ILLINOIS POLLUTION CONTROL BOARD
February 4,
1993
LEROY
BROWN
& SONS,
INC.,
)
)
Petitioner,
)
v.
)
PCB 92—132
)
(Landfill Siting Review)
COUNTY BOARD OF McDONOUGH
)
COUNTY,
ILLINOIS,
)
Respondent.
FRED C. PRILLAMAN, OF
MOHAN,
ALEWELT, PRILLAMAN,
&
ADAMI,
APPEARED ON BEHALF OF THE PETITIONER;
WILLIAM E. PONCIN, STATE’S ATTORNEY McDONOUGH COUNTY,
AND
JOHN
J.
McCARTHY, ESQ.,
APPEARED ON BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by C.
T. Girard):
This matter is before the Board on a September 14,
1992,
petition for review of the August 19,
1992, denial by the County
Board of McDonough County
(McDonough County) of siting approval
to LeRoy Brown
& Sons,
Inc.
(LeRoy Brown).
Petitioner had sought
McDonough County’s approval for an expansion of a regional
pollution control facility in McDonough County,
Illinois.
Pursuant to Section 40.1 of the Illinois Environmental Protection
Act
(Act)
(Ill. Rev.
Stat.
ch.
111 1/2,
par. 1040.1
(415 ILCS
5/40. 1)), LeRoy Brown petitioned the Board to review the siting
denial by McDonough County, and issue an order granting site
location approval for petitioner’s proposed expansion.
The Board
held a public hearing on this matter on November 5 and 6,
1992,
at the McDonough County Courthouse,
Macoinb, Illinois.
PROCEDURAL HISTORY
The Resource and Waste Management Committee of the McDonough
County Board (Committee) held a public hearing on the LeRoy Brown
application on April 13,
1992, April 14,
1992, April 16,
1992,
and April 27,
1992,
pursuant to Section 39.2(d) of the Act.
(C.
at 1-660.)’
The Committee reviewed and considered the
‘The County record will be cited as “C. at
“.
County
exhibits will be cited as “C.
Exh.
“.
Applicant’s exhibits
contained in the county record will be cited as “Appl.
Exh.
“.
The Hearing transcript will be cited as “Pr. at
“.
Petitioners
exhibits will be cited as “Pet. Exh.
“.
Petiti~ner’sbrief and
O~39-OO5I
2
application by LeRoy Brown,
the transcript of the public hearing,
and the written comments filed with the County Clerk of McDonough
County (County Clerk)
on June 23,
1992, June 25, 1992, June 30,
1992, July 2,
1992, and July 8,
1992.
(C.
at 1228—1268 and 1430—
1536.)
Each of these deliberation sessions lasted several hours.
The Committee found that the new application did not meet all the
criteria set forth in Section 39.2(a) of the Act.
(C. at 1463-
1466.)
The Committee decided that the facility was not necessary
to accommodate the waste needs of the area it was intended to
serve; the facility was not so designed, .located and proposed to
be operated that the public health, safety and welfare would be
protected; and the traffic patterns to and from the facility were
not designed to minimize the impact on existing traffic flows.
(C. at 1463—1466.)
Thereafter, McDonough County reviewad and considered the
application, the transcripts of the public hearings, the written
comments filed with the County Clerk, and the decision of the
Committee.
McDonough County found that the application did not
meet all of the criteria set forth in Section 39.2(a) of the Act.
(C. at 1459-1467.)
On August 19,
1992, McDonough County
unanimously adopted a resolution denying the application of LeRoy
Brown for site approval of a regional pollution control facility
in McDonough County,
Illinois.
(C.
at 1459—1467.)
As previously stated, LeRoy Brown filed its petition for
siting decision review with the Board on September 14,
1992.
On
October
2,
1992, respondent,
!4cDonough County,
filed with the
Board
a motion to dismiss LeRoy Brown’s petition for landfill
siting review.
On October 14,
1992, LeRoy Brown filed with the
Board a motion to declare siting to be deemed approved,
or,
alternatively, a motion to strike, or alternatively, a motion to
take with the case.
The Board denied the motions by both parties
on October 16,
1992, but indicated that the parties were free to
reintroduce these issues at hearing on this matter.
On December
1,
1992, petitioner filed a waiver of decision deadline from
January 12,
1993,
to February 5,
1993.
On December 14,
1992,
LeRoy Brown filed a motion with the Board for leave to file an
errata sheet instanter, which was granted by the Board on
December 17,
1992.
On January
8, 1993, petitioner filed a motion
to supplement the record with Applicant’s Exhibit
5.
The Board
granted the motion to accept Applicant’s Exhibit 5 on January 21,
1993.
FACTS
reply will be cited as “Pet.
Br.
at
“
and “Pet. Reply at
“,
respectively.
Respondent’s exhibits will be cited as “Res.
Exh.
“.
Respondent’s brief will be cited as “Res.
Br. at
“.
0139-0052
3
A key issue in this proceeding involves the facts
surrounding the filing with McDonough County of the original
application as well as additional materials filed later by LeRoy
Brown in the landfill application process.
The following is a
recitation of the undisputed facts.
On or about May 20,
1991,
the Petitioner mailed written notices of its request for site
approval for the location of a regional pollution control
facility in McDonough County,
Illinois, to the owners of all
property within 250 feet in each direction of the lot line of the
subject property and to the members of the General Assembly from
the legislative district in which the proposed facility would be
located.
(Appl. Exh.
2, Attachment 12.)
The notices were sent
by certified mail, return receipt requested.
(Appl. Exh.
2,
Attachment 12.)
on May 20,
1991, May 27,
1991, and June 3,
1991,
a notice of intent to request regional pollution control siting
approval from McDonough County pursuant to Section 39.2(b)
of the
Act was published in the Macomb Journal, a newspaper of general
circulation published in McDonough County,
Illinois.
(Appl.
Exh.
2, Attachment
12.)
The notices stated that the petitioner’s
request fOr site approval would be submitted to McDonough County
on or after June 20,
1991.
(Appl. Exh.
2, Attachment 12.)
An application was filed with the County Clerk in June of
1991.
Also undisputed is the fact that a filing of additional
material was accepted by McDonough County on December 19,
1991.
In dispute are two key facts
in this proceeding.
The first
is whether the original application was filed on June 20,
1991,
or on June 24,
1991.
The second is whether the December 19,
1991,
filing was an amendment to the application or a new
application.
These disputed facts and their bearing on the case
will be determined at appropriate points in the discussion, which
follows.
MOTION TO DISMISS
McDonough County reintroduced the issues raised in its
motion to dismiss at public hearing on November 5,
1992
(Pr. at
6-8).
McDonough County maintained that the notice requirements
of Section 39.2(b)
of the Act had not been met.
Therefore, in
respondent’s view, this action was not properly before the
McDonough County for lack of jurisdiction
(Res.
Br. at 9-11).
The petitioner maintains that its original application
should be deemed approved pursuant to Section 39.2(e)
of the Act.
Section 39.2(e)
states:
“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”.
In the alternative,
LeRoy Brown argues that the subsequent filing of additional
materials should be considered an amendment to the original
0139-0053
4
application.
(Pet. Br. at 9-10; Pet. Reply at 10-11.)
Statutory Notice Requirements
Section 39.2(b) of the Act states as follows:
“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, on the
owners of all property within the subject area 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; 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
requirements; provided further, that in no event shall
this requirement exceed 400 feet,
including public
streets, alleys and other public ways.
Such written notice shall also be served upon members
of the General Assembly from the legislative district
in which the proposed facility is located and shall be
published in a newspaper of general circulation
published in the county in which the site is located.
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.”
Application Filing Date
LeRoy Brown maintains that it filed the application with
McDonough County on June 20,
1991.
(Pet.
Br. at 10.)
McDonough
County, however maintains that the petition was not filed until
June 24,
1991
(Res.
Br. at
2, Pr. at 456).
The significance of
the filing date is linked to the December 19,
1991, filing.
If
the petition was filed on June 20, then the application for
siting approval was not acted on within 180 days as required by
Section 39.2(e), and petitioner may deem the application
approved.
If however, the application was filed on June 24,
1991, then the December 19,
1991, action was taken on the
original petition within 180 days, and the deemed approved
0139-0O5~
5
provision of Section 39.2(e) would not arise.
In support of petitioner’s position,
LeRoy
Brown cites to
the respondent’s motion to dismiss wherein the respondent’s
attorney refers to the application as being filed on June 20,
1991.
LeRoy Brown maintains:
It is axiomatic,
of course, that
“(a)dmissions of fact binding upon a party
may be made by an attorney in a pleading.”
Baker-Wendell.
Inc.
v.
Edward M. Cohon
&
Associates. Ltd., 100 Ill. App. 3d 924, 928
n.
1
(1st Dist.
1981) (citing Merritt v.
Creves,
82
Ill. App.
3d 863, 866
(1st.
Dist.
1980)).
Such admissions are binding if they
are “deliberate; relate to concrete facts;
and not amount to matters of opinion,
estimate, appearance,
inference or uncertain
summary.”
Baker—Wendell Inc.
v. Edward N.
Cohon
& Associates Ltd.,
100 Ill. App. 3d at
929.
LeRoy Brown also maintains that the June 20,
1991,
filing
was complete pursuant to Section 39.2 of the Act.
(Pet. Reply at
7.)
Therefore, according to petitioner, the County Clerk
“unlawfully refused to accept the application” on June 20,
1991.
(Pet.
Reply at 6.)
McDonough County argues in its brief that
June 24,
1991, was the filing date for the application.
According to McDonough County, on June 20,
1991, LeRoy Brown
attempted to file an application for expansion of its facility in
McDonough ‘County, Illinois.
(Tr. at 455.)
This application
consisted of one
(1) bound volume.
(Pet.
Exh.
2.)
The
application was not accompanied by the agreed upon filing fee.
The application and insufficient check were returned to
petitioner
(Tr. at 456).
On June 24,
1991, the Petitioner filed
the application with the County Clerk together with the agreed
upon filing fee.
(Pr. at 456.)
On June 24,
1991, the County
Clerk issued a receipt to the Petitioner for the application and
the filing fee.
(Pr.
at 456—458; Res.
Exh.
2.)
On September 10,
1991, the County Clerk sent a second receipt to the Petitioner
for the original application at the direction of the Committee.
(Pr. at 458—459; Res.
Exh.
1 and Res.
Exh. 3.)
This second
receipt was intended to indicate that the original application
had been received by McDonough County and was complete.
‘(Pr. at
379—382,
464.)
The Board will first address the argument put forth by LeRoy
Brown regarding the admission of a fact by an attorney.
This
argument is without merit.
The reference to a June 20, 1991,
filing date echoes the date used by LeRoy Brown in its petition
for review.
Further, the application is not date stamped as to
when it was received.
The Board noted
(October 16,
1992)
in its
0139-0055
6
response to the motion to dismiss, that the Board lacked
“sufficient information” at that time, as the original motion to
dismiss was not supported by affidavit.
Only at hearing, was the
dispute over the filing date
(June 20th or June 24th)
fully
heard.
Therefore, the Board believes that the use of the June
20,
1991, date in the respondent’s motion to dismiss was not
“deliberate” or relating to concrete fact.
The Board finds that June 24,
1991,
is the appropriate
filing date in this matter.
According to Section 39.2(k) of the
Act, the governing body considering a landfill siting may charge
a reasonable fee.
In 1983, McDonough County passed an ordinance
which said,
“The County Clerk shall accept no application for
filing unless said fee has been paid”.
(C. Exh.
5 at 17)
The
Board also notes that according to the hearing transcript
(Tr. at
455-458), no copies of the application were left with the County
Clerk on June 20,
1991.
The County Clerk was not in actual
possession of the application copies until June 24,
1991, when
the agreed upon fee was also paid
(Pr. at 456).
Since the Board
finds that June 24,
1992,
is the filing date, the December 19,
1991,
acceptance of the new material and withdrawal of the
original petition by McDonough County is within the 180 day
decision deadline specified by Section 39.2(e)
of the Act.
Therefore, petitioner’s argument that the application should be
deemed approved (Pr. at 508-509)
is without merit and the Board
denies the petitioner’s request to deem the application approved.
December 19.
1991 Filing
According to the respondent, LeRoy Brown withdrew the
original application and filed a second application for site
approval for the location of a regional pollution facility in
McDonough County, Illinois, pursuant to Section 39.2 of the Act.
(Pr. at 465—472;
C. Exh.
1..)
This application consisted of two
(2) bound volumes.
(Pr. at 472; Pet. Exh.
2 and Pet.
Exh.
3.)
Respondent maintains that the “new application” was submitted to
McDonough County on December 19, 1991,
and the original
application was withdrawn on December 19,
1991.
(Pr. at 465—472;
C.
Exh.
1)
LeRoy Brown maintains in its brief that the materials
submitted on December 19 were an “amendment” to its application.
In support of its position LeRoy Brown maintains that the June
1991 application was “full and complete within the statutory
requirements”.
(Pet. Reply at 7.)
LeRoy Brown further maintains
that the materials submitted were “legally irrelevant to the
siting requirements” of the Act
(Pet. Reply at
7) and that “at
all times the substantive portion of Petitioner’s application has
remained identical”.
(Pet Reply at 10.)
LeRoy Brown also maintains that its use of “new application”
0139-0056
7
was “with respect to reasons wholly unrelated to notice or
jurisdictional issues”.
(Pet. Reply at 10.)
LeRoy
Brown argues
that the reference to a “new application” was a means of assuring
that the filing of the “irrelevant material would not
subsequently preclude Petitioner” from filing a “bona fide
amendment to the petition”.
(Pet. Reply at 10.)
Finally, LeRoy
Brown maintains that the “County’s argument sifts down to the
suggestion that an applicant must provide an absolute date upon
which he intends to file his application, upon pain of having the
application dismissed for failure to meet jurisdictional
requirements”.
(Pet. Reply at 11.)
The question of whether or not the tiling by LeRoy Brown on
December 19,
1991, was a new application, or an amended
application is important because of a provision at Section
39.2(e) of the Act which states:
“...
the applicant may file not
more than one amended application
.
...“.
Therefore, if LeRoy
Brown filed a new application on December 19,
1991,
it retained
the right to make an amendment during the application process.
If the application was an amendment to the June 24,
1991,
application, then there would be no more opportunities to amend
the application.
Petitioner,
in an attempt to preserve an opportunity to
further amend its proposal, specifically referred to the December
19 filing as a “new application” in two letters, dated December
2
and December 5,
1991, to respondent.
(C. Exh.
1.)
In fact, the
December 2,
1991,
letter
(C. Exh.
1) from LeRoy Brown
responded
to a letter dated November 15,
1991 from McDonough County
(C.
Exh.
1)
in which McDonough County referred to the filing as an
amendment; LeRoy Brown clearly indicated that the combination of
new materials from December 19,
1991,
and old materials from June
1991 should be treated “as a ~
application”
(C. Exh.
1).
In
addition, the December
5,
1991,
letter from
LeRoy
Brown stated
that petitioner understood that,
“unless we have left unanswered
any of your questions, the McDonough County Board, at its next
regularly scheduled meeting, will accept the new materials as
complete, at which time the presently-pending application will
automatically be withdrawn and replaced by the new application,
with the new filing date being the date of acceptance”.
(C. Exh.
1)
Petitioner now argues that the materials were an amendment.
The Board is persuaded that the correspondence between LeRoy
Brown and McDonough County in December 1991 clearly shows that
the filing should be treated as a new application.
The Board
believes that to hold otherwise would defeat the clear intent of
39.2 that there is only one “amendment” to a siting application.
Since the December 19,
1991,
filing was a new application,
LeRoy Brown should have met the notice requirements for this new
application.
The notice requirements of Section 39.2(b)
are
jurisdictional prerequisites to the local county board’s power to
hear a landfill proposal.
The lack of jurisdiction at the county
0139-0057
8
board level made it unnecessary to review petitioners’ other
arguments in Kane County Defenders.
Inc. v. Pollution Control
Board,
139 Ill. App.
3d 588,
487 N.E. 2d 743 (2nd District,
1985).
In that case, failure to publish the appropriate
newspaper notice 14 days prior to the request for site approval
resulted in the court’s vacating the county board’s decision and
the PCB decision upholding the county board.
The court applied
the reasoning of Illinois Power Com~anvv. Pollution Control
hoard,
137 Ill. App.
3d 499, 484 N.E. 2d 898 (4th District 1985),
which found that the PCB’s failure to publish notice as required
by Section 40(a) of the Act divested it of jurisdiction.
Thus the courts have held that the notice requirements of
Section 39.2 are to be strictly construed as to timing, and even
slight deviation,
such as one day,
in the notice requirement
renders the county without jurisdiction.
In the instant matter
the timing of the notice is less significant than the fact that
no notice was given for a new application.
Although the public
did have proper notice of the first application, the subsequent
filing of a new application must be noticed.
Therefore, the
Board finds that McDonough County lacked jurisdiction to hear
this matter.
CONCLUSION
As previously stated,
the courts have held that lack of
jurisdiction at the county board level make it unnecessary to
review petitioner’s remaining arguments.
Therefore,
the Board
will not review LeRoy Brown’s arguments concerning the
constitutionality or the criteria of Section 39.2 of the Act.
The Board will vacate the McDonough County Board’s denial of
siting approval for expansion of LeRoy Brown’s facility, as the
McDonough County Board lacked jurisdiction to hear the
application.
This opinion constitutes the Board’s finding of fact and
conclusions of law.
ORDER
The Board finds that McDonough County lacked jurisdiction to
hear the application for expansion of landfill because LeRoy
Brown failed to provide proper notice pursuant to Section 39.2(b)
of the Act.
The NcDonough County decision denying siting
approval is vacated.
IT IS SO ORDERED.
0 139-0058
9
Section 41 of the Environmental Protection Act
(Ill. Rev.
Stat.
1991,
ch.
111 1/2, par.
1041)
provides for the appeal of
final Board orders within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
(But see also,
35 Ill.
Adin. Code 101.246, Motions for Reconsideration, and
Casterieda
V.
Illinois Human Rights Commission
(1989),
132 Ill. 2d
304, 547 N.E.2d 437.)
I,
Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ~ove
opinion and order was
adopted on the
_______
day
Ofc~
,.,
1993, by a vote of
~-o.
~.
~
—~orothyM. ~
Clerk~
Illinois P~34utionControl Board
0139-0059
