ILLINOIS POLLUTION CONTROL BOARD
December 3, 1987
WABASH AND LAWRENCE COUNTIES
TAXPAYERS AND WATER DRINKERS
ASSOCIATION AND KENNETH PUILLIPS
Petitioners,
v.
)
PCB 87—122
THE COUNTY OF WABASH AND K/C
RECLAMATION, INC.,
)
Respondent.
JOHN A. CLARK APPEARED ON BEHALF OF THE PETITIONERS.
RICHARD L. KLINE APPEARED ON BEHALF OF THE RESPONDENT K/C
RECLAMATION, INC.
STEPHEN G. SAW~ER, WABASH COUNTY STATES ATTORNEY, APPEARED ON
BEHALF OF RESPONDENT WABASH COUNTY BOARD OF COMMISSIONERS.
OPINION AND ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board on an appeal of the
decision by the Wabash County Board of Commissioners
(Commissioners) which approved site location suitability for a
regional pollution control facility. The appeal was filed by
Wabash and Lawrence Counties’ Taxpayers and Water Drinkers
Association and Kenneth Phillips (Petitioners) on August 6,
1987. Specifically, the Petitioner’s contest the Commissioner’s
decision which granted site location suitability approval
concerning an application filed by K.C. Reclamation Inc.
(K.C.). In its application, K.C. proposed the construction of a
45—acre sanitary landfill on a 172—acre parcel of land located in
northern Wabash County. The 172—acre parcel abuts the Wabash
County/Lawrence County border. The proposed landfill is intended
to serve Wabash and Lawrence Counties as well as parts of
adjacent counties.
The Commissioners held public hearings on May 11, May 18,
May 27, 1987. The Commissioners received numerous written
comments and petitions concerning the application. On June 29,
July 1 and July 6, 1987, the Commissioners met to deliberate and
vote on the application. On July 1, the Commissioners voted to
approve site location suitability, and on July 6, the
Commissioners adopted a written decision which enunciated the
conditions of approval. The Board held a hearing in this matter
on October 2, 1987.
B4—37
2
At the county level, the site location suitability approval
process is governed by Section 39.2 of the Illinois Environmental
Protectfon Act (Act). Ill. Rev. Stat. 1985, ch 111 1/2
,
par.
1039.2. The appeal of a county’s decision is governed by
Section 40.1 of the Act. That section requires the Board to
evaluate a county’s decision given the evidence before the county
and the six criteria set forth in Section 39.2.
Also, the Board
must determine whether the county’s decision was the result of a
fundamentally fair process.
However, before the Board reviews those two aspects of the
county’s decision, the Board needs to determine whether the
county had jurisdiction to decide site location suitability for
the proposed regional pollution control facility.
Courts have held that the notice requirements of Section
39.2(b) are jurisdictional. Kane County Defenders, Inc. v.
Pollution Control Board, 139 Ill. App. 3d 588, 487 N.E. 2d 743
(2d Dist. 1985); Browning—Ferris Industries, Inc. v. Illinois
Pollution Control Board, No. 5—86—0292,
—
Ill. App. 3d
,
N.E.2c3
____
(5th Dist. 1987). Concerned Boone Citizens, Inc. v.
M.I.G. Investments, Inc., 144 Ill. App. 3d 344, 494 N.E.2d 180
(2d Dist. 1986); The Village of Lake in the fills v. Laidlaw
Waste Systems, Inc., 143 Ill. App. 3d 285, 492 N.E.2d 969 (1986);
See also McHenry County Landfill, Inc. v. Environmental
Protection Agency, 154 Ill. App. 3d 89, 506 N.E. 2d 372 (2d Dist.
1987) (Although the Second District found that the requirements
of Section 39.2(b) were jurisdictional, the Board’s own failure
to provide notice in accordance with Section 40.1 was not
jurisdictional). Section 39.2(b) provides:
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....Such written notice shall
1 The Board notes that amendments concerning Ill. Rev. Stat.
1985, ch. 111
4~
,
par. 1039.2 were recently adopted under P.A.
85—0654 and P.A. 85—0859. Also, the legislature passed SB—749.
If that bill is certified by the Governor, those amendments will
have an effective date of July 1, 1988.
84—38
3
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.
Ill. Rev. Stat. 1985, ch 111 1/2 ~
par. 1039.2(b)
With regard to the facts at hand, K.C. filed its application
with Wabash County on January 12, 1987. Consequently, for
jurisdiction to vest, K.C. had to fulfill the requisite notice
requirements “no later than 14 days prior to” January 12, 1987.
A recent Board decision discussed just how the fourteen days
are to be counted. In Ash v. Iroquois County Board, PCB 87—29
(July 16, 1987), the issue concerned the timing of the
publication of the newspaper notice:
The Board concludes that Ash has complied
with the 14 day requirement. Ill. Rev. Stat.
1985, ch. 100, par. 6 specifies that the
“first day”, or in this instance the date of
publication, must be excluded (not counted),
while the “last” day, or in this case the
date of filing of the application, must be
included (counted), unless that day is a
Sunday. Applying these directives to the
case at bar, the Board finds that Ash filed
his application on the fourteenth day after
publication. This meets the requirements of
Section 39.2(b), which states, inter alia,
that publication of the intent to file a
request for site approval must occur “no
later than 14 days prior” to the time the
application is filed (emphasis added). A
plain reading of this provision is that it
allows filing of the application to occur on
the fourteenth day after publication, but
that if filing were to occur on any date
closer to the date of publication, the 14 day
requirement would not be met. That is, the
fourteenth day after publication is the
soonest day that application can take place
and still comply with Section 39.2(b).
Id. slip. op. at 8.
The same rationale would apply to the timing of service of notice
upon nearby landowners and appropriate members of the General
Assembly. As a result, K.C. should have completed such service
on or before December 29, 1987, since the application was filed
on January 12, 1987.
84—39
4
The transcript of the Commissioner’s June 29, 1987 meeting
(hereafter cited as R IV) indicates that the Commissioner’s
realized that one nearby landowner, Charles Scott Clark, and one
State Senator, William L. O’Daniel, were served on December 30,
1986. Also, Stephen Sawyer, the Wabash County States Attorney,
who helped conduct the hearing, recognized that December 29, 1987
would be the date 14 days prior to the filing of K.C.
‘S
application. (R IV. 13—14). However, Sawyer stated that since
the certified mail receipts indicate that the notices were each
mailed to Clark and Senator O’Daniel on December 26, 1986, the
notice requirement was met. Sawyer advised the Commissioners:
The statute speaks to mailing rather than to
delivery. It refers to service by registered
mail as I would advise the Board that the
applicable date is the date of mailing.
(R Tv. 14)
Sawyer then told the Commissioners that all the necessary persons
had been timely served. The Commissioners accepted Sawyer’s
conclusion. (R IV. 15, 19).
The Board disagrees with Sawyer’s legal conclusion that the
date of service of the notice is the date of the mailing of the
notice. In the City of Columbia v. County of St. Clair, PCB 85—
177, PCB 85—220, PCB 85—223 (Consolidated),
(April
3, 1986), the
Board
discussed the issue of timeliness concerning the service of
notice on neighboring landowners and members of the General
Assembly.
The Board notes that in Section 101.105
“Computation of Time” of the Board’s
procedural rules, in subsection (b) the Board
has provided that:
“Notice requirements shall be
construed to mean notice received,
but proof that notice was sent by
means reasonably calculated to be
received by the prescribed date
shall be prima facie proof that
notice was timely received.”
The Board will not, at this time, construe
the “cause to be served” language of Section
39.2 of the Act as absolutely requiring that
notice be received by all parties 14 days
prior to an applicant’s filing. To so hold
could, as a practical matter, prevent or
greatly delay an application being considered
by a county because of an applicant’s
84—40
5
inability to perfect notice: an opposing
landowner could frustrate, or cause endless
renoticing of, the filing of an application
by refusing to receive or pick—up mail or by
evading personal service. However, the Board
does construe the Act as requiring that
service of the notice be initiated
sufficiently far in advance to reasonably
expect receipt of notice 14 days in advance
of the filing of a notice. (emphasis
added). BFI’s Browning Ferris Industries
initiation of registered mail service on the
15th day in advance of the filing date was
unreasonable under the circumstances; in
Section 103.123(b) of the Procedural Rules,
the Board does not presume its service by
first class mail complete until four days
after mailing.
Service was therefore
defective for this reason. (original
emphasis). Id., slip. op. at 13.
Consequently, the date of mailing is not considered the date
of service with regard to the 14 day requirement. Also, in the
City of Columbia the Board notes its own procedural rule would
provides that service is presumed accomplished four days after
the date of first class mailing.
The Board’s decision in City of Columbia has been recently
affirmed by the Appellate Court of Illinois, Fifth District.
Browning—Ferris Industries of Illinois, Inc. v. Illinois
Pollution Control Board, No. 5—86—0292 (November 18, 1987).2 In
its decision the Fifth District refused to distinguish Kane
County Defenders and followed Kane County Defenders rule that the
notice requirements of Section 39.2(b) are jurisdictional.
Browning—Ferris Industries of Illinois, slip. op. at 8.
The record indicates that notices to Clark and Senator
O’Daniel were mailed on December 26. Consequently, if one uses
the Board’s procedural rule, which presumes that service is
accomplished after four days, service of these notices would not
have been presumed completed until December 30th. December 30,
in fact, is the actual date that service was accomplished. As a
2The Board notes, however, that the Fifth District apparently has
concluded that the Board had based its decision on defective
newspaper notice alone. Browning—Ferris Industries of Illinois,
slip. op. at 4. The Board’s original Opinion suggests that
defective notice to neighboring landowners was also determinative
of the outcome. City of Columbia, PCB 85—177, PCB 85—220, PCB
85—223 (consolidated), slip. op. at 10. (April 3, 1986).
84—4 1
6
result, the service of the notices on Clark and to Senator
O’Daniel were one day late with respect to the provisions of the
Act. Kane County Defenders clearly states that the notice
requirements of the Act must be met before jurisdiction is vested
with the County. Since the notices to Clark and Senator O’Daniel
did not meet the requirements of the Act, Commissioners did not
have jurisdiction to decide K.C.’s application. As a result,
their decision is invalid.
Although this may appear to be a harsh outcome due to the
fact that two notices were only one day late, the courts have
clearly and strictly applied the requirements set forth in the
Act. A similar case is that of Concerned Boone Citizens v.
M.I.G. Investments, Inc., 144 Ill. App. 3d. 334, 494 N.E.2d 180
(2d Dist. 1986).
In Kane County Defenders, Inc., v. Pollution
Control Board, citation omittedI
,
this Court
held that the fourteen day limitation which
applied to the written notice also applied to
the notice by publication. This Court
further stated that the notice requirements
were “jurisdictional” prerequisites which
must be filed in order to vest the County
Board with the power to hear a landfill
proposal citation omitted. Because ~4.I.G.
filed its application 13 days after it
published notice of its application.
M.I.G. ‘s application is defective, and the
County Board lacks jurisdiction to act on it.
494 N.E. 2d at 183.
Also, in Browning—Ferris Industries of Illinois, the Fifth
District addressed the issue of a one—day—late notice:
Since the notice requirements of Section
39.2(b) are jurisdictional, even the one day
deviation from the requirement of newspaper
publication here was not de minimus but,
rather, rendered the County without
jurisdiction to consider BFI’s request.
Id. slip. op. at 8.
The Board is constrained by such strict judicial
interpretation of the notice requirements as jurisdictional
requirements. Consequently, the Board must vacate the decision
here on review.
Today, the Board is basing its decision upon the fourteen
day notice requirement as applied to the neighboring landowners
and appropriate legislators. However, after reviewing the
84—42
7
record, it is apparent that other jurisdictional
issues exist.
First, Section 39.2(b) of the Act
also provides that the notice
must be served 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.”
Ill. Rev. Stat. 1985, ch. 111 1/2
,
par. 1039.2(b).
The Board notes that the Act’s use of the word “County”, in its
singular form, may not be appropriate in all instances. A
proposed facility could be sited across a county boundary.
As a
result, the facility would be located in two different
counties. The County of Wabash interpreted this language to mean
that notice
need only be served on property
owners who are
located
within the county in which the site is to be located.
The Board interprets the intent of the language of the Act
differently.
The Board holds that all property owners within 250 feet of
the lot line of the property on which the facility is to be
located must be served regardless of whether or not they own
property in the same county as the proposed facility. Such an
interpretation is consistent with purpose behind the notice.
That is, nearby landowners are notified simply because the
proposed facility may impact upon their property. Often, the
impacts from operations of a landfill are not constrained by
political boundaries.
For example, litter and vectors are not
limited by county
boundaries. For these reasons, the Board feels
it proper to interpret this statutory language in a broad
manner. K.C. should serve notice on all landowners within 250
feet of the 172—acre parcel regardless of whether those
landowners own property in Wabash County or Lawrence’County.
Finally, it is apparent that service was accomplished via
certified mail, return receipt requested. Section 39.2(b) of the
Act provides that notices are “to be served in person or by
registered mail, return receipt requested.” (emphasis added).
The Board concluded in Ash, PCB 87—29, slip. op. at 7 (July 16,
1987), that certified mail, return receipt requested, complied
with the service requirements of Section 39.2(b).
In summary, the Board finds that the Commissioners did not
have jurisdiction
to decide K.C.’s application due to K.C.’s
failure to comply with the notice requirements of Section
39.2(b). Consequently, the decision by the Commissioners is
vacated. If K.C. wishes to pursue its proposal further, it must
re—notice and re—file its application. Pursuant to Section
39.2(d), at least one public hearing will have to be held
again. A new application will be subject to testimony from all
interested persons. However, the Board does not believe that
today’s Order precludes the Commissioners from incorporating the
direct, sworn testimony from the previous hearings into new
hearings. However, if such a mechanism is utilized, the new
hearings must provide an opportunity for any additional direct
84—43
8
testimony by, and cross—examination of, any witnesses which
previously testified subject to reasonable efforts to preclude
repetition.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The decision by the Wabash County Board of Commissioners,
which granted site location suitability approval is hereby
vacated.
Section 41 of the Environmental protection Act, Ill. Rev.
Stat. 1985 ch. 1111/2 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.
I, Dorothy £4. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ab~ve Opinion and Order was
adopted on the
~‘A~4
day of
.ut~,
,
1987, by a vote
of
7—0
Dorothy 4. Gunn, Clerk
Illinois Pollution Control Board
84—44