ILLINOIS POLLUTION CONTROL BOARD
    October 2, 1997
    SIERRA CLUB AND JIM BENSMAN,
    Petitioner,
    v.
    CITY OF WOOD RIVER AND NORTON
    ENVIRONMENTAL,
    Respondent.
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    PCB 98-43
    (Pollution Control Facility Siting
    Appeal)
    DISSENTING OPINION (by J. Theodore Meyer and G.T. Girard):
    We dissent from the majority opinion because we believe the Board’s procedural rules
    allow entities to appear before the Board in pollution control facility siting appeals without
    being represented by an attorney. Section 101.107(a)(2) states that any person entitled to
    participate in Board proceedings shall appear as follows:
    A corporation, when a respondent in an enforcement case pursuant to 35 Ill.
    Adm. Code 103, by an attorney at law licensed and registered to practice in the
    State of Illinois. In all other proceedings, a corporation may appear through
    any officer, employee, or representative, or by an attorney at law licensed and
    registered to practice in the State of Illinois, or both. 35 Ill. Adm. Code
    101.107(a)(2).
    Section 103 of the Board’s procedural rules govern enforcement proceedings. The Board has
    no procedural rules specific to pollution control facility siting appeals at this time. Thus, the
    Board’s procedural rules are silent as to representation by an attorney in pollution control
    facility siting appeals. The Illinois Environmental Protection Act (Act) is also silent regarding
    non-attorney representation for corporations in pollution control facility siting appeals. The
    Board has no authority to infer that a pollution control facility siting appeal is an enforcement
    case and thus subject to the requirements in 35 Ill. Adm. Code 101.107(a). Therefore, Jim
    Bensman should be allowed to represent the Sierra Club before the Board in this appeal.
    To rule otherwise is against Board rules, past Board practice, and good public policy
    which encourages administrative agencies to be less adversarial than court proceedings, and more
    “user-friendly” in terms of a non-attorney’s ability to appear before the Board. As Member
    Meyer stated in his dissent in Petition of Recycle Technologies, Inc. for an Adjusted Standard
    from 35 Ill. Adm. Code
    720.131(c), (July 10, 1997) AS 97-9 (herein after RTI):
    As
    a member of the House of Representatives of the Illinois General Assembly
    when the Act was passed, as a co-sponsor of the bill and as a member of the
    2
    Executive Committee that approved the bill, I know that the legislative intent of
    the Act was to encourage citizen participation in environmental matters.
    With regard to the Board’s role in facilitating environmental cases in Illinois, the Act
    clearly intended the Board to be easily available to Illinois citizens. The Act provided a new,
    more accessible way of governing where direct public participation was encouraged in
    environmental governance. The majority opinion in this matter turns back the clock to a time
    when environmental decisions were made in government proceedings accessible only to specially
    educated lawyers. A review of Section 39.2 and 40.1(b) of the Act (415 ILCS 5/39.2 and
    5/40.1(b) (1996)) indicates that the Illinois legislature crafted a pollution control facility siting
    process which requires local governing bodies and encourages local citizens to participate in the
    initial siting procedure. Today’s decision by the majority that the Sierra Club must be represented
    by an attorney unfairly restricts the participation of citizen groups in the pollution control facility
    siting process.
    While we do not agree with the majority order in this case, we do understand that they feel
    constrained by the language in the Attorney Act (705 ILCS 205/1
    et seq
    . (1996)), the
    Corporation Practice of Law Prohibition Act (705 ILCS 220/1
    et seq
    . (1996)), and subsequent
    case law involving other state agencies (see RTI decision). Perhaps the majority would agree
    with us that the best way to clarify this situation would be to pursue specific legislative language
    excluding the Board from the legal representation requirements in the Attorney Act. We note that
    there is specific language in the Attorney Act that allows non-attorney representation before
    certain Illinois Boards and Commissions, such as the Illinois State Labor Relations Board and
    State Civil Service Commission (705 ILCS 205/1) (1996)).
    For these reasons, we respectfully dissent.
    J. Theodore Meyer
    G. Tanner Girard
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was submitted on the 6th day of October 1997.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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