ILLINOIS POLLUTION CONTROL BOARD
January
10,
1985
BOARD
OF
TRUSTEES
OF
CASNER
TOWNSHIP,
)
JEFFERSON COUNTY,
ILLINOIS; CITIZENS
)
AGAINST WOODLAWN AREA LANDFILLS;
CYNTHIA
CARPENTER;
ERNEST
CARPENTER;
HATTIE
HALL;
BYRON
KIRKLAND;
PATRICIA
KIRKLAND;
PEG O’DANIELL;
RONALD
)
O’ODANIELL;
DENNIS
SHROYER;
and
PATRICIA
SHROYER,
)
Petitioners,
)
PCB
84—175
COUNTY OF JEFFERSON
and
SOUTHERN
)
ILLINOIS LANDFILL,
INC.,
Respondents.
JOHN
PRIOR,
)
Petitioner,
V.
)
PCB
84—176
(Consolidated)
COUNTY
OF
JEFFERSON
and SOUTHERN
ILLINOIS
LANDFILL,
INC.,
Respondents.
ORDER OF THE
BOARD (by J.
D.
Durnelle):
On December
6,
1984,
the Board entered an Order
in these
consolidated dockets which,
among other things,
requested that
briefs be filed addressing three questions related to
the
Board’s
jurisdiction to hear an appeal
from a 11deerned approved” request
for
site location suitability.
The Order provided that initial
briefs be filed by December 21,
1984 and responsive briefs be
filed by January
4,
1985.
It was the Board’s intention that
all
parties who wished to file a brief do
so by December
21,
1984
and
that all parties wishing
to file a second responding brief
do so
by January
4,
1985.
The function of this briefing schedule was
to enable the Board to rule quickly on this preliminary question
by getting
all arguments before the Board no later than January
4,
1985.
The Board noted its intention to rule
on the juris-
dictional
question
on
January 10,
1985 prior to the holding
of
a
Board
hearing
on
this
matter,
62-301
Briefs
were
filed
by
Petitioner
Casner
Township
on
December
21,
1984
and by Petitioner John Prior on
December
19,
1984.
However,
both
of
the
Respondents
apparently interpreted
the Board Order
as requiring Respondents to
file
their
first
and
only
brief
by
January
4,
1985.
Although this was not the Board’s
intention,
this
Board
cannot
require
anyone
to
file
a brief or
an
initial
brief,
nor
do
we
believe
any
harm
has
resulted
from
this
misinterpretation
of
the
original
briefing
schedule.
Respondent
Southern
Illinois
Landfill,
Inc.
(Southern
Illinois)
filed
a
brief
addressing
these
questions,
along
with
a
motion
to
dismiss,
on
Janu ary
4,
1985
The
State’s
Attorney
of
Jefferson
County
filed
a
document
entitled
Response
to
Petitioner’s
Brief
on
January
8,
1985.
In
this
Response,
the State’s Attorney states that
it
is
repre-
senting
the
“People
of
the
State
of
Illinois”,
not
the
County
of
Jefferson
or
its
County
Board.
Unless
a
State’s
Attorney
is
representing
the
County
or
its
County
Board,
that
person
is
not
a
Respondent
or
party
to
this
type
of
proceeding
absent
the
grant
of
a
petition
to
intervene.
While
the
Board
has
noted
the
State’s
Attorney’s
comments
herein,
the
standing
of
the
State’s
Attorney
in
this
proceeding
is
unclear
at
this
time,
Therefore,
the
Board
requests
that
clarification
be
submitted
within
14
days
from the date of this Order by the State’s Attorney as to whether
that
office
is
representing
the
County
in
this
proceeding
or
is
acting
in
an
independant
constitutional
capacity
as
a
repre-
sentative
of
the
people
of
the
state,
I,
MOTION FOR CONTINUANCE
On
December
21,
1984,
the State’s Attorney for Jefferson
County
filed
a
Motion
requesting
a
two
week
continuance
of
the
time
for
filing
its “responsive
brief”,
because
the State’s
Attorney planned to be on vacation from December
24,
1984 to
January 6,
1985,*
An objection to this motion was filed by
Southern Illinois Landfill,
Inc.
The Board finds that a con-
tinuance in this situation is not justified.
Delays in this
type of proceeding which
is subject to a statutory
decision
deadline cannot be granted absent
a showing
of genuine necessity.
Therefore,
the Motion for Continuance is denied,
*This
Motion
was
filed
too
late
according
to
the
Board’s
Procedural
Rules to be considered at a
Special
Board
Meeting
held
on December 27,
1984.
Consistent with the State’s Attorney’s
request,
the
State’s
Attorney’s
Office
was
informed
by
telephone
on
December
28,
1984,
of
the
fact
that
this
motion
could
not
be
ruled
upon
until
the
next regular Board Meeting to be held
on
January 10,
1985,
six days after the deadline for the filing
of briefs.
62-302
II.
MOTION TO DISMISS
On
January
4,
1985,
Southern
Illinois
filed
a
Motion
to
Dismiss the appeal
on the grounds that the Board has no juris-
diction under Section 40,1(b)
of the Act to review
a site
location which is
deemed
approved
by
operation
of law.
As this
Motion raises the fundmental
question
on which the Board re-
quested briefing,
the Board will discuss and rule on this Motion
in the context of the
briefs
which
were
filed.
~thtorLanuae
The first of
the
three
questions
raised
by
the
Board
in
its
order
of December
6,
1984,
was “Does Section 40,1(b)
convey juris-
diction
on the Board to review an approval granted by operation
of law?”
The language of the Environmental Protection Act
(Act)
which is at issue here
is
contained
in Sections
39,2(e),
40,1(b)
and
39(c).
(Ill.
Rev,
Stat,
1983,
ch,
111½, pars.
1039.2(e),
1040.1(b)
and
1039(c).)
The Petitioners argue that Section
40,1(b)
affords third parties a
right
to
appeal
to
the Board
where “the county board or the governing body of the municipality
•
,
.
grants approval under Section 39.2 of this Act”
and that
Section 40.1(b) makes no distinction between the granting of
approval by “direct action” or “written decision” and granting
of approval by “inaction”
or “by operation of law.”
(Prior Brief,
p.
3; Casner Township’s
Brief,
p.
1-2,)
Respondent
Southern
Illinois Landfill, argues that the statutory language dis-
tinguishes an active “granting” of
approval by a local government
body from an approval by operation of law,
and that only the
active “granting”
of approval is contemplated by the appeal
provision in Section 40,1(b),
(Southern Illinois’ Brief,
p.
3.)
Respondent
Southern
Illinois
raises
a
second
related
statutory argument that Section 40.1
provides
for appeals to the
Board
where
a
local
body “refuses to grant approval”
and where
it
“grants approval”,
but
does
not
provide
a
special
route
of
appeal
for “deemed approved”
requests
It
argues
that
“such
omission
was intentional
because
there is~
in
fact,
no
decision
to
review,”
(Southern Illinois’ Brief,
p,
4~)
Petitioner
Prior
argues
that Section 40,1(b)
makes
no
dis-
tinction
between
the granting of
site approval by direct action
and the granting
of
such
approval
by non-action, precisely
because
“the
Act
provides
a
single
all-inclusive
vehicle
for
hearings
and
appeals
relating
to
site
local
approval
.“
In
other
words,
the
General
Assembly
didn’t
need
to
provide
a separate
provision for appeal
of “deemed approved” requests.
Petitioner
Casner
Township
supplements this argument stating that “the
entire
statute
can
be
applied
by,
with the expiration of the 120
days,
deeming local
jurisdiction
to
be ended,
thereby
according
the
applicant
the
protection
intended
by
the
deadline,
bat
making
the
matter
subject
to
review
pursuant
to
Section
40,1
of
the
62~3O3
Act,”
The gist of
Petitioners’
various
arguments
on
this
point
is that Section 40,1(b)
can accomodate
a “deemed approved”
re-
quest if the County
Board’s decision
is simply “deemed” to have
been
an
approval.
Thus,
the omission of
a
separate
provision
for the appeal
of
“deemed approved” requests
does
not
demonstrate
an
intention
to
omit
third
party
appeals
of
these
approvals.
In
its
Response
to
Petitioner’s
Brief,
the
State’s
Attorney
of
Jefferson
County
states that the Board “should
and
does
have
jurisdiction
to
review
approval
of the proposed new Regional
Pollution
Control
Facility in
spite
of
the
expiration
of
the
120
day
deadline.”
To
aipport
its
general
argument, Respondent Southern Illinois
cites
Illinois
Power
Co. v.
Illinois
Pollution Control Board,
68
Ill~
Dec.
176,
11~~~.3d
451
445
N.E.
2d
820
(1983)
and
Marquette Cement Mfg~
Co.v.
Illinois
Environmental
Protection
Agency,
39
Ill, Dec.
759,
84
111,
App.
3d
434,
405
N.E.
2d
512
(1980),
for
the
proposition that the Board is without jurisdiction
to review permits
which have issued
by
operation
of
law.
However,
those
cases
both
involved
different
questions.
In
Illinois Power,
the
court
held
that
the
Board
had
erred
in
its
inte~~etation
that
the
90 day limit on
its
own
decision
period
did
not
apply
to
NPDES
permits
and,
therefore,
erred in
continuing
its
review
after
the
90th day.
Illinois
Power
did
not
involve
a
third
party
appeal.
Furthermore,
in the
case
at hand,
there is
no
question
but
that
the 120 day
limit
applies
to
the
County
Board’s
decision
and
that,
by having gone
beyond
that
date without
reaching
a
decision,
the
County
Board
has
lost jurisdiction
to
review the site suitability.
In ~
ement,
the court
held
that the
Board’s
failure to hold
a hearing within the
90
day
decision
period resulted
in
the
permit being
deemed
issued
by
operation
of
law.
Again,
this
is
not
the question
presented
in
this case.
Neither
of these cases involve
a question
of
the
Board’s authority
to
hear
an
appeal
from
a “deemed” action
at
a
lower
level,
The
only
other
provision
for
third
party
appeals
to
the
Board
which
might
shed
light
on
this
question
is
found
in Section
40(b)
of
the
Act
which
provides
for
the
appeal
of
Illinois EPA
(IEPA)
decisions
granting
permits
for
hazardous waste disposal
sites.
The
language
in
Section
40,1(b),
in large
part,
parallels
that
in
Section
40(b).
Unfortunately,
the
question
of
a
“deemed
issued”
hazardous
waste
site
permit
has
never
arisen
in
the
context
of
Section
40(b)
and,
therefore,
we
have
no
case
law
precedent
which
can
help
us
on
the
interpretation
of
this
statutory
language.
~s1
at ive
Intent
Both
the
Petitioners
and
the Respondent Southern
Illinois
look to the
statutory
scheme
of Public Act 82-0682, commonly
referred
to
as
SB
172,
to support their positions.
Petitioner
62~3O4
Casner Township
argues
that the
120
days
deadline
and
the
“deemed approved”
provision was intended to protect the appli-
cant’ s right to a
decision from the local body within a specified
timeframe
by
imposing
the
sanction that after
the
120
days the
local
body
would
lose jurisdiction
over
the matter,
They further
argue that thereafter
the
“deemed
approved”
site location suit-
ability may still
be
challenged in
a third party appeal
before
the Board on the
basis
that
the
six
statutory criteria in
Section
39.2(a)
have not been
met
by
the
applicant.
(See Casner
Township’s
Brief,
p.
2-3.)
Implicit
in
their
position
is
the
view
that
SB
172
intended
to
do
more
than
simply grant
local
government
bodies
a
role
in
the
landfill
siting process;
that
is,
it
also
intended to insure that site locations
were
“suitable”
by
requiring
compliance
with
the
six
statutory criteria
in
Section 39.2(a),
The State’s
Attorney
of
Jefferson
County
concurs
with
Petitioner
Casner
Township that “the applicant should
prove
its
compliance with
the
Section
39~2(a)
criteria.”
(See
State’s
Attorney’s
Response
to
Petitioner’s Briefs)
In contrast
to this,
Respondent Southern Illinois argues
that SB 172 established a two part decision process for new
landfills, allowing local
governments the responsibility to
review the location of the
facility and the Illinois EPA the
responsibility to perform a technical review of the proposed
facility in its
permit
review.
By
its
failure to act,
the County
Board
has
forfeited
not
only
its
role
in
the
process,
bit
also
any
review
of
site suitability,
according
to Southern Illinois.
The
Illinois
EPA’s
review
of
the
permit
application
is limited to
technical
matters,
or,
at
least,
to
matters other
than the
six
criteria
which
were
made
subject
ot
the
SB
172 process.
Thus,
under
this
interpretation,
the
County
Board’s inaction works to
prohibit
any
review
of
compliance
with
the
six criteria,
Implicit
in this position
is the
view
that
the
SB
172
review process was
only intended to
create
a
role
for
local
government participation
and that compliance
with
the
statutory
criteria
for
siting was
not
an independent
concern
of
the
General
Assembly~
~ectofDisallowin
Jurisdiction
Petitioners make
the
second
point
that
the
effect
of
not
allowing Board review
of
a
“deemed
approved”
request
would
be
to
give
the
local
governing body the authority to grant
a “super
approval”,
of sorts,
in
that
it
could,
by
simply refusing
to
act,
assure
that
neither
the
Board
nor
the
courts
could ever disturb
its
decision
to
approve,
(See Casner Township’s Brief,
p.
3,
Prior’s
Brief,
p.
3.)
Petitioner
Casner
Township
points
out
that this is
particularly bothersome
since
the
local
body
may
occasionally
also be the
owner
of
the
facility and the applicant,
as
in
one
case
previously
heard
by
this
Board.
(See
E
&
E Hauling,
Inc. v.
Illinois
Pollution
Control
Board,
116
Ill. App.
3d 586,
71
Ill.
Dec.
587
(1983).)
Petitioner
Prior
points
out
that
this
interpretation
would
also allow the local body the discretion to
cut-off
the
statutory
third party right of appeal.
Respondent
Southern
Illinois
does
not
address
the
effect
of
its
interpretation
on
the functioning
of SB
172
process
as
a
whole.
4.
Conclusion
The Board
interprets
the
language
of
Section 39,2(e)
stating
that “the applicant
may
deem
the
request
approved”
as
meaning
that
the
applicant
may
deem
himself
to
have
the
rights that he would
have
had
under
the
Environmental
Protection
Act
had the County
Board
actively
granted
approval——no
more
and no less.
Specifically,
he
has
the
right
to
proceed
to
the
permitting
process after
submitting “proof to
the
Agency
that
the
location
of
said
facility
has
been
approved
by
the
County
Board”
by
operation
of
law,
(See
Section
39(c),)
However,
there
is
no
indication
in
the
statutory
scheme
created
by
SB
172
that
the
General
Assembly
intended
that
the
applicant
should
obtain greater rights by a County
Board’s
inaction
than
he
would
have had
by
virtue
of
an
active
approval,
Specifically, there
is no
indication
that
an
approval
by
operation
of law was intended
to
shield the applicant
from
the
special
third party appeal
process
established
in
SB
172.
Absent
a compelling
demonstration
that the statutory language
requires or the General Assembly
intended
that “deemed
approved”
requests be treated as different from active approvals,
the Board
cannot extinguish the third party’s statutory right to appeal
in
Section 40.1(b).
The Board does not find Respondent Southern
Illinois’ emphasis on the word “grant”
or argument about the
ommi ssion of a special
appeal
pr ov 1 si on
for
“deemed approved”
requests to be compelling
arguments.
The Board believes the
proper emphasis
in the statutory scheme of SB
172 is on the word
“approval” and that to
“deem
approval”
is
to
deem
that
approval
has been granted.
The
Board
also
finds
that
a
special
provision
for
the
appeal
of a “deemed approved” request would be redundent
as the provisions of Section 40.1(b)
adequately address both
types of approvals.
Neither can the
Board
find
a
legislative
intent to eliminate
third
party appeals
of
“deemed
approved”
requests.
On
the
contrary,
the
Board
finds
that
there
are
compelling
arguments
for
upholding
Board review
of
these approvals.
The 120 day deadline
for
a local
body
to
act
is
an
essential
element
of
the
SB
172
statutory
scheme.
Without
a
deadline,
the
local
body
could
frustrate
the
entire
permitting
process
by
simply
not
acting,
and
the legislative
history
shows
that the
General
Assembly
believed
that
many
local
bodies
would
be under pressure to do just that.
The “deemed
approved”
mechanism
functions
to
move
the
case along
without
penalizing
any
of the partie
t
he
frLce~s other
than
the
local
body
itself.
However,
B
cii
urisdiction to
review
third party appeals
were
diba
I
ed
hsse
cases,
the
symmetry
of the
SB
172
system
would be des
yed,
Not only
does this
create the spectre
of manipu~
~o
of ‘.~eprocess and
third
party’s rights
by the local ~od
,
~t sor
d also produce
a situ-
ation
in which
the site suitabil
t
,lic~was of
fundamental
concern to the
General Assembly c uld
‘ever by
reviewed or assured.
This would
certainly
be
an
absurd consequence
in
light of the
elaborate public
par~icipationand review processes
SB
172 created
to ensure complete
r~riewof these questions.
On the basis of the
fozey
i~
u~sion,the Board finds that
it does
have jurisdiction to hcar
t.
i~
appeal
pursuant
to Section
40.1(b).
Respondent
Southern
Illir
~‘
Motion to
Dismiss
the
Appeal
is
hereby
denied.
III,
3COPE_OF HLARING
The second
question raisei
y tac .3oaru in its
December
6,
1984 Order was
“What is the proper
.cope of the
hearing to be
held by the Board
in this situation
(e.g.
is the hearing
to be
restricted to
oral
arg~~~su.t,
r~y~
not
before the
county be
introduced)?”
All
parties
who
briefed tirs question argue
that
the
scope
of the Board hearing
is limi ci
t
t~sreccrd created
at
the
County level.
(See Casner Towr~,hips Brief,
p.
4,
Prior’s
Brief,
p.
5,
Southern Illinois
Brie,
p.
6.)
Only the State’s
Attorney
of
Jefferson Cojr
y
i
i
Fes
rse to
Petitioner’s
Brief,
stated that a de no o hcaring
should be
conducted
by
the Board.
The
Board
agrees with Peti
i~
rer
of the
hearing
in this cass
h
ild
bc ~
hearing conducted
on
a writ~erd~cision
body.
As
provided
in Sect o
I
the
applicant shall
appear
as cc rc ~o
rules prescribed
in Sect
~
and
the
burden
of proof
.~hatI
£5
Board will
be deemed
to hays fau ~
demonstrated
compliance wi
ci
Section 39,2(a).
No ne~ si s~s~it
the Board
hearing.
Howeve
a.
evidence may be
introduces corcu
parties,
the completeness o~
c reco
body,
and
the
fundamental
fair ie ~s of
the County Board.
~tatements
that
the
scope
different
than
that
of
a
~o approve by a
local
C unty Board
and the
at this hearing;
the
of the Act
shall
apply;
letitioners,
The
County
the applicant
has
i
six criteria
listed
in
vidence will
be
accepted
at
a
these proceedings,
ne standing
of the
d certified by the local
me procedures
used by
The third
question the Board rsqucsted briefing
on
was
“What
is
the
standard
of
review to be
i~
Lied by the
Board?”
Respondent
Southern
Ill roi
ar
es strongly against
Petitioner
Prior’s position
(and the St be
s A
ii
y of Jefferson
County’s
de novo hearing
position),
say~r
t
i
s
ould be
tantamount
to de novo
review and that Sectio
0
‘does not
state,
suggest
or imply that
this Board
in
a y
i
u~
~ince,may
determine
the
approval
of
a
site in the sam
na
a.
~h any authority
that is
vested
in the
local
authorities,
( oi~hernIllinois’
Brief,
p.
8.)
Southern
Illinois also reje t~’I
~or’s
contention that the
burden of proof
remains upor
thc ap~l ai~on appeal.
Southern
Illinois concludes
that the proper
~tancard of
review
is manifest
weight
of the
evidence
The Board
agrees with tbe
ji
f Petitioner
Casner
Township and
Respondent Southern
I li~iis,
As stated
earlier,
this appeal
comes to the B ard ~n
t y the same
posture as
any
other SB
172 appeal.
The ~ou
deemed to have
approved
the applicaton
by operation of mw
d tIe applicant
should find
himself in
the same pos~tor
he
een had the
County
Board approved
the reque
t
~
‘ision,
Specifically,
the same
presumptio..s an. b
~
s “1y here
and the
Board will
review the
is
o
itmest weight standard
articulated
in earlier
SB
72
cast’
These preliminary quec
r
Hearing
Officer
is hereby d
ing
in
a
speedy manner so
requirements.
IT
IS
SO
ORDERED,
Board
Member J. Theodo
M ys
J. Anderson
and
J. Marlin con u
I,
Dorothy
M
Gunn
L.a
Control Board,
hereby cc
t,j4
on the_~~~~_day
of~~-c~
~
of
_7L
~a r
addressed,
the
tf~smatter
for
hear-
1
pplicable
notice
s
ted
Board
Members
t e Illinois Pollution
a
vs Order was
adopted
,
1985 by a vote
~rois
Pollution
Control
Board
Petitioner
Prior argues that,
the
County
level,
the
approval r° ot
of correctness
which
underl
c.~
I
Therefore,
he
concludes,
the
30
5
a
make
an
independent
determinat~i
applicant
met
its
burden
of
pr
criteria.
(Prior’s
Brief,
p
6
applicant
should
bear
the same bur
a
the County
Board,
i.e. prepon
era
Casner
Township
argues that the
tar
be the same as
in m
other
S
2
opj
of
the
evidence
(Wa~~s
f
I
Pollution
Control
B
rd,
79
Ill.
3
~s there was no decision
at
rtitled to the presumption
est weight standard,
review the
record
and
~hether or not
the
r
the Section
39,2(a)
also argues
that
the
i
would have
born before
Is.
evidence,
Petitioner
of review here should
al,
i
e,
manifest
weight
irois,
Inc. v.
Illinois
4
5
463 N.E.
2d
969.)
