ILLINOIS POLLUTION CONTROL BOARD
April
3,
1986
CITY OF COLUMBIA, WALTER BYERLEY, JR.,
BARBARA HEINLEIN,
DANIEL HEINLEIN,
)
HOMER STEMLER AND LORETTA STEMLER,
)
Petitioner,
v.
)
PCB 85—177
COUNTY OF ST. CLAIR AND BROWNING-
)
FERRIS
INDUSTRIES OF ILLINOIS,
INC.,
)
Respondents.
BROWNING—FERRIS INDUSTRIES OF
ILLINOIS,
INC.,
Petitioner,
v.
)
PCB 85—220
COUNTY OF ST.
CLAIR,
ILLINOIS,
Respondent,
and
CITY OF COLUMBIA, JEAN ECKERT,
MARCELLUS ECKERT, LANNY JACKSON,
VICKY JACKSON, HARRY RAYMOND,
PATRICIA RAYMOND, HOMER STEMLER
AND LORETTA STEMLER,
Intervenors.
CITY OF COLUMBIA,
et
al.,
Petitioners,
v.
)
PCB 85—223
)
(Consolidated)
COUNTY OF ST. CLAIR AND BROWNING-
)
FERRIS INDUSTRIES OF ILLINOIS,
INC.,
)
)
Respondents.
69-22
—2—
DISSENTING OPINION
(by J.
D. Dumelle):
My reason for dissenting
is that
I would not have vacated
the County decision but would have remanded the matter
to the
County
of St. Clair.
The majority finds
a one—day error
in filing
the application
by Browning—Ferris Industries
(“BFI”)
to be controlling under
the
Kane County decision cited.
The Kane County court was dealing with
the landfill siting
procedures under P.A. 82—682.
Under
that law,
the public had
only 60 days until the hearing,
and the comment period was within
that period.
The present law, P.A. 83—1522,
allows at least 90
days until hearing and
a 30—day comment period
after
that.
Put
another way, the total time for the public
to prepare and
to
participate has been doubled,
from 60 days
to 120 days.
One day
out of 120 days
is less than 1.
To me that
is
de minimus.
Furthermore,
in Kane County
the newspaper notice, which was
published only one day, rather than the required fourteen days,
prior
to application failed
to include the exact day of filing of
the application.
That defect was not corrected until nine days
after filing.
Here,
on the other hand,
the notice was complete
and filed only one day late.
The matter should have been
remanded,
not vacated.
The majority also found
a defect
in the service
of notice to
landowners.
Yet some of the landowners received timely notice.
And all notices were sent registered mail.
I would have looked
at the place
of mailing.
If
it was
in the area then overnight
delivery can
reasonably be expected.
Property owners receiving
late notice were probably not at home during the daytime and
probably had
to accept delivery on Saturday or
to call
for
the
registered letter at the post office.
Thus, the mailings, while
at the absolute last day (June 12),
were not defective.
Once the majority vacated the decision it should have gone
no further.
Yet with
no record before
it,
it proceeds
to make
“findings” on fundamental fairness
(p.
14)
or holdings to make
“negative findings.”
How can that be done without
a record?
I
agree with most of the majority holdings but I would have done so
in a remand context which would allow findings
to be made.
Dumelle, P.E.
69-23
—3—
I, Dorothy
N. Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby certify that the above Dissenting Opinion was filed
on the
~~~?—ck~
day of
-~z~/
~
~
orothy N. ann, Clerk
Illinois Pollution Control Board
69-24