ILLINOIS POLLUTION CONTROL BOARD
April
11, 1991
MADISON COUNTY CONSERVATION
)
ALLIANCE, RICHARD WORTHEN,
)
CLARENCE BOHM,
HARRY
PARKER,
)
GEORGE ARNOLD, CLINTON
)
AUFDERHEIDE, MARY AUFDERHEIDE,
)
WILLIAM DORRIS and
MARY
DORRIS,
)
PCB 90—239
Petitioners,
)
(Landfill Siting)
v.
MADISON COUNTY and
)
ENVIRONMENTAL CONTROL SYSTEMS,
)
INC.,
)
Respondents.
MR. GEORGE J. MORAN of CALLAHAN
& MORAN APPEARED ON BEHALF OF THE
PETITIONERS.
MR.
J. THOMAS LONG of FARRELL & LONG APPEARED ON BEHALF OF
ENVIRONMENTAL CONTROL SYSTEMS,
INC.
MR. LEWIS
E. MALLOTT, ASSISTANT STATE’S ATTORNEY, APPEARED ON
BEHALF OF MADISON COUNTY.
OPINION AND ORDER OF THE BOARD
(by B. Forcade):
This matter comes before the Board on a
third party petition
filed by Madison County Conservation Alliance, Richard Worthen,
Clarence Bohm, Harry Parker, George Arnold,
Clinton Aufderheide,
Mary Aufderheide, William Darns and Mary Dorris,
hereinafter
“Petitioners”,
appealing the decision of the County Board of
Madison County
(“County Board” or
“Madison County”) granting site
location approval
to Environmental Control Systems,
Inc.
(“ECS”)
for a regional pollution control facility.
Procedural History
The application for site approval was filed by ECS with
Madison County on June 20,
1990.
The County Board held three
days of hearing
on the application:
September
26,
27 and October
1,
1990.
Madison County granted approval on November
14,
1990.
Petitioners filed this third party appeal on December
18,
1990.
On December
20,
1990,
this Board accepted the matter
for
hearing.
On January
4,
1991,
the hearing officer set the hearing
for February 15,
1991
in Edwardsville, Illinois,
at
the Madison
County Courthouse.
On January
9,
1991, Madison County filed its
certification of
record and the record of the County Board’s
121—61
—2—
proceedings..
On February 1,
1991, an amended certification and
record was filed, pursuant
to this Board’s Order of January 10,
1991.
This Board’s hearing was held on February 15,
1991 and
transcripts of the hearing were filed on March
8,
1991.
ECS
filed
its brief on March 11, 1991 and the Petitioners’
brief was
filed on March 14, 1991.
By statute,
absent a waiver of the
decision due date,
this Board’s decision must be rendered by
April
17, l~91,only slightly more than 30 days after completion
of the record.
The Facility
The proposed facility is to be located on a 210 acre parcel,
approximately one—half mile east of Big Bend Road,
south of the
Alton and So~ithernRailroad, west of
Illinois Route
ill, and
north of Int.erstate
55 and 70 in Nameoki Township, Madison
County,
Illinois.
Although it
is being referred to as the
Madison Cour~tyRecycling Center,
the facility would serve various
waste disposal functions, including recycling, recovery for use
as alternative fuel,
coinposting,
a 62 acre landfill,
and a
potential waste—to-energy on—site plant.
In the application for
site approval these operations were categorized as follows~:
1.
Material Recovery Facility
2.
Fuel Pelletizing and Waste Baling
3.
Landscape Waste Composting
4.
Bale Storage
5.
Waste—to—Energy Facility
(Future)
The facility
is projected to provide
a minimum of
20 years
waste management services for Madison County.
Additionally,
the
recycling operation offers the possibility that Madison County
may be able
to exceed state—imposed recycling goals.
The
application
states that the facility will enable Madison County
to recycle in excess of
25 percent of its wastes by the end of
the first year of operation.
Introductiort
Public Act 82—682, commonly known as SB—l72,
is codified
in
Sections 3.32,
39(c),
39.2 and 40.1 of the Act.
It vests
authority in the county board or municipal government
to approve
or disappro~ze the 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 local governments from Section 40.1 ~ofthe 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,
the Board
is to rely “exclusively on the record before the county board or
the governing body of
the municipality”
in reviewing the decision
121—62
—3—
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
555
(2d Dist.
1983), aff’d 107 Ill.
2d 33,
481 N.E.2d 664
(1985).
Jurisdiction
The notice requirements of Section 39.2(b) are
jurisdictional prerequisites to the local county board’s power
to
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 The Kane County Defenders,
Inc.
v. The Pollution Control Board,
County Board of Kane County,
Illinois, Sanitary District of Elgin and City of Aurora,
139 Ill.
App. 3d 588,
487 N.E.2d 743
(2d Dist. 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
it.
The court applied the reasoning of Illinois Power Company v.
Pollution Control Board,
137 Ill. App.
3d 449,
484 N.E.2d 898
(4th Dist.
1985), which found
that the PCB’s failure to publish
notice as required by Section 40(a)
of the Act divested it 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,
Inc.
v.
IPCB and County
of
St. Clair,
Illinois,
162 Ill. App.
3d
801,
516 N.E.2d 804
(5th
Dist.
1987).
ECS argues that the Hearing Officer erred
in admitting
certain new evidence conk
rrling the alleged notice
deficiencies.
ECS points
to Section 40.1 of the Act, which
states that this Board’s “hearing shall be based exclusively on
the record before the County Board”.
However, ECS cites
no
authority for its proposition that Section 40.1 applies to the
notice requirements of Section 39.2(b), which position would
result in jurisdiction being.conferred if the issue of
jurisdiction is not raised
in the proceeding below.
Similarly,
ECS cites no authority in claiming that Petitioners waived the
issue of notice.
On the contrary, “(a)n objection to jurisdiction may be
raised at any time,
even by the appellate court on its own
motion”.
Concerned Boone Citizens
v. M.I.G.
Investment,
494
N.E.2d
180, 144
Ill.
App.
3d 334
(1986).
Without the statutory
notice,
the County Board simply has no power
to hear the
matter.
Likewise,
jurisdiction cannot be conferr’~dby waiver.
Madison County and ECS objected to the admission of tax
record exhibits on the basis that they were available prior
to
September 26,
1990 for submission at the County Board hearing.
The Hearing Officer overruled the objection and this Board
affirms that decision since the evidence goes
to jurisdiction and
121—63
—4—
waiver
is inappropriate.
Tr.
at p.
40,
41.
ECS also argues that parcel
007 will not be shown as being
within 250 feet of parcel 005
if the testimony is stricken as
requested by ECS.
Resp.
Br.
at p.
12.
The Board denies this
motion to strike and affirms the Hearing Officer’s ruling on ECS’
objection.
The Board finds that the Hearing Officer did not err
in
admitting evidence of possible notice defects.
Such evidence is
admissible based on the jurisdictional requirements of Section
39.2(b) of the Act.
Alleged Notice Defects
Petitioners assert
that Madison County lacked jurisdiction
because the notice of public hearing published in the
Edwardsville Intelligencer was “fatally defective” since
it
“described the siting request as a request for siting approval
for
a recycling center rather
than a site for
a regional
pollution control center”.
Pet. at p.
2.
This Board has
reviewed the Certificate of Publication and the notice.
The
notice
is captioned:
REGIONAL POLLUTION
CONTROL FACILITY SITING
PUBLIC HEARING NOTICE
The first sentence of
the notice begins:
“Notice
is hereby
given that the County of Madison has received an application for
Regional Pollution Control Facility Siting Approval for Recycling
Center and that a Public Hearing on said application will be
held”.
The legal description identifies
the site as
approximately two hundred ten acres, encompassing
5 parcels whose
legal descriptions are provided.
Several sentences detail the
scope of the operations as including more than recycling
activities:
NATURE AND SIZE OF DEVELOPMENT:
The proposed
facility is a comprehensive waste management
center including the following units: material
recovery—facility, fuel pelletizing and waste
baling,
landscape waste composting,
bale
storage and future waste—to—energy facility.
*
*
*
The bale storage area will be developed
in
stages as needed.
*
*
*
NATURE OF PROPOSED ACTIVITY:
All incoming
wastes
(except landscape waste and
construction/demolition waste) will be
unloaded within the material recovery
121—64
—5—
building.
*
*
*
Materials not to be recycled will be moved
to
the fuel pelletizing and waste baling
facility.
*
*
*
The storage area
is designed
to be constructed
with a double liner of one composite liner
overlying a second recompacted earth liner.
*
*
*
A groundwater and a gas monitoring system will
be installed around the perimeter of
the
storage area.
PROBABLE LIFE OF ACTIVITY:
Applicant estimates that the life of this
facility will be a minimum of
20 years.
This Board finds that the above language adequately informs
interested persons of the subject matter of the required
hearing.
The caption itself does not refer to the recycling
center and the content of the notice clearly states that more
than recycling
is planned for the site.
However, use of the
words
“bale storage”
and “storage area”
for the more commonly
used term “landfill” could result
in some public
misunderstanding.
Generally, less commonly used expressions
should be avoided in public notices.
Notwithstanding,
this Board
concludes that the notice was not so confusing or misleading that
jurisdiction should be denied on this basis.
A second issue
regarding jurisdiction involves the statutory
requirement that notice shall be served on property owners within
250 feet of the proposed property not less than 14 days prior
to
a request for site approval being filed with the County or
local
government.
Section 39.2(b)
states this requirement as
follows:
“No later than 14 days prior
to 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 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...”
Section 39.2(b).
Petitioners assert that jurisdiction
is lacking because
“(a)t least one or more of the property owners within the 250
121—65
—6—
feet lot line of the subject property were not notified as
required by statute.
Pet. at
p.
2.
Proof of Service submitted on behalf of ECS is found at
C2044—2062, Exhibit
2,
in the Affidavit of Patsy
S. Hubbard and
attached copies of receipts.
The affidavit states:
I,
Patsy
S.
Hubbard,
being
duly
sworn
and
on
oath
state
as
follows:
*
*
*
2.
That,
on
the
30th
day
of
May,
1990,
I
caused
to
be
mailed
the
written
notice
attached
hereto
as
Exhibit
A
and
by
this
reference made
a part hereof by
registered mail,
return receipt
requested,
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
Madison
County
in
which
the
proposed facility
is located.
(Attached
as Group Exhibit
B,
are the return
receipts of said notices).
*
*
*
5.
That,
a thorough search of the authentic
tax records of Madison County was made by
your affiant,
and all property owners
within
250 feet
in each direction of the
subject
lot line determined, and required
notices were mailed registered mail
to
said owners of
record.
C2044,
2045.
The affidavit indicates that ECS used registered mail to
serve
owners
within
250
feet.
No
reference
was
made
to
personal
service.
A description of
the property was attached to the
affidavit.
See C2046,
2048.
The description of the property, on
which the regional pollution control facility will be located,
refers to 210 acres and includes the parcel of property
identified by the permanent parcel number 17—1—20—33-00—000—005
(“005”).
The issue here
is whether owners
within’S 250 feet of the
lot line of this property, parcel
005, were served with the
statutory notice.
Petitioners claim that the owners of
two such
properties,
1) Harold Ord and Laverne Powell Ord and
2)
Louis
S.
Dennig,
Sr.
and Louis
S. Dennig,
Jr., Co—Trs.,
did not receive
notice.
Their
properties
are
identified
by
the
permanent
parcels
numbered
17—1—20—34—00—000—007
(“007”)
and
17—1—20—33—00—000—013
12
1—66
—7—
(“013”).
The
affidavit
does
not
include
proof
of
service
on
these
individuals.
At
this
Board’s
hearing
the
Petitioners
called
Allen
Martin
to
testify.
Mr.
Martin
identified
himself
as
Director
of
the
Mapping
Department
for
Madison
County,
a
Division
of
the
Supervisor
of
Assessments’
Office.
Tr.
at
p.
10.
He
has
been
employed
there
twenty—six
years.
He
testified that as part of
his
duties
in
the
office
of
Supervisor
of
Assessments
he
regularly
handles
and
maintains
the
“authentic
tax
records
of
the
county”.
Tr.
at
p.
16.
He
presented
some
of
those
records.
Specifically,
he
brought
the
“property
record
card”
as
the
county’s
authentic
tax
record
and
the
“tax
lot
card”
as
other
authentic
tax
records
under
the
old
system
maintained by the
county.
Tr.
at
pp.
16—17.
He
brought
these
records
for
the
following
parcels,
identified by parcel numbers as fOllows:
Parcel
Owner
#
17
1
20
33
00
000
005
Jerry W. Fowles
17
1
20
34
00
000
007
Harold Ord and Laverne Powell Ord
17
1
20
33
00
000
013
Louis
S. Dennig,
Sr
&
Louis
S. Dennig,
Jr. Co—Trs.
The records for the above parcel numbers ending in 007 and
013 showed that the owners were Harold Ord and Laverne Powell Ord
for 007 and Louis
S.
Dennig, Sr. and Louis
S. Dennig,
Jr.
for
013.
See Exhibits
3 and 4.
Additionally, Mr. M~artinprovided a
computer print-out from the computer records
in the Supervisor of
Assessments’ Office.
This confirmed the information from the
above records and was described as a compilation of the official
authentic Madison County tax records.
Tr.
at p.
20;
Exhibit
5.
Mr. Martin presented
“a blue—print,
run in
(his) office,
of
the official tax maps stored
in
(his) office for the property in
Madison County,” depicting Section
33 and another
blue—print
showing Section 34.
Tr.
at pp.
20,21, Exhibits 6,7.
He marked
these to show the above three parcels identified as numbers
005,
007, and 013.
Tr. at pp.
21—22.
The two exhibits were connected
to show Sections
33 and 34 together since the two sections are
contiguous.
Tr.
at
pp.
30-31.
Mr. Martin testified that the
maps
are
prepared
from
aerial
photographs
to a scale of
400
feet
to
one
inch.
Tr.
at
p.
23.
Mr.
Martin
and
his
employees
transfer measurements from deeds
to these maps to the same
scale.
Tr. at pp.
33—34.
Parcel
005
is identified by ECS as being part
of the subject
property.
See
Cil
and
C2048.
Mr.
Martin
testified
that
parcel
013
is
directly
adjacent
to
and
has
a
common
boundary
with
parcel
005.
Tr.
at
p.
22.
Mr.
Martin
also
stated
that
‘Parcel
005
and
Parcel
007 are “easily within 250 feet of each other”, and he
“suspect(s) that they would have a common corner.”
Tr.
at
p.
34.
Mr. Martin indicated that parcel 013 has been in the name of
Dennig since 1979 and was put into a trust
in 1990, and
that
parcel
007 has been in the name of Pole at
least since 1958 and
121—67
—8—
that
the
name
Laverne
Pole
Ord
probably
represents
an
heir
of
the
Poles.
Tr.
at
p.
35,
On
cross-examination
by
ECS,
Mr.
Martin
acknowledged
that
there
may
be
inaccuracies
in
his
maps
and
that
he
cannot
testify
as
to
their
accuracy
from
a
surveyor’s
standpoint.
He
did
not
know
whether
the
information
regarding
these
particular
parcel
records
was
based
upon
a
survey,
and
stated
that
his
records
are
not
based
entirely
on
surveys.
In
its
brief
ECS
argues
that
Petitioners’
assertion
that
notice
was
not
given
must
fail
because
Petitioners
did
not
rely
on actual surveys and legal descriptions.
ECS cites no authority
for
this
argument.
The
Board
finds
that
the
testimony
regarding
the
authentic
tax
records
and
official
maps
offers
proof
on
which
reasonable
persons
would
rely.
The
Board
also
relies
on
ECS’s
application
and
its
own
notice
describing
the
subject
property.
ECS
states
that
the
actual
location
of
the
“site”
is
partially
contained
within
parcel
005.
ECS
refers
to
the
part
of
parcel
005
which
is
not
in
the
flood
plain
and
is
situated
in
the
western
part
of
parcel
005
above
elevation
406’.
ECS
seernsto
be
alluding
to
the
bale
storage
(landfill)
or
other
specific
operations
on
the
subject
property.
Resp. Brief at p.
8.
ECS
argues
“at
no
time
did
Mr.
Martin testify as
to the relation of
Permanent
Parcel
13
to
the
actual
boundary
of
the
site
location
at
elevation
406’”.
Resp.
Brief
at
p.
11.
As
Petitioners
state
in
their
Reply,
the
Board
cannot
interpret
the
Section
39.2(b)
language
“lot
line
of
the
subject
property”
to
mean
that
only
certain
portions
of
the
subject
property
are
relevant.
The
Board
has
reviewed
the
record,
particularly
maps
and
diagrams
at
C45,
C50,
C53
as
suggested by
ECS
at
page
10
of
its
brief.
In
fact,
the
lot
line
of
parcel 005
outlined
by
Mr.
Martin
in
red
on
the
County
Assessor’s
map
at
Exhibit
6
appears
identical
to
the
outline
of
the
property
in
ECS’s application at C45.
Parcel 013 clearly shares a common boundary approximately
1200 feet long with
the southwest part of parcel 005 and at
least
a corner of parcel
005
is adjacent
to,
or well within 250 feet
of, parcel 007.
No intervening parcels are depicted as lying
between these common boundaries.
This appears consistent with
the above referenced ECS maps and diagrams.
The possible lack of
surveying accuracy on the exact location of the common boundary
is not fatal
to the Board’s concluding that the proof
is adequate
to establish the relevant lot lines.
Additionally,
the Board notes that ECS also gave notice
regarding parcel
005.001 and also listed
it
in its application as
permanent parcel 17—1—20—33—00—000—005.001,
Parcel
4.
See Notice
at C2048 and application at Cll.
Parcel
007 clearly seems to
share a common boundary of approximately 500 feet along the
entire eastern boundary of parcel 005.001, as well as meeting
with the corner of parcel
005.
This,
too, indicates that one or
more property owners within 250 feet of
the lot line did not
121-68
—9—
receive
the
Section
39.2(b)
notice.
ECS
has
not
adequately
shown
that
all
owners
within
250
feet
of
“the
lot
line
of
the
subject
property”
received
notice.
Although
the
affidavit
of
Ms.
Hubbard
made
a
prima
facie
case
that
notice
was
given,
once
Petitioners
brought
forth
credible
evidence
that
notice
was
defective,
ECS
had
the
burden
of
going
beyond
its
prima
facie
proof.
ECS
did
not
prove
that
the
required
notice
was
given
based
on
the
authentic
tax
records
and
that
the
property
referred
to
in
the
public
notice
is
not
within
250
feet
of
parcels
007
and
013.
The
Board
rejects
ECS
claim
that
Petitioners
should
prove
that
personal
service
was
not
made
on
owners
of
parcels
007
and
013.
This
can
only
be
viewed
as
an
attempt
to
shift
the
burden
of
proof
of
service
to
Petitioners.
As
noted
earlier,
paragraphs
2
and
5
of
ECS’
affidavit
indicated
that
ECS
only
claims
to
have
made
service
by
registered
mail.
Upon
review
of
the
affidavit,
proof
of
service,
testimony
and
exhibits,
this
Board
concludes
that
at
least
one
owner
within
250
feet
of
the
subject
property’s
lot
line
was
not
given
notice
as
required
by
Section
39.2(b)
of
the
Act.
The
Board
finds
no
legal
basis
for
Respondent’s
assertion
that
not
all
of
permanent
parcel
005
should
be
considered.
Resp.
Brief
at
pp.
9—14.
ECS’
own
notice
refers
to
210
acres,
and
lists
parcel
005
as
including
parcels
it
references
with
the
numbers
1,
2,
and
3.
See
Cil
and
C2048.
The
application
also
corroborates
that
parcel
005,
in
its
entirety,
is
part
of
the
210
acre assemblage of
land.
See C9—
11.
Under
the
statute ECS must give notice to affected property
owners
who
are
defined
as
owners
within
250
feet
of
the
lot
line,
not
250
feet
from
some
other
point
within the
1~t lines.
The
only
“lot
line”
is
that
shown
in
the
authentic tax records or
assessor’s
map
for
parcel
305
as
outlined in red on Exhibit
6.
Where
the
flood
plain
begins
or
ends
on
the
subject
property
is
irrelevant.
See
Resp.
Brief
at.
p.
10.
Although
in
matters
of
fundamental
fairness
this
Board
may
consider
whether
remand
may
serve
a
useful purpose,
this Board
has
no
authority
to confer
jurisdiction
on
the
County
Board.
See
DiMaggio
v.
Solid
Waste
Agency
of
Northern Cook County, PCB 89—
138,
107
PCB
49
(January 11,
1990).
The
notice
provision
of
Section
39.2(b)
is
a
statutory
jurisdictional
prerequisite
and
notice
is
here
found
to
be
defective.
The Board finds,
therefore,
that
the
County
Board
lacked
jurisdiction
to
reach
a
decision on ECS’
application.
The decision of Madison County
approving the application of Environmental Control Systems, Inc.,
is hereby vacated.
This Opinion constitutes the Board’s findings of fact and
conclusions of
law.
121—69
—10—
ORDER
The
Board
hereby
vacates
the
decision
of
the
County
Board
of
Madison
County
granting
site
location
approval
for
a
regional
pollution
control
facility
to
Environmental
Control
Systems,
Inc.
Section
41
of
the
Environmental
Protection
Act,
Ill.
Rev.
Stat.
1987,
ch.
lll~,
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.
J.
Theodore
Meyer
dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
above
~inipn
and
Order
was
adopted
on
the
//~t’
day
of
______________________,
1991,
by
a
voteof
________.
Dorothy M.
,4(inn,
Clerk
Illinois P~JlutionControl Board
:I21~-70
