Maggio v. The Pollution Control Board

Illinois Official Reports

Appellate Court

Maggio v. Pollution Control Board, 2014 IL App (2d) 130260

Appellate Court MARTIN MAGGIO, Petitioner, v. THE POLLUTION CONTROL

Caption BOARD, THE COUNTY OF WINNEBAGO, THE WINNEBAGO

COUNTY BOARD, and WINNEBAGO LANDFILL COMPANY,

LLC, Respondents.

District & No. Second District

Docket No. 2-13-0260

Filed March 31, 2014

Held Respondent county board had jurisdiction to approve respondent

(Note: This syllabus landfill company’s application to expand its pollution control facility,

constitutes no part of the since the company complied with section 39.2 of the Environmental

opinion of the court but Protection Act by properly serving all adjacent landowners by

has been prepared by the registered mail, return receipt requested, within the deadline imposed

Reporter of Decisions by section 39.2, and it reasonably calculated the delivery of the

for the convenience of preapplication notices by sending them before submitting its

the reader.) application for approval.

Decision Under Appeal from the Order of the Illinois Pollution Control Board, No.

Review PCB-13-10.

Judgment Affirmed.

Counsel on Michael S. Blazer, of Jeep & Blazer, LLC, of Hillside, for appellant.

Appeal

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, Janon E. Fabiano and Brett E. Legner, Assistant

Attorneys General, of counsel), for appellee Pollution Control Board.

Joseph P. Bruscato, State’s Attorney, of Rockford (David J.

Kurlinkus, Assistant State’s Attorney, of counsel), for appellees

County of Winnebago and Winnebago County Board.

Charles F. Helsten, of Hinshaw & Culbertson, of Rockford, and

George Mueller, of Mueller Anderson & Associates, of Ottawa, for

appellee Winnebago Landfill Company, LLC.

Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.

Presiding Justice Burke and Justice Schostok concurred in the

judgment and opinion.

OPINION

¶1 Petitioner, Martin Maggio, appeals the order of the Illinois Pollution Control Board (IPCB)

affirming the decision of the Winnebago County board (County Board). The County Board

conditionally approved the site location application submitted by Winnebago Landfill

Company, LLC (WLC), for the expansion of WLC’s existing solid waste landfill. On appeal,

Maggio argues that the County Board lacked jurisdiction to approve the application, because,

under section 39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West

2012)), a preapplication notice is not effective until it is received by the person to whom it is

directed, and here not every person received the notice within the statutory time period.

Maggio also argues that the IPCB erred in finding that WLC’s service effort was reasonably

calculated to achieve service 14 days before the siting application was filed. We affirm.

¶2 I. BACKGROUND

¶3 Section 39.2 of the Act allows county boards or municipal governing bodies to grant or

deny requests for local siting approval for pollution control facilities. 415 ILCS 5/39.2 (West

2012). At issue in this appeal is the interpretation of section 39.2(b) of the Act (415 ILCS

5/39.2(b) (West 2012)), which involves preapplication notice by the applicant. That section

states:

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“No later than 14 days before the date on which the county board or governing body of

the municipality receives a request for site 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 ***.” (Emphasis added.) Id.

¶4 The facts in this paragraph come from a joint stipulation by Maggio and WLC to the IPCB.

On December 27, 2011, WLC mailed preapplication notices to all property owners subject to

notice under section 39.2(b) by placing the notices in a post office box in Ottawa. WLC sent

the notices via certified mail, return receipt requested. The following day, WLC published a

copy of the notice in the Rockford Register Star. Certain mailings were not claimed and were

returned to WLC by the postal service; WLC made no further effort to serve these individuals.

Moreover, notices were not delivered to certain other individuals until after January 3, 2012.

WLC filed its siting application with the County Board on January 17, 2012.

¶5 The County Board held a public hearing on the application from April 23, 2012, to April

30, 2012. The County Board approved the application on July 12, 2012.

¶6 Maggio appealed the County Board’s decision to the IPCB on August 15, 2012. See 415

ILCS 5/40.1(b) (West 2012) (allowing 35 days from date of decision to petition IPCB for a

hearing). Maggio alleged that he had participated in the hearing before the County Board as an

objector. He further alleged that he “directly and indirectly” owned property adjacent to the

subject landfill expansion. Maggio argued that: (1) the County Board did not have jurisdiction

over WLC’s siting request, because WLC failed to properly serve notice of the proceedings

under section 39.2(b) of the Act, and (2) the County Board’s proceedings had been

fundamentally unfair. On January 2, 2013, Maggio withdrew his second claim, leaving only

the jurisdictional issue.

¶7 The IPCB conducted a hearing on December 4, 2012. On March 7, 2013, it affirmed the

County Board’s decision. According to the IPCB, 102 preapplication notices were mailed out.

All of the notices had arrived at the “postal units” on December 29, 2011, ready to be

delivered. By January 3, 2012, eight of the notices were unclaimed and returned to WLC.

Three other notices, all related to the same parcel, were not received until after WLC submitted

its application for siting approval.

¶8 The IPCB found that WLC properly served all adjacent landowners within the deadline

imposed by section 39.2(b). It further found that WLC reasonably calculated the delivery of

the preapplication notices by sending them 21 days before submitting its application for siting

approval. It therefore concluded that the County Board had jurisdiction to approve WLC’s

pollution control facility expansion.

¶9 Specifically, the IPCB ruled that the phrase “return receipt requested” in section 39.2(b) is

satisfied if the applicant simply sends the preapplication notices through “ ‘registered mail,

return receipt requested,’ ” or its functional equivalent. The IPCB cited as authority for this

proposition its decision in City of Kankakee, Ill. Pollution Control Bd. Op. 03-125 (Aug. 7,

2003), which was affirmed by the appellate court in Waste Management of Illinois, Inc. v.

Pollution Control Board, 356 Ill. App. 3d 229 (2005). The IPCB recognized that in Ogle

County Board ex rel. County of Ogle v. Pollution Control Board, 272 Ill. App. 3d 184 (1995),

this court held that section 39.2(b) requires actual receipt of a preapplication notice. The IPCB

stated that Ogle County Board was effectively overruled by People ex rel. Devine v. $30,700

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United States Currency, 199 Ill. 2d 142 (2002), where the supreme court found that the

of certified mail return receipt requested was sufficient to satisfy notice requirements. The

IPCB further stated that Ogle County Board relied on the supreme court’s ruling in Avdich v.

Kleinert, 69 Ill. 2d 1 (1977). The IPCB noted that Avdich involved the forcible entry and

detainer statute, where notice was required to be sent to the tenant “ ‘by certified or

mail, with a returned receipt from the addressee.’ ” Id. at 5 (quoting Ill. Rev. Stat. 1975, ch.

¶ 10). The IPCB stated that in $30,700 United States Currency, the supreme court stated that

the notice requirement in Avdich was not applicable to a notice requirement with the

“return receipt requested.” The IPCB found the supreme court’s decision in $30,700 United

States Currency “controlling.” The IPCB stated, “The legislature plainly intended two

different meanings by the phrase ‘with a returned receipt from the addressee,’ which requires

actual signed receipt of notification, and the phrase ‘return receipt requested,’ which allows

service to be properly served upon mailing.”

¶ 10 Maggio timely appealed. See 415 ILCS 5/41 (West 2012) (allowing direct appeals from

rulings of the IPCB); Ill. S. Ct. R. 335 (eff. Feb. 1, 1994) (addressing direct appeals from

agency rulings).

¶ 11 II. ANALYSIS

¶ 12 A. Meaning of “Return Receipt Requested”

¶ 13 On appeal, Maggio argues that the IPCB erred in ruling that the County Board had

jurisdiction. According to Maggio, section 39.2(b) requires proof that adjacent landowners

received their preapplication notices 14 days before the siting application was filed, and

merely sending the notices return receipt requested is insufficient.

¶ 14 The interpretation of section 39.2(b) presents a question of statutory construction, which

is a question of law. See Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 12. Where

the issue on appeal is an administrative agency’s conclusion on a point of law, as here, we

review de novo the agency’s decision. Provena Covenant Medical Center v. Department of

Revenue, 236 Ill. 2d 368, 386 (2010). Still, “the interpretation of a statute by the agency

charged with its administration is given some deference; but this rule is not binding and if the

interpretation is erroneous, it will be rejected.” Prazen v. Shoop, 2013 IL 115035, ¶ 40; see

also County of Kankakee v. Pollution Control Board, 396 Ill. App. 3d 1000, 1006 (2009)

(“Though we are not bound by the Board’s interpretation of [a statute], we will give it weight

in our own construction.”). In construing a statute, our primary goal is to ascertain and give

effect to the legislature’s intent, which is best indicated by the plain and ordinary meaning of

the statute’s language. Schultz, 2013 IL 115738, ¶ 12.

¶ 15 Section 39.2(b)’s notice requirements are jurisdictional prerequisites that the applicant

must follow in order to vest the county board with the power to hear a landfill proposal. Kane

County Defenders, Inc. v. Pollution Control Board, 139 Ill. App. 3d 588, 593 (1985). At

is section 39.2(b)’s requirement that, at least 14 days before the date on which the county

board or equivalent municipal governing body receives a request for siting approval, “the

applicant shall cause written notice of such request to be served either in person or by

registered mail, return receipt requested.” (Emphasis added.) 415 ILCS 5/39.2(b) (West

2012). For purposes of the statute, certified mail, return receipt requested, is the equivalent of

registered mail, return receipt requested. Waste Management of Illinois, 356 Ill. App. 3d at

234.

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¶ 16 Maggio argues that Ogle County Board is controlling precedent on the issue of what

“return receipt requested” means. There this court stated:

“Our supreme court has interpreted the inclusion of the ‘return receipt requested’

language in the context of a forcible entry and detainer action to ‘clearly indicate[ ] a

legislative intent that service of a notice by certified mail is not to be considered

complete until it is received by the addressee.’ [Citation.] The Avdich court

specifically noted that ‘[i]f mere mailing of a *** notice [were] sufficient service,

then proof of mailing would be all that was required to show service, and there would

be little reason to require a returned receipt.’ [Citation.]” Ogle County Board, 272 Ill.

App. 3d at 195-96.

This court relied on Avdich in concluding that section 39.2(b)’s use of the phrase “return

receipt requested” reflected the legislature’s intent to “require actual receipt of the notice, as

evidenced by the signing of the return receipt.” Id. We stated that there was no evidence in

that case indicating that two intended recipients, who did not receive the notice before the

14-day deadline, knew of the notice’s content and purposefully refused delivery. Id.

Affirming the IPCB’s decision, we held that, because the return receipts at issue were signed

after the notice deadline had passed, the notice did not comply with section 39.2(b)’s

requirements, and the county board thus lacked jurisdiction to hear the application. Id.

¶ 17 Justice McLaren dissented from the majority opinion, reasoning that the “14-day

requirement [of section 39.2(b)] relates to the mailing of the registered mail and not to actual

receipt (service) of the mail.” Id. at 197 (McLaren, P.J., dissenting).

¶ 18 Maggio argues that Ogle County Board is controlling on the issue at hand and has not

been overruled. Maggio maintains that the IPCB had no authority to find that Ogle County

Board had been effectively overruled. Maggio cites Hohn v. United States, 524 U.S. 236,

252-53 (1998), where the Supreme Court stated that opinions passing on jurisdictional issues

sub silentio may not be interpreted to have overruled an opinion addressing the issue directly.

¶ 19 Maggio further cites the proposition that, when statutes are enacted after judicial opinions

are published, it is presumed that the legislature acted with knowledge of the prevailing case

law. Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 305-06 (2010).

Maggio maintains that the accepted construction of “registered mail, return receipt

requested” in 1981, when the original statute was enacted, required receipt of notice by the

recipient. See People ex rel. Head v. Board of Education of Thornton Fractional Township

South High School District No. 215, 95 Ill. App. 3d 78, 81-82 (1981) (requirement that

school district provide written notice of dismissal to teachers by registered mail required

receipt of the notice within the statutory time period); A-1 Security Services, Inc. v. Stackler,

61 Ill. App. 3d 285, 288 (1978) (“Because registered mail requires the addressee to sign for

the item in acknowledgement of delivery, the date of the signed acknowledgement is the date

the item was received and thus the date of service.”). Maggio also cites numerous prior

decisions of the IPCB requiring physical receipt of preapplication notice, as well as the

IPCB’s administrative regulation requiring the same. See 35 Ill. Adm. Code 101.300(c)

(2005) (“In the case of service by registered or certified mail, or by messenger service,

service is deemed complete on the date specified on the registered or certified mail receipt or

the messenger service receipt.”).

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¶ 20 The IPCB and WLC (collectively, respondents) 1 argue that the IPCB employed the

proper analysis. Respondents maintain that section 39.2(b) does not contain any language

conditioning the effectiveness of notice on either the addressee’s receiving the notice or the

applicant’s receiving a signed registered mail receipt. Citing $30,700 United States Currency,

199 Ill. 2d at 153, respondents argue that the supreme court has held that the phrase “return

receipt requested” does not indicate a legislative intent that service of notice is effective only

if received. Respondents note that the appellate court has applied the reasoning of $30,700

United States Currency to section 39.2(b) in holding that the statute requires only that the

notice is sent by registered mail, return receipt requested, and not that the recipient actually

receive the notice. See Waste Management of Illinois, 356 Ill. App. 3d at 234; see also

County of Kankakee, 396 Ill. App. 3d at 1013.

¶ 21 Respondents additionally argue that construing section 39.2(b) to require actual receipt

would lead to unreasonable consequences, as there might be over a hundred notices, as in this

case. Respondents maintain that, under Maggio’s construction, if the notice were not picked

up by all addressees at least 14 days before the date for the hearing stated in the notice, the

notice process would have to start over. Respondents also argue that any one party could

prevent the County Board from acquiring jurisdiction, by evading receipt of the notice.

¶ 22 We examine the cases cited by respondents. In $30,700 United States Currency, the State

initiated forfeiture proceedings under the Drug Asset Forfeiture Procedure Act (Drug

Forfeiture Act) (725 ILCS 150/1 et seq. (West 2000)). Under the Drug Forfeiture Act, where

the claimant’s name and address were known to the State, the State was required to give

notice of pending forfeiture proceedings “ ‘by either personal service or mailing a copy of the

notice, *** return receipt requested, to that address.’ ” $30,700 United States Currency, 199

Ill. 2d at 150 (quoting 725 ILCS 150/4(A)(1) (West 2000)). The Drug Forfeiture Act further

stated, “ ‘Notice served under this Act is effective upon personal service, the last date of

publication, or the mailing of written notice, whichever is earlier.’ ” Id. (quoting 725 ILCS

150/4(B) (West 2000)). The State sent notice to the claimants via certified mail, return

receipt requested, but it did not actually receive a return receipt. Id. at 147. The claimants did

not appear at the forfeiture proceedings, and the trial court entered a default order. Id. at 148.

The appellate court reversed on the basis that the trial court lacked personal jurisdiction over

the claimants because they were not properly served, in that under the Drug Forfeiture Act

service was accomplished when the State received a signed return receipt. Id.

¶ 23 The supreme court reversed. It held that the express language in the Drug Forfeiture Act

clearly and unambiguously provided that notice was effective upon the mailing of written

notice. Id. at 151. The court stated, “The Act does not condition the effectiveness of notice

upon receipt of the return receipt signed by the addressee, and this court will not rewrite the

Act to create this requirement.” Id. It rejected the claimants’ argument that the “return

receipt” language in the statute indicated the legislature’s intent that notice would be

perfected only when the State received the return receipt; the court stated that the legislature

could have expressly conditioned notice upon the receipt of the return receipt, as it had in

other acts. Id. at 151-52.

1

Although we refer to the IPCB and WLC collectively as respondents, they have filed separate

appellee briefs.

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¶ 24 The supreme court noted that the appellate court had relied on Avdich for the proposition

that the mere inclusion of a return receipt requirement implied that return of the receipt was

required for notice to be effective. Id. at 152. The supreme court stated that “Avdich is not

authority for the proposition that all enactments which contain the ‘return receipt’

requirement demand return of the receipt to perfect service.” Id. at 152-53. The supreme

court stated that, to the contrary, it demonstrated that the legislature could expressly

condition service upon return of the receipt, as the statute in Avdich stated that notice could

be served “ ‘by sending a copy of said notice to the tenant by certified or registered mail,

with a returned receipt from the addressee.’ ” (Emphasis added.) Id. at 153 (quoting 735

ILCS 5/9-211 (West 2000)). The supreme court pointed out that, in contrast, the Drug

Forfeiture Act required only a “ ‘return receipt requested.’ ” (Emphasis in original.) Id.

(quoting 725 ILCS 150/4(A)(2) (West 2000)). The supreme court stated, “If we afford the

language in each provision its plain and ordinary meaning, one demands the return of the

receipt while the other merely demands a request.” Id.

¶ 25 The supreme court further disagreed with the claimants’ argument that the only

advantage of certified mail with a return receipt requested is to obtain proof of delivery; the

court stated that it also gave the sender proof of mailing and served the claimant’s interest by

alerting him or her to the importance of the letter’s contents. Id. at 153-54. Finally, the

supreme court stated that the Drug Forfeiture Act required a liberal construction to achieve

its overall purpose and that conditioning the completion of notice upon receipt would be an

obstacle to enforcement, because claimants in such cases often have no true interest in the

property and refuse to sign for the mail when it arrives. Id. at 154.

¶ 26 Subsequently, the appellate court relied on $30,700 United States Currency in holding

that, under section 39.2(b):

“All that is required by the statute is that notice is sent by registered mail, return

receipt requested. Jurisdiction is not premised on the recipient’s actions, once the

letter is received, but on the form of the sending of the letter; jurisdiction will exist as

long as the letter is sent by the prescribed method.” Waste Management of Illinois,

356 Ill. App. 3d at 234.

See also County of Kankakee, 396 Ill. App. 3d at 1013 (“The plain language of subsection

39.2(b) *** does not require actual receipt of mailed notice.”).

¶ 27 We agree with the above-cited cases and respondents that the plain language of section

39.2(b) does not require that the sender obtain returned receipts in order for service to be

effective. Moreover, this result is unavoidable under the supreme court’s analysis in $30,700

United States Currency. While that case did not directly overrule Ogle County Board, it

rejected the same type of interpretation of Avdich that Ogle County Board had relied on in

the first place. Again, the supreme court stated that “Avdich is not authority for the

proposition that all enactments which contain the ‘return receipt’ requirement demand return

of the receipt to perfect service,” but rather that the case demonstrated that the legislature

could expressly condition service upon return of the receipt, in that the statute stated that

notice could be served by sending a copy of the notice certified or registered mail, “ ‘with a

returned receipt from the addressee.’ ” (Emphasis added.) $30,700 United States Currency,

199 Ill. 2d at 152-53 (quoting 725 ILCS 5/9-211 (West 2000)). The supreme court clearly

differentiated between statutes requiring the return of the receipt and statutes requiring

simply a request for the return of the receipt. Id. at 153. Here, section 39.2(b) mandates only

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that a return receipt be “requested” (415 ILCS 5/39.2(b) (West 2012)); section 39.2(b) does

not require proof that the recipient actually received the notice.

¶ 28 Contrary to Maggio’s contentions, the IPCB did not rely on a case addressing a

jurisdictional issue sub silentio, as $30,700 United States Currency directly addressed the

jurisdictional question before it and also discussed the phrase “return receipt requested,”

which is present in the statute at issue here. Further, the fact that, when section 39.2(b)’s

precursor was enacted, one case involving a different statute had interpreted the phrase

“return receipt requested” as requiring receipt of the notice does not establish that it was

prevailing case law on the issue. Indeed, the additional case that Maggio cites involving

registered mail more generally, A-1 Security Services, Inc., 61 Ill. App. 3d at 287-88, was

disagreed with numerous times on the relevant issue, including before the original statute

here was enacted. See Thompson v. Civil Service Comm’n, 63 Ill. App. 3d 153, 155 (1978)

(disagreeing with A-1 Security Services); see also Nudell v. Forest Preserve District, 207 Ill.

2d 409, 420-21 (2005) (same). Finally, regardless of the requirements in the Administrative

Code, administrative rules that conflict with a statute are invalid. Klein Construction/Illinois

Insurance Guaranty Fund v. Illinois Workers’ Compensation Comm’n, 384 Ill. App. 3d 233,

237 (2008). That is, to the extent that the administrative rules conflict with section 39.2(b),

we follow the statute’s requirements. 2

¶ 29 Maggio’s arguments attempting to distinguish $30,700 United States Currency are not

persuasive. Maggio argues that $30,700 United States Currency involved a statute that

clearly stated that notice was effective upon mailing, unlike in this case. Maggio also notes

that, under the Drug Forfeiture Act, the claimant has the burden to notify the State of a

change of address prior to the mailing of notice (see $30,700 United States Currency, 199 Ill.

2d at 154-55), whereas section 39.2 requires the applicant to determine, from tax records, the

individuals entitled to notice (see 415 ILCS 5/39.2 (West 2012)). Maggio’s arguments would

potentially have some merit if the supreme court’s analysis were limited to the points he

cites. However, the supreme court also discussed Avdich in detail in a manner that

undermined Ogle County Board’s interpretation of the case. Again, Avdich had served as

Ogle County Board’s authority for reading section 39.2(b) to require receipt of notice, so

Ogle County Board’s reasoning on this issue is no longer valid. Instead, we follow the

reasoning in $30,700 United States Currency and conclude that section 39.2(b) does not

require receipt of notice.

¶ 30 B. Reasonable Time to Ensure Delivery

¶ 31 Next, Maggio argues that the IPCB erred in finding that WLC’s service effort was

reasonably calculated to achieve service on all individuals entitled to notice. He maintains

that there is nothing in section 39.2(b) that allows for such a “reasonableness” assessment,

but rather the statute requires that notice be served no later than 14 days before the siting

application is filed. He again cites the Administrative Code provision stating, “In the case of

service by registered or certified mail, or by messenger service, service is deemed complete

on the date specified on the registered or certified mail receipt or the messenger service

2

We do not purport to find section 101.300(c) of title 35 of the Administrative Code (35 Ill. Adm.

Code 101.300(c) (2005)) entirely invalid but, rather, find that it does not take precedence over the plain

language of section 39.2(b) and relevant case law.

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receipt.” 35 Ill. Adm. Code 101.300(c) (2005). He therefore argues that, as did not occur

here, notice must be received at least 14 days before the siting application is filed.

¶ 32 Maggio maintains that, even otherwise, the stipulated facts show that WLC’s service

effort was not reasonably calculated to achieve timely service on all persons entitled to

notice, because the notices were mailed only one week before the service deadline and that

week included a “shortened delivery day” (New Year’s Eve) and a full delivery holiday

(New Year’s Day). He argues that WLC further delayed service by placing the notices in a

mailbox in Ottawa, where WLC’s counsel is located, rather than delivering the notices to the

post offices for Rockford, Sycamore, and Monroe Center, where the notices were to be

served. Finally, he argues that WLC could have used tracking information to determine that

certain notices were not being delivered quickly enough, or at all, and it could have then

made some alternative attempt at service.

¶ 33 Again, section 39.2(b) states: “No later than 14 days before the date on which the county

board *** receives a request for site approval, the applicant shall cause written notice of such

request to be served either in person or by registered mail, return receipt requested” to

adjoining landowners. 415 ILCS 5/39.2(b) (West 2012).

¶ 34 On the subject of reasonable time to ensure delivery, the IPCB stated in its decision as

follows. It had previously held that registered mailings must be sent in a manner reasonably

calculated to result in timely receipt. See City of Columbia, Ill. Pollution Control Bd. Op.

85-177 (Apr. 3, 1986) (the IPCB would not construe the Act as requiring that preapplication

notice be received by all parties at least 14 days before the application’s filing, but service of

notice must be initiated sufficiently far in advance to reasonably expect receipt at least 14

days in advance of the filing); see also Waste Management, Ill. Pollution Control Bd. Op.

89-28 (Aug. 10, 1989) (applying reasonable expectation rule). For example, it had held that

sending the notices three days prior to the deadline did not ensure the delivery of the notices

before the deadline. See Carmichael, Ill. Pollution Control Bd. Op. 93-114 (Oct. 7, 1993). It

had also followed a rebuttable presumption in its procedural rules that mail will be delivered

within four days. See Waste Management, Ill. Pollution Control Bd. Op. 89-28. Here, the

preapplication notices were sent seven days before the January 3, 2012, deadline even

accounting for New Year’s Day. Tracking information for all of the undelivered notices

indicated that they had “ ‘arrived at the unit’ ” ready for delivery on December 29, 2011.

Further, 94 of the 102 notices were delivered before the deadline, and only one parcel did not

receive the notice before WLC submitted its application on January 17, 2012. Therefore, in

mailing the notices on December 27, 2011, WLC reasonably calculated that they would be

delivered no later than 14 days before it filed its application.

¶ 35 On appeal, WLC argues that its notices were served on December 27, 2011, upon

delivery to the post office, 21 days before the filing of the siting application.

¶ 36 The IPCB argues on appeal that, while section 39.2(b)’s “return receipt requested”

language does not require that notice be actually received at least 14 days before the

application’s filing, it also does not state that service of the notices is complete upon mailing.

The IPCB argues that, because the statute is silent on when the notices must be received, the

IPCB, as the agency empowered to enforce and implement the Act, examined whether the

notices were mailed sufficiently far in advance to reasonably expect that they would be

received at least 14 days before the application was filed. The IPCB argues that its

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construction furthers the purposes of section 39.2(b)’s notice requirement because it gives

surrounding landowners adequate time to comment on a proposed site.

¶ 37 Regarding IPCB’s last point, we note that section 39.2(b) requires applicants to “cause

written notice *** to be served” at least 14 days before a site application is even filed (415

ILCS 5/39.2(b) (West 2012)), so it is unclear how landowners would use that time to

officially (and knowledgeably) comment on the proposed site. Landowner comments will

generally be heard after the application is actually filed, before and during a public hearing

on the application, with the public hearing occurring no sooner than 90 days after the county

board receives the application. See 415 ILCS 5/39.2(d) (West 2012). Landowners may also

comment in letters postmarked up to 30 days after the last public hearing. See 415 ILCS

5/39.2(c) (West 2012). Therefore, the IPCB’s argument that its construction of “return

receipt requested” furthers the statute’s purpose by giving surrounding landowners adequate

time to comment on a proposed site is without merit.

¶ 38 Returning to Maggio’s argument, we disagree that notice must be received at least 14

days before the siting application is filed. As discussed, our supreme court has interpreted the

language “return receipt requested” to mean that return of the receipt is not required for

perfected service ($30,700 United States Currency, 199 Ill. 2d at 151-53), and, if we were to

interpret section 39.2(b) as requiring proof of the receipt of the notices at least 14 days ahead

of the application’s filing, it would be akin to creating such a condition. “We may not add

exceptions, limitations, or conditions to statutes in derogation of their plain meaning.” Holly

v. Montes, 231 Ill. 2d 153, 159 (2008).

¶ 39 As mentioned, in his dissent in Ogle County Board, Justice McLaren stated that the

“14-day requirement [of section 39.2(b)] relates to the mailing of the registered mail and not

to actual receipt (service) of the mail.” Ogle County Board, 272 Ill. App. 3d at 197

(McLaren, P.J., dissenting). This interpretation is consistent with WLC’s argument on

appeal. Justice McLaren reasoned that the phrase “cause to be served” meant that the mailing

of the letter was subject to the 14-day requirement, because the phrase “fourteen days” was

not located after the phrase “to be served” and because the word “cause” would otherwise

have no significance. Id. If Justice McLaren and WLC are correct that the statute simply

requires that the notices be mailed, return receipt requested, at least 14 days before the siting

application is filed, WLC clearly complied with the statute by mailing the notices 21 days

before it filed its application.

¶ 40 Conversely, if the IPCB’s interpretation is correct, that the statute allows it to examine

whether notices were mailed far enough in advance to reasonably expect that they would be

received at least 14 days before the application was filed, the IPCB’s determination that

WLC complied with this standard is not against the manifest weight of the evidence. 3

Contrary to Maggio’s argument, there is no evidence in the record that New Year’s Eve is a

“shortened delivery day,” and, as the IPCB points out, New Year’s Day in 2012 was a

Sunday on which there would not have been mail delivery anyway. We find no basis to

disturb the IPCB’s finding that by sending the notices on December 27, 2011, WLC

reasonably calculated that they would be delivered no later than January 3, 2012, 14 days

before it filed its application on January 17, 2012. Although Maggio points out some

3

When the parties dispute an administrative agency’s factual findings, we apply a

manifest-weight-of-the-evidence standard. Provena Covenant Medical Center, 236 Ill. 2d at 386.

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alternative measures that WLC could have taken to better ensure that notices were received at

least 14 days before the application’s filing, such measures were not required by section

39.2(b).

¶ 41 Based on our resolution that WLC complied with section 39.2(b) regardless of whether

the statute (a) requires that the notices simply be sent by registered mail (return receipt

requested) at least 14 days before the siting application is filed, or (b) is silent of the issue of

when service is complete, allowing the IPCB to examine whether notices were mailed

sufficiently far in advance to reasonably expect that they would be received at least 14 days

before the filing, we do not definitively resolve which interpretation is correct.

¶ 42 III. CONCLUSION

¶ 43 In sum, we conclude that section 39.2(b) does not require that landowners actually

receive preapplication notices at least 14 days before the siting application is filed. We

further conclude that the IPCB did not err in finding that WLC complied with section 39.2(b)

by mailing the notices by registered mail, return receipt requested, 21 days before it filed its

siting application.

¶ 44 For the foregoing reasons, we affirm the decision of the IPCB.

¶ 45 Affirmed.

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