ILLINOIS
POLLUTION
CONTROL BOARD
January 21,
1993
PEOPLE OF THE STATE OF
ILLINOIS
AND
THE COUNTY OF
GRUNDY, ILLINOIS EX REL. GRUNDY
COUNTY STATE’S ATTORNEY
DAVID W.
NEAL,
Petitioner,
)
v.
)
PCB 92—207
)
(Landfill Siting Review)
ENVIRONTECH,
INC., AN
)
ILLINOIS CORPORATION,
AND
)
THE CITY OF MORRIS, ILLINOIS
)
)
Respondent,
ORDER
OF
THE
BOARD
(by J.
C. Marlin):
This matter is before the Board on two motions.
On January
5,
1993, the City of Morris
(City) filed a motion to dismiss with
prejudice
(C. Not.) and on January 6, 1993,~Environtechfiled a
motion to dismiss
(E. Not.).
On January14,
1993,
the petitioner
filed a response in opposition to both motions to dismiss
(Resp.).
The motions to dismiss contained substantially the same
arguments.
Both respondents argued that David W. Neal, the
Gi~undyCounty State’s Attorney,
lacks standing and that the
petition is duplicitous and frivolous.
The only major deviation
in their motions is that the City in its motion,
argued,
that the
petition in this case was not timely filed.
The Board will first address the argument that the petition
was filed late.
The City,
in its motion, states that it approved
the siting on November 9, 1992 and that the petition for hearing
to contest the siting of a regional pollution control facility,
was
filed on December 15,
1992.
(C. Not. at 1.)
The City argues
that Section 40.1(b)
of the Illinois Environmental Protection Act
(Act) requires that the petition for hearing must be filed within
thirty-five days and that petitioner filed on the thirty—sixth
day.1
(Ill. Rev. Stat., ch.
11.
1/2 par. 1041.1(b) andC.
Not..
at 1.)
In its response, the petitioner argues that the Board’s
‘~The
City’s motion cites to Section 104(a) of the Act; the
Board construes this to mean Section 40.1(b).
Section 40.1(b) of
the Act allows appeals of a decision by a governing body to grant
siting
approval
to
be
filed
within
35
days.
Section
104(a)
does
not
exist.
0138-0509
2
procedural rules state that if a document is received after the
due date,
the date of mailing is deemed the date of the filing.
(Resp.
at 13 paraphrasing 35 Ill. Adm. Code 101.102(d).)
The
petitioner also notes that the certificate of service attached to
the petition states that it was mailed by first class mail on
December 14,
1992, thirty-five days after the siting decision.
(Resp.
at 13.)
The Board’s procedural rules provide that “mailed is filed”
if the petition is accompanied by a certificate of service.
The
relevant sections of the Board’s rules state:
If received after any due date, the time of
mailing shall be deemed the time of filing.
Proof of mailing shall be made pursuant to
Section 101.143.
(35 Ill. Adm. Code
101.102(d).); and
Service of filings is proved by:
In case of
service by First Class mail, by certificate
of attorney...which states the date,
time,
and place of mailing, the complete address
which appeared on the envelope, and the fact
that proper postage was paid.
(35 Ill.
Adiu.
Code 101.143(a) (4).)
The Board finds that the petition was timely filed.
Petitioner’s
certificate of Service states that on December 14,
1992, Attorney
Renee Cipriano served the petition by First Class mail, postage
prepaid, to the attached service list.
The Board wil.
next address the question of standing.
Both
respondents argue in their motions that the petitioner lacks
standing to seek review.
(E. Not. at 1 and C. Not, at
3 and. 4.)
Respondents base their
argument
on the fact that no
representative of Grundy County was present at the siting
approval hearing.
(E. Not. at 2 and C. Not at 1.)
Respondents
point to
Section 40.1(b) of the Act which provides that a third
party may petition the Board for a review of a siting approval if
the third party participated in the siting hearing conducted by
the governing body.
(E. Not. at 2 and C. Not. at 2.)
In response, petitioner points to several Illinois Supreme
Co
-t (~aseswhich uphold the importance of the Illinois Attorney
Generai’s role in representing the people of the state.
(Resp.
at 3 citing, Peo~1ev.
ex
rel. Scott v. Illinois Racing Board,
54
Ill. 2d 569,
301 N.E.2d 285 (1973);
People
V.
Massare.la,
72
Ill. 2d 532,
382 NE.2d 262(1978);
IEPA
V.
PCB,
69
Iii.
2d 394,
372 N.E.2d 50
(1977).)
Petitioner argues, that the state’s
attorney
is
a
constitutional
officer
whose rights and duties are
analogous
to
those
of
the
Attorney
General.
(Resp.
at
5
citing,
People
v.
Buffalo
Confectionery
Co.,
78
Ill.
2d
447,
401
N.E.2d
Di 38-05 10
3
546
(1980.).)
Petitioner also argues that the State’s Attorney
of Grundy County is empowered to represent the rights and
interest of the people in matters of public concern.
(Resp. at
4
citing,
Therefore, petitioner argues, because the procedures
followed in the local siting approval were fundamentally unfair,
petitioner must represent the interests of the people in this
matter.
(Resp. at 5.)
Petitioner also cites the case of Pioneer Processina v.
IEPA,
102 Ill.
2d 119, 464 N.E.2d 238
(1984).
(Resp. at
3.).
In
Pioneer the Attorney General sought an appellate review of a
Board order without ever having been present at, or participating
in, the Board proceedings below.
The Supreme Court held in
Pioneer, that not only did the Attorney General have standing,
but that he had a duty to represent the interests of the people.
(Pioneer,
at .250.)
The precedent set by both the Illinois Supreme Court
and the
Board make it clear that the petitioner has standing as the
State’s Attorney of Grundy County to represent both the People
of
the State and the County in this matter.
(See, Pioneer and
Land
and Lakes Company v. Village of Romeoville,
(February 7, 1991)
PCB 91-7.)
If in fact the City failed to afford the citizens
proper procedures in the siting process, itis only proper that
the State’s Attorney be allowed to represent the People in this
matter.
(See, Pioneer, at 464 N.E.2d 247.)
Next the Board will address the issue of whether or not the
public comment filed by Mr. Neal is sufficient to satisfy the
participation requirement in Section 40.1(b) of the Act.
Respondents argue that the public comment should not count as
participation within the meaning of Section 40.1(b) Of the Act.
(E. Not.
at
2 and C. Not. at 1 and 2.)
In support of their
argument, respondents cite Valessares v. County Board of Icane
County,
(July 16, 1987) PCB 87-36.
(E. Not, at 2.)
Additionally,
respondents argue that the statute limits the potential
petitioners to people who either attended the hearing or whose
authorized representative attended.
(E. Not. at
4 citing,
~
Hauling v. PCB, 107 Ill.2d.
33,
41
(1985).
In response, the petitioner.argues that the public comment
he filed should be construed as participation under the Act.
(Resp. at 6.)
Petitioner contends that since “mere” attendance
at a hearing is sufficient to confer standing that actively
voicing an opinion in the public comment period.should also
confer standing.
(Resp. at 7.)
The petitioner also argues that respondents reliance on the
failure of the petitioner to attend the public hearing is
inappropriate.
(Resp.
at 9.)
Petitioner contends that because of
the “consistent assurarices’ that the terms of the Grundy County
Solid Waste Plan (Plan)
would be addressed at hearing, petitioner
0138-Q5jj
4
was “lulled into a sense of comfort” and did not see a reason to
attend the hearing.
(Resp. at 9 and Exh. A.)
Section 40.1(b)
of the Act requires that a person seeking to
appeal as a third party be one “who participated
in. the public
hearing conducted by the county board or governing body of the
municipality.”
However, the Act does not define what is meant by
“participated”.
In Zeman v. Village of Summit,
(December ~7, 1992), PCB 92-
174, PCB 92-177 consolidated, the respondent argued that one of
the
petitioners
did
not
have
standing
to
appeal because she did
not participate in the siting hearing.
(~.
at
4.)
There
was
no
dispute that the petitioner was physically in attendance however,
she
argued
that
the
procedure
of
the
hearing
prevented
her
from
actively
participating.
~
at 4 and ~5.) The Board in Zeman,
reaffirmed its prior decisions and found that “mere” attendance
is sufficient to satisfy the requirement of participation.
(~.
at
See also, Board of Trustees of Casner Townshit, et p1.: and
John Prior v. County of Jefferson (April 4, 1985) PCB 84-175,
84-176 consolidated; Valessares et al.
V.
The
County
Board
of
Kane County et p1.
(July 16, 1987) PCB 87—36.)
Based on the totality of the circumstances in this matter,
including the precedent in Pioneer, and the petitioner’s
assertions that the office of the State’s Attorney was not
represented at hearing due to the “consistent assurances” of
respondent, the Board finds that this matter should proceed to
hearing.
The Board is not presented today with the question of
whether the simple filling of a public comment by someone other
than the People amounts to “participation in the public hearing”.
The Board makes no holding on the issue.
In this case, however,
the State’s Attorney’s filing of a public comment makes clear
that the People are not a “stranger to the proceeding”, and the
State’s Attorney may pursue the interests of the People at
hearing.
Finally, respondents argue that petitioner’s claim is
frivolous and duplicitous because itis based on a failure to
comply with the Plan which was not in effect at the time of the
siting approval.
(E. Not. at 2 and
4
and
C. Not at 2.)
In
response, Petitioner argues that claims before the Board are
frivolous only if they seek relief which the Board cannot grant.
(Resp. at 11.)
Petitioner cites several cases in sUpF’rt of its
argument.
In addition, petitioner argues t
it the
far’t. that the
Plan was not adopted is not the sole reason for review of the
siting decision.
(Resp. at 12.)
Petitioner argues that under
Section 40.1(b) of the Act,
it has a right to present testimony
regarding the fundamental fairness of the proceedings.
Petitioner also argues that the petition is not duplicitous.
Petitioner. cites Valessares v. County Board of Kane County,
(July
0138-0512
5
16,
1987), PCB 87-36, for the proposition that a petition is
duplicitous if the same controversy is pending in another forum.
(Resp. at 12.)
Petitioner argues that because this controversy
is not pending elsewhere,
the petition is not duplicitous.
(Resp. at 12.)
Section
31(b)
of
the
Act
and
35
Ill.
Mm.
Code
103.240
allow
the
Board
to
dismiss
a
complaint
if
the
Board
determines
that
it
is
duplicitous
or
frivolous.
In
its
resolution
of
June.
9,.
1989,
the Board stated that an action is duplicitous if it is
substantially
similar
to
one
brought
in
another
forum.
(In
re
Duplicitous
or
Frivolous
Determination
(June
9,
1989),
RES
89—
21.)
In
the
same
resolution,
the
Board
stated
that
a
complaint
is
frivolous
if
it
fails
to. state
a
cause
of
action
upon
which
relief can be granted.2
(J~.
See Also, Yolanda Price v.South
Shore Villa Condominiums and Oualitv Manaaement Service Inc
(November 19,
1992), PCB 92—119.)
The Board finds that this case is neither duplicitous nor
frivolous.
There is no evidence of
any
action
pending
in
another
forum which is substantially similar to the instant case.
Therefore,
the
case.is
not
duplicitous.
Additionally,
under
Section 40.1(b) of the Act, the Board may review the fundamental
fairness of the siting proceedings.
Therefore, the case is not
frivolous since the Board may provide rel&ef to the petitioner.
For the reasons stated in the above order, Environtech and
The City of Norris’
motions’ to dismiss are denied.
This case
must proceed to hearing on February 9, 1993, as
scheduled.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above order was adopted on the
~‘/‘~
day of___________________________
,‘.
1993, by a vote
.of
(..—‘
.
,.‘
~
___
Dorothy
N.
,~(znn, Clerk
Illinois
Pôflution
Control
Board
2Although duplicitous and frivolous determinations are
limited to enforcement actions, the Board addresses the issues
raised here because they deal with the general jurisdiction of
the Board.
01380513