ILLINOIS POLLCTION CONTROL BOAAD
July
16, 1987
A.R.F.
LANDFILL CORPORATION,
Petitioner,
v.
)
PCB 87—34
VILLAGE OF ROUND LAKE PARK
AND LAKE COUNTY,
Respondents.
MESSRS. RICHARD
J.
KISSEL AND BRADLEY
Ft. O’~RIEN, MARTIN, CRAIG,
CHESTER
& SONNENSCHEIN, APPEARED ON BEHALF OF THE PETITIONERS.
MR. HO~ARD
~.
TEEGEN,
SOFFIETTI,
JOHNSON, TEEGEN
& PHILLIPS,
LTD., APPEARED ON BEHALF OF RESPONDENT VILLAGE OF ROUND LAKE
PARK.
MESSRS.
FRED L.
FOREMAU, STATE’S ATTORNEY OF LAKE COUNTY, AND
LARRY M. CLARK, ASSISTANT STATE’S ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT
LAKE
COUNTY.
OPINION AND ORDER OF THE BOARD
(by J.
Marlin):
This matter comes before
the Board on
a siting Application
Appeal
(Petition)
filed
by A.R.F. Corporation
(A..R.F.)
on March
12,
1987.
Specifically, A.R.F. appeals the action
taken by the
Village of Round
Lake Park (Village)
regarding A.R.F.’s
application
for
site location suitability approval for
a proposed
sanitary landfill expansion
to
its existing 80—acre facility.
A.R.F. sought approval from the Village pursuant to Section 39.2
of the Environmental Protection Act
(Act)
.
Ill.
Rev. Stat.
1985,
ch.
111 1/2
,
par.
1039.2.
By
its Order of March 19, 1987,
the
Board joined
Lake County
(County)
as
a party respondent
for
the
purposes of determining whether
the County was
a necessary party
to this action.
After
receiving motions
on this issue,
the Board
found
that the County was a necessary party,
and by its Order of
April
16,
1987
the Board granted
the \iillage’s
and County’s
motions
for joinder and denied A.R.F.’s motion
to exclude the
County.
On May
1,
1987, William Alter
and LaSalle National Bank
(Alter)
filed
a Motion
to Dismiss A.R.F.’s appeal.
After
considering A.R.F. ‘s response, the Board struck Alter’s motion
from the record by the Order of May 14,
1987.
In that Order, the
Board
also denied
the County’s Motion for Consolidation of
this
docket with PCB 87-5l.
On May
11,
1987,
a hearing was held
in
this matter; members
of the public were present.
The
last post—
hearing
brief was filed June
4,
1987.
Due
to the unique circumstances that serve
as
a backdrop
to
this proceeding,
it is necessary
for the Board
to review,
in
cnronological order,
the events leading
up
to A.R.F. ‘s appeal.
79-92
2
There
are essentially no
issues of fact
in this proceeding;
the
parties agree
to the following facts.
In January,
1981,
the Village passed
an ordinance which
purported
to annex property commonly referred
to as the Heartland
property.
(Village Exh.
*1).
On June
3,
1981,
the County, and
several other parties,
filed suit against
the Village, LaSalle
National Bank as trustee
under Trust No.
44264, and Lake
Properties Venture
in the Circuit Court of Lake County.
The
complaint,
in part, challenges
the Village’s Heartland annexation
by writ of quo warranto.
(Village Exh.
#3).
On October
3,
1986, A.R.F.
filed with the Village
a Request
for Site Approval concerning
its proposed landfill expansion.
A.R.F.
is proposing
to
expand
its existing landfill
by adding
three areas, Areas
2,
3,
and
4.
Areas
3 and 4 are indisputably
in unincorporated Lake
County; Area
2
is a part of the Heartland
property.
(R.
39—40).
The County,
the Village of Grayslake
(another plaintiff
to
the circuit court action), LaSalle National Bank,
and Lake
Properties Venture entered
into
a Settlement Agreement and
Release
(Agreement)
on October
16,
1986.
The Agreement states
that the Village and Lake Properties Venture
shall file
stipulations with the circuit court
for entry of
a judgement
in
favor
of the plaintiffs
on the quo warranto count and for
the
dismissal of
all other counts.
According
to the Agreement,
the
stipulations should also admit that the Heartland annexation was
void ab initio.
The Agreement states that the stipulations must
incorporate
the terms of the Agreement by reference.
The
Agreement further provides that “if any party fails
or
is unable
to comply with any provisions
of paragraphs
3-5 of this
Agreement,
LPV
Lake
Properties Venture
and the Village of Round
Lake Park may withdraw such stipulations
for
the entry of
judgment and have such stipulations expunged from the record of
the state
litigation.”
(Pet.
Exh.
#1,
p.
4).
The Village
filed
a
stipulation according
to the terms of
the Agreement
on October
31,
1986.
(County
Exh.
#4).
The Village never
held
a hearing
on A.R.F.’s application.
On
February 10,
1986,
the Village,
by resolution, declined to
“exercise jurisdiction over the A.R.F.
application”
and dismissed
the application due
to the pending settlement agreement and fact
that
the County was holding hearings on
the application.
(Village
Exh.
#4).
Subsequently, A.R.F.
filed this appeal before the
Board.
It
is from the above uncontroverted facts
that
the parties
argue
their respective positions.
A.R.F.
argues
that the portion
of
the proposed
landfill
expansion located
in the Village should
be deemed approved
pursuant
to Section 39.2
of
the Act.
(A.R.F.
Reply,
p.
2).
A.R.F.
initially states that the Village had jurisdiction
to act
79-93
3
upon A.R.F.’s application.
Secondly, the Village did not hold
a
hearing within
90
to 120 days of A.R.F.’s application as required
by Section
39.2(d).
Finally, A.R.F. claims that the portion of
the proposed landfill expansion located
in the Village
is deemed
approved under
Section 39.2(d)
since
the Village did not render
a
decision on the six criteria of Section 39.2(a).
(A.R.F.
Reply,
p.
5).
In
the alternative, A.R.F.
asserts that even
if the Board
does not find the proposed landfill expansion deemed approved,
the information
in
the
record
is sufficient to show that A.R.F.
has satisfied the six criteria and that local approval should
be
granted.
It is the position of the Village
that A.R.F.
filed
a single
unified application with both the County and the Village and that
as
a result,
A.R.F.
invited
local
site suitability approval
from
either the County or
the Village,
or
both.
In other words, it is
the Village’s position that the request
for siting
approval
entailed the complete expansion that A.R.F.
proposed,
including
Areas
3 and
4 which are indisputably in unincorporated Lake
County.
The Village claims that the application presented by
A.R.F. does not single out Area
2 for approval on
its own, but
rather
the whole expansion
is presented for approval as one unit.
Secondly,
the Village argues that its decision declining
jurisdiction
is consistent with the Act.
The Village asserts
that
the Act only requires that
a hearing
be held by
a county
or
governing body of
a municipality.
Given
the pending suit
concerning
the validity of the Heartland annexation,
the Village
believes that
it acted properly by defering jurisdiction
to the
County.
Finally, the
Village claims that the jurisdictional
requirements have not been met
by A.R.F.
due
to inadequate proof
of notices
served on adjacent landowners
and
legislators pursuant
to Section 39.2(b).
The Village asserts that certified mail
receipts,
as presented
at hearing,
do not prove that the proper
type of notice was sent.
Also,
the testimony by A.R.F.’s office
manager was inconclusive as
to what was sent, according
to the
Village.
As
a result, the Village concludes that A.R.F. did
not
prove
that the Village had jurisdication
to hear A.R.F.’s
application.
The County contends that Area
2 of A.R.F. ‘s proposed
expansion
is
in unincorporated
Lake County.
The County bases
its
position upon
the fact that the Village’s stipulation,
filed
in
the circuit court,
“was
in effect” at all times during and
subsequent
to the
90
to 120 day period after A.R.F.
filed
its
application with the Village.
(County Brief,
p.
5).
At hearing,
the County presented other evidence,
some of which was not
admitted,
in an effort
to support
its position that subsequent
to
the Village’s filinc
of
the stipulation,
the Village
has not
exercised authority
over the Heartland property.
79-94
4
The County also reiterates the Village’s position that the
Village lacked the jurisdiction,
since A.R.F. did not prove that
adequate notice was sent
to adjacent landowners
and legislators.
Finally,
the County states that
if the Board finds that the
Village did have jurisdiction over A.R.F. ‘s application, the
application itself
is deficient
in the proof of the six criteria.
JURISDICTION AND HEARING ISSUES
The threshold question for the Board
to decide is whether
the Village had
jurisdiction
to approve the site location
suitability, pursuant
to
Section 39.2,
of the proposed landfill
expansion as presented by A.R.F.
in its application which was
filed with the Village on October
3,
1986.
Section 39.2 of the
Act states that the “county board of the county or governing
body
of the municipality,
as determined
by paragraph
Cc)
of Section 39
of this Act shall approve the site location suitability.
...“
Section
39(c)
of
the Act provides in part
that the location of
a
regional pollution control
facility must be approved “by the
County
Board
of the county
if
in
an unincorporated area,
or the
governing body of the municipality when
in an incorporated area
in which the facility is
to be located
in accordance with Section
39.2 of the Act.”
As stated previously,
the only part of A.R.F. ‘s proposed
landfill expansion which could arguably be located
in the Village
is Area
2.
Area
2
is
a part of the Heartland Property which the
Village purportedly annexed
in 1981.
The
Heartland Property
is
also the subject of the pending quo warranto action brought
in
the circuit court against the Village by the County,
among other
parties.
Although
a settlement agreement has been reached and
stipulations have been filed,
the action
is still pending since
the settlement
and stipulation were contingent upon certain
events
taking place.
There is
no evidence
in the record
to
indicate that these events have occurred.
In addition, no
consent decree has been issued by the court.
It
is also
no small
matter
to
note
that tne Village, although
it
filed
a stipulation,
is not a party
to the Agreement.
The courts have repeatedly held that the “legality of
proceedings by which additional territory
is -added
to a
municipality cannot be
inquired
into except upon
a direct
proceeding by quo warranto”.
Village of Bridgeview v.
City of
Hickory Hills,
1 Ill. App.
3d 931,
274 N.E.2d
925,
927
(1st Dist.
1971).
In North Maine
Fire Protection District
v. Village of
Niles,
53
111.
App.
3d
3b9,
368 N.E.2d,
516,
519—20,
(1st Dist.
1977)
the First District refused
to decide
an issue
that was
dependent upon
a determination
as
to
the validity of
an
annexation when there existed
a
separate,
quo warranto action.
The court stated:
whether
or
not
the
rioncontiguity
was created
in 1966 depends,
of course,
upon the validity
79-95
5
of that annexation
which
is
being
challenged
in
the
pending
quo
warranto
proceeding
citation
omitted.
The question of whether
parcels have been legally
annexed can only
be
tried
by
quo warranto
proceedings
and
cannot
be
raised
collaterally.
Village
of
Bridgeport,
citation
omitted.
The question
of
noncontiguity
is
therefore
not
properly
before this court.
Id.,
368
N.E.2d
at
520.
The County’s position that the Village has no jurisdiction
to decide A.R.F.’s application, amounts
to
a collateral attack
upon
the validity of the Village’s Heartland annexation.
As the above case law illustrates,
the validity of
an
annexation can only be questioned
in
a quo warranto action.
The
instant proceeding
is a landfill siting application appeal not a
quo warranto action.
As
a result, the Board may not question the
validity of the Village’s annexation.
Until
the circuit court
acts upon
the pending quo warranto action,
the Board must treat
the
annexation as valid.
Therefore,
the Village has jurisdiction
to decide site location suitability
for any proposed landfill
located
on the Heartland property.
Although the Board
finds
that
the Village has jurisdiction
over
any proposed landfill located on the Heartland property,
the
Board rejects A.R.F.’s contention that the proposed landfill
expansion
is deemed approved.
Section 39.2(e)
of the Act states,
“if there
is
no
final action by the county board
or governing
body of the municipality within 180 days after
the filing
of the
request
for
site approval
the applicant may deem the
request
approved.”
Section 39.2(d)
requires that a hearing must be held
by the county board
or
governing body of the municipality
in the
period between
90
to
120 days after
the
filing
of the
application.
A.R.F.
seems to argue that since
the Village did
not hold
a hearing within that time
frame, the proposal
is deemed
approved.
However,
the deemed approved language relates
to the
180—day
final action deadline not
the 120—day hearing deadline.
A.R.F.
relies on Marquette Cement Manufacturing Company
v.
Illinois Environmental Protection Agency,
84 Ill. App.
3d
434,
405 N.E.2d 512
(1980)
as
authority
for requiring the Board
to
find that local site location suitability approval of A.R.F.’s
proposal
is deemed approved.
According
to A.R.F., the
instant
situation is
“in all
relevant aspects
identical to that
in
Marquette Cement.”
(A.R.F. Reply,
p.
4).
The Board disagrees.
Marquette Cement concerned
a permit appeal before
the Board
for
an air operating permit denial.
In that case,
the 1977
version
of Section
40
of
the Act applied.
The Third District
found that the permit,
the denial
of which was the subject of the
appeal, was granted
by operations
of law since
the Board
could
79-96
6
not hold
a hearing within
90 days
of the appeal’s filing.
The
Board did vote to dismiss the appeal within the 90—day period.
The
situation
in Marquette Cement
is significantly different
than the situation presently before
the Board.
In Marquette
Cement,
the
final action
taken
by the Board, although improper,
went
to the merits of
the permit appeal
in an attempt
to prevent
the permit from being granted
by operation of law.
On the other
hand,
the Village dismissed A.R.F.’s application
for
jurisdictional reasons.
That
is,
by expressly declining
to
exercise jurisdiction and dismissing
the application, the Village
negated
the need to reach
a decision on the merits at that
point.
Of course, this was an erroneous action of the Village
but an
action that has consequences nonetheless.
The decision by
a county board or governing body of the
municipality as
to whether
it has jurisdiction to evaluate
an
application on its merits
is fundamental
to the whole
site
location suitability approval process.
The Board believes that
there
are only two ways by which
a local unit of government may
avoid making
a decision on
the merits of
an application.
The
first is the
instance when
a local unit of government fails to
take
a final action within
180 days of the filing
of the
application.
The application
is then deemed approved by Section
39.2(e).
The second method
is the situation when the local unit
of government disposes of the application for jurisdictional
reasons, as the Village
rias
done
in
this case.
The
intent behind
the
statutory structure of the site
location suitability approval process
is
to maximize the public’s
participation
in that process.
The public
is directly involved
in
the
approval process
through its ability to participate
at
public hearings.
In addition,
local elected representatives
are
the decision makers
in that process.
Consistent with that
underlying purpose,
the Act provides that the only way the
public’s involvement may
be bypassed
in
the site location
suitability process
is when
a local governing body fails
to take
a final
action within
180 days.
The result of that course
of
action
is that the application
is deemed approved.
A.R.F.
is asking
the Board
to declare
its siting request
deemed approved although the Village dismissed the application
for jurisdictional reasons.
The Board
finds no
reason to expand
upon the Act’s provision which clearly defines the instance when
an application may be deemed
approved.
To increase
the ways
in
which
an application may be deemed
approved necessarily decreases
the opportunity
for public involvement.
Such an action would
contravene
the intent behind
the Act’s site location suitability
approval process.
Therefore,
the Board
finds that when
a local
unit of government takes
an action upon an application for
jurisdictional reasons even those which stem from procedural
errors of the applicant,
the deemed approved provision of Section
39.2(e)
does not apply.
79-97
7
Consistent with this holding,
a local
unit of government may
dispose of
an application
for jurisdictional reasons without fear
that failure
to render
a decision on the merits will
result in
the application being deemed approved.
Presently,
local units of
government may hold hearings
on an
application and render
a
decision on the merits
in an effort to avoid deemed approved
status, even though they believe that they do not properly have
jurisdiction
to decide
the issue.
The Board’s holding today will
save the local units of government large amounts of time and
money
that could
be incurred by holding merit hearings
in such
instances.
However
a hearing on the jurisdictional matters is
well
advised.
It is also important to note that
the resolution of the
Village which dismissed A.R.F.’s application was passed 130 days
after
A.R.F.
filed
its application with the Village.
This
action, appealable
to the Board,
was certainly taken
in a
timely
manner.
In summary,
because the Village’s dismissal
of A.R.F.’s
application was based on jurisdictional reasons,
not on the
merits of the application, the deemed approved provision of
the
Act is inapplicable.
Correspondingly,
Marquette Cement is not
controiling.
Even
if
the Board did not distinguish Marquette Cement
in
the manner as above,
the Board would
still
be unconvinced that
Marquette Cement requires that A.R.F.’s application be deemed
approved.
In Marquette Cement,
the court emphasized the
concurrent nature
of the two statutorily required actions:
The statute clearly contemplates and requires
that both the hearing and
final agency action
shall occur within
90 days from the filing of
the petition
for
review.
original
emphasis
Marquette Cement,
84 Ill.
App.
3d
at
437.
The court later repeated its position:
The statute contemplates both
a hearing and
a
final decision within
90
days.
If either
is
not
forthcoming
within
that
time,
then
the
permit
is deemed issued under
the Act.
Id.
at
439.
The situation
in the instant proceeding
is different from
the one
in Marquette Cement.
In this proceeding,
the operative
portions of the Act are Subsections
39.2(d)
and
(e).
Unlike
Marquette Cement, here
the operative statutory provisions
provide
for two distinct time deadlines concerning the requirements
for
a
hearing
and final action.
That
is,
the county board or governing
79-98
8
body of the municipality must hold
a hearing
between
90
to 120
days after
the application is filed;
a final
action must
be taken
within 180 days.
Secondly,
the statutory
“deemed approved”
language is found only
in Subsection
(e)
and is tied
to the final
action
cteadline.
The hearing deadline
is
found
in Subsection
Cd)
where no deemed approved language
is present.
The Board must
assume
that the two distinct deadlines are present
in
the Act
for
a purpose.
If the Board accepts A.R.F.’s reasoning,
that purpose
would
be frustrated.
In
its Reply Brief A.R.F. states,
“Even
if this
the
Village’s resolution
is construed as a decision (which
it
is
not)
A.R.F.’s
parenthetical statement,
the appellate court
in
Marquette Cement found that a refusal
to hold
a hearing could not
be cured
after
the fact by issuing
a decision.”
Consequently, A.RF.
is asking
the Board
to hold that the
failure of
the Village
to conduct
a hearing
in the period from 90
days to 120 days after A.R.F.
filed its application
is alone
sufficient
to consider
the application deemed approved.
If this
were
the case, an application could
be deemed approved on day 121
if
a hearing had not been held.
However,
the statute clearly
states,
If
there
is
no
final
action by the
county
or
governing body of the municipality within 180
days
after
the filing
of the request
for
site
approval
the
applicant
may
deem
the
request
approved.
emphasis
added
Section 39.2(e)
of
the Act.
Ill.
Rev. Stat.
1985,
ch.
111
1/2
par. 1039.2(e).
It also follows from A.R.F.’s reasoning that if
a local body
dismissed
an application
ten days after
it was filed and
subsequently never
held
a hearing,
that application could
still
be deemed approved on day
121.
If an application could
be deemed
approved on day 121, what value would
the 180 day deadline
retain?
Applying the holding
of Marquette Cement
to
the
situation at hand would clearly contradict
a plain reading of
the
statute.
Given
that, plus the facts that Marquette Cement
concerned an air permit appeal
and
an interpretation of a
completely different section of the Act,
the Board
finds little
value
in applying Marquette Cement
to this case.
A.R.F.
also cites Illinois Power Company
v.
Illinois
Pollution Control Board
112 Iii.
App.
3d 457,
445
N.E.2d 820
(1983)
as support
for
its deemed approved argument.
A.R.F.,
in
its Brief,
states,
“Illinois Power mandates that the Board
find
that A.R.F.’s local siting approval
is deemed approved
by
operation of law.”
(A.R.F.’s Brief,
p.
5).
After
reviewing
Illinois Power,
the Board
fails
to see this “mandate”.
Illinois
Power cites
Marquette Cement
as authority only
for
the general
79-99
9
rule that
if the Board
fails
to act within
a 90—day period,
the
permit
is issued as
a matter
of
law.
In Illinois Power
the Board
admitted that it took no final action within
the 90—day period.
The primary issues of Illinois Power were whether
the approval by
operation of law applied to NPDES permits and whether permits
granted by operation of law contained conditions.
The Board similarly finds A.R.F.’s reference to Board of
Trustees of
Casrier Township et al v.
County of Jefferson and
Southern Illinois Landfill, PCB 84—175
(January 10 and April
4,
1985)
of little value in this matter.
In Board of Trustees of
Casner Township,
a County Board deadlocked and was unable to
approve or deny an application for
site location suitability
approval pursuant to Section 39.2 of the Act.
The County Board
remained deadlocked
for 120 days after the application had been
filed.
(At that time,
the “deemed approved” provision was
triggered
after
120 days, unlike
the present
180 days.)
The
Board stated that the application was “deemed approved”
as an
operation of
law.
However,
the real question before
the Board
was not whether
the application had been deemed approved but
rather whether
a deemed approved application
is subject
to appeal
before
the Board.
Although relating
to deemed approved
application, Board
of Trustees of Casner Township casts
no
additional light on the issues presently before
the Board.
Throughout this proceeding,
the Village has never
stated
that
it does not have jurisdiction over the Heartland property.
However,
it still maintains
that it was consistent with the
intent of the Act
to decline
to exercise jurisdiction thereby
deferring
to the County on that issue.
The Board disagrees.
The
legislative history of the landfill siting provisions of the Act,
Senate Bill 172, addresses the jurisdiction issue specifically.
Prior
to
a vote
in the House of Representatives which passed S.B.
172 through
the adoption of the Conference Committee Report
#1,
Representative Breslin, while discussing the bill,
stated,
They
must
before
getting
a
permit
from
the
EPA,
first secure
the permit
from the County
or
the
local unit of government
in which
they
lie.
If
they
lie
totally
within
a
municipality
then
they
get
it
from
the
municipality,
if
they
lie
in
the
county,
in
the
unincorporated
area
then
they
get
the
permission
from
the
county,
if
they
overlap
they
get
it
from
both.
And
this
must
be
granted prior
to the EPA going
ahead with its
Siting approval.
82nd General Assembly, House of
Representatives,
July
1,
1981,
p.
191—92.
Therefore,
since the Village had jurisdiction with regard
to
the portion of A.R.F. ‘s proposed expansion
that would
be located
79-100
10
on
the Heartland property, A.R.F. would
need to get site location
suitability approval from the Village as well as
from the County,
which has jurisdiction over
the remaining portions of A.R.F.’s
proposed expansion.
Since
it is statutorily necessary for the
Village
to decide
the
issue of site location suitability for part
of A.R.F.’s proposed expansion,
the Village could not properly
defer
this duty
to the County.
In
E
&
E Hauling,
Inc.
v.
Pollution Control Board,
116 Ill. App.
3d
586, 451 N.E.2d 555,
567
(2d List.
1983), affirmed 107
Ill.
2d 33,
481 N.E.2d 664
(1985), the Second District rejected
an argument that a county
board could have transferred
its obligation
to decide site
location suitability to another
unit of local government.
The
court found
that the Act prohibited
such a transfer.
Consequently,
it
is improper for the Village
to conclude that
it
had the authority to defer
to the County concerning
site location
suitability approval with respect
to proposed activities on
the.
Heartland property.
UNIFIED APPLICATION ISSUE
The Village and County contend that A.R.F.
filed
a unified
application
for
its entire proposed facility before
the Village
even though
the Village could
exercise no jurisdiction
in the
portion located
in unincorporated areas of the County.
They
believe that A.R.F.
should have filed separate and distinct
applications
with both entities covering only those
areas within
each jurisdiction.
As stated above, when
a proposed facility
is located
in
a
municipality and unincorporated area,
each must approve an
application.
It follows, therefore, that an application must
be
sent to each.
Under normal conditions,
an application should
clearly delineate the portion of
the facility
that the
governmental unit is expected
to review and exercise jurisdiction
over.
It is unrealistic
to expect that
•the application
to each
unit of government attempt
to precisely delineate the scope of
information
related
to
the
six criteria each unit will
consider
as within its jurisdiction.
However,
the information clearly
relevant only
to one jurisdiction’s portion of
a facility should
at
a minimum be summarized
in one place
if relevant detailed
information
is scattered throughout
the application.
The
applications are expected
to contain much overlapping
if not
identical information on such matters as geology, operating plans
and service areas,
for example.
Each governmental unit
is
required
to consider
the application
it receives.
They may agree
to hold
a joint hearing but must reach
separate decisions based
on consideration of the hearing
record.
In
its post—hearing brief,
A.R.F.
stated:
“On October
3,
1986,
A.R.F.
filed
a request with
the Village of Round
Lake Park
(“Round Lake Park”)
for
the siting
of
a proposed 28.6 acre
municipal
waste landfill
that would
be
located
in Round
Lake Park
adjacent
to
the present A.R.F.
landfill.
(“Round Lake Park
facility”)
.“
(A.R.F.
brief,
p.
1).
In response
to
the Village’s
79-101
11
claims that A.R.F.’s application
to Village requested approval
for the entire proposed expansion ratherthen just the portion
located
in the Village,
A.R.F.
asserts that “the
Round Lake
Park facility
is separate and independent from a proposed A.R.F.
facility located solely in unincorporated Lake County that is
subject to
a different appeal
(PCB 87—5l).~
(A.R.F.’s Reply,
p.
18).
A.R.F.
states further
in its
Reply,
“A.R.F.’s proposed
facility that is located
solely in Round Lake Park
is an
independent
facility that must be
issued local approval
by
operation of law as
a result of Round Lake Park’s refusal
to
abide by
the Act.”
Id. at
19.
In footnote
5
of A.R.F.’s Reply,
A.R.F.
states that “the introduction
to the application clearly
states that A.R.F. was seeking approval from Round Lake Park for
the
28,6 acre
Area
2
facility located solely
in Round Lake
Par k.”
A different position,
though,
was enunciated
in A.R.F.’s
Petition before
the Board.
The Petition states, “On October
3,
198t, A.R.F.
filed
a request
for local
siting approval with
Round
Lake Park for
a proposed approximately 105 acre nonhazardous,
primarily municipal waste facility which would be partially
located
in Round
Lake Park.”
(Pet.,
p.
1).
This statement
suggests that A.R.F.
requested site location suitability approval
for
the complete 105—acre proposed expansion.
In its petition,
A.R.F.
reasons:
Because
A.R.F.’s
proposed
site
lies
in
part
within
Round
Lake
Park,
Round
Lake Park
has
jurisdiction
and
was
required
to
grant
or
deny
A.R.F.’s
siting
request
under
Section
39.2 of the Act.
emphasis
added
Petition,
p.
5
Later
in the Petition,
A.R.F.
declares “this site application
must
be deemed granted
by this Board.
emphasis
added”
(Pet.
p.
7).
Consequently,
it is
apparent that A.R.F.’s position
concerning
the extent
of its request
to
the Village
has not been
clearly consistent throughout the course of
this proceeding.
Consequently, the Board must look to
the words of the application
that A.R.F.
filed with the Village.
In
its Petition,
A.R.F.
refers
the Board
to Exhibit A of the
Petition as the application which
it filed with the Village.
The
Board notes
that Exhibit A appears
to be
a copy of a request
for
site approval that was submitted
to the County.
Part II
of
Exhibit
A is entitled:
REQUEST
FOR
SITE
APPROVAL
TO
THE
COUNTY
BOARD,
LAKE COUNTY,
?~AUKEGANILLINOIS TO THE
CHAIR~1A~AND MEMBERS
OF THE COUNTY BOARD.
79-102
12
The Board also revieweã the Village’s certified record
on appeal
which contains A.R.F.’s application.
The Executive Summary of
A.R.F.’s application
states:
A.R.F.
Landfill
Corp.
hereby
presents
to
the
Village
Board
of
the Village
of
Round
Lake
Park,
Illinois
it’s
Request
for
Siting
Approval
for
expansion
of
an
existing
solid
waste management facility,
a portion of which
is
located
in
Round
Lake
Park,
Illinois.
emphasis
added
(Exh.
#1
to Village Record,
p.,
i).
The application further states:
Land areas as described below, designated
for
the proposed facility represented
herein,
and
consisting
of
an
appropriate
105—acre
expansion
of
its
existing
80—acre
IEPA—
licensed
facility.
emphasis
added
(Id. at
11—1)
The application’s prayer
for
relief
is as
follows:
AND
DO
HbREBY
PETITION
YOUR
HONORABLE
BOARD
TO
APPROVE
THE
ATTACHED
REQUEST
FOR
SITE
APPROVAL
IN
ORDER TO
ESTABLISH THE FOLLO~~ING
PROPOSED FACILITY:
emphasis
added
(Exh.
#1
to Village Record,
p.
11—2).
The application
then proceeds on
to detail the
site
characteristics and operation of
the complete 105—acre
expansion.
The plain meaning
of the language of the application
indicates that A.R.F.
sought site location suitability approval
from the Village
for
the
entire proposed expansion not just the
portion of
the expansion loacted
in the Village.
Although the
application indicates that Area
2
is the only portion of the
proposed expansion that lies within the Village,
the application
never expressly limits
its request for approval
to Area
2.
The Board cannot accept the contention that the application
was limited
to
the 28.6 acres
in the Village.
However,
the Board
believes that
in
this particular
instance the application as
filed,
although awkward, was not fatally
flawed.
Given
that Area
2 was
in
a location subject
to an annexation
dispute, A.R.F.
understandably
faced some difficulty
in
determining,
or predicting which body could,
or would exercise
79-103
13
jurisdiction over
its application.
It may be
understandable that
A.R.F.
requested the County
to approve all areas,
just
in case.
however,
it
is less understandable why A.R.F.
made
the
same
request of the Village.
A.R.F. chose
to file virtually
an
identical application before
the Village.
In
the least, A.R.F.
should have made
it
clear
in its application that it was
requesting
site location suitability approval
for only the
portion of the proposed expansion over which the Village had
jurisdiction.
OTHER ISSUES
As stated earlier,
the Village and the County contend
that
A.R.F. did not adequately prove service of the type of notice
required under
Section 39.2(b).
At hearing, copies of certified
mail receipts were presented by A..R.F.
and admitted as
Petitioner’s Exhibit
#2.
The Village and
the County assert that
these receipts are insufficient proof
of the type of notice
sent.
At hearing, A.R.F.’s Office Manager, Shirlee Josephsen,
testified that the type of notice sent out “was like”
the legal
notice
that was printed
in the News
Sun newspaper.
(R.
37).
She
also stated that she did not know whether the newspaper notice
and the notice which was sent were
“word
for word”
the same.
(R.
38).
She further testified that the notice which was sent out
included
“a copy of
the
letter
that detailed our intentions
and
the legal description of the property that would be
involved
in
our intent.”
(R.
37).
After
reviewing the legal notice
that was
printed
in the newspaper
(Pet.
Exh.
*
2(c)), the Board concludes
that the newspaper notice sufficiently set forth
the
informational requirements under
the Act.
The testimony of
A.R.F.’s office manager
indicates that
a similar
type of notice
was sent out
to the persons indicated by the certified mail
receipts.
More importantly,
the Board
notes
that Appendix
10
of
A.R.F.’s application contains copies of the notices, signed
by
Ms. Josephsen,
which were sent to adjacent landowners and
legislators.
The notices appear
to fulfill the statutory
requirements.
These copies as well
as the testimony of Ms.
Josephsen are sufficient to prove that A.R.F.
sent the proper
type of notice.
The notices
in Appendix
10
also successfully
rebut
the County’s claim that the application lacked proof of the
type of notice sent by A.R.F.
The Board
further notes that this
issue could have been resolved with relative ease
if A.R.F.
had
presented
the notices
of Appendix
10
in conjunction with
Ms.
Josephsen’s testimony at hearing.
Finally,
the Board will
address
a
few other matters raised
at hearing
and
in
the post—hearing
briefs.
At hearing,
the
County moved
that the Board
take official
notice of
the
record
in
PCB
87—51, which concerns A.R.F.’s appeal
of
the County’s denial
of site
location suitability approval.
The Board denies that
79-104
14
motion since such official notice was unnecessary
for the
resolution of this matter.
Additionally,
the Board upholds all
the evidentiary rulings of the Hearing Officer.
After
reviewing
the evidence which was excluded
at hearing by the Hearing Officer
but
included
in the record as
an offer
of proof,
the Board
finds
that even if such evidence had been admitted,
the outcome of this
proceeding would
not have been altered.
In summary,
given
the circumstances of this proceeding,
the
Board
finds
that the Village has jurisdiction to decide the issue
of site location suitability for that portion of A.R.F.’s
proposal which would be located on the Heartland property.
Although
it was an error
for
the Village
to decline
to exercise
jurisdiction and not hold
a hearing
in this matter,
the Village’s
action dismissing A.R.F.’s application was based upon
jurisdictional reasons.
As a result, the siting
request may not
be deemed approved.
Accordingly,
the Board will remand A.R.F.’s
application
so that the Village may conduct a hearing
and render
a decision pursuant to Section 39.2 of the Act.
A hearing will
allow
the
Village officials to properly evaluate A.R.F.’s
application and interested persons
to participate
in that
process.
The hearing requirement does not necessarily preclude
the Village from incorporating and considering
the record of the
hearing
that the County held on A.R.F.’s application.
The Board
notes that its action today does not
in any way concern the
merits of A.R.F.’s application.
This Opinion constitutes
the Board’s findings of
fact and
conclusions of
law in this matter.
ORDER
The Board
hereby
vacates the Village of Round
Lake Park’s
dismissal
of A.R.F.
Landfill Corporation’s application
for
site
location suitability approval and remands
the application for
hearing and decision pursuant
to Section 39.2 of the Act.
IT
IS
SO ORDERED.
Board Members J.T.
Meyer
and J.D. Dumelle concurred.
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi~that the
ab
e
pinion and Order was
adopted on the
/~,~.-i--day of
_______________,
1987, by
a vote
of
____________________-
~
Dorothy
M. Gunn,
Clerk
Illinois Pollution Control Board
79- 105
