ILLINOIS POLLUTION CONTROL BOARD
    October
    6,
    1988
    RICK MOORE,
    LEONARD MORRIS,
    )
    AND EDITH SIMPSON,
    Petitioners,
    vs.
    )
    PCB 86—197
    )
    WAYNE COUNTY BOARD AND
    DAUBS LANDFILL,
    INC.,
    )
    Respondents.
    ORDER OF THE BOARD
    (by J.
    Theodore Meyer):
    This matter
    is before the Board
    on a motion
    to vacate filed
    by petitioners Rick Moore
    and Leonard Morris on July
    7, 1988.*
    Respondent Daubs Landfill,
    Inc.
    (Daubs) filed objections
    to the
    motion on July
    20, 1988.
    On August
    4,
    1988,
    the Board ordered
    petitioners and Daubs
    to submit briefs on issues raised by the
    motion to vacate.
    Petitioners
    filed
    their brief on August
    24,
    1988,
    and Daubs submitted
    its brief on September
    14,
    1988.
    On
    October
    3,
    1988, petitioners filed
    a reply brief with a motion to
    file that reply
    instanter.
    The motion
    to file instanter
    is
    granted.
    Petitioners’ motion asks the Board
    to vacate its June
    2,
    1988 Opinion and Order, which upheld the decision of
    respondent
    Wayne County
    Board granting site approval
    to Daubs.
    Petitioners
    maintain that Daubs failed
    to perfect service
    of pre—filing
    notice on all property owners within
    250
    feet of the proposed
    facility.
    Specifically, petitioners contend
    that Daubs did not
    serve Wayne County Bank and Trust Company, which
    is
    listed, in the
    county tax records
    as the owner of two parcels of land
    in’ the
    subject
    area.
    Petitioners
    thus insist
    that Daubs’
    failure
    to
    serve notice on Wayne County Bank and Trust constitutes a
    jurisdictional defect
    in the proceedings,
    pursuant
    to Section
    39.2(b)
    of the Environmental Protection Act
    (Ill.
    Rev.
    Stat.
    1987,
    ch.
    111
    1/2 par.
    1039.2(b)), divesting
    the Wayne County
    Board and this Board
    of jurisdiction.
    As the Board noted
    in
    its June
    2,
    1988 Opinion and Order,
    this case has
    a
    long history before the Board.
    On February 19,
    *Although Edith Simpson was
    a petitioner
    in earlier proceedings
    in this case,
    she
    is not listed
    as
    a petitioner
    in this motion.
    93—11
    —2—
    1987,
    the Board vacated
    the Wayne County Board’s siting approval,
    based on the Board’s finding that
    a defective legal description
    of the site predominated over an accurate narrative description
    of the site.
    One year later,
    the Fifth District Appellate Court
    reversed
    that decision and remanded the case to the Board.
    Daubs
    Landfill, Inc.
    v. Pollution Control Board,
    166 Ill. App.
    3d 778,
    117
    Ill. Dec.
    626, 520 N.E.2d 977 (5th Dist.
    1988).
    Thus,
    the
    Board’s June 2,
    1988 Opinion and Order disposed of the other
    issues raised by petitioners in their original petition
    for
    review.
    Petitioners’ current contention that the Wayne County Board
    and this Board
    lacked jurisdiction of this case because of
    a
    defect in a statutorily required notice has not been raised
    before
    the instant motion to vacate.
    In its August
    4,
    1988
    briefing order,
    the Board specifically asked petitioners and
    Daubs to address whether the Board has authority to review this
    jurisdictional issue consistent with the remand order
    of the
    appellate court.
    In response, petitioners and Daubs have raised
    a number of arguments.
    After careful consideration of these
    arguments,
    the Board
    finds that this jurisdictional claim cannot
    be raised at
    this late date.
    Petitioner
    cites several cases
    for the proposition that the
    right to assert
    a jurisdictional
    issue exists at any time and
    in
    any proceeding,
    directly or collaterally.
    Weingart v
    Department
    of Labor,
    122 Iii.
    2d
    1,
    118 Ill. Dec.
    436,
    521 N.E.2d 913
    (1988);
    R.
    W.
    Sawant Company v.
    Allied Programs Corp.,
    111 Ill.
    2d 304, 95 ill.
    Dec.
    496,
    489 N.E.2d 1360
    (1986).
    However,
    the
    Board believes that these cases are not dispositive of the issue
    in this case.
    Weingart allowed
    a
    late—filed appeal where an
    administrative agency had entered a recoupment order beyond
    the
    time
    in which
    it was authorized
    to recoup benefits, while Sawant
    involved a default judgment against
    a company over whom the court
    had no personal jurisdiction.
    Neither of these situations are
    involved in this case.
    Instead, the Board
    is persuaded by a line of cases which
    stand
    for the proposition that although subject matter
    jurisdiction may
    be contested at any time, jurisdiction of
    the
    subject matter does not mean simple jurisdiction of the
    particular case, but jurisdiction of the class of cases
    to which
    that individual case belongs.
    People
    ex
    rel. Scott
    v.
    Janson,
    57
    Ill.
    2d 451,
    312 N.E.2d
    620, 624
    (1974); People
    v. Western Tire
    Auto Stores,
    Inc.,
    32 Ill.
    2d 527, 207 N.E.2d 474
    (1965); People
    ex rel. Person
    v.
    Miller,
    56
    Ill.
    App.
    3d 450,
    13
    111.
    Dec.
    920,
    371 N.E.2d
    1012,
    1018
    (1st Dist.
    1977).
    Where
    the subject
    matter
    of the litigation
    is within the general jurisdiction of
    the tribunal,
    the claim of want
    of jurisdiction by reason of
    special circumstances cannot be raised
    for
    the first time on
    appeal.
    People ex
    rel.
    Person,
    371 N.E.2d 1012,
    1018.
    The Board
    specifically points out
    that
    both People ex rd.
    Scott and People
    93—12
    —3--
    ex rel.
    Person
    involve cases where
    the cause of action was
    created by statute and did not exist at common law.
    That
    is the
    case here:
    the local siting approval procedure exists solely as
    a statutory procedure.
    Although People ex
    rel. Scott and People
    ex
    rel.
    Person involve proceedings before
    a trial court, and not
    administrative proceedings,
    the Board believes that these cases
    provide guidance
    in the absence of case law involving
    administrative proceedings.
    Therefore,
    the only jurisdictional claim which could
    be
    raised for the first time at this point in the proceeding
    is
    a
    claim that the Wayne County Board does not have jurisdiction over
    petitions
    for local siting approval.
    Pursuant
    to Section 39.2 of
    the Act,
    the Wayne County Board
    is the only body which can have
    jurisdiction over applications for
    approval of sites within Wayne
    County which are outside any municipal boundary.
    Petitioners do
    not contend otherwise.
    This Board cannot now consider
    a claim
    that certain notice was not given when that claim has never been
    advanced before.
    The proper time to raise such
    a claim is before
    the County Board
    or
    in
    a petition to this Board for review of
    siting approval,
    not
    in
    a motion
    to vacate
    filed nearly two years
    after the County Board’s decision.
    For these reasons, petitioners’
    motion
    to vacate
    is denied.
    IT
    IS SO ORDERED.
    Bill Forcade abstained;
    J.
    D.
    Dumelle dissented.
    I, Dorothy
    M. Gunn, Clerk
    of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    ~
    day of
    ________________,
    1988,
    by a vote
    of
    .5~”/
    Illino
    S
    lution Control Board
    93—13

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