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Waste Management of Ill., Inc. v. Pcb





Petition for review of order of Pollution Control Board.


Waste Management of Illinois, Inc., petitioned pursuant to the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq. (Act) for site location approval of an expansion to its existing HOD sanitary landfill located in unincorporated Lake County, Illinois. After a hearing during which witnesses testified for Waste Management, the Lake County Staff Review Committee, and intervenor-respondent village of Antioch (the village or Antioch), respondent Lake County Board (LCB) denied Waste Management's petition, and this denial was affirmed by the Illinois Pollution Control Board (PCB). We are asked to consider the PCB's order under administrative review procedures set forth in section 41 of the Act. (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1041.) For the reasons discussed herein, we affirm the order of the PCB.

The proposed site, rectangular in shape and approximately 30.2 acres in size, adjoins an existing, operating landfill on its southern boundary, vacant land owned by petitioner on its western boundary, Depot Street on its northern boundary and single-family zoned and developed land on its eastern boundary. West of the existing site is an industrial subdivision; south of the existing landfill is a vacant tract zoned for manufacturing and extending south to Route 173; east and southeast of the existing landfill is the Little Silver Lake subdivision of single-family residences; north of Depot Street the land is zoned and used for agricultural purposes.

Petitioner commenced the site approval process on May 14, 1982, by giving notice to property owners pursuant to the requirements of section 39.2(b) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2(b)), and on May 28, 1982, Waste Management submitted a request for site location approval to the chairman of the LCB. Petitioner requested approval to accept municipal and special wastes in an engineered landfill to be located on the proposed site. Notice was given for a public hearing on the application scheduled for July 10, 1982. The public hearing which was conducted by a committee of five members of the LCB over 12 sessions consumed approximately 98 hours and 2,500 pages of transcript. Petitioner presented 10 witnesses, the village presented nine witnesses, and the Lake County Staff Review Committee presented six witnesses. One session was set aside for public opinion, and 23 people made comments.

On September 7, 1982, the Hearing Committee made its recommendation, specifically finding against petitioner as to three of the six criteria in section 39.2: the need for the proposed facility, its impact on the public health, safety and welfare, and whether the proposed facility was located so as to minimize incompatibility with and effect on the values of surrounding properties. The LCB on September 14, 1982, adopted a resolution denying approval of petitioner's siting request. On October 1, 1982, petitioner appealed the LCB's decision to the PCB under section 40.1(a) of the Act. Pursuant to section 40.1, a hearing was conducted on November 23, 1982. In an opinion and order dated December 30, 1982, the PCB affirmed the decision of the LCB.

On January 26, 1983, petitioner filed a motion for rehearing which the PCB denied on February 24, 1983. Petitioner filed its petition for review on February 25, 1983. On March 10, 1983, the village filed its motion to dismiss the appeal on the ground that the petition for review was not timely filed, which we have ordered taken with the case.

• 1 Prior to reaching the merits of this appeal, we first address the motion filed by the village to dismiss Waste Management's petition for review. The village contends dismissal is warranted because petitioner did not appeal from the PCB's final order within the statutorily-prescribed period of time. Specifically, the village argues the recent amendment to the Act (see Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2(f)) does not provide for a PCB rehearing procedure and in fact precludes the PCB from rehearing its own rulings.

Prior to the recent amendment to the Act, the PCB had adopted a rule providing for rehearings:

"Within 35 days after the adoption of a final order any party may file a motion for rehearing or modification of the order, or to vacate the order or for other relief. Response to said motion shall be filed within 14 days from the filing thereof. A motion filed within 35 days stays enforcement of the final order and the time for appeal from such order runs anew after the Board rules upon the motion. Failure of a party to appeal a final order or to file for appellate court review within 35 days of adoption of the final order waives all right to review except as set forth in Rule 334." (Ill. P.C.B.R. 333.)

After the PCB entered its decision on December 30, 1982, Waste Management filed a motion for reconsideration on January 26, 1983, within the 35-day time period prescribed by Rule 333. the court denied the rehearing on February 24, 1983, and the next day, Waste Management filed its petition for review. Thus, Waste Management's petition was timely if Rule 333 tolled the 35-day petition period in section 40.1, but otherwise was untimely as filed later than 35 days after the PCB's December 30 decision.

We disagree with the village's construction of the statute. In construing an analogous section of the Act, this court in Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App.3d 498, 351 N.E.2d 875, held that the Act empowered the PCB to adopt a rehearing procedure. In Modine, the petitioner asserted that the PCB lacked the power to reconsider its opinions, but this court noted that two sections of the Act when read together provided the authority to conduct the rehearings: section 5(d) (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1005(d)), authorizing the PCB to conduct "such other hearings as may be provided by rule" and section 26 (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1026), empowering the PCB to adopt rules to accomplish the purposes of the Act. (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App.3d 498, 501, 351 N.E.2d 875, 878.) These same two sections when read in combination support the conclusion in the instant case that the PCB has authority to hear rehearing requests pursuant to section 39.2. Despite Modine, the village contends section 39.2(f) limits the PCB's authority to reconsider its own rulings. Section 39.2(f) states:

"The siting approval, procedures, criteria and appeal procedures provided for this Act for new regional pollution control facilities shall be the exclusive siting procedures and rules and appeal procedures for such facilities. Local zoning and other local land use requirements shall not be applicable to such siting decisions." (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2(f).)

Based upon this section and the absence of any specific rehearing procedure in the statute, the village argues the PCB is precluded from allowing rehearings and from enacting regulations authorizing a rehearing procedure.

We do not read section 39.2(f) as an intention by the legislature of nullifying the PCB's procedural rules in landfill siting appeals. Nothing in the statute indicates the legislature intended the PCB to be able to review its decisions pursuant to Rule 333 in all matters other than those concerning landfill siting decisions. Rather, we construe section 39.2(f) as leaving undisturbed the PCB's pre-existing procedural rules which are not in conflict with specific provisions of the Act. In the instant case, while section 39.2(f) states that Act's appeal procedures are exclusive, no procedure in that section is inconsistent with the rehearing procedure outlined in Rule 333. Furthermore, the rehearing procedure serves the laudatory purpose of promoting judicial economy by affording the PCB an opportunity to review its own decisions prior to a potential appeal to this court. Since we are unpersuaded that section 39.2(f) was intended to prevent the PCB from rehearing its siting decisions, we deny the village's motion to dismiss.

• 2 The first argument raised by Waste Management is that the LCB's decision was a result of a fundamentally unfair decision-making process in violation of section 40.1 (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1040.1). That section requires the PCB in reviewing the LCB's determination to include in its consideration "the fundamental fairness of the procedures used by the county board or the governing body of the municipality in reaching its decision." Both parties agree that the Act requires the LCB to act as a quasi-judicial body. This court has ruled that a county board's decision to grant or deny ...

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