# County of Kankakee v. Pollution Control Board

> Appellate Court of Illinois · January 26, 2010 · 396 Ill. App. 3d 1000

URL: https://www.frixlaw.com/law-library/cases/9863407

## Case

- **Full name:** The COUNTY OF KANKAKEE Et Al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD Et Al., Respondents-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** January 26, 2010
- **Citations:** 396 Ill. App. 3d 1000; 352 Ill. Dec. 825; 955 N.E.2d 1
- **Precedential status:** Published
- **Opinion:** Concurring in part by Holdridge
- **Judges:** McDade, Holdridge
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JUSTICE HOLDRIDGE, dissenting in part and concurring in part:
I dissent from the majority’s conclusion that Applicants’ 2002 request was disapproved for purposes of subsection 39.2(m) of the Act, which reads: “An applicant may not file a request for local siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a) of this Section within the preceding 2 years.” (Emphasis added.) 415 ILCS 5/39.2(m) (West 2004). Objectors argue that the 2002 request was “disapproved” when the Board reversed the City Council’s grant of approval. Applicants and the Board, on the other hand, argue that the 2002 request was not disapproved within the meaning of the statute because the local siting authority, the City Council, approved it.
The mandate for local siting review appears in subsection 39(c), which prohibits the Environmental Protection Agency from granting a permit for a new pollution control facility “unless the applicant submits proof *** that the location of the facility has been approved by the *** governing body of the municipality *** in which the facility is to be located in accordance with Section 39.2 of this Act.” (Emphasis added.) 415 ILCS 5/39(c) (West 2004). This language indicates that local siting approval is the province of the local siting authority; there is no mention of the Board. Section 39.2 indicates likewise, stating that “the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each pollution control facility which is subject to such review.” (Emphases added.) 415 ILCS 5/39.2(a) (West 2004) (listing nine criteria that govern the decision). This provision reflects the context in which subsection 39.2(m) speaks of a prior request “disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a).” 415 ILCS 5/39.2(m) (West 2004). As before, there is no mention of the Board; findings on the nine criteria are made by the local siting authority.
The absence of any reference to the Board in this process is revealing, since other parts of section 39.2 show that the legislature was aware of the Board and mentioned its role when relevant. For instance, subsection 39.2(d) states that “[t]he public hearing [conducted by the local siting authority] shall develop a record sufficient to form the basis of appeal of the decision” (415 ILCS 5/39.2(d) (West 2004)), and subsection 39.2(n) states that “[i]n any review proceeding of a decision of the *** governing body of a municipality made pursuant to the local siting review process, the petitioner in the review proceeding shall pay to the *** municipality the cost of preparing and certifying the record of proceedings” (415 ILCS 5/39.2(n) (West 2004)). These provisions clearly reflect a distinction between proceedings in which the decision (approval or disapproval) is made and proceedings in which the decision is reviewed on appeal. See also 415 ILCS 5/39.2(g) (West 2004) (mentioning “siting approval procedures” and “appeal procedures” separately). The Board plays no part in the former — only the latter.
This fact is apparent from section 40.1 of the Act (titled, “Appeal of siting approval”), which reads:
“(a) If the *** governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, refuses to grant or grants with conditions approval under Section 39.2 of this Act, the applicant may, within 35 days after the date on which the local siting authority disapproved or conditionally approved siting, petition for a hearing before the Board to contest the decision of the *** governing body of the municipality. ***
(b) If the *** governing body of the municipality as determined by paragraph (c) of Section 39 of this Act, 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 *** governing body of the municipality may, within 35 days after the date on which the local siting authority granted siting approval, petition the Board for a hearing to contest the approval of the *** governing body of the municipality.” (Emphases added.) 415 ILCS 5/40.1(a), (b) (West 2004).
By this plain language, and the other provisions cited above, the decision of whether to approve or disapprove a local siting request is made by the local siting authority. The Board does not become involved until afterward. Parties can only petition the Board to contest an existing decision of the local siting authority, not to have the Board make its own decision as to approval or disapproval. This explains why “no new or additional evidence *** shall be heard by the Board,” and why the Board must base its hearing “exclusively on the record before the *** governing body of the municipality.” 415 ILCS 5/40.1(a), (b) (West 2004).
The legislature repeatedly used the words “approve” and “disapprove” (and their derivatives) when discussing the role of the local siting authority. On the other hand, the legislature never used such words when discussing the role of the Board.
The County argues otherwise, citing a partial sentence from subsection 40.1(a) of the Act, which reads: “If there is no final action by the Board [on a petition to contest a disapproval or conditional approval] within 120 days after the date on which it received the petition, the petitioner may deem the site location approved ***.” 415 ILCS 5/40.1(a) (West 2004). The County interprets this provision as if the words “by the Board” appeared after the word “approved.” This interpretation is problematic because it adds language (“by the Board”) that the legislature did not place in the statute.
We “must construe the statute as written and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute.” In re Application of the County Treasurer & ex officio Collector, 323 Ill. App. 3d 1044 , 1049 (2001). Since the legislature used the word “approved” in subsection 40.1(a) without explanation, I construe the word in context with its usage elsewhere in the Act. By such construction, the disputed passage means that when an applicant’s statutory right to a timely decision on appeal is denied, the applicant may proceed as if local siting approval had been granted and no appeal were necessary in the first place. Rather than signaling approval authority at the appeal level, the passage simply provides a remedy for untimeliness by the Board.
For these reasons, I disagree with the majority’s conclusion that Applicants’ 2002 request was disapproved for purposes of subsection 39.2(m) of the Act (415 ILCS 5/39.2(m) (West 2004)). Under my analysis, therefore, there would be no reason to address whether the 2002 and 2003 requests were substantially similar. Under the majority’s analysis, however, the substantial-similarity question should be addressed per the Supreme Court’s supervisory order. The Supreme Court specifically stated that if this court found a prior disapproval of the 2002 request, we “should next consider the effect of the Board’s failure to consider the substantial similarity issue.” The majority has not done so. Instead, the majority has proceeded to subsequent issues in the case: notice, fundamental fairness, and consistency with the county solid waste management plan. While I agree with, and thus concur in, the majority’s conclusions on those issues, I believe it was required to address the substantial-similarity issue before reaching them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863407. Public record. Not legal advice.