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April 20, 1995


Appeal from the Pollution Control Board. PCB 93-114.

Released for Publication May 23, 1995.

The Honorable Justice Geiger delivered the opinion of the court: Inglis, J., concurs. Presiding Justice McLAREN, dissenting:

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

This case involves the appeal of a local siting approval under section 39.2 of the Environmental Protection Act (the Act) (415 ILCS 5/39.2 (West Supp. 1993)), for the expansion of a sanitary landfill owned by appellant Browning-Ferris Industries of Illinois, Inc. (BFI). Following the grant of site location approval by the appellant, Ogle County Board (County Board), appellee Leonard Carmichael filed an appeal to appellee Pollution Control Board (PCB) pursuant to section 40.1 of the Act (415 ILCS 5/40.1 (West 1992).) At the PCB hearing, Carmichael raised a challenge to the sufficiency of the prefiling notice required by section 39.2(b) of the Act (415 ILCS 5/39.2(b) (West Supp. 1993)).

On October 7, 1993, the PCB reversed the County Board's decision on the notice issue. The PCB denied BFI and the County Board's joint motion for reconsideration and/or rehearing on December 16, 1993. On January 18, 1994, BFI and the County Board filed their timely petition for review pursuant to section 40.1(a) of the Act (415 ILCS 5/40.1(a) (West 1992)).

The facts of this case are largely undisputed. In the fall of 1992, BFI sought to expand its existing landfill located in unincorporated Ogle County. On November 13, 1992, as required by the Act (415 ILCS 5/39.2 (West Supp. 1993)), BFI filed its application for expansion of its landfill with the County Board.

In addition to the filing requirements, section 39.2(b) of the Act provides that:

"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 the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property ***.

Such written notice shall also be served upon members of the General Assembly from the legislative district in which the proposed facility is located and shall be published in a newspaper of general circulation published in the county in which the site is located." 415 ILCS 5/39.2(b) (West Supp. 1993).

On October 27, 1992, 17 days prior to the filing of its application, BFI sent written notice via registered mail to 18 individuals. Although all the notices were received by the recipients' post offices by October 30, two were not delivered to the recipients until after the deadline--specifically, those addressed to Todd Pfab, an owner of land adjacent to the landfill, and to then-State Senator Harlan Rigney, whose legislative district at that time encompassed the landfill.

In regard to Pfab's letter, the post office attempted delivery at his home on October 28, 1992. Because no one was home, a yellow slip was left at Pfab's home, notifying him that the post office was holding registered mail for him. Pfab eventually picked up the letter on November 3, 1992.

Similarly, the letter to Senator Rigney was sent to his designated address, a post office box. On October 28, 1992, a yellow notice slip was placed in Senator Rigney's box. On November 2, 1992, Rebecca Hanson, Senator Rigney's agent, picked up his mail and signed the return receipt. Neither Pfab nor Senator Rigney has challenged the timeliness of their preapplication notices.

On February 17, 1993, public hearings on the proposed expansion began before the County Board. Carmichael, either personally or through counsel, actively participated in the hearings, testifying that he thought that the landfill expansion was unnecessary. At the February 17 hearing, BFI offered, without objection, the return receipt green cards as evidence of its compliance with the preapplication notice requirements.

Pursuant to County Board rules, a 30-day public comment period followed the hearing. During that time, Carmichael again actively campaigned against the landfill expansion. He sent letters to the County Board, both personally and through his attorney, opposing the expansion. Also during the public comment phase of the hearing, Pfab submitted questions to the County Board which detailed his concerns about the expansion, although none related to the timeliness of his notice. On March 26, 1993, BFI filed its written response to Pfab's comments.

On May 10, 1993, the County Board approved BFI's application for landfill expansion. The County Board found that "all notices[] were duly and properly given as required by law[,]" and that "the County has jurisdiction to hear and grant or deny the application of BFI for site location approval of a regional pollution control facility[.]"

On June 14, 1993, Carmichael filed a petition with the PCB pursuant to section 40.1(b) of the Act (415 ILCS 5/40.1(b) (West 1992)) appealing the County Board's decision. The petition challenged only the fundamental fairness of the procedures used by the County Board in approving BFI's application. Carmichael never made any formal allegation regarding the adequacy of the prefiling notice.

On July 2, 1993, the County Board filed a motion directed at the petition; on July 6, 1993, BFI filed a similar motion to strike and dismiss. The substance of both motions was that Carmichael's petition was inadequate, that it was untimely, and portions of the petition should be stricken. In addition, on July 27, 1993, the County Board filed a motion alleging that the PCB lacked jurisdiction over the petition. The County Board argued that because Carmichael was not so located as to be "affected by" the facility, as required by section 40.1(b) of the Act (415 ILCS 5/40.1(b) (West 1992)), he thus lacked standing to file the petition. The PCB denied these motions on August 5, 1993.

On August 19, 1993, at the public hearing on the petition, Carmichael first alleged that the prefiling notices to Senator Rigney and Pfab were defective. On October 7, 1993, the PCB vacated the County Board's decision granting siting approval, finding that "notice was not properly given pursuant to section 39.2(b) of the Act." Additionally, the PCB held that it was unreasonable to expect that service would be perfected when BFI mailed notices 17 days prior to filing the request for siting approval. Because BFI's prefiling notice was defective, the PCB found that the County Board lacked jurisdiction to hear the request for siting approval. The PCB did not address Carmichael's remaining arguments.

On December 16, 1993, the PCB denied BFI and the County Board's motions to reconsider. On January 18, 1994, BFI and the County Board ...

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