ILLINOIS POLLUTION CONTROL BOARD
November 20, 1986
RICK MOORE, LEONARD MORRIS AND
)
EDITH SIMPSON,
)
Petitioners,
v.
)
PCB 86—197
WAYNE COUNTY BOARD AND
)
DAUBS LANDFILL, INC.,
Respondents.
ORDER OF THE BOARD (by 3. Anderson):
This action is a third—party appeal filed November 6, 1986,
pursuant to Section 40.1(b) of the Environmental Protection Act
(“Act”) (Ill. Rev. Stat. Ch. 111—1/2, par. 1040.1(b).
Petitioners appeal the decision of the Wayne County Board
approving site location suitability approval.
By Order of November 6, 1986, the Board directed petitioners
to file an amended petition and all parties to file memoranda
concerning the timeliness of the filing of the petition for
appeal. The following pleadings have been filed in response to
that Order: separate motions to dismiss filed November 18 by the
Wayne County Board (County) and Daubs Landfill, Inc. (Daubs); a
letter received November 19, 1986 from petitioner Rick Moore
requesting an extension of time to reply; and two November 19
filings from petitioner’s attorney, which are an amended petition
and a memorandum concerning the timeliness of filing.
The Board will first address Mr. Moore’s letter. Due to his
inability to contact his attorney to determine whether timely
filings had been made in his behalf, Mr. Moore himself made a
partial response to the Board’s Order, requested additional time
to provide additional information, and asked that he be
personally served in this matter. The Board appreciates Mr.
Moore’s concerns regarding the timely progression of his action,
and advises him that no extension of time is necessary as the
filings required on the November 6 Order have been made on his
behalf. Further, the Board will transmit courtesy copies of its
Orders in this matter to Mr. Moore at his home address via first—
class mail. The Board cannot, however, undertake to mail Mr.
Moore copies of all filings made by all other parties in this
matter, and will not order that Mr. Moore as well as his attorney
be personally served by all other parties in this action, as
communications to a party who is represented by any attorney are
properly made through that attorney.
74-118
—2—
The Board notes that it is the professional responsibility
of petitioners’ attorney not only to timely take all actions
necessary to press his client’s action, but also to maintain
appropriate communication with those clients concerning the
progress of the case. The Board cautions counsel to take
appropriate steps to fulfill his responsibilities.
As to the issue of the timeliness of the filing of this
appeal, all parties are in agreement that the County’s decision
was rendered on September 30, 1986, that Section 40.1(b) of the
Act provides for the filing of third—party appeals within 35 days
of that decision, and that November 4 is the 35th day following
that decision. However, as November 4 was a legal holiday,
pursuant to Section 101.105(b) of the Board’s Procedural Rules,
the due date for filing was extended until November 5. Yet, the
petition was not received by the Board until November 6.
By affidavit attached to the supplemental petition,
petitioner asserts that the petition was mailed on November 3,
and in its memorandum asserts that the Board should consider the
date of filing as the postmark date consistent with the so—called
“mailbox rule” contained in Supreme Court Rule 373.
In an action involving a permit appeal pursuant to Section
40 of the Act which provides a 35 day appeal period similar to
that of Section 40.1(b), the Board construed the adoption of a
limited version of the mailbox rule as appropriate to further the
purposes of the Act. In that case, Interstate Pollution Control,
Inc. v. IEPA, PCB 86—19, Order or March 27, 1986, the Board
stated that:
“as to actions which must be commenced by a person
within a statutorily defined time period, the Board
will deem the initial pleading to be timely
received if the accompanying certificate of service
states that service was commenced before the
expiration of the statutory period. However, the
Board will continue to calculate its own decision
period as commencing the day after the Board’s
actual receipt of the petition.”
In recognition of its rationale in Interstate, as well as of
the precedents cited by petitioners in their memorandum, the
Board reaches a similar result here. The Board will deem the
November 6 petition which was mailed on November 3 as timely
received on November 5. The Board’s decision deadline will be
calculated as commencing November 7.
Respondent’s motions to dismiss are denied. The Clerk is
directed to provide all parties with a copy of the Interstate
ruling.
74-119
—3—
This petition is accepted for hearing, and shall proceed
according to the procedural directives contained in the Board’s
Order of November 6, 1986.
IT IS SO ORDERED.
3. T. Meyer dissented.
I, Dorothy M. Gurin, Clerk of the Illinois Pollution Control
Board, hereby certify tti4t the above Order was adopted on
the ~=~‘~Z day of ______________________, 1986, by a vote
of .5~—/
.
Dorothy M./Gunn, Clerk
Illinois Pollution Control Board
74.120