Ogle County Bd. on Behalf of County of Ogle v. Pollution Control Bd.

• Court: Appellate Court of Illinois
• Writing for the Court: GEIGER
• Citation: Ogle County Bd. on Behalf of County of Ogle v. Pollution Control Bd., 649 N.E.2d 545, 272 Ill.App.3d 184 (Ill. App. 1995)
• Decision Date: 20 April 1995
• Docket Number: No. 2-94-0074,2-94-0074
• Parties: , 208 Ill.Dec. 489 OGLE COUNTY BOARD, on Behalf of The COUNTY OF OGLE and the State of Illinois, et al., Appellants, v. POLLUTION CONTROL BOARD, et al., Appellees.

Page 545

649 N.E.2d 545

272 Ill.App.3d 184, 208 Ill.Dec. 489

OGLE COUNTY BOARD, on Behalf of The COUNTY OF OGLE and the State of Illinois, et al., Appellants, v. POLLUTION CONTROL BOARD, et al., Appellees.

No. 2-94-0074.

Appellate Court of Illinois Second District.

April 20, 1995.

Douglas P. Floski, Ogle County State's Atty., Oregon, Glenn C. Sechen, Kerri L. McBride, Schain, Firsel & Burney, Ltd., Chicago, for County of Ogle, Ogle County Bd.

Raymond T. Reott, Jeanine M. Jiganti, Claire E. McFarland, Jenner & Block, Chicago, for Browning Ferris Industries.

Pollution Control Bd., Dorothy M. Gunn, Clerk, James E. Ryan, Atty. Gen., Alison E. O'Hara, Civ. Appeals Div., Jan E. Hughes, Asst. Attys. Gen., Chicago, for Illinois Pollution Control Bd.

Kim D. Krahenbuhl, Williams & McCarthy, Oregon, Todd S. Parkhurst, Schiff, Hardin & Waite, Allen Shoenberger, Loyola University of Chicago Law School, Chicago, for Leonard Carmichael.

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:

"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 filed a joint petition for review.

At issue on appeal is: (1) whether Carmichael has standing to appeal the County Board's decision; (2) whether Carmichael has standing to contest the timeliness of the notice to Pfab and Senator Rigney; (3) whether Carmichael waived his challenge to the timeliness of the prefiling notice; (4) whether the notice to Pfab and Senator Rigney was timely; and (5) whether the County Board was denied fundamental fairness. We affirm.

We first address the appellants' argument that Carmichael lacked standing to petition the PCB for a hearing to contest the approval of the landfill expansion by the County Board. The appellants argue that, apart from the conclusory allegation in his petition that he will be "greatly affected by" the landfill expansion, Carmichael failed to properly plead and prove that he was so located as to be "affected by the proposed facility" under section 40.1(b) of the Act (415 ILCS 5/40.1(b) (West 1992)).

Section 40.1(b) provides, in pertinent part:

"If the county board * * * grants approval under Section 39.2 of this Act, a third party other than the applicant who participated in the public hearing conducted by the county board * * * may petition the [Pollution Control] Board within 35 days for a hearing to contest the approval of the county board * * *. Unless the Board determines that * * * the petitioner is so located as to not be affected by the proposed facility, the Board shall hear the petition in accordance with the terms of subsection (a) of this Section * * *." (415 ILCS 5/40.1(b) (West 1992).)

Citing Stark v. Pollution Control Board (1988), 177 Ill.App.3d 293, 126 Ill.Dec. 624, 532 N.E.2d 309, and Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill.App.3d 285, 97 Ill.Dec. 310, 492 N.E.2d 969, the appellants contend that Carmichael's asserted interests are too attenuated to confer standing to petition the PCB under section 40.1(b).

The essence of the standing inquiry is whether a litigant is entitled to have the court decide on the merits of the dispute or of a particular issue. (Helmig v. John F. Kennedy Community Consolidated School District No. 129 (1993), 241 Ill.App.3d 653, 658, 182 Ill.Dec. 728, 610 N.E.2d 152.) Under section 40.1(b), a third party may petition the PCB for review unless the PCB finds that the petitioner will not be "affected by" the proposed facility. (415 ILCS 5/40.1(b) (West 1992).) The "affected by"...