ILLINOIS POLLUTION CONTROL BOARD
May 18, 1995
CATHY BEVIS, GLADYS SHREVE,
)
RICK MOORE, ELEANOR TOWNS,
)
ELEANOR MORRIS, LEONARD MORRIS,
)
EDDIE BREEZE, LOUISE BREEZE,
)
MARY LEE CUNNINGHAM, LYLE RUTGER,
)
MARIE RUTGER, CHARLES WALKER,
)
and LENORE WALKER,
Petitioner,
)
v.
)
PCB 95—128
)
(Landfill Siting Review)
WAYNE COUNTY BOARD,
Respondent.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on an appeal filed on April
14, 1995, pursuant to Section 40.1(b) of the Environmental
Protection Act (Act) by Cathy Bevis, Gladys Shreve, Rick Moore,
Eleanor Towns, Eleanor Morris, Leonard Morris, Eddie Breeze,
Louise Breeze, Mary Lee Cunningham, Lyle Rutger, Marie Rutger,
Charles Walker, and Lenore Walker. They appeal the March 9, 1995
decision of the Wayne County Board granting local siting approval
to Daubs Landfill, Inc. (Daubs) for the regional pollution
control facility located at Route 15 West, Fairfield, in Wayne
County, Illinois.
On May 1, 1995, Daubs filed a Motion for Leave to
Participate by Way of Special Appearance for the Limited Purpose
of Challenging Jurisdiction. Also on May 1, 1995, Daubs filed
its Special Appearance for the Limited Purpose of Challenging
Jurisdiction.
As a preliminary matter, we note that “an objection to
jurisdiction may be imposed at any time”. (Concerned Boone
Citizens v. M.I.G. Investments, Inc., 144 Ill.App.3d 334, 494
N.E.2d 180 (2nd Dist. 1986)). Despite filing its motion and
special appearance after the 14—day response time had run, the
Board grants Daubs leave to file said motion, and accepts its
special appearance. Daubs contends that petitioner’s appeal
should be dismissed as frivolous because it failed to name Daubs
as a necessary party as prescribed by Section 40.1(b) of the Act.
On May 16, 1995, petitioners filed both their Motion for
Leave to File an Objection to Daub’s aforementioned motion, and
their Objection to said motion. Although we note that petitioner
timely filed neither their motion to object nor their objection,
in the interest of allowing the parties to fully present their
2
case, the Board hereby grants petitioner’s motion and accepts
their objection.
In cases filed by private citizens, the Board is required by
Section 40.1(b) of the Act to enter a finding as to whether the
complaint is frivolous or duplicitous. An action before the
Board is frivolous if it fails to state a cause of action upon
which relief can be granted by the Board. (Citizens for a Better
Environment v Reynolds Metals Co., PCB 73-173, 8 PCB 46
(1973)). The Appellate Court of Illinois, First District,
construed a “frivolous” pleading to mean “one that is either
legally or factually deficient.” (Winnetkans Interested in
Protecting the Environment (WIPE) v. Pollution Control Board, 13
Ill.Dec 149, 370 N.E.2d 1176 (1st Dist. 1977)). This provision
aims to avoid expensive and protracted litigation on claims which
cannot prevail despite factual accuracy. (Farmers Oiposed to
Extension of the Illinois Toliway v. Illinois State Toll Highway
Auth., PCB 71—159, 2 PCB 119 (1971)).
Section 40.1(b) of the Act additionally provides:
The county board or the governing body of the
municipality
~
the applicant shall be named as co—
respondents. (415 ILCS 5/40.1(b) (emphasis added)).
As Daubs correctly points out, due to its limited
jurisdiction, the Board must strictly construe the Act where the
General Assembly specifically states the requirements “shall” be
followed. (Ogle County Board v. Pollution Control Board, No. 2—
94—0074 (2nd Dist. April 20, 1995)). In the instant matter,
petitioner failed to name an applicant in its appeal. Therefore
petitioner’s appeal is defective on its face.
Failure to name a necessary party also deprives the Board of
having jurisdiction over the matters. (McGaughy v. Ill. Human
Rights Comm’n,
available in
1995 WL 123709 (March 23, 1995)
citing to
Environmental Control Systems v. Pollution Control
Board, 258 Ill.App.3d 435, 630 N.E.2d 554 (1994)). This failure,
then, creates a fatal defect in petitioner’s appeal.
We do not find compelling petitioner’s argument that Daubs
was not named as a party because it was not an applicant. Section
40.1(b) unambiguously includes an applicant as a required party
for an action appealing siting approval. Since Daubs was the
recipient of the local siting approval, it should be considered
the applicant in this case. Even assuming arguendo that proper
procedures for siting approval were not followed by the Wayne
County Board or Daubs, this action still needs siting approval
applicant as a named party.
Nor are we persuaded that mentioning Daubs throughout
petitioner’s appeal cures the defect of omitting Daubs as a party
3
to the action. Again, the Board operates under special statutory
jurisdiction and is limited by the language of the act conferring
that jurisdiction. (McGaucihy at 3.) The language in Section
40.1(b) unambiguously requires the applicant to be named as a co—
respondent. The Board cannot impose any modifications to this
requirement.
For these reasons, the Board finds petitioner’s appeal to be
frivolous in that it fails to name a necessary party as required
by Section 4.0.1(b) of the Act, and hereby dismisses petitioner’s
appeal.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) provides for the appeal of final Board orders within
35 days of the date of service of this order. The Rule os the
Supreme Court of Illinois establish filing requirements. (See
also 35 Ill. Adm. Code 101.246. “Motions for Reconsideration”.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board hereby certify that the above order was adopted on t)ie
_____
day of
__________________,
1995, by.a vote of ~
orothy M. ,~inn, Cl~rk
Illinois Pô~XlutionControl Board