although the Village Board agreed to take quasi-judicial notice of
the agreement at its December
6,
1990 meeting, the agreement was
inadvertently omitted
from the record
that
was
filed with the
Board.
(R.
10,
C-9770, —9790-9792).
The Hearing Officer granted
Land and Lakes’ motion at the end of the hearing.
(R.
245).
3The Village Board’s written “Findings of Fact and Decision”
(which was attached to the final resolution)
states that Land and
Lakes met its burden with regard to Criteria
2 through 9 provided
it agreed to
follow and comply with the five
conditions
(i.e.,
conditions to Criteria
2,
3, and 5).
(C—4354—4372).
4We note that the Village Board’s written “Findings
of Fact
and Decision” does not contain this condition.
(C-4371).
125—484
3
to Conditions
1,
3,
4, and 5•5
(C—9939—9943,
—9959)
.
Land and
Lakes also provided two counter—proposals to Conditions
2 and 6,
both of which the Village Board rejected.
(C-9940-99431,
—9946,
-
9958).
The Village Board then unanimously voted to deny siting
approval on jurisdictional grounds and,
in the alternative, to
deny the approval based on the merits
(i.e., that Land and Lakes
did not meet its burden of proof with regard to Criterion 1).6
(C—4334—4372,
—9970—9972)
As previously stated,
Land and Lakes filed its petition for
hearing with the Board on January 15,
1991.
Subsequent to such
time, the Board received three petitions for leave to intervene
in support of Ronieoville’s refusal to grant siting approval.
The
first petition was filed by the States Attorney for Will County
on January 16, 1991.
The second petition was filed by Paul and
Ann Jurca, John and Marlene Jurca, Kelby and Mary Briddick,
Lawrence and Diane Kollins, James and Ann Dralle, Robert and Jean
Hastert, Robert C. and Doris Hastert, Blanche Hassert,
and
Fillup,
Inc.
(d/b/a as White Fence Farms,
Inc.)
(“Jurca”) on
January 18,
1991.
The third petition was filed by the Forest
Preserve District of Will County on February
4,
1991.
The Board
denied the Jurca’s motion on January 24,
1991.
On February 7,
1991, the Board denied the Forest Preserve District’s petition,
but granted the States Attorney’s petition because it found that
the States Attorney,
when acting on behalf of the People of Will
County, has interests analogous to those asserted by the Attorney
General,
and that the interests of the People of Will County
could be adversely affected by the Board’s decision in the case.
The Board’s hearing on this matter was held on May
3,
1991,
in Romeoville, Will County,
Illinois.
Land and Lakes filed its
closing argument on June 10,
1991, and Romeoville and Will County
filed their closing argument on July 10,
1991.
On July 11, 1991
the Attorney General filed a petition for leave to intervene on
behalf of the People of the State of Illinois for the purpose of
presenting a brief in support of the constitutionality
of the
siting approval provisions of Section 39.2 of the Act.
The
Hearing Officer granted the request for leave to intervene on
July 26,
1991.
Land and Lakes filed its reply brief on July 24,
1991.
BACKGROUND
5We note that the Village Board’s written “Findings of Fact
and Decision” indicates that Land and Lakes agreed to be bound by
Condition 2.
(C—4358).
6We note that,
when voting on the resolution,
a majority of
the
Village
Board
members
articulated
their
concerns
and/or
disagreement with certain aspects of Criterion 2.
(C-9971-9972).
125—485
4
Land and Lakes has operated the Willow Ranch Sanitary
Landfill since 1981.
(C—05,
—095).
The landfill is part of a
project site that is subdivided into three parcels
(A,
B, and C).
(C-O5, —012—013,
—034, —095).
Parcel A consists of approximately
99.3 acres, Parcel B consists of approximately 41.5 acres, and
Parcel C consists of approximately 15.3 acres.
(C-035).
The
landfill itself is located on 33 acres of land in Parcel A and at
the southeast corner of the intersection of Joliet Road and Bluff
Road
in Romeoville, Will County, Illinois.
(C—05,
—035,
—2981).
About 30.6 acres of Parcel A have been permitted for landfill
operations and have already received wastes.
(C—342).
The
landfill currently accepts non—hazardous solid waste and services
communities in northern Will County, the extreme southeastern
portions of DuPage County, and the far western communities of
Cook County.
(C-014,
-035).
Although wastes will not be
landfilled within Parcels B and C,
drainage facilities to divert
the flow of water around the landfill will be located on those
two parcels.
(C—115—l16,
—3827—3828).~ Parcel B may also be used
as a borrow source for landfill liner and/or cover soils in the
future.
(C—095,
—3827,
7647—7648).
Because the existing landfill is reaching capacity,
Land and
Lakes submitted a siting application for the expansion of the
landfill in order to increase the capacity of the site.
The
expansion will extend the approximate life of the facility an
additional 12.2 years and will be located immediately north and
west of the existing site.
(C—013,
—014,
-035).
The total
acreage of the existing and expanded facility will be
approximately 99.3 acres, all located on Parcel A.
(C-05, -035,
-095).
The proposed expansion involves additional filling on 23
acres
in the 30.6 acre area currently permitted and the filling
of an additional 43.4 acres to the west and north of the
currently permitted area.
(C-342).
As a result,
approximately
73.6 acres of Parcel A will be used for the actual landfilling of
wastes.
(C—035).
The landfill expansion will continue to accept non—hazardous
solid waste
as well as Village-approved,
state—permitted,
non—
hazardous,
non—liquid special waste
(i.e., de—watered waste water
treatment plant sludge from Romeoville).
(C—05,
—013,
-014—015,
-035).
Land and Lakes also intends to develop,
at a later date,
an on-site material recovery/recycling facility at the northwest
corner of the property, and to continue the operation of a
compost facility at the site.
(C-05,
-013, —035).
PRELIMINARY MATTERS
7Land
and
Lakes,
in
its
siting
application,
states
that
Parcels
B and C are designated for manufacturing and commercial
use, respectively.
(C—035,
—095)
125—486
5
Costs for Certifying Record
On May 6,
1991, Land and Lakes filed a motion requesting
that it not be required to reimburse Romeoville for preparing and
certifying certain portions of the record.
Romeoville filed its
response to the motion on May 22, 1991.
On May 23,
1991, the
Board issued an order taking the motion with the case.
The Board
need not rule on the motion,
however, because Land and Lakes
withdrew its motion on May 29,
1991.
AttorneY General’s Motion for Leave to Amend Brief
On July 11,
1991, the Illinois Attorney General filed a
brief on behalf of the People of the State of Illinois and in
support of the constitutionality of Section 39.2 of the Act. On
July 29,
1991,
the Attorney General filed a motion for leave to
amend the first sentence of the “history” section of the brief to
state that the Village of Romeoville denied rather than approved
the siting of Land and Lakes’
proposed facility.
Land and Lakes filed a response to the motion on August
8,
1991,
stating that it has no objection to the Attorney General’s
motion.
However, Land and Lakes requests that if the Board
grants the motion, it should also recognize the Attorney
General’s implicit position that Romeoville possessed
jurisdiction over Land and Lakes’ application for siting
approval.
We hereby grant the Attorney General’s motion.
Because the
Attorney General’s brief addresses only the issue of the
constitutionality of Section 39.2 of the Act, we do not agree
that the amendment reflects an inherent belief that Romeoville
possessed jurisdiction in this matter, nor do we equate a
statement regarding the outcome of Romeoville’s vote with a
recognition of its jurisdiction.
Land and Lakes’ Motion for Sanctions Against Will County’s
Special Assistant States Attorney
In its post—hearing briefs, Land and Lakes renewed its
request
(made during the Board’s May
3,
1991 hearing) that
sanctions be imposed upon Will County’s Special Assistant States
Attorney, Glenn Sechen,
for his behavior at that hearing.
(Pet.
Br. pp.
2-5).
Specifically, Land and Lakes argues that Mr.
Sechen’s testimony was bellicose and failed to reveal any
relevant information.
(~.).
It also argues that Mr. Sechen
engaged in verbal harassment of a witness with no purpose but to
embarrass,
browbeat, and intimidate,
that he misrepresented the
witness’s testimony,
and that he unjustly accused the witness of
lying.
(Pet.
Br.
pp.
2-4; Reply Br. pp.
21,
22).
Land and Lakes
then points to several places in the transcript in support of its
allegations.
(~.).
12
5—487
6
In response, Romeoville and Will County argue that Land and
Lakes is really asking for a finding of contempt against Mr.
Sechen because sanctions can only be imposed when there is a
violation of express rules.
(Resp.
Br.
p.
44).
Specifically,
Roiueoville and Will County argue that Land and Lakes misplaces
its reliance on 35 Ill. Adm. Code 101.280 because Mr. Sechen has
not violated any Board or Hearing Officer order.8
(~.
p.
45).
They add that if the Board deems Mr. Sechen’s conduct
contemptuous,
it does not have the authority to grant the
requested relief but must refer a request for a finding of
contempt to the Attorney General or to the States Attorney for
prosecution before the Circuit Court.
(~.
pp.
44-45).
Finally,
Romeoville and Will County note that nothing in Mr. Sechen’s
conduct was improper, that Land and Lakes failed to object to the
questioning, and that Mr. Sechen’s cross—examination was
continued with the countenance of the Hearing Officer.
(~.
pp.
45—46)
A review of our May
3,
1991 transcript indicates that Mr.
Sechen did indeed go beyond the usual scope of cross—examination.
However, we find it unnecessary to impose sanctions because Mr.
Sechen’s line of questioning yielded no relevant information.
Constitutionality of Section 39.2 of the Act
In its post-hearing brief, Land and Lakes challenges the
constitutionality of Section 39.2 of the Act by arguing that
Romeoville lacked subject matter jurisdiction because Section
39.2 violates the Separation of Powers Clause of the Illinois
Constitution.
(Pet.
Br.
p.
5).
Specifically, Land and Lakes
argues that the siting scheme embodied in Section 39.2
contravenes Article II, Section
1 of the Illinois Constitution
(1970)
in that it requires a legislative body (i.e.,
a county
board or a municipal governing body, as opposed to an
administrative body), to act in
a quasi-judicial capacity by
making factual determinations on the nine criteria listed in
Section 39.2(a) of the Act.
(~.
pp.
6,
8).
In response, Romeoville and Will County argue that the Board
has no power to rule on the constitutionality of a statute
because the Act does not authorize the Board to do so.
(Resp.
Br.
p. 41).
Romeoville and Will County add that,
in any case,
Land
and Lakes’ position on this issue is without merit because many
courts have upheld the legislative delegation of discretionary
functions to local government.
(~.
p.
42).
835
Iii.
Adm.
Code
101.280(a)
provides that the Board may
order sanctions if
a party or any person unreasonably refuses or
fails
to
comply with
any provision of
35
Ill.,
Adm.
Code 101
through 120, or any Board or Hearing Officer Order.
125—488
7
For his part,
the Attorney General argues that Illinois
Supreme and Appellate Courts have held that the legislature, as
an adjunct to its power to enact laws, can adopt procedures for
the administration of those laws and thus, can delegate
adjudicatory powers to an administrative body provided that there
is an opportunity for judicial review.
(AG’s Br.
pp.
2-4,
6-7,
9).
The Attorney General adds that the Illinois Supreme Court
has consistently held that the Separation of Powers doctrine does
not prohibit the exercise of similar powers by more than one
branch of government and thus, does not prevent the legislature
from delegating adjudicatory powers to an administrative agency.
(~4.
pp.
4—5).
Although Land and Lakes, Romeoville,
and Will County address
the issue of whether the Board has the authority to consider and
rule upon the constitutionality of various provisions of the Act,
we need not make a determination on this issue at this time.
Land and Lakes accurately cites to those cases in which the
Illinois Supreme and Appellate Courts have held that Section 39.2
of the Act establishes a quasi-judicial procedure for the local
siting approval of regional pollution control facilities by a
county board or municipal governing body.
E
& E Hauling,
Inc.
v.
~,
116 Ill.
App.
3d 587,
596, 598, 451 N.E.2d 555,
564,
566
(2d
Dist.
1983),
aff’d 107 Ill.
2d 33,
43,
481 N.E.2d 664,
668
(1985); A.R.F.
Landfill. Inc.
v. PCB,
174 Ill. App.
3d 82,
89,
528 N.E.2d 390,
394
(2d Dist.
1988); Waste Management of
Illinois,
Inc.
V.
PCB, 175 Ill.
App.
3d 1023,
1040, 530 N.E.2d
682,
696
(2d Dist.
1988); Waste Management of Illinois,
Inc.
v.
~
123 Ill. App.
3d 1075,
1080,
463 N.E.2d 969,
973—74
(2d
Dist.
1984); Town of Ottawa v.
PCB,
129 Ill. App.
3d 121,
124—25
(3d Dist.
1984).
(See also People of the State of Illinois v.
~
83 Ill. App.
3d 802, 404 N.E.2d 352
(1st Dist.
1980)).
We
construe that these courts,
in making the above determination,
have also implicitly accepted the notion that elected county
boards and municipal governing bodies can function in a quasi—
judicial capacity.
Accordingly, we will construe Section 39.2 of
the Act as constitutional until the courts hold otherwise.
STATUTORY BACKGROUND
Public Act 82-682, commonly known as SB-172,
is codified in
Sections 3.32,
39(c),
39.2 and 40.1 of the Act.
It vests
authority in a county board or municipal government to approve or
disapprove the siting request for each new regional pollution
control facility.
These decisions may be appealed to the Board
which derives its authority to review the landfill site location
decisions of the local governments from Section 40.1 of the Act.
The Board’s scope of review encompasses three principal areas:
(1)
jurisdiction,
(2) fundamental fairness of the county board’s
site approval procedures, and
(3) statutory criteria for site
location suitability.
Pursuant to Section 40.1(a)
of the Act,
125—489
8
the Board is to rely “exclusively on the record before the county
board or the governing body of the municipality” in reviewing the
decision below.
However, with respect to the issue of
fundamental fairness, the Illinois Supreme Court has affirmed
that the Board may look beyond the record to avoid an unjust or
absurd result.
E
& E Hauling,
Inc.
V. PCB, 116 Ill. App.
3d 587,
594,
451 N.E.2d 55
(2d Dist.
1983),
aff’d 107 Ill.2d 33,
481
N.E.2d 664
(1985).
JURISDICTION
In addition to Land and Lakes’
constitutional argument to
challenge Romeoville’s jurisdiction, Roineoville and Will County
argue that Land and Lakes failed to establish Romeoville’s
jurisdiction in this matter.
Specifically, Romeoville and Will
County argue that Land and Lakes issued defective notices in that
it failed to file its application on the date specified in its
notice, that it failed to notify two persons who owned property
within 250 feet of the lot line of the subject property pursuant
to Section 39.2(b)
of the Act, and that it failed to notify
General Assembly members from the district of the public hearing
pursuant to Section 39.2(d)
of the Act.
(Resp.
Br. pp.
1-9).
Section 39.2 of the Act contains certain notice requirements
that a petitioner must follow for site location approval.
These
notice requirements are jurisdictional prerequisites to the
county board’s or municipal government’s power to hear a landfill
proposal.
Accordingly,
a finding of a lack of jurisdiction at
the county board or municipal government level
(in this case,
Romeoville) would make it unnecessary to review a petitioner’s
other arguments.
Concerned Boone Citizens,
Inc.
v. M.I.G.
Investments,
Inc.,
144 Ill. App.
3d 334,
494 N.E.2d 180
(2d Dist.
1986); Kane County Defenders,
Inc.
v.
PCB,
139 Ill. App.
3d 588,
487 N.E.2d 743
(2nd Dist.
1985).
The notice requirements of
Section 39.2 are to be strictly construed as to timing, and even
a one day deviation in the notice requirement renders the county
without jurisdiction.
Browning—Ferris Industries of Illinois,
Inc.
v.
IPCB,
162 Iii.
App.
3d 801, 516 N.E.2d 804,
807
(5th
Dist.
1987).
Section 39.2(b) Notice of Site Application to General Assembly
Members
Although it is not completely clear from a reading of the
post-hearing briefs and the Board’s transcript, there is some
indication that Romeoville and Will County believe that Land and
Lakes’ notice of its application to the General Assembly members
was defective because the notices were not mailed to the
legislators’
Springfield offices.
Section 39.2(b)
states in part as follows:
125—490
9
No later than 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.
.
. .
upon members of
the General Assembly from the legislative
district in which the proposed facility is
located.
The record clearly indicates that Land and Lakes mailed
notice of its application to the legislators’
district offices
via registered mail, return receipt requested.
(C--039-040,
-
042—043,
—3462—3463,
—3465—3466).
Accordingly,
any argument that
the legislators were not notified is without merit.
Content of Section 39.2(b)
Notice
Romeoville and Will County argue that Land and Lakes’ notice
of its site application was defective because it failed to file
its siting application on the date specified in the notice.
(Resp.
Br.
p. 9).
Romeoville and Will County add that Land and
Lakes should have renoticed the new filing date in order to
establish jurisdiction.
(~.
p.
10).
Section 39.2(b) of the Act provides in part as follows:
Such notice shall state the name and
address of the applicant,
the location of the
proposed site,
the nature and size of the
development, the nature of the activity
proposed, the probable life of the proposed
activity, the date when the request for site
approval will be submitted, and a description
of the right of persons to comment on such
request as hereafter provided.
Land and Lakes’ pre-filing notices state that its
application would be filed on May 14,
1990.
(C—3457—3459, 3460).
Although Land and Lakes filed its application on that date,
approximately three weeks later, Romeoville’s attorney notified
Land and Lakes that its application was rejected because there
was an insufficient number of copies of some of the material in
the application.
(C—001,
—002,
—2895,
—2896, —2897, —3440).
Without withdrawing its application, Land and Lakes submitted the
additional copies on June 19,
1990,
and agreed to an extension of
the decision deadline.
(C—2897, —2898,
—2899—2900, —3440).
After examining the record on this issue, we do not believe
that the above facts rise to the level of a jurisdictional
infirmity that results in all subsequent proceedings being void.
In making this determination, we wish to emphasize that the
amendment was non—substantive
(i.e., Land and Lakes simply
125—49 1
10
submitted extra copies of previously—filed material), that
Roiueoville’s Village Clerk notified Land and Lakes that its
original filing was complete and in compliance with Romeoville’s
landfill siting procedural ordinance
(C-2895,
—2896), that
Romeoville’s procedural ordinance provides for a subsequent
filings
(C-2860), and that Land and Lakes did not withdraw its
application but voluntarily submitted the extra copies as
requested
(C—2897,
—3440).
Section 39.2(b) Notice of Site Application to Surrounding
Landowners
As stated above,
Romeoville and Will County argue that
Ronieoville lacked jurisdiction over the siting proceedings
because Land and Lakes did not serve notice of the filing of its
siting application on the owners of two properties located within
250 feet of the lot line of the subject site.
(Resp.
Br. pp.
1,
3).
Specifically, Romeoville and Will County note that both
properties are located across Bluff Road from the lot line of
Parcels B and C and that those parcels were defined in Land and
Lakes’
site application and notice to be the subject site.
(~.
p.
3).
In response, Land and Lakes argues that no credible or
probative evidence was introduced establishing the location of
the properties.
(Pet.
Br.
p.
15; Reply Br. pp. 4-6).
Specifically, Land and Lakes notes that the evidence only
indicates that the two properties are located in the vicinity of
Parcel B.
(~4.).
Land and Lakes adds that the owners of the two
properties are not entitled to 39.2(b)
notice because it
consistently referred to Parcel A rather than Parcel B as the
subject, or landfill, property and because Will County has
calculated that Parcel A is at least 1,300 feet from either of
the two properties.
(Pet.
Br.
pp.
15,
19; Reply Br.
p.
6).
Section 39.2(b)
of the Act provides in part:
No later than 14 days prior to a request for
location approval,
the applicant shall cause
written notice of such request to be
served.
.
.
on the owners of all property within
the subject area.. .and on the owners of all
property within 250 feet in each direction of
the lot line of the subject property...
provided that the number of all feet occupied
by all public roads, streets, alleys and
other public ways shall be excluded in
computing the 250 feet requirement; provided
further, that in no event shall this
requirement exceed 400 feet,
including public
streets, alleys and other public ways....
125—492
11
The evidence clearly indicates that Land and Lakes did not
notify the two property owners of its intent to file its site
application.
(C—3453,
—3479,
—3480,
—3461—3469).
The evidence
also indicates that the properties are located directly across
Bluff Road from Parcel
B.
(C—3156,
—3444—3446, —3453,
—3478,
—
3479,
-3480, -3536).
There is some dispute, however, regarding
the exact distance between the properties and Parcel B.
(Pet.
Br.
p.
15; Reply Br. pp. 4-6).
In any event, based on our
discussion below, there is no need to determine the exact
distance between the properties and Parcel B.
The first question we must ask is whether Parcels A,
B, and
C are separate “lots” such that they may each have their own “lot
line”, as that term is used in Section 39.2(b)
of the Act.
It is
not disputed that property owners can, subject to public
regulations, subdivide their tract as they see fit and that such
subdivision will be given the construction of “lots”.
Lehman v.
Revell,
354 Ill.
262,
188 N.E.2d 531
(1933), Gage v. City of
Chicago,
223 Ill.
602,
79 N.E.
294
(1906).
Here,
Land and Lakes
has accomplished such subdivision and labelled the lots A,
B, and
C.9
Next,
we must determine whether the two property owners are
entitled to “lot line” notice pursuant to Section 39.2(b).
In
other words, we must determine which parcels are part of the
“subject property”,
as that phrase is used in Section 39.2(b).’0
Land and Lakes argues that the subject 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
9We wish to note that
a determination
of what constitutes
“subject property” does not turn on who owns the property.
10
Romeoville’s Village
Board
focused
on
the
language
of
Section 39.2(b) to conclude that Parcels A,
B, and C comprise the
subject property.
(C—4334—4336, —4337—4340).
125—493
12
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
sanitary landfill because they will be used for drainage
diversion and/or borrow purposes,
it would be difficult to
construe (and we do not so construe) these 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.
Thus, only Parcel A is the “subject property” for Section 39.2(b)
notice purposes.
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”.
The question remains, however,
as to whether Land and Lakes
fatally confused this issue by including all three parcels in
request for approval in its notices.
We conclude that it did not
because, although the request refers to all three parcels, Parcel
A is clearly identified in the notices and in the prior
annexation agreement and siting application as the only parcel on
which the current landfill and expansion will be located.
(Annexation Agreement;
C-034-037, -3457-3460).
We also note that
the notices comport with the informational requirements in
Section 39.2(b)
of the Act, and go beyond what the Appellate
125—494
13
Court has found acceptable.
(See Daubs Landfill,
Inc.
v.
PCB,
166
Ill. App.
3d 778, 520 N.E.2d 977,
978
(5th Dist.
1988) holding
that a defect in the legal description of the proposed landfill
location did not invalidate an otherwise accurate narrative
description of the property in the Section 39.2(b)
notice or
divest the county board of its jurisdiction).
Finally, we again
emphasize that Parcel A is all that Romeoville has authority to
approve and that it stands independently from any areas that the
applicant may perceive to be necessary for siting approval.
Section 39.2(d~Notice of Hearing to General Assembly Members
Romeoville and Will County argue that the final
jurisdictional defect is Land and Lakes’ failure to assure that
those General Assembly members from the district in which the
proposed expansion is to be located were notified of the public
hearing.
(Resp.
Br. pp.
10-11).
In response, Land and Lakes
argues that the affidavits of two legislators that Romeoville and
Will County rely on to support the above argument were improperly
admitted into evidence at the Board’s May 3,
1991 hearing.
(Pet.
Br. pp.
22-24).
Land and Lakes adds that the affidavits fail to
prove that either Section 39.2(d) was complied with or that
Romeoville lacked jurisdiction because neither affiant makes an
express affirmative statement that he did not receive notice.
(~.
pp.
25—26).
Land and Lakes also argues that a failure to
comply with Section 39.2(d)
is not tantamount to a jurisdictional
default.
(Id.
p.
26).
Rather, Land and Lakes notes that after a
siting authority is vested with jurisdiction by an applicant’s
compliance with 39.2(b), all further steps, including those
mandated by Section 39.2(d)
are procedural and require a showing
of prejudice before they can be overturned.
(~.
pp.
26—27).
In
the alternative, Land and Lakes argues that any failure to serve
39.2(d) notice results in its siting application being deemed
approved.
(~.
pp.
27-30).
Section 39.2(d)
states in part:
At least one public hearing is to be
held.. .such hearing to be preceded by
.notice by certified mail to all members of
the General Assembly from the district in
which the proposed site is located....
Before we can address Romeoville’s and Will County’s
argument, we must first answer Land and Lakes’
allegation that
the notice requirements of Section 39.2(d)
are procedural rather
than jurisdictional.
Although we agree with Land and Lakes that
there is no definitive authority at this point in time that
states that Section 39.2(d)
notice is a jurisdictional
requirement, we do not agree that the requirements of Section
39.2(d)
are procedural.
In Illinois Power Company v.
IPCB,
137
Ill. App.
3d 449,
484 N.E.2d 898
(4th Dist.
1985) the court held
125—495
14
that,
in a permit appeal, the failure of this Board to provide
Section 40 notice of its hearing to the public and to the General
Assembly rendered its decision invalid.
As a result, the court
determined that a valid hearing was not held within the statutory
time frame and that the permits were deemed issued pursuant to
Section 40 of the Act.
In making the above holding, the court
stated that it deemed the notice requirements of Section 40 of
the Act jurisdictional.
Illinois Power,
137 Iii. App.
3d at 451,
484 N.E.2d at 900.
We recognize that the court,
in Illinois Power, pointed to
the phrase “~tjhe Board shall give 21 days notice.. .and shall
publish notice” to buttress its finding that the notice
requirements of Section 40 are mandatory.
We also recognize that
Section 39.2(d)
is unlike Section 40 in that it does not contain
the word “shall” and is not written in the active voice.
However, we do not believe that this difference is a point on
which we can distinguish Illinois Power from the instant case.
We note that,
although Section 39.2(d)
of the Act states that
“.
.
.hearing is to be preceded by published notice... and
notice.
.
.
to all members of the General Assembly....”
(emphasis
added),
it also states that “~at
least one public hearing is to
held....”(eniphasis added).
If we were to construe the absence
of the word “shall”
as meaning that the notice requirements of
Section 39.2(d)
are not mandatory or jurisdictional, we would
also have to construe the absence of the word “shall” as meaning
that the hearing requirement of Section 39.2(d)
is not mandatory.
Accordingly, we are unwilling to distinguish Illinois Power on
this basis.
Moreover, we do not believe that the cases cited by Land and
Lakes stand for the proposition that the requirements of Section
39.2(d) are procedural.
As for Land and Lakes’ citation of Tate
v. PCB,
188 Ill. App.
3d 994,
544 N.E.2d 1176
(4th Dist.
1989),
the Court in that case merely noted,
“~merely
because subsection
(b) has been held to be jurisdictional does not necessarily mean
that compliance with subsection
(c)
also must be had before the
County Board has jurisdiction.
It is possible the legislature
intended subsection
(c) to provide a procedural requirement....”
Tate,
188 Ill. App.
3d at 1016,
544 N.E.2d at 416.
Because of
the speculative nature of the above statement, we cannot state
that it is tantamount to a court holding that the notice
requirements of Section 39.2(d)
are procedural in nature.11
As
for the remainder of the cases cited by Land and Lakes in its
post—hearing brief, each can be distinguished from the case at
hand.
See McHenry County Landfill.
Inc.
v.
EPA,
154 Ill. App. 3d
89,
95—97,
506 N.E.2d 372,
376—378
(2d Dist.
1987)
(holding that
~The
Tate Court
even affirmatively stated that
it was
not
considering whether the Section 39.2(c) was jurisdictional.
188
Ill. App.
3d at 1016,
544 N.E.2d at 416.
125—496
15
appellant could not deem its proposed site approved because the
Board’s action in giving 20 day notice of hearing rather than the
21 day notice as required by Section 40.1 of the Act was
inadvertent and resulted in no prejudice to appellant); A.R.F.
Landfill Corp.
v. Village of Round Lake Park, PCB 87-34,
79 PCB
92,
96,
97,
98—99
(July 16, 1987)
(holding that when a local unit
of government takes an action upon an application for
jurisdictional reasons, even those which stem from procedural
errors of the applicant, the deemed approved provision of Section
39.2(e) does not apply
i.e.,
that a failure to hold a hearing
within the time frames of Section 39.2(d) does not result in the
site application approval pursuant to Section 39.2(e)
of the Act
because subsection
(e) relates to the 180 day final action
deadline in Section 39.2(e) rather than the 120 day hearing
deadline of Section 39.2(d)).
Accordingly, because the courts have not directly addressed
this issue and because the courts have held that the similar
notice requirements of Sections 39.2(b) and 40 are jurisdictional
(see Illinois Power,
supra, and Browning—Ferris Industries of
Illinois.
Inc., Concerned Boone Citizens, and Kane County
Defenders,
supra p.
7), we will hold that the requirements of
Section 39.2(d)
of the Act are jurisdictional until the courts
hold otherwise.
The next question now becomes whether Land and Lakes had the
duty to notify the legislators of the public hearing.
Unlike
Section 39.2(b)
of the Act which directly places the burden of
mailing notice directly upon the applicant,
Section 39.2(d) does
not, on its face, assign the duty to mail or publish notice to a
particular party.
However, we suggest that to construe the
language as leaving the decision maker without authority to
control the notice and hearing process would be a strained
construction indeed.
Accordingly, because the burden is on a
county board or municipal governing body to assure that a hearing
is held, we hold that those entities have the duty to see that
notice of the hearing is issued.12
In any event, there are several indications in the record
that Romeoville interpreted the notice requirements of Section
39.2(d) as being directed toward it.
First, Roiaeoville’s SB-172
procedural ordinance states that the Village Clerk has the duty
to provide Section 39.2(d) notice.
(C-2862—2863).
Second,
12We
are
not
here
saying
that
a
party
is
precluded
from
providing notice
(in addition to any other notice that
is given)
in order protect its interests, or that a county board or municipal
government cannot assign its Section 39.2(d)
responsibilities to
another person or entity.
(See A.R.F.
Landfill, Inc.
v. PCB,
174
Ill. App.
3d 82,
89,
528 N.E.2d 390,
394 (2d Dist.
1988)).
125—49 7
16
Romeoville’s Hearing Officer,
attorney, and Acting Village
Manager directed Romeoville’s Village Clerk to issue notice.
(C-
2901—2902, —2903,
—2907,
—2914, —2938).
Third, the record
indicates that Romeoville’s Village Clerk,
in fact, provided some
subsection
(d) notice when it published notice of the hearings in
area newspapers.
(C—2904—2906, —2908—2912, —2916—2937).
Based
on the above, we conclude that Romeoville had the burden of
assuring compliance with the Section 39.2(d) notice requirements.
Accordingly, we cannot state that Land and Lakes had a duty to
assure that the General Assembly members of the district were
notified of the public hearings.
The final question now becomes whether Romeoville notified
the legislators of the district of the hearing.
There is no
evidence in the record to show that Romeoville notified the
legislators of the public hearing and no one argued that it did.
Romeoville,
by failing to provide Section 39.2(d)
notice,
failed
to secure its own jurisdiction.
This lack of jurisdiction
divests Romeoville of its power to act in this matter and renders
its subsequent actions
(including its final determination) void.
As a result, we conclude that Romeoville did not render a timely
decision in this matter.
Section 39.2(e)
of the Act states,
in
part,
as follows:
If there is no final action by the county
board or governing body of the municipality
within 180 days after the filing of the
request for site approval the applicant may
deem the request approved.
Section 39.2(e) makes it clear that Land and Lakes may deem its
siting request approved as a result of Romeoville’s failure to
issue a timely decision in this matter.
Accordingly, siting
approval for Land and Lakes’
landfill expansion shall issue by
operation of law.
We wish to emphasize that the above result relates only to
the landfill expansion on Parcel A, which as we understand it
will extend the life of the landfill approximately 12 years.
We
also wish note that the fact that siting approval issues by
operation of law does not negate any of the sworn commitments
made by Land and Lakes during the siting approval process and
that any permit Land and Lakes obtains will be pursuant to the
Board’s new landfill regulations.
We would not be honest if we were to refuse to acknowledge
that our decision in this case might be unfair to Roineoville.
Regrettably, every case barring relief because of the expiration
of a statute of limitations or because a decision-making body has
lost jurisdiction may lead to a harsh result.
We wish to note,
however, that the potential for injury to litigants lies in the
statute itself.
The solution to the problem is in the hands of
125—498
17
the legislature;
it is not the province of the Board to amend a
statute via its interpretation of the statute.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The failure of Romeoville to comply with Section 39.2(d)
of
the Environmental Protection Act,
Ill. Rev. Stat.
1989,
ch.
111½
par.
1039(d), renders its December 12,
1990 decision void. Land
and Lakes’ request for siting approval of its proposed landfill
expansion on Parcel A is deemed issued because a decision was not
issued within 180 day deadline set forth in Section 39.2(e)
of
the Environmental Protection Act,
Ill. Rev. Stat.
1989,
ch.
111½,
par.
1039.2(e).
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat 1989,
ch.
111½, par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
court of Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member R.C. Flemal concurred and Board Member J.
Dumelle dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the ab
e Opinion and Order was
adopted on the
‘(~‘~day of
_________________,
1991,
by a
vote of
_______.
Dorothy M. Gi~n,Clerk
Illinois Pollution Control Board
125—499
