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04/25/88 M.I.G. Investments, Inc., v. the Environmental

April 25, 1988

M.I.G. INVESTMENTS, INC., ET AL., APPELLEES

v.

THE ENVIRONMENTAL PROTECTION AGENCY ET AL., APPELLANTS



SUPREME COURT OF ILLINOIS

523 N.E.2d 1, 122 Ill. 2d 392, 119 Ill. Dec. 533 1988.IL.590

Appeal from the Appellate court for the Second District; heard in that court on petition for review of an order of the Pollution Control Board.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. MORAN, C.J., and MILLER, J., took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, M.I.G. Investments, Inc., filed a petition for a supplemental development permit with the Illinois Environmental Protection Agency (Agency) to increase the vertical contour levels of its landfill, located in Boone County, to an elevation of 872 feet above sea level. The Agency denied the petition on the ground that the plaintiff had failed to obtain local governmental approval for the proposed expansion pursuant to section 39(c) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039(c)). The Pollution Control Board (Board), with one member Dissenting, affirmed the Agency's decision, and the plaintiff appealed to the appellate court, which reversed, holding that under section 39(c), local government approval is not required for a vertical expansion of an existing landfill facility. (151 Ill. App. 3d 488.) We granted the Agency's petition for leave to appeal under Supreme Court Rule 315(a). 107 Ill. 2d R. 315(a).

The plaintiff, M.I.G. Investments, Inc., operates a solid waste disposal landfill in Boone County pursuant to a permit granted by the Illinois Environmental Protection Agency in May 1972. (See Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.) The permit allows the plaintiff to dispose of residential, commercial and industrial waste and contains a standard condition that the landfill's operation be conducted in accordance with a design plan submitted by the plaintiff's engineers. The plans set out the facility's proposed dimensions as approximately 1,900 feet by 1,300 feet, with a maximum elevation of 827 feet above sea level.

On January c4, 1985, the plaintiff petitioned the Agency for a supplemental development permit pursuant to section 39 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039) to vertically increase the final contour levels of its landfill to a maximum elevation of 872 feet above sea level. The Agency denied the petition on the ground that, inter alia, the plaintiff had failed to obtain local governmental approval for the proposed expansion pursuant to section 39(c) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039(c)). Under section 39(c), the Agency cannot grant a permit for the expansion of an existing landfill facility without the approval of the municipality or county in which the facility is located if the proposed expansion would create a "new regional pollution control facility" as defined in section 3(x)(2) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2)). Section 3(x)(2) defines a "new regional pollution control facility" as "the area of expansion beyond the boundary of a currently permitted regional pollution control facility."

The plaintiff appealed the Agency's decision to the Illinois Pollution Control Board (see Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1(b)). The parties stipulated that all the reasons cited for the Agency's denial had been resolved with the exception of the plaintiff's failure to obtain local governmental approval under section 39(c). The Board affirmed the Agency's determination, stating that any expansion of an existing landfill, laterally or vertically, creates a "new regional pollution control facility" as defined in section 3(x)(2) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2)).

The plaintiff appealed directly to the appellate court (see Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041), which reversed, holding that a vertical expansion of an existing pollution control facility does not constitute a "new" facility under section 3(x)(2). (151 Ill. App. 3d at 494.) The court stated that because the terms "area" and "boundary" commonly refer to surface measurements, "the boundary of a 'currently permitted' facility is determined by the length and width allowed in the original permit. It is when the landfill wishes to increase its length or width that it can be said to seek expansion beyond its present boundary." (151 Ill. App. 3d at 493.) Consequently, the court concluded, local governmental approval was not required for the plaintiff's proposed expansion of its landfill facility. We granted the Agency's petition for leave to appeal under our Rule 315(a). 107 Ill. 2d R. 315(a).

Initially, we must address the Agency's motion to dismiss this appeal and vacate the decisions of the appellate court and the Pollution Control Board on the ground that the plaintiff's petition contesting the Agency's denial of its supplemental permit was not filed with the Board until after the 35-day deadline prescribed by section 40(a)(1) of the Act, which provides:

"If the Agency refuses to grant or grants with conditions a permit under Section 39 of this Act, the applicant may, within 35 days, petition for a hearing before the Board to contest the decision of the Agency." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040(a)(1).

The Agency claims that the notice requirements set out in section 40, which are also embodied in section 105.102 of the Board's own procedural rules (see 35 Ill. Adm. Code § 105.102 (1985)), must be followed in order to vest the Board with jurisdiction to hear a plaintiff's appeal. Therefore, it contends, since the Board lacked jurisdiction to review the Agency's decision, all subsequent decisions are void, and this appeal should be dismissed.

The record shows that the plaintiff's petition to contest the Agency's decision was received by the clerk of the Board on May 3, 1985, one day after the expiration of the statutory filing period. The plaintiff argues, however, that the Board adheres to the "mailed is filed" practice for purposes of determining the timeliness of the filing of a petition contest, citing Interstate Pollution Control, Inc. v. Illinois Environmental Protection Agency (March 27, 1986), P.C.B. 68 -- 547. Because its petition was sent by certified mail on May 1, the plaintiff ...


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