ILLINCIS PC’LLUTION CONTROL BOARD
August 6, 1987
GERALD CLUTTS AND
LEE SIEGFRIED,
Petitioners
vs.
)
PCB 87—49
HERMAN L. BEASLEY,
Respondent,
and
ALEXANDER COUNTY BOARD OF
COMt~ISSIONERS,
Co—Respondent.
MICHAEL P. O’SHEA, JR. APPEARED ON BEHALF OF RESPONDENT HERMAN L.
BEASLE~ AND
MARK H. CLi~hKE, STATE’S ATTORNEY APPEARED ON BEHALF OF RESPONDENT
ALEXANDER COUNTY BOARD OF COMMISSIONERS.
OPINION
ANtI
ORDLR OF THE BOARD (by J. Anderson):
This action is a third—party appeal filed April 20, 1987,
pursuant to Section 4L~.1 of the Environmental Protection Act
(“Act’t) (Ill. Rev. Stat. Ch. 111—1/2, par. 1040.1). Gerald
Clutts and Lee Siegfried (“Petitioners”) appeal the March 19,
1987 decision of the Alexander County Board of Commissioners
(“County”) site location suitability approval to an application
for a new regional pollution control facility proposed by Herman
L. Beasley. Hearing was held by the Board on June 16, 1987.
Petitioners filed a brief on July 1, 1987 and respondent Beasley
fileo a brief on July 22, 1967.
Procedural History
The site for which Beasley seeks approval is a 20 acre
tract of land in rural Alexander County, Illinois. Beasley
proposes to accept non—hazardous waste only, and anticipates the
life of the site to be 15 years.
The Board notes that this is the second time County approval
of the Beasley site has been appealed to the Board, by adjacent
landowners. The County had granted its approval on October 2,
80—89
19o6, and an appeal was filed with the Board on November 5, l9~6
and captioned as PCB 86—192, Siegfried v. Beasley and Alexander
County Board of Commissioners. In addition to asserting that the
County’s decision was against the manifest weight of the
evidence, Siegfried’s petition also asserted various procedural
errors in the proceeding. These included lack of written notice
of the application on adjoining landowners, lack of availability
of the application for public inspection, lack of notice of the
public hearing (also alleged to be untimely), lack of a hearing
record, and lack of a written decision by the County. At the
hearing held by the Board on December 29, 1986, the parties
submitted a proposed stipulation. (Resp. Ex. 1)
On January 8, 1987, the Board issued its final order in PCB
86—192 (Pet. Exh. 2), vacating the County decision and dismissing
the appeal.
That Order stated in pertinent part that:
“The stipulation calls for the October 2,
l9b6, decision of the Alexander County Board
to be vacated and the application of Herman
Beasley to be remanded to the Alexander County
Board. The Board accepts those portions of
tne stipulation where the parties agree that
the October 2, 1986, decision of the Alexander
County Eoard be vacated,
txiat
this matter be
remanded to the Alexander County Board for
appropriate action, and that all further
proceedings be in strict compliance with
Section 39.2 of the Environmental Protection
Act (“Act”). Any subsequent siting decisions
concerning tnis landfill will be appealable in
a separate and new proceeding before this
Board.
To the extent that the stipulation may be
construed as establishing a hearing date (in
paragraph 4) which may be inconsistent with
the requirements of Section 39.2(d), that
paragraph is not accepted. The. Board cannot,
by accepting this stipulation, relieve the
applicant or the County Board of any of the
statutory application, notice and hearing
requirements. Any future requests for site—
location suitability approval must be in
complete accord with Section 39.2.
The
parties to be stipulation are particularly
directed to the notice provisions for
application and hearing which must be strictly
followed in order to vest the County Board,
and this Board, with jurisdiction in this
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—3—
matter. See The Kane County Defenders, Inc.,
et al. v. The Pollution Control Board, et al.,
487 N.E.2d
743
(1985) and MIG Investments,
Inc. and United Bank of Illinois v. EPA and
PCB, No. 2—85—734 (2nd Dist. October 15,
1966)”
On January 14, 1967, Beasley sent written notice to adjacent
landowners and certain legislators of his intent ‘tto submit
approval to the Alexander county board on January 29, 1987”.
Each notice contained the legal description of the proposed site,
the statement that it would accept “non—hazardous waste from the
business of the applicant” for the probable 15 year life of the
site, and notice that the county would accept written comments
not later than 30 days after the date of the last public hearing.
County Rec., Item 1. An identical notice was published January
15 in the Southeast Missourian “a newspaper published in the City
of Cape Girardeau, in Cape Girardeau County and State of
Missouri”. County Rec., Item 2. The County Record also contains
the Beasley application, which has no filing date.
On remand, the County held a hearing on January 29, 1987,
and ap~roved the site
by
resolution on March 19, 1987.
The Instant Appeal
In this action, Petitioners again challenge the procedures
by which the application was handled. Petitioners assert that
Alexander County lacked jurisdiction to act upon the application
because of various defects in notice and because the hearing was
held on the same day the application was filed. Alternatively,
petitioners argue that the County’s decision was against the
manifest weigr-it of the evidence. For the reasons outlined below,
the Board finds that the County lacked jurisdiction to consider
the application, and vacates the County’s approval.
Notice Defects
As petitioners correctly state, Section 39.2 requires
various types of notice at two stages of the site location
process 1) prior to the submission of the application and 2)
prior to the public hearing concerning the application.
Petitioners assert that notice requirements were neglected at
both stages.
As to pre-application notice, Section 39.2(b) provides in
pertinent part that:
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
80—9 1
—4—
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.
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....
During the course of this appeal, the Petitioners
established additional facts relative to Section 39.2(a) by way
of a May 21, 1987 Request for Admission of Facts.* These are
that: 1) Beasley failed to cause notice of his request for site—
location approval to be published in a newspaper of general
circulation published in Alexander County and 2) Beasley filed
his application on January 29, 1987, the day of the public
hearing.
As to the notice and timing of the hearing, Section 39(d)
provides in pertinent part that:
At least one public hearing is to be held by
the county board or governing body of the
municipality no sooner than 90 days but no
later than 120 days from receipt of the
request for site approval, such hearing to be
preceded by published notice in a newspaper of
general circulation published in the county of
the proposed site, and notice by certified
mail to all members of the General Assembly
from the district in which the proposed site
is located and the Agency.
Facts relative to Section 39(d) elicited pursuant to the Request
to Admit are that: 1) the public hearing of January 29, 1987, was
held on the same day that Respondent—Applicant Beasley’s request
for site-location approval was submitted to, and received by, Co-
Respondent Alexander County Board of Commissioners, 2) neither
Beasley nor the County published notice of the public hearing in
a newspaper of general circulation in Alexander County, 3) no
notice of the public hearing was sent by certified mail to
Representative David D. Phelps or Senator Glenn Poshard, the
members of the General Assembly from the legislative district
*
At the June 16 hearing, an untimely response to the request was
stricken by the Hearing Officer. Beasley has not appealed this
ruling.
80—9 2
encompassing Alexander County, and 4) no notice of the public
hearing was sent by certified mail to the Illinois Environmental
Protection Agency.
The Board will first address the Section 39.2 requirement
for publication of notice “in a newspaper of general circulation
published in the county in which the site is located”.
Petitioners argue that the word “published” should be construed
as meaning “printed”, while Beasley argues that “published”
should be construed as meaning “regularly and generally
disseminated”. Neither party provides citations in support of
its position.
The Board notes that the Illinois Supreme Court construed
the meaning of the word “published” as used in the Election Code
in People ex rel. City of Chicago Heights v. Richton, 253 N.E.2d
403 (1969). In that case, the Election Code required notice of a
Chicago Heights election to be given in a newspaper “of general
circulation published within the city”. The notice was printed
in the now-defunct Chicago’s American, a daily newspaper of
general circulation within Cook County printed in the City of
Criicago. Tne Court was presented with the argument, similar to
that made by petitioners here, that “published within the city”
means “printed and issued within the city”.
The Court stated that:
~e find respondent’s argument unpersuasive.
In Pekins v Board of County Comrs. of Cook
County, 271 ill. 449, 475, 111 N.E. 580, the
court said: “The object of requiring
publication of such ordinances in a newspaper
having a general circulation in the
municipality in which it is to become
effective is in order that its provisions may
become known to the inhabitants of such
municipality. The primary meaning of the word
“publisn” is “to make known”. Further, from a
reading of section 12—1 of the Election Code
(Ill. Rev. Stat. 1967, ch. 46, par. 12—1), it
is clear that the legislature knew quite well
the difference between the words “print” and
“publish”. That section reads in pertinent
part:
* * *
except in cases otherwise provided
for, the county clerk shall publish ~ a
notice ~ in two or more newspapers printed
and published in the county
~
In section
6-17 the legislature required only that the
notice be given in a newspaper “of general
circulation published within” the city. Had
the General Assembly intended that notice of
election be given in a newspaper both printed
80—93
and published in the community, it would have
done so with appropriate language, as was done
in section 12-1. Accordingly, we hold that
the word “published” as used in section 6—17
of the Election Code is not synonymous with
the word “printed” but means to make public or
to make known to people by newspapers of
general circulation (Emphasis in original) 253
N.E.2d at 405.
Accord, Second Federal Savings and Loan Assn. v. Home Savings and
Loan Assn., 60 Ill. App. 3d 248, 376 N.E.2d 349 (1st List. 1978),
construing requirements of the Illinois Savings and Loan Act,
Ill. Rev. Stat., ch. 32, par. 744(h)(4), and implementing
regulations.
Tne Board adopts the Richton reasoning, and finds that the
notice requirements of Section 39.2 are satisfied if notice is
published in a newspaper of general circulation which is
regularly and generally distributed in the county in which the
site is located, even if the newspaper is not printed in that
county. To do otherwise could frustrate the intent of Section
39.2. As Beasley has aptly pointed out “s)ome small, rural
Illinois counties.
.
.do not have the benefit of a home—county
newspaper. The legislature could not have), by inference,
excluded or disqualified these citizens from consideration of a
new pollution facility merely because of the absence of a local
publisher”. (Resp. Brief, p.1)
Applying this construction to the facts of this case, the
Board notes that the Southeast Missourian, the daily newspaper in
which the notice of the application appeared, was printed in a
Missouri county contiguous with Alexander County. Beasley
asserts that this newspaper is regularly sold, distributed and
circulated in Alexander County, an assertion which petitioners
have not challenged. Based on these facts, the Board finds that
Beasley’s publication of notice of his application in the
Southeast Missourian satisfied the notice requirements of Section
39.2(b) of the Act.*
*
By way of dicta, the Board wishes to observe that publication
of notice in the Southeast Missourian may, as a practical matter,
have provided greater actual notice of the application than would
its publication in the sole “home—county” newspaper. The Board
takes administrative notice of the fact that there is only one
newspaper printed in Alexander County is the Cairo Citizen, a
weekly publication. “1987 Illinois Newspaper Directory and
Advertising Ratebook”, Illinois Press Association, p. 9 and 78.
Regular readers of a daily newspaper may well choose not to
supplement their reading with a weekly newspaper.
80—94
~nile the Board has found that Beasley has complied with
the
requirements of Section 39.2(b), the Board finds that Beasley and
the County have not complied with the requirements of Section
39.2(d).
Beasley contends that the single notice given satisfies
Section 39.2(d) as well as Section 39.2(b). This argument is
incredible. The statement in the notice that “the applicant
intends to submit approval (sic) to the appropriate county board
on January 29, 1987” would by no stretch of the imagination
convey to the average interested person that a public hearing
would be held on that day. Even assuming that interested persons
could divine that a public hearing was to be held on that day,
the notice would be deficient for failure to state the place
where hearing would be held and the time at which it would
commence.
Petitioners additionally assert that the unnoticed hearing
was held in contravention of the first sentence of Section
39.2(d), requiring that hearing be held “no sooner than 90 days
after the application’s filing.” Beasley’s arguments in
opposition are tnat his January 29, 1967 application should be
deemed as relating back to October 2, 1986, the date when the
County first considered his application, that petitioners agreed
to the date in the stipulation of December 29, 1986 submitted in
PCB 86-192, and that any and all jurisdictional deficiencies were
waived by petitioners failure to make objection prior to the
County’s issuance of its written decision.
As to the argument that the January 29, 1987 application
relates back to October 2, 1986, there is no factual basis in
this record to support a finding either that Beasley had ever
filed an application prior to January 29, 1987, or that any such
prior application was identical to that filed on January 29,
1987. Indeed, one of the deficiencies concerning the County’s
October 2, 1986 action alleged in the PCB 86-192 petition was
that either ~easley had failed to file an application, or, if so,
the application was not available for inspection as required by
Section 39(c). The purpose of the Section 39.2(d) requirement
that hearing be held no sooner than 90 days after an
application’s filing is to insure that the public has adequate
time, in advance of hearing, to analyze the application and to
prepare questions and comments for presentation at hearing. The
Board cannot find that there has been either literal or
substantial compliance with this requirement, and rejects the
“relation—back” argument.
The argument that petitioners are bound by the December 29,
1986 stipulation is also rejected. The Board, in its Order of
January 8, 1987 in PCB 86—192 (supra, p. 2) specifically did not
accept that portion of the stipulation purporting to set a
hearing date inconsistent with Section 39.2(d) requirements.
80—95
—B—
Additionally, even were the Board to find that petitioner
Siegfried was bound by the hearing date stipulations petitioner
Clutts would not be found to be so bound, as he was not a party
in the PCB 86-192 proceeding.
This leads to the final argument, that any and all
jurisdictional notice and hearing defects are waived by failure
to assert them before the County. The Board and courts have
applied the waiver rule in some contexts in SB—l72 proceedings,
see e.g. Valessaries and Heil v. County Board of Kane County and
Waste Mgt. of Ill., Inc., PCB 87—36. July 16, 1987, Pp. 10—12
and cases cited therein. Application of such a rule to the
jurisdictional defects which the Board has found here would run
contrary to the intent of SB 172 that a local government’s
decision concerning site location suitability applications be
made only after its receipt of input from an informed public.
The SB 172 notice and hearing process was structured by the
legislature to foster public awareness of the pendancy of an
approval application and to minimize procedural barriers to
citizen’s participation at hearing. Where rights of notice of
hearing are breached, a “Catch—22” situation is created. Only
members of the public who appear at the hearing held by local
government can pursue an appeal to the Board; those who do not
appear at hearing because they lacked notice of where and when it
would be held cannot file an appeal. The petitioners here are,
in effect, asserting breach of rights on behalf of those who have
no standing to assert such rights by virtue of the fact that
their rights were breached. In cases in which the courts have
reviewed a substantial breach of rights of notice required by the
Environmental Protection Act, the courts have not required the
petitioners to demonstrate that they personally have been
prejudiced, requiring only that the breach occurred. Illinois
Power Co. ‘v. IPCB, 137 Ill. App. 3d 449, 464 N.E.2d 898, 900 (4th
Dist. 1985), Kane County, supra, MIG Investments, supra but see
McHenry County Landfill v. IEPA, Nos. 2—86—265 and 2-86—369
Ill. App. 3d
_____
(2d Dist. March 30, 1987) involving an
inadvertent error causing 20, rather than 21, day notice of
hearing.
The legislature has structured the SB 172 hearing at the
County level as an informational hearing, at which there are no
parties, rather than as a contested case hearing at which parties
are clearly defined. Section 39.2 does not literally require,
nor does it contemplate, that interested persons would
necessarily need to hire an attorney to present their questions
and concerns. Wriile some citizens do choose to do so, it is the
Board’s experience that the vast majority of participants in SB
172 cases do not. That appears to be the case here, as the
record of the county hearing does not indicate that an appearance
was entered on behalf of either Mr. Clutts or Mr. Siegfried,
although each of them spoke at hearing. Given the circumstances
80—96
—E’—
here, the Board declines to hold that two citizens who appear at
a hearing without benefit of counsel can waive the rights of
other members of the public to provision of the notice required
by the Act.
Finally, even if the waiver rule were to be applied here,
the Board finds that Section 40.1(a) of the Act would require the
Board to raise the jurisdictional issues presented here on its
own motion; Section 40.1(a) requires the Board to consider “the
fundamental fairness of the procedures used by the county
board..,in reaching its decision”. The Board again points out
that it had articulated its concerns concerning notice
requirements in its final Order in PCB 86—192.
Other Matters
Given its finding tnat the County lacked jurisdiction to
consider the Beasley application due to lack of compliance with
Section 39.2(d), tne Board need not and cannot reach the issue of
whether the County’s decision was against the manifest weight of
the evidence.
The Board wishes,
by
way of dicta, to make some observations
which may be of some assistance to the parties in the event that
Mr. Beasley makes a third attempt to bring his application before
the County for consideration; the Board believes that this is
appropriate given the resources expended by all concerned to no
avail.
Any subsequent proceeding will not “relate back” to this
one; in any reapplication Beasley should begin at “square one” as
outlined in Section 39.2(b) with notices of the date on which he
plans to file his request with the County. The County Clerk
should note the date on which the application is received, as
well as the date of all other documents received before the
County closes the record.
As to the Section 39.2 hearing notice, the notice must
specify the exact date, time and place of hearing; it is not
sufficient to generally state that “hearing will be held between
90 and 120 days after the filing of the application”
The Board discourages combination into a single notice of
the Section 39.2(b) notice of the application and the Section
39.2(d) notice of hearing, although the statute does not preclude
doing this. However, if Beasley and the County publish a
combined notice, the notice must be written so as to make clear
that both types of statutory notice are being given.
The
Board notes the testimony of County Commissioner James
R. Wissinger at the Board’s June 16 hearing (R. 28—29) that
questions which he had asked of Beasley at the County hearing had
never been answered. The Board also notes that Mr. Clutts had
submitted written questions after hearing in response to the
80—97
—10—
County Board’s invitation at hearing that he do so (Pet. Exh. 1);
no answers to these questions appear in this record.
The Board notes that the exchange of information should take
place in a hearing, not during a post—hearing comment period.
The purpose of the post-hearing comment period is the expression
of opinion based on the application and the information developed
at hearing.
The Board additionally comments that, to avoid violation of
the prohibition of ex parte contacts, the County could not have
considered responses to any post—hearing questions unless they
had been made at a subsequent public hearing; the County may wish
to consider this when allowing an applicant to defer answers to
questions.
Finally, the parties are strongly advised to monitor the
progress of SB 749 and SB 931, enacted by the legislature in the
past legislative session and currently awaiting action by the
governor. Both bills, if signed, would amend Section 39.2, and
would affect subsequent SB 172 proceedings.
This Opinion constitutes the Board’s findings of fact and
conclusion of law in this matter.
ORDER
The March 19, 1967 decision of the Alexander County Board of
Commissioners granting site location suitability approval of the
application for a new regional pollution control facility
submitted by Herman L. Beasley is vacated, on the grounds that
the County lacked jurisdiction to consider the application.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1965 ch. 111 1/2 par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illincis establish filing requirements.
IT IS SO ORDERED.
B. Forcade concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby ce;tify that the ove Opinion and Order was
adopte~on the ~
day of
______________,
1987, by a vote
Dorothy M.’ Gunn, Clerk
80—98
