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11/18/87 Browning-Ferris Industries v. the Pollution Control

November 18, 1987

BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES (THE CITY OF COLUMBIA ET AL., INTERVENORS-APPELLEES)

AT ISSUE ARE THE NOTICE REQUIREMENTS OF SECTION 39.2(B) OF THE ACT (ILL. RE

v.

STAT. 1985, CH. 111 1/2, PAR. 1039.2(B)), WHICH ARE STATED AS FOLLOWS, IN PERTINENT PART:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 804, 162 Ill. App. 3d 801, 114 Ill. Dec. 649

Petition for review of order of Pollution Control Board. 1987.IL.1701

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The instant appeal involves the denial of local siting approval under section 39.2 of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2) to the petitioner, Browning-Ferris Industries of Illinois, Inc. , by the county board of St. Clair County, Illinois (County). The County had denied BFI's request for approval to site a landfill in southern St. Clair County, and BFI had appealed this decision to the Illinois Pollution Control Board (Board), challenging the County's findings (1) that another landfill was not necessary to accommodate the waste needs of the area and (2) that the design of the proposed landfill would not minimize the impact on existing traffic flows. The Board declined to consider the merits of BFI's appeal but, rather, vacated the County's decision on the grounds that BFI had failed to comply with prefiling notice requirements of the Act, thus depriving the County of jurisdiction to consider BFI's siting request. Upon direct appeal to this court from the Board's order (see Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1041), we affirm.

"(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 250 feet . . . of the subject property . . .. . . .

Such written notice shall also be . . . published in a newspaper of general circulation published in the county in which the site is located."

On June 12, 1985, BFI mailed notices of its request for site location approval for a regional pollution control facility in southern St. Clair County to property owners within 250 feet of the proposed site. The notices were sent by registered mail, return receipt requested, to a total of 34 persons. Of these notices, 19 were received on June 13, three were received on June 14, two were received on June 18, and two were received on June 21. The other notices were either nondeliverable or were delivered but failed to show the date of receipt.

On that same date, BFI prepared and sent to the Belleville News Democrat, a newspaper of general circulation in St. Clair County, a similar notice of its request for site location approval for the proposed landfill. This notice was published by the newspaper on June 14, 1985. The published notice stated that BFI's application would be filed with the County on June 28, 1985. BFI subsequently filed its application for site location approval with the County on June 27, 1985.

Following a public hearing on BFI's site location request on September 24, 1985 (see Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2 (d)), the County denied BFI's request, stating as reasons for its denial that the proposed landfill "[was] not necessary to accommodate the waste needs of the area it [was] intended to serve" and that "the design of the facility [would] not minimize the impact on existing traffic flows" (see Ill. Rev. Stat. 1985, ch. 111 1/2, pars. 1039.2(a)(i), (a)(vi)). BFI then filed an appeal with the Board from the County's decision, naming as respondents the County, as well as the City of Columbia, Illinois, and certain individuals who were opposed to the construction and operation of the proposed landfill (hereafter referred to collectively as City), all of whom were admitted as intervenors in the Board proceeding. The City filed a cross-appeal from the County's decision, asserting that due to BFI's failure to comply with the notice requirements of section 39.2(b) of the Act, there had been no complete application over which the County could exercise jurisdiction and that its order was thus void.

In its written opinion entered on April 3, 1986, the Board first observed that BFI had filed its application with the County 13 days after newspaper publication of its notice of intent to file, rather than the 14 days required by statute. The Board found that the issue of the timeliness of notice provided by BFI was controlled by Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743, in which the court held that compliance with the notice directives of section 39.2(b) was jurisdictional. The Board stated that, given this holding of the Kane County Defenders court,

"the Board must find that even a one day failure of newspaper notice rendered BFI's application deficient, with the result that all proceedings before the County are voided."

While the Board additionally found that BFI's initiation of registered mail service on the fifteenth day in advance of the filing date was "unreasonable under the circumstances" and thus failed to come within the requirement that an applicant "cause written notice . . . to be served" (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(b)) on neighboring landowners 14 days prior to a site location request, the Board concluded, based on the defective newspaper notice, that the County lacked jurisdiction to consider BFI's application for site location approval. The Board, accordingly, vacated the County's decision denying BFI's request. The Board noted that its ruling did not prevent refiling by BFI or resubmission of materials in the record in the event BFI chose to begin a new proceeding for site location approval. In a Dissenting opinion, one member of the Board stated that he would have found a one-day deviation from the required filing period ...


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