ILLINOIS POLLUTION CONTROL BOARD
    May 20,
    1993
    CONCERNED CITIZENS OF
    )
    WILLIAMSON
    COUNTY,
    and
    )
    R.S.
    BLAKELY
    and
    MAX
    )
    STUCKER,
    as
    members
    of
    )
    Concerned
    Citizens
    of
    )
    Williamson County,
    )
    Petitioners,
    )
    v.
    )
    PCB
    92—204
    (Landfill Siting Review)
    BILL KIBLER DEVELOPMENT
    CORP., a/k/a KIBLER
    )
    DEVELOPMENT CORP., and the
    )
    WILLIAMSON COUNTY BOARD OF
    )
    COMMISSIONERS,
    Respondents.
    KENNETH
    A. BLEYER APPEARED ON BEHALF OF PETITIONERS;
    THOMAS
    ~I.IMMEL APPEARED ON BEHALF OF RESPONDENT BILL KIBLER
    DEVELOPMENT CORP.; AND
    LISA BEATY APPEARED ON BEHALF OF RESPONDENT WILLIAMSON COUNTY
    BOARD OF COMMISSIONERS.
    OPINION AND ORDER OF THE BOARD
    (by J. Theodore Meyer):
    This matter
    is before the Board on a December 14, 1992
    petition for review,
    filed by Concerned Citizens of Williamson
    County,
    and R.S. Blakely and Max Stucker as members of Concerned
    Citizens of Williamson County (collectively,
    Citizens).
    In
    response to a Board order, Citizens filed an amended petition on
    January 27,
    1993.
    Citizens seeks review of a November 13,
    1992
    decision of respondent Williamson County Board of Conunissioners
    (County Board) granting site approval to respondent Bill Kibler
    Development Corporation
    (Kibler) for a new regional pollution
    control facility.
    A public hearing on the petition for review
    was held on April
    2,
    1993,
    in Marion,
    Illinois.
    For reasons articulated below, the Board finds that a defect
    in the newspaper notice required by Section 39.2(b)
    of the
    Environmental Protection Act
    (Act)
    (415 ILCS 5/39.2(b))
    is a
    jurisdictional defect,
    and vacates the county board’s decision.
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    L~2-U573

    2
    PROCEDURAL
    HISTORY
    On April 25,
    1992,
    Kibler published a “public
    notice” in the
    Southern Illinoisan,
    a newspaper of general circulation, which
    stated that “in
    14 days from the date of this publication”,
    Kibler would submit an application for site approval for a new
    regional pollution control facility.
    (C0020.)
    The notice stated
    that Kibler proposes to develop a recycling center,
    transfer
    station, and landfill disposal site within a single solid waste
    management facility.
    On May 19,
    1992,
    24 days after publication
    of
    the
    newspaper
    notice, Kibler filed its application for site
    approval with the Williamson County Clerk.
    (C0030-C0121.)
    The
    County Board held public hearings on the application on September
    10,
    11,
    and 14,
    1992.
    (C0402—C0903.)
    On November
    13,
    1992,
    the
    County Board issued its decision granting Kibler’s request for
    site approval.
    (C1248—1249.)
    Citizens filed the instant
    petition for review with the Board on December 14,
    1992,
    and
    filed an amended petition on January 27,
    1993.
    STATUTORY FRAMEWORK
    At
    the local level, the siting process
    is governed by
    Section 39.2 of the Act.
    Section 39.2(a)
    provides that local
    authorities are to consider as many as nine criteria when
    reviewing an application for siting approval.
    These statutory
    criteria are the
    only issues which can be considered when ruling
    on an
    application for siting approval.
    Only if the local body
    finds that all applicable criteria have been met by the applicant
    can siting approval be granted.
    When reviewing a local decision on the criteria,
    this Board
    must
    determine
    whether
    the
    local
    decision
    is
    against
    the
    manifest
    weight
    of
    the
    evidence.
    (McLean
    County
    Disoosal.
    Inc.
    v.
    County
    of McLean
    (4th Dist.
    1991),
    207 Ill.App.3d 352, 566 N.E.2d 26,
    29;
    Waste Management of Illinois,
    Inc.
    v. Pollution Control
    Board
    (2d Dist.
    1987),
    160 Ill.App.3d
    434,
    513 N.E.2d
    592;
    E
    & E
    Hauling,
    Inc.
    v. Pollution Control Board
    (2d Dist.
    1983),
    116
    I1l.App.3d
    586,
    451 N.E.2d
    555, aff’d
    in part
    (1985)
    107 Il1.2d
    33,
    481 N.E.2d 664.)
    Additionally, the Board must review the
    areas
    of jurisdiction and fundamental fairness.
    Section 40.1 of
    the Act requires the Board to review the procedures used at the
    local level to determine whether those procedures were
    fundamentally fair.
    (E
    &
    E Hauling,
    451 N.E.2d at 562.)
    Citizens
    raise four claims of procedural error, including a jurisdictional
    claim.
    Because jurisdiction is a threshold issue, we will
    address that claim first.
    JURISDICTION
    The notice requirements of Section 39.2(b) are
    jurisdictional prerequisites to the local county board’s power to
    0
    ~2-O57L~.

    3
    hear
    a
    landfill
    proposal.
    On
    this
    basis,
    the
    lack
    of
    jurisdiction at the county board level made it unnecessary to
    review
    petitioners’
    other
    arguments
    in
    Kane County Defenders
    v.
    Pollution Control Board
    (2d Dist.
    1985),
    139 Ill.App.3d 588,
    487
    N.E.2d 743,
    93 Il1.Dec. 918.
    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.
    The
    appellate
    court
    applied
    the
    reasoning
    of
    Illinois
    Power
    Company
    v.
    Pollution
    Control
    Board
    (4th
    Dist.
    1985),
    137
    Ill.App.3d
    449,
    484
    N.E.2d
    898,
    92
    Ill.Dec.
    167,
    which
    found
    that
    the
    Board’s
    failure
    to
    publish
    notice
    as
    required
    by
    Section
    40(a)
    of the Act divested the Board of jurisdiction.
    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
    v.
    Pollution
    Control
    Board
    (5th Dist.
    1987)
    ,
    162 Ill.App.3d 801,
    516 N.E.
    2d 804,
    114
    Il1.Dec.
    649;
    Concerned Boone Citizens,
    Inc.
    v. M.I.G.
    Investments
    (2d Dist.
    1986),
    144 Ill.App.3d
    334,
    494 N.E.2d
    180,
    98 Ill.Dec.
    253.)
    Citizens
    argues
    that
    the
    newspaper
    notice
    published
    by
    Kibler
    is void.
    Citizens points to Section 39.2(b)
    of the Act,
    which
    states
    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 250 feet in each direction of the
    lot line of the subject property
    *~
    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.
    415 ILCS 5/39.2(b)
    (1992).
    Citizens maintains that the newspaper notice did not state any
    date on which the application would be submitted,
    and that the
    implication that the application would be filed 14 days after
    publication was not followed.
    Citizens states that although the
    r’r
    Ut
    4~LJ3

    4
    newspaper notice, which stated that the application would be
    submitted “in 14 days” was published on April 25, the application
    was not filed until May
    19.1
    Citizens argues that because the
    application
    was
    submitted
    more
    than
    14 days after publication of
    the newspaper notice, the notice is void and does not meet the
    requirements of the Act.
    Citizens cites several appellate court
    cases for the proposition that failure to properly give notice
    under Section 39.2 is jurisdictional.
    (Kane County Defenders,
    139 I11.App.3d 588; Browning—Ferris Industries,
    162 Il1.App.3d
    801; Concerned Boone Citizens,
    144 Ill.App.3d 334.)
    Citizens
    maintains that a jurisdictional defect requires no showing of
    prejudice, and thus contends that the siting procedure at the
    local level
    is void.
    In response, Kibler argues that filing an application after
    14 days has passed is not error.
    Kibler acknowledges that case
    law establishes that an application cannot be submitted less than
    14 days after notice
    is given, but contends that the cases cited
    by Citizens do not hold that filing an application after the 14
    day statutory period has passed creates
    a jurisdictional defect.
    Thus, Kibler maintains that the Board should reject Citizens’
    argument.
    Initially,
    the Board
    notes that the parties seem to be
    arguing different issues.
    Citizens contends that the
    jurisdictional defect arises from the discrepancy between the
    newspaper notice
    (which stated that the application would be
    submitted “in 14 days”)
    and the actual date of filing,
    24 days
    after notice was published.
    On the other hand,
    Kibler views the
    issue as whether it is error to submit an
    application
    more
    than
    14 days
    (the minimum notice period established by Section 39.2)
    after notice
    is given.
    After reviewing the record and the cases
    cited, the Board believes that the issue
    in this case is properly
    stated as:
    where a newspaper notice states that an application
    will be submitted “in 14 days”,
    but the application is submitted
    24 days after publication, does that notice comply with the
    provision of Section 39.2(b) that the notice include “the date
    when the request
    ...
    will be submitted”?
    In
    sum, the statutory
    provision at issue here is not the minimum 14 day notice period,
    but the requirement that the notice include the date when the
    request will be submitted.
    The text of the notice clearly includes the statement that
    the application was to be submitted “in 14 days from the date of
    1
    In both its initial brief and its response brief,
    Citizens refers to the date of filing of the application as April
    19.
    The
    record
    clearly
    reflects
    that
    the
    application
    was
    filed
    on May 19.
    The Board assumes that the reference to April
    is a
    typographical
    error.
    01
    ~2-O576

    5
    this publication.”
    (C0020.)
    The Board finds that this statement
    is sufficient to fulfill the statutory requirement that the
    notice
    include
    “the
    date
    when
    the
    request
    for
    site
    approval
    will
    be submitted”.
    (415 ILCS 5/39.2(b)
    (1992).)
    It is easy to
    calculate the anticipated date of submittal from that
    information.
    However, the problem in this case is that the
    application was not submitted on the date given in the newspaper
    notice.
    The record clearly shows that the application was
    submitted to the county clerk on May 19,
    24 days after the
    newspaper notice was published.
    (C0030.)
    In other words,
    the
    notice did include a date when the application was to be
    submitted,
    but the application was not submitted on that date.
    After reviewing the case law established on the issue of
    notice pursuant to Section 39.2(b), the Board finds that Kibler’s
    failure to submit its application on the date included in the
    newspaper notice renders that notice void.
    We believe that the
    requirement that the notice include the date on which the
    application will be submitted is intended to allow interested
    persons to easily ascertain when the local decisionmaking
    procedure, with its statutory deadlines for hearings, public
    comments,
    and final decision,
    will begin.
    This allows interested
    persons to begin to prepare to participate in the procedure.
    A
    situation,
    such as this,
    where an applicant includes the required
    date in the notice, but then fails to follow that date, does not
    fulfill that purpose.
    Thus,
    although the text of the notice may
    have complied with the requirements of Section 39.2(b), the
    applicant did not comply with the representations made in that
    notice.
    Thus,
    the Board finds that because Kibler’s subsequent
    actions in submitting the application did not comport with the
    information in the notice, the newspaper notice is void.2
    The case law is quite clear that failure to follow Section
    39.2(b)
    notice procedures
    is a jurisdictional defect,
    •such that a
    local decisionmaker is not vested with jurisdiction to hear an
    application for siting approval.
    (Kane County Defenders,
    139
    Ill.App.3d 588; Browning—Ferris Industries,
    162 Ill.App.3d 801;
    Concerned Boone Citizens,
    144 Ill.App.3d 334.)
    As the court
    stated in Kane County Defenders:
    The notice requirements contained in section 39.2(b)
    of
    the Environmental Protection Act citation
    are
    jurisdictional prerequisites which must be followed in
    2
    For example,
    if an administrative agency, such as the
    Board, published notice stating that a public hearing that was to
    be held on January
    1, but the hearing was not held until January
    12,
    that notice would also be void.
    The notice itself might
    comply with the applicable statutory requirements, but the
    representations made in that notice were not carried out.
    01
    L~2-O577

    6
    order to vest the county board with the power to hear a
    landfill proposal.
    Citations.
    Thus,
    the
    applicant’s
    failure to publish appropriate newspaper
    notice and notice of the date it filed the site
    location request rendered the county board hearing
    invalid for lack of jurisdiction.
    (Kane County
    Defenders,
    93 Ill.Dec. at 921—922.)
    Therefore, we find that the Williamson County Board did not have
    jurisdiction to consider Kibler’s request for site approval,
    because
    the
    newspaper
    notice
    published
    prior to the submittal of
    that application was void.
    The Board notes that Kibler argues that Citizens did not
    claim
    any
    prejudice and did not suffer any prejudice.
    However,
    as
    Citizens
    points
    out,
    the
    issue of prejudice is not relevant to
    a jurisdictional inquiry.
    The applicable notice requirements
    must be met in order to confer jurisdiction on the local
    decisionmaker, regardless of whether any party is, or claims to
    be, prejudiced by a failure to meet the notice provisions.
    Additionally,
    the Board notes that Kibler has not raised any
    contention that it was prevented,
    in some way,
    from submitting
    its application on the date included in the newspaper notice.
    An
    applicant has complete control over when an application is
    submitted to a local decisionmaker.
    CONCLUSION
    In sum, the Board finds that because Kibler did not submit
    its application on the date contained in the newspaper notice,
    that notice was void.
    Thus, the County Board lacked jurisdiction
    to consider the Kibler’s application for site approval.
    As
    previously stated, the courts have held that lack of jurisdiction
    at the local level makes it unnecessary to review any additional
    arguments.
    (Kane County Defenders,
    93 Ill.Dec. at 922.)
    Thus,
    we will not address Citizens’ three other contentions.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law.
    ORDER
    The Board finds that the Williamson County Board of
    Commissioners
    lacked
    jurisdiction
    to
    hear
    Bill
    Kibler
    Development
    Corporation’s
    application
    for site approval, because the
    newspaper notice was void.
    Therefore, the November 13,
    1992
    decision
    of
    the
    Williamson
    County
    Board
    of
    Commissioners,
    granting
    site
    approval,
    is
    vacated.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act
    (415 ILCS
    U
    1~.2-Q578

    7
    5/41)
    provides
    for
    the
    appeal
    of
    final
    Board
    orders.
    The
    Rules
    of the Supreme Court of Illinois establish filing requirements.
    (See also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certify that the above opinion and order was
    adopted
    on
    the
    2~’~Z day
    of
    _______________,
    1993,
    by a vote
    of
    ~
    Dorothy M. G9~n,Clerk
    Illinois Po13A.ltion Control Board
    01
    ~2-0579

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