ILLINOIS POLLUTION CONTROL BOARD
October 16, 1992
STEPHEN A.
SMITH, d/b/a ABC
)
SANITARY HAULING, JOHN APPL, d/b/a
)
APPL
SANITARY
SERVICE,
LAWRENCE
)
W. BOLLER II, d/b/a AREA GARBAGE
)
SERVICE, CHARLES H.
MILLER, d/b/a
)
C.H. MILLER
SANITARY,
CHRIS
)
JOHNSON, d/b/a CHRIS’S SERVICE CO.,
)
EDDIE L.
COOK,
SR., d/b/a COOK’S
)
SANITARY HAULING, DON CORY, d/b/a
)
CORY
SANITARY
HAULING, RONALD E.
)
HAYDEN,
d/b/a
HAYDEN
SANITARY
SERVICE,
)
GORDON
FICKLIN,
d/b/a
ILLINI
SANITARY
)
SERVICE, CHRIS YAGER, d/b/a KLEAN-WAY
)
DISPOSAL, GEORGE McLAUGHLIN,
d/b/a
)
MCLAUGHLIN SANITARY, CHERYL MANUEL,
)
d/b/a ROLLAWAY WASTE, RONALD W. MANUEL,
)
PCB 92-55
d/b/a RON MANUEL SANITARY, RUSSELL
)
(Landfill Siting
SHAFFER, d/b/a SHAFFER SANITARY CO.,
)
Review)
WILLIAM C.
UDEN,
d/b/a UDEN & SONS
)
SANITARY HAULING, and WILLIS SANITARY
)
HAULING,
INC.,
)
Petitioners,
V.
CITY OF CHAMPAIGN,
ILLINOIS,
)
INTERGOVERNMENTAL SOLID WASTE DISPOSAL
)
ASSOCIATION, and
XL DISPOSAL CORPORATION,
Respondents.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on two motions.
On
September 16,
1992,
petitioners Steven A.
Smith, d/b/a ABC
Sanitary Hauling, et al.
(collectively,
petitioners)
filed a
motion for reconsideration
of the Board’s August 13, 1992
decision in this matter.
Respondent the City of Champaign
(Champaign)
filed a response in opposition to that motion on
September
29,
1992.
On September 30, 1992,
respondent XL
Disposal
(XL)
filed its response to the motion for
reconsideration,
along with the appearance of its substitute
counsel.
On October
1,
1992,
Jeffrey W.
Tock, attorney of record
for XL and respondent Intergovernmental Solid Waste Disposal
Association
(ISWDA)
filed a motion to withdraw as counsel for XL.
That motion to withdraw is granted.
ISWDA has not filed a
0136-038
2
response to petitioners’ motion for reconsideration.
Petitioners ask the Board to reconsider its August 13,
1992
opinion and order in this matter.
In that August
13 decision,
the Board found that the City of Champaign failed to take final
action on the September 16,
1991 a~pp1icationfor site
filed by ISWDA and XL within 180 days of the filing of that
application.
Therefore, the Board concluded that, pursuant to
Section 39.2(e)
of the Environmental Protection Act
(Act)
(Ill.Rev.Stat.
1991,
ch.
111½, par. 1039.2(e)),
the application
is deemed approved.
Petitioners raise several arguments in
support of its request for reconsideration.
So that the Board
may address those claims, the motion for reconsideration is
granted.
Initially,
the Board notes that Champaign argues that the
Board has no jurisdiction to consider motions for
reconsideration, beyond the Board’s statutory 120-day decision
deadline.
Champaign contends that because the statute has no
provision for extending the Board’s decision deadline by the
mechanism of a motion for reconsideration,
the Board may not
consider such motions.
Champaign notes that the appellate court
has previously addressed this issue,
in Citizens Against the
RandolDh Landfill
(CARL)
v. Pollution Control Board (4th Dist.
1988),
178 Ill.App.3d 686,
533 N.E.2d 401, and held that the
filing of a motion for reconsideration does stay the time for
appeal.
However, Champaign asserts that the
CARL
decision is not
“well argued”, because it allows a Board regulation to overrule a
specific statutory time limit.
Thus, Champaign urges the Board
to find that it has no jurisdiction over the motion for
reconsideration.
The Board finds that it does have jurisdiction to rule upon
the instant motion for reconsideration.
The CARL decision
clearly holds that where a statute or rule permits the filing of
motions for reconsideration which extend the time period in which
to request judicial review, such motions are part of the
administrative review process.
Thus, the filing of such motions
does not affect the finality of the Board’s opinion and order in
the case.
(CARL,
533 NE.2d at 405.)
Two
other appellate court
decisions reject contentions that the Board may not hear motions
for reconsideration after a decision deadline has passed.
(Mathers v. Pollution Control Board
(3d Dist.
1982),
107
Ill.App.3d 729, 438 N.E.2d 213,
221; Modine Manufacturing Co.
v.
Pollution Control Board
(2d Dist.
1976),
40 Ill.App.3d 498, 351
N.E.2d 875,
877—878; çj~Waste Management of Illinois v.
Pollution Control Board
(1991),
145 Ill.2d 345, 585 N.E.2d 606.)
Therefore,
the Board reaffirms its earlier finding that it may
consider a motion for reconsideration after the expiration of a
statutory decision deadline.
(McLean County Disposal Company.
Inc.
v. County of McLean (March 10,
1988), PCB 87-133,
87 PCB 13,
aff’d CARL v. Pollution Control Board (4th Dist.
1988),
178
0
36-0382
3
Il..App.3d
686, 533 N.E.2d 401.)
Petitioners first contend that the Board erred in “refusing
to conduct a factual review of the record relating to the nine
statutory criteria”,
and that the Board incorrectly overruled
that part of its earlier decision in Board of Trustees of Casner
TownshiD
~v
•
County --of --Jefferson
-(Jan~ary~W~1985and~Apr1l4,
1985),
PCB
84—175
and
PCB
84-176
(Cons.)
(Casner
TownshiD)
which
held
that
the Board would review the record in “deemed approved”
cases using the manifest weight of the evidence standard.
Petitioners contend that the Board denied them fundamental
fairness and due process of law by sua sponte deciding not to
conduct a factual review of the record “whare no party in this
case had argued that such a factual review was inappropriate,
where the Board gave the parties absolutely no notice that it was
considering such action, and where the parties were given no
opportunity to brief the issue of whether a factual review should
be provided.”
(Motion at 2.)
The Board, as an administrative agency charged with applying
statutes and regulations, has the inherent authority and
responsibility to review its past decisions for conformance with
the law.
Petitioners have not cited any authority, nor has the
Board found any, for the contention that a sua sponte reversal of
a prior Board decision somehow denies petitioners fundamental
fairness and due process of law.
Where the Board reviews a past
decision and finds an error, the Board is under no obligation to
repeat that error simply because none of the parties has raised
the
issue.1
•
Additionally, as we pointed out in our August 13 decision,
the statements in Casner Township that the Board would review a
deemed approved case on a manifest weight of the evidence
standard was,
in essence,
dicta and not controlling law.
The
January 10,
1985 order in which that statement was made focused
mainly on whether the Board had any authority to even consider an
appeal of a deemed approved, case.
We found that the Board did
have such authority.
When making the final decision in the case,
on April
4,
1985,
the Board held that procedural irregularities
at the local hearing rendered the proceedings fundamentally
unfair, and remanded the case to the local decisionmaker.
Thus,
the Board was never actually faced with a decision whether to
review the “factual record”
1
The Board also
notes
that even
if
we had felt it
advisable, upon discovery of the question, for the parties to
brief the issue,
it would have been impossible to issue a
briefing order, receive briefs, and render a final decision
within the statutory deadline for Board decision.
0
36-0:383
4
In any event, petitioners have had the opportunity, in their
motion for reconsideration,
to raise their arguments in support
of a Board review of the record.
The Board is not persuaded by
those contentions.
Petitioners have not explained how it is
possible to apply a manifest weight of the evidence review to a
non-existent decision.
~See the Board’s
~gust
.i~92
opinion
and order at page 10.)
As Champaign points out, Section 40.1
provides for a review of the local decision, and for a review of
jurisdiction and fundamental fairness, not for making an initial
determination as to what the record shows.
The statute and the
accompanying case law are clear that this Board’s function is to
review the local decision, not to make an initial determination
as to whether the applicable criteria of Section 39.2(a) have
been met.
(See,
e.g., File v.
D & L Landfill
(5th Dist.
1991,
219 Ill.App.3d 897, 579 N.E.2d 1228; McLean County Disposal.
Inc.
v.
County of McLean
(4th Dist.
1991),
207 Ill.App.3d 352, 566
N.E.2d 26.)
Petitioners have continued to confuse a “deemed
approved” situation,
in which the legislature provided for an
automatic “deemed approved” situation where final action is not
taken within 180 days, with an actual decision on the merits by a
local board.
This confusion creates the instant situation,
where
petitioners argue for a “factual review”, when petitioners are
really asking the Board to make a de novo decision.
Petitioners also contend that the Board’s decision not to
review the factual record in deemed approved cases will
“emasculate” the public’s right to participate in the hearing
process.
Petitioners assert that because a local decisionmaker
will be able to insulate itself from a factual review by refusing
to make a timely decision, the hearings will be rendered
meaningless.
Again,
this argument ignores the statutory scheme
established by the legislature.
Section 39.2(e) clearly provides
that if a local decisionmaker fails to take final action within
180 days,
the applicant may deem the request approved.
“Deemed
approved” is the result provided for by the legislature, and this
Board cannot change that outcome.2
As to petitioners’ claim that
the Board’s decision has greatly increased the likelihood that
the appellate court will be required to reverse and remand the
matter to the Board for a factual review, the Board points out
that the cases cited by petitioners involved situations where the
local decisionmaker did take action in a timely manner.
Therefore, those cases do not address the situation presented
here.
The Board finds no indication in those appellate decisions
that an appellate court will require that the Board conduct a
factual review and decision where a local government has failed
to do so.
2
The Board notes that local decisioninakers, who are
elected officials, will have to live with any failure to take
final action within the decision deadline.
01 36-038k
5
Next,
petitioners state that they are aware of the Board’s
recent budget concerns, which were discussed in two issues
(June
22,
1992 and July 8,
1992)
of the Environmental Register, the
Board’s newsletter.
Petitioners assert:
It would appear that the Board’s decision to abandon any
f-actual--review
of the reCord in-deemed approvasicy-cwses
is a convenient way of reducing its workload, and therefore
addressing budget concerns.
Obviously, petitioners are not
in a position to know whether budgetary constraints were
actually involved in this decision in any way, although the
timing of events certainly leads to that inference.
If
budgetary matters were a factor, however, this Board should
reconsider this issue completely apart from its own
financial concerns.
(Brief at 4.)
The Board is appalled at this attack on its integrity.
As
in all cases decided by the Board, we took the action which we
believe to be legally correct.
The Board’s decision was not
influenced in any way by budget concerns or any other event
outside the record in this case.
We question whether petitioners
would have made the same accusation to a court, even though the
continuing financial concerns of the court system are also public
record.
Petitioners next state that they rely on their post-hearing
briefs to support all of the other issues raised by their motion
for reconsider, with several additional comments.
Because a
motion for reconsideration, by its very nature,
is the procedure
by which petitioners are to argue how the Board’s decision is
erroneous,
the Board will not address the issues not specifically
argued in the motion for reconsideration.
As to the claim that Champaign improperly accepted and filed
the application for site approval, petitioners contend that this
Board “concluded that the petitioners could have presented proof
that the application did not comply with the county solid waste
management plan, regardless of what the city ordinance required
from the county and regardless of the county’s response.”
(Brief
at 5.)
Petitioners maintain that the Board overlooked the fact
that the burden of proving compliance with the plan was on the
applicants,
and that the application relied on the self—serving
determination of compliance made by ISWDA.
Petitioners have misconstrued the Board’s decision on this
issue.
In their post-hearing briefs, petitioners contended that
the application was improperly filed, alleging that ISWDA did not
comply with a Champaign city ordinance requiring that the
applicant include a statement that the applicant had presented
the proposed site to the county for a determination of compliance
with the solid waste management plan.
In our August 13 opinion
and order, this Board noted that we have previously held that we
0136-0385
6
cannot compel enforcement of a local ordinance, and that our
review of the sufficiency of an application is limited to
jurisdictional issues.
(August 13 opinion and order at 4-5.)
We
also stated that where a petitioner contends that an alleged
failure to comply with a local ordinance rendered a proceeding
fundamentally unfair, the Board will review the alleged failure
onthat
basis.
Assuming-tha-t~etitibne~s~st-ateineritthát
thèy
were “misled” by the absence of Champaign County’s imprimatur
raised a fundamental fairness claim, the Board found that
petitioners failed to demonstrate any prejudice from the absence
of the statement.
Only in that context did this Board point out
that petitioners could have presented proof that the application
did not comply with the county solid waste management plan.
(August 13 opinion and order at 5.)
Petitioners also object to the Board’s statement that it is
the expiration of the 180-day deadline which had legal effect in
this case,
not the votes themselves.
Petitioners contend that
this statement creates serious problems for the future,
since no
vote will be conclusive until 180 days has passed because of the
possibility of reconsideration.
Petitioners claim that
participants will be unsure as to when the time for filing an
appeal begins, but do not explain how this problem renders the
Board’s August 13 decision erroneous.
The Board simply notes
that such a situation is no different than actions at the Board
level or in the courts, where one may be unsure whether to file a
motion for reconsideration or an appeal.
The Board does point
out that the filing of an appeal takes jurisdiction from the
lower body.
Next, petitioners argue that the Board “basically ignored”
the fundamental fairness issue presented by a circuit court
decision voiding the contract between ISWDA and XL.
Petitioners
maintain that it is difficult to understand why the Board would
want to “stamp its approval” on an application when it is obvious
that if the site is ever used,
neither the operator nor the
facility was scrutinized.
Petitioners conclude this argument by
stating “(iJt appears that this Board either does not care what
is going on or does not want to take the time to figure out what
is going on.”
(Brief at 6.)
The Board rejects petitioners’ assertions that we either do
not care or do not want to take the time to “figure out” what is
involved in a case before us.
In regard to this issue, the Board
found that this contention does not raise a fundamental fairness
issue, because the Board is to review the fundamental fairness of
the procedures used by the city council.
The voiding of the
contract between ISWDA and XL was in no way related to anything
the Champaign city council did or did not do.
(August 13 opinion
and order at 8.)
Petitioners have not pointed to any authority
for this Board to review “fundamental fairness” of anything other
than the local decisionmaker’s procedures.
0 136-0386
7
Finally, petitioners assert that “it is apparent that this
Board did not understand the constitutional claims” raised by
petitioners in their post-hearing briefs.
(Brief at 6.)
However, the Board continues to believe that its analysis of the
constitutional issues was correct.
Petitioners have not cited
any authority for their contention that ~
~ç~_of~
local
“flow
contiöl” ódiiá~creátes~ã
property
interest
that
gives
petitioners
due
process
protections
in
a
local
siting
proceeding.
(August 13 opinion and order at 9.)
In sum, after considering the issues argued by petitioners
in their motion for reconsideration, the Board reaffirms the
conclusions in our August 13,
1992 opinion and order in this
case.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat.
1991,
ch.
111½
,
par.
1041) provides for the
appeal of final Board orders.
The Rules of the Supreme Court of
Illinois establish filing requirements.
(But see also 35
Ill.Adm.Code 101.246 “Motions for Reconsideration” and Castenada
v. Illinois Human Rights Commission
(1989),
132 Ill.2d 304, 547
N.E.2d 437.)
B. Forcade dissented and J. Marlin abstained
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certifyl that the above opinion and order was
adopted on the
//7~
day of
2~L2t~-&~i
,
1992,
by a vote
of
5/
-
0136-0381
~-t2~Z~
p27.
Control Board