ILLINOIS POLLUTION CONTROL BOARD
August
5,
1993
LEONARD CARMICHAEL,
)
Petitioner,
V.
)
PCB 93—114
)
(Landfill Siting Review)
BROWNING—FERRIS INDUSTRIES
)
OF ILLINOIS,
INC.
AND
OGLE
)
COUNTY
BOARD,
FOR
AND
ON
)
BEHALF
OF
THE
COUNTY
OF
OGLE,
)
STATE
OF
ILLINOIS
)
Respondents.
ORDER OF THE BOARD
(by C.
A. Manning):
This matter is before the Board on
a petition for review
filed by Leonard Carmichael, pursuant to Section 40.1(b) of the
Environmental Protection Act (Act).
(415 ICLS 5/40.1(b)
(1992).)
The petition for review seeks the Board’s review of the County
of Ogle’s May
10,
1994 siting approval of the expansion of
Browning—Ferris Industries’
(BFI)
regional pollution control
facility pursuant to Section 39.2 of the Act.
(415 ICLS 5/39.2
(1992).)
As explained in detail below, the respondents, BFI and
Ogle County Board
(Ogle County),
filed separate motions to
dismiss the petition for review.
For the reasons stated below,
the Board denies those motions.
The petitioner filed his petition pursuant to Section
40.1(b)
which provides,
in relevant part:
If
the
county
board
or
the
governing
body
of
the
municipality as determined by paragraph (c) of Section 39
of this Act, grants approval under Section 39.2 of this
Act,
a
third
party
other
than
the
applicant
who
participated
in
the
public
hearing
conducted
by
the
county
board
or
governing
body
of
municipality
may
petition
the
Board
within
35
days
for
a
hearing
to
contest the approval
of the county board
or governing
body of the municipality.
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, the Board shall hear the petition...
On June 14,
1993 Leonard Carmichael mailed this petition for
review of
a landfill determination made by Ogle County pursuant
2
to Section 39.2 of the Act.
On July 8,
1993,
BFI filed a motion
to dismiss or strike,
or alternatively, to strike certain
portions of the petition for failure to state
a cause of action.
On July 2,
1993, Ogle County filed
a Motion Directed at the
Petition requesting the Board to dismiss the petition.
In
addition, Ogle County filed a motion regarding standing and
jurisdiction on July 27,
1993, requesting the Board to dismiss
for lack of jurisdiction or grant summary judgment on the issue
of standing.
The respondents both claim that the petition was not timely
filed within 35 days after Ogle County’s approval of the siting
as set forth above.
Section 101.102(d)
of the Board’s procedural
rules state that the time of filing
is to be construed to be the
time of mailing
if a petition is received by the Board after the
due date.
The Ogle County decision was made on May 10,
1993 and
therefore the “due date” was June 14,
1993.
The petitioner
mailed his petition for review on June
14,
1993.
It was received
in the Board’s Chicago office on June 16,
1993.
Based upon the
Board’s procedural rules, therefore,
the petition for review was
timely filed on June 14,
1993, and the Board finds no merit to
the timeliness arguments raised by respondents.
Ogle County argues that the Board lacks jurisdiction to hear
the matter because the petitioner lacks standing to file the
petition for review based upon the proviso in Section 40.1(b)
that the Board may dismiss a petition when the petitioner is “so
located as to not be affected by the proposed facility.”
Section
40.1(b)
states preliminary requirements for a petitioner to file
pursuant to this section.
The Board has addressed this
issue of
standing in two previous Board decisions.
(Worthen v. Village of
Roxana, November 29,
1990,
PCB 90—137.)
In Valessares
v.
The
County Board of Kane County,
(July 16,
1987), PCB 87-36,
79 PCB
106,
118, the Board found that a person who lived 5-6 miles from
the landfill met this criteria and stated:
“The Board
is unable
to determine how facilities located over 30 miles away would
“affect” the need criteria, while
a resident located over 5—6
miles away would not be “affected” by the need criteria.”
In
reading Carmichael’s deposition taken on July
14,
1993, we find
sufficient facts that Carmichael
is so located as to be affected
by the proposed landfill.
Carmichael lives approximately 10
miles from the facility and has business interests in the service
area.
(Discovery Deposition of Leonard Carmichael pages 24-32.)
Alternatively, BFI moves the Board to strike portions of the
petition for review for failure to state
a cause of action, while
Ogle County argues that petitioner fails to allege any harm
resulting from the Ogle County decision-making process and moves
the Board to strike certain paragraphs of the Petition for Review
and dismiss.
The respondents,
in making their arguments for
dismissal, state that the proceedings were fundamentally fair,
or
that petitioner was not prejudiced by the proceedings.
3
Respondent’s arguments raise questions of law and fact which are
best decided after the hearing process.
Accordingly, the Board
denies the motions.
Hearing in this matter shall proceed on
August 19 as scheduled.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certi,y that the above order was adopted on the
~~Y-day of
_________________,
1993, by a vote of
(
/
Thorothy N. G~nn”, Clerk
Illinois Pollution Control Board