ILLINOIS POLLUTION CONTROL BOARD

July 11, 1986

EVERETT ALLEN, INC.,

)

)

Petitioner,

)

)

v.

)

PCB 86-34

)

CITY OF MOUNT VERNON,

)

)

Respondent. )

OPINION AND ORDER OF THE BOARD (by B. Forcade):

This matter comes to the Board on a March 6, 1986, Petition

for Review filed by Everett Allen, Inc., an Illinois Corporation

d/b/a/ Allen Waste Management (hereinafter “Everett Allen”). The

petition seeks review of a February 3, 1986, decision by the City

of Mount Vernon (hereinafter “Mt. Vernon”) denying Everett

Allen’s August 12, 1985, application for local site location

approval for a new regional pollution control facility. The

Pollution Control Board hearing in this matter was held on May 7,

1986, in the Jefferson County Courthouse. Final briefs ~re

filed by Everett Allen on May 28 and June 3, and by Mt. Vernon on

May 29 and June 2, 1986.

As a threshold issue, Mt. Vernon has raised the question of

jurisdiction in light of the Second District’s opinion in The

Kane County Defenders’ Inc~v. Pollution Control Board, 93 Ill.

Dec. 918, 487 N.E.2d 743 (1985) (hereinafter “Kane County”). Mt.

Vernon claims that:

“Allen Waste Management both within the

publication notice and within the notice to

adjoining property owners misstated the rights

of persons to comment on the request and also

misstated the time requirements for a public

hearing.” (Brief, p. 3)

Consequently, the Board must review the requirements for siting

requests and the facts of this case. Mt. Vernon’s arguments are

poorly developed in that the Board is left to discover what

“misstatements” occurred, but the Board will evaluate the matter

as it is jurisdictional.

Requests for landfill siting approval are governed by

Section 39.2 of the Environmental Protection Act (“Act”). That

section sets certain procedural requirements for filing landfill

siting applications and local governmental determinations. It

also establishes certain requirements regarding the timing and

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content of public notice regarding the process. At the outset,

the Board notes that, effective July 1, 1985, Sections 39.2(c)

and (d) were substantially amended regarding the timing of both

the public comment period and the municipal (or county)

hearings. Section (b) was not amended. Prior to July 1, 1985,

the county was required to consider any comment submitted within

30 days after the filing of the application, and hold at least

one public hearing within 60 days of the filing of the

application. Since the application in this proceeding was filed

after July 1, 1985, the relevant portions of Section 39.2 are as

follows:

b. 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;

provided, that the number of all feet

occupied by all public roads, streets,

alleys and other public ways shall be

excluded in computing the 250 feet

requirements; provided further, that in

no event shall this requirement exceed

400 feet, including public streets,

alleys and other public ways.

Such written notice shall also be served

upon members of the ~neral 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. •Such notice

shall state the name and address of the

~pp1icant, the location of the proposed

site, the nature and size of the

development, the nature of the activity

proposed, the probable life of the

proposed activity, the date when the

request for site approval will be

submitted to the county board, and a

description of the right of persons to

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comment -on such request as hereafter

provided.

c. An applicant shall file a copy of its

request, accompanied by all documents

submitted as of that date to the Agency

in connection with its application except

trade secrets as determined Under Section

7.1 of this Act, with the county board of

the county or the governing body of the

municipality in which the proposed site

is located. Such copy shall be made

available for public inspection at the

office of the county board or the

governing body of the municipality and

may be copied upon payment of the actual

cost of reproduction.

Any person may file written comment with

the county board or governing body of the

municipality concerning the appropriate-

ness of the proposed site for its

intended purpose. The county board or

governing body of the municipality shall

consider any comment received -or post-

marked not later than 30 days after the

date of the last public hearing~.

d. At least one public hearing is to be held

by the county board or governing body of

the municipality no sooner than 90 day~

but no later than 120 days from receip~

of the request for site approval, such

hearing to be preceded by pu~1ished

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 to

the Agency. The public hearing shall

develop a record sufficient to form the

basis of appeal of the decision in

accordance with Section 40.1 of this

Act. tEmphasis added

The provisions of the statute relating to notice were first

interpreted in City of Aurora v. Kane County Board, et al, No.

84-940 (Ill. App. Second District, December 30, 1985). In the

Kane County case, the Elgin Sanitary District (“ESD”) filed its

application August 11, 1983. Newspaper notice was not published

until August 10. However, as this notice stated only that the

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application would be filed “within 14 days,” ESD published a new

notice on August 20 which stated the date the application was

filed, the last date of the comment period, and the date of the

public hearing. The petitioners in that case argued that the 14-

day notice provision of paragraph 1 of Section 39.2(b)

(individual notice to land owners) applied to paragraph 2

(newspaper notice), and that ESD violated the notice provisions,

“thereby substantially shortening the length of the comment

period available to the general public.” The Board takes

administrative notice of the fact that, had notice been published

14 days in advance of a specified filing date, the public would

have had 44 days to consider and to formulate written comments.

Because notice of the filing date, from which the comment period

ran, was not published until August 20, the period was

effectively reduced from 44 to 22 days.

The Appellate Court for the Second District held that “ESD’s

failure to publish appropriate newspaper notice and notice of the

date it filed the site location request rendered the Kane. County

Board hearing invalid for lack of jurisdiction,” finding the

notice requirements of Section 39.2(b) to be “jurisdictional

prerequisites which must be followed in order to vest the county

board with the power to hear a landfill proposal.” In reaching

this result, the court applied the reasoning employed by the

Third District Appellate Court in Illinois Power Co. v. IPCB, 137

Ill. App. 3d 449, 484 N.E.2d 898 (1985). In Illinois Power, in a

situation where the Board had failed to give both the 21-day

notice to individuals and the newspaper notice to the general

public required by Section 40(b), the court found that the

statutory notice requirements were jurisdictional, given the

statutes’ use of the mandatory term “shall,” and the general

principle that an administrative agency derives power solely from

its enabling statute.

In Kane County, the Second District asserted the Illinois

Power rationale applied “even more strongly” because

“This broad delegation of adjudicative

power to the county board clearly reflects a

legislative understanding that the county

board hearing, which presents the only

opportunity for public comment on the proposed

site, is the most critical stage of the

landfill site approval process. We find

support for this view also in the statutory

notice requirements themselves, which are more

demanding at the county board phase of the

process. In view of the significance of this

critical stage, we apply the reasoning of the

Illinois Power Co. court, which recognized

jurisdictional safeguards at the review stage

of site approval proceedings, to the county

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board proceedings. The notice requirements

contained in Section 39.2(b) of the

Environmental Protection Act (Ill. Rev. Stat.

1983, ch. lll’/2, par. 1039.2(b)) are

jurisdictional prerequisites which must be

followed in order to vest the county board

with the power to hear a landfill proposal

(citations omitted).

The Board recently applied the Kane Cou~y rationale in City

of Columbia,-et al., v. County of St. Clair, et al., PCB 85-177,

flO, 223 (April

3,

1986) (hereinafter “Columbia”). In Columbia,

the Board found that a one day deficiency in notice directives

rendered the application deficient. The Secor~dDistrict recently

applied the Kane County decision to a factually similar situation

involving a one-day deficiency in notice in Concerned Boone

Citizens v. M.I.G. Investments, No. 85-309 (Ill. App. Second

District, June 4, 1986). Against this background, the Board must

consider the facts presented today.

The site location approval process began when Everett Allen

prepared a notice of intent to file a site location suitability

approval application. That notice was mailed, by certified mail,

to the adjacent property owners on July 25, 1985. The legal

notice was published in the Mt. Vernon Register-News on July 29,

1985. The actual application was filed with the City of Mt.

Vernon on August 12, 1985. Both the notice to adjacent property

owners and the newspaper notice contained the following language:

Any person may file written comment with the

Office of the City Clerk, 1100 Main Street,

Mount Vernon, Illinois, concerning the

appropriateness of the proposed site for its

intended purpose. The City Council of the

City -of -Mount Vernon

-

shall consider a~y~

comment received or postmarked not later than

30 days from the date of

-

receipt of the

request in making its final determination.

Additionally,, at least one public hearing is

to be held by--the City Council of the City of

Mount- -Vernon within 60 days of

receipt of the

request for site approval, such hearing to be

preceded by published notice in a newspaper of

general circulation published in Jefferson

County, Illinois. (Emphasis added)

While this notice was published and mailed in a

timely

manner, it did not

accurately describe the right of persons to

comment on the request.

At all times relevant to this

proceeding, the statute has provided for a public

hearing to be

held not less than

90

days nor more than

120

days from filing the

application and provided that comments postmarked not later than

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30 days after hearing must be accepted. Under the statute, the

public and adjacent landowners have a minimum of 104 days to

prepare for hearing and a minimum of 134 days to provide written

comment. Under the time frames described in the notice, the

public and adjacent landowners had a minimum of 14 days to

prepare for hearing and 44 days to provide written comment.

The importance of the public comment opportunities before

the local government body was clearly recognized by the Second

District in Kane County, supra.

The Board has previously recognized the importance of the

public comment opportunities and the key role of proper notice in

allowing the public adequate time to prepare for hearing and

comment. “The function of notice and the required time period

between notice and hearing is first to inform the affected public

that a landfill site suitability approval process has been

initiated and, second, to allow time for the public to review the

application to determine whether, or in what manner, further

participation is warranted.” McHenry County Landfill, Inc., et

a?., v. County Board of McHenry et al., PCB 85-56, 61-66

(September 20, 1985, at 4). Also, the Board has previously held

that where a defective notice is exclusively the fault of the

applicant and the defective notice can be cured by an alternative

mechanism (filing a new application), the site applicant is held

to the letter of the law regarding notice:

“...the rationale here is that the intent of

the Act is to provide a mechanism and a county

or municipal forum for the consideration of

site location suitability issues. Where an

alternative mechanism for resolution and

review of an issue defective notice exists,

e.g. filing of a new application, a party may

be held to the letter of the law, when that

party alone bears the burden of any

omission. Where a slight omission may

substantially impair, if it does not

extinguish, a right of a party who bears no

culpability, e.g., a deemed issued approval,

the Board must look to the spirit of the law.”

(Id. at 12)

The Board finds that the incorrect description published by

Everett Allen constitutes a substantial and material failure to

state “...a description of the right of persons to comment on

such request as hereafter provided” (Section 39.2(b) of the

Act). The magnitude of that failure is apparent when viewed from

the perspective of a member of the public or adjacent landowner

who relied on the notice to prepare for hearing or to prepare

comments.

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Time to Prepare

Time to Prepare

For Hearing

Public Comments

Under the Terms

of the Statute

Minimum

104 days

Maximum

134 days

Minimum

134 days

Maximum

164 days

According to

the Notice from

Everett Allen

14 days 74 days

44 days 44 days

After the August 12, 1985, application had been filed,

Everett Allen republished notice. That notice was mailed to

adjacent landowners on November 12, 1985, and published in the

Mt. Vernon Register—News on November 13. That notice more

accurately reflects the statutory provisions for public comment;

however, it cannot fulfill the statutory notice requirements

since it was mailed and published about 90 days after the

application was filed. Also, while the notice is not required to

contain the date of public hearing, this notice contained a

hearing date that was incorrect.

The notices provided by Everett Allen do not fulfill the

mandate of Section 39.2(b) of the Act. Consequently, under the

theory of Kane Cou~L, the application was invalid and Mt. Vernon

lacked jurT~dI~?T~nto proceed. The Board will, therefore,

vacate the February 3, 1986, decision by Mt. Vernon in this

matter.

ORDER

The February 3, 1986, decision of the City of Mt. Vernon

denying Everett Allen’s August 12, 1985, application for site

location suitability approval is hereby vacated, as the City

could not exercise jurisdiction over the improperly noticed

app ii cat ion.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certj~y that the abpve40pinion and Order was

adopted on the

//(_~~~

day of

1986, by a vote

of

_______*

Illi

Pollu

Control Board

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