ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Complainant,

)

)

)

)

RAY LOGSDON ESTATE, LOGSDON SAND)

and GRAVEL, and M.K. O’HARA

)

CONSTRUCTION, INC.,

)

)

AC

(IEPA No. 33-05-AC)

RECEIVED

CLERK’S OFFICE

MAR

112005

Pollution

Control Board

Respondents.

NOTICE OF FILING

To:

RayLogsdon Estate

do

John Logsdon

617 W. Main Street

Beardstown, Illinois 62618

M.K. O’Hara Constructiori, Inc.

do

Madalyn O’Hara, President

U.S. Highway 67 South

R.R. #2, Box 104

Beardstown, Illinois 62618

Logsdon

Sand and Gravel

300 W. Main Street

P.O. Box319

Beardstown, Illinois 62618

Craig Myers, Registered Agent

M.K. O’Hara Construction, Inc.

900E.

15th

Street, P.O. Box 139

Beardstowri, Illinois

62618

PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk ofthe Pollution Control

Board of the State of Illinois the following instrument(s) entitled MOTION FOR RECONSIDERATION.

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

Respectfully submitted,

/

~AA

A

~flL

Jafri~è~’M.

Kropid

ecial Assistant Attorney General

Dated:

March 9, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ADMINISTRATIVE CITATION

)

)

V.

THIS FILING SUBMITTED ON RECYCLED PAPER

---

RECEIVED

CLERK’S OFFICE

BEFORE THE POLLUTION CONTROL BOARD

MAR

112005

OF THE STATE OF ILLINOIS

STATE OF ILLINOIS

•

Pollution Control Board

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

•

S

Complainant,

)

v.

)

AC

05-54

)

(EPA No. 33-05-AC)

RAY LOGSDON ESTATE, LOGSDON

)

(Administrative Citation)

SAND AND GRAVEL, and

)

M.K. O’HARA CONSTRUCTION, INC.

)

Respondents.

)

MOTION FOR RECONSIDERATION

AND

TO

DISMISS PETITION FOR REVIEW

NOW COMES the Complainant, the Illinois Environmental Protection Agency (“Illinois

EPA”),

by

one

of its

attorneys,

James

M.

Kropid,

Assistant

Counsel

and

Special

Assistant

Attorney General, and, pursuant to

35

Ill. Adm.

Code

101.500 and

101.520, and by motion filed

no

later than

35

days following the receipt of an order entered by the Illinois Pollution

Control

Board (“Board”) on March 3,

2005,

hereby respectfully moves the Board to reconsider that order

in that the Board erred in its decision.

The Illinois EPA received service ofthe Board’s order on

March

8,

2005.

Tn support ofthis motion, the Illinois EPA states as follows:

(1)

The purpose of a

motion for reconsideration is

to bring to the court’s or Board’s

attention newly-discovered evidence which was not available

at the time of the hearing, changes

in the law, or errors in the court’s or Board’s previous

application of the existing

law.

Vogue

Tyre

& Rubber

Company

v.

Office of the

State Fire

Marshal,

PCB

95-78

(January 23,

2003),

citing to, Citizens Against’ Regional

Landfill v. County Board ofWhiteside County, PCB

93-156

(March

11,

1993),

~4

Korogluyan

v.

Chicago

Title

&

Trust

Co.,

213

Ill.

App.

3d

622,

572

N.B.2d 1154

(1St

Dist.

1992).

1

---

(2)

The

Illinois

EPA argues that

the

Board’s

order

dated March

3,

2005

(“Order”)

was

incorrect

in that the Board erred in its application ofexisting law regarding its

acceptance of

a petition for review.

(3)

On February

10, 2005, the Illinois

EPA issued an Administrative Citation (“AC”)

to Respondents, Ray Logsdon Estate, Logsdon

Sand and Gravel, and M.K. O’Hara Construction,

Inc., based on an inspection conducted on December

15,

2004.

(4)

On

February

10,

2005,

service

was

made

on

Respondent,

M.K.

O’Hara

Construction,

Inc., an Illinois corporation.

(5)

Pursuant to

415

ILCS

5/31.1(d)

and 35111.

Adm.

Code

108.204(b), a petition for

review was required to be filed in this matterby March

17, 2005.

(6)

On February

28,

2005,

Madalyn O’Hara filed a petition for review on behalf of

M.K. O’Hara Construction,

Inc. to contest the Administrative Citation.

(7)

The petition does not identify Madalyn O’Hara as an attorney and nothing in the

petitionindicates that Madalyn O’Hara is in fact an attorney.

(8)

In a

March

3,

2005,

order

the Board

accepted the petition as timely filed.

The

Board

also noted that M.K.

O’Hara Constructioti, Inc.

could not be represented by Ms.

O’Hara

unless she is attorney and directed the corporation to retain an attorney prior to filing an amended

petition for review in this matter.

The Board

extended the time in

which this

amended petition

couldbe filedby 30 daysfrom the date ofthe Order.

(9)

Section

101.300(b) ofthe Board’s rules

(35

Ill.

Adm.

Code

101.300(b)) provides

that

documents

will

be

considered

filed

when

they

are

filed

in

conformance

with

the

requirements found in Section

101.302 ofthe procedural rules and any other filing requirements

specifically set out in other parts ofthe procedural rules.

2.

---

(10)

Section

10l.400(a)(2)

of

the

Board’s

procedural

rules

(35

Ill.

Adm.

Code

l0i.400(a)(2)) provides that

any person other than individuals

must appear through an

attorney

at law licensed

and registered to practice law in Illinois.1

(11)

The March

3,

2005,

order

specifically noted the Board’s procedural requirement

that anyone other than an individual must appear through

an attorney licensed and registered to

practice law.

Nevertheless,

even

though

the petition

for review was

not

filed by

a

licensed

attorney, the Board accepted the petition ofM.K.

O’Hara Construction,

Inc. as timely filed.

(12)

The Board

erred in accepting the February 28, 2005, petition forreview as timely

filed because the petition was not filed in conformance with its procedural rules,

specifically the

rule set forth in Section

101.400(a)(2).

(13)

This petition for review was also not filed in compliance with Section

108.204(a)

of the

Board’s

procedural

rules

(35

Ill.

Adm.

Code

108.204(a)),

which

states

that

the AC

Recipient may file a petition to contest the AC. In this matter, M.K.

O’Hara Construction,

Inc.

is

the AC Recipient, not Madalyn O’Hara.

(14)

Furthermore

and/or in

the alternative, the failure to

have a licensed

attorney file

the petitionfor review renders the filing itself a nullity.

(15)

It

is

well-settled law

in

Illinois

that

a pleading

signed

by

a

person who

is

not

licensed to practice law in

the

State

is

a

nullity

even if a

duly licensed

attorney

subsequetitly

appears in court.

Blue v.

People of the State ofIllinois,

223 Ill. App.

3d

594,

596,

585

N.E.2d

625,

626 (2~

Dist.

1992) (Citing,

Fruin v.

Northwestern Medical Faculty Foundation,

Inc.,

194

Ill.

App.

3d

1061,

1063,

551

N.E.2d

1010,

1012

(1st

Dist.

1990)).

The

effect of a

person’s

‘This

requirement,

also

imposed pursuant to Section

1

of the Corporation Practice of Law Prohibition Act (705

ILCS

220/1) and Section

1 of the Attorney Act (705

ILCS

205/1.),

was adopted by the Board in recognition

that its

previous practice allowing non-attorneys to represent a corporation was

not consistent

with

the Attorney Act and the

Corporation Practice of Law Prohibition Act.

3

---

unauthorized practice on behalf ofanother is to,dismiss

the cause orto treat the particular action

taken by that person as a nullity.

Id.;

See

also, Pratt-Holdampf v.

Trinity Medical

Center, 338

Ill. App.

3d

1079,

1083,

789

N.IE.2d

882,

886

(3rd Dist.

2003).

The prohibition against the

unauthorized practice of law does not differentiate between pretrial and

trial practice.

Marken

Real Estate

& Management Corp.

v.

Adams,

56

Ill. App.

3d 426, 430,

371

N.E. 2d

1192,

1195

(1St

Dist.

1977).

(16)

Under Illinois

law,

a

corporation

can file

a

complaint

only

through

a

licensed

attorney,

and

any

action

filed without an

attorney

is

null

and

void

ab

initio.

Berg

v.

Mid-

America

Industrial,

Inc.,

293

Ill.

App.

3d

731,

732,

688

N.E.2d

699,

700

(1st

Dist.

1997).

Corporations may not

appear in

court through

a

layperson, only by

a

licensed

attorney.

Any

proceedings which ensue

iii

a case involving a layperson representing a corporation

are null and

void.

The purpose of the rule is to protect the litigants against the mistakes ofthose

ignorant of

the law and the schemes ofthe unscrupulous, and to protect the court itself in the administration

of its proceedings from those lacking

requisite

legal skills.

~

293

Ill. App.

3d at

737,

688

N.E.2d at 704; Janiczek v. Dover Management Co.,

134 ill.

App. 3d 543,

546,

481

N.E.2d

25,

26

(1st

Dist.

1985).

(17)

This

general, rule

has

been

found

to

extend

beyond

actions

in

circuit

court;

included

in

the

type

of

actions

within

the

scope

of

the

general

rule

are

administrative

proceedings.

Oak Grove Jubilee Center, Inc.

v.

City of.Genoa,

347

Ill. App. 3d 973,

985,

808

N.E.2d 576,

588

(2nd

Dist. 2004) (Citing to, Janiczek,

134 Ill. App. 3d at 545, 481

N.E.2d at 26)).

(18)

Accordingly, the relevant and applicable case law requires that the Board treat the

presentpetition for review as a nullity.

.

.

.

4

---

WHEREFORE, the failure ofthe Respondent, M.K.

O’Hara Construction,

Inc., to

have a

licensed

attorney

file

the petition

for review renders the

filing null and

void

and because the

petition

‘for review

could

not

be

accepted

as

filed

as

it

did

not

conform with

the

Board’s

requirements,

the Illinois

EPA respectfully

requests

that

the Board

reconsider

its

decision

set

forth its

Order, dismiss the petition

for review filed on February 28,

2005,

and reestablish that

the

time

to

contest the AC must be

within

35

days of the date of service, which

is

March

17,

2005.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Cpiplainant

J~nesM. Kropid

~ssistant

Counsel

~pecial Assistant Attorney Gôneral

~ivision

ofLegal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

.

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143

(TDD)

0

Dated:

March 9, 2005

,

5

---

PROOF OF SERVICE

I herebycertify that I did on the 9th day of March

2005, send by U.S: Mail

with postage thereon

fully

prepaid,

by

depositing in a United

States

Post Office

Box

a true

and

correct

copy

of ‘the

following instrument(s) entitled MOTION FOR

RECONSIDERATION

To:

Ray Logsdon Estate

do John Logsdon

617 W.

Main Street

Beardstown, Illinois 62618

MX.

O’Hara Construction,

Inc.

do Madalyn O’Hara, President

U.S.

Highway 67 South

R.R.

#2, Box

104

Beardstown,

Illinois 62618

Logsdon Sand

and

Gravel

300 W. Main Street

~P.O.Box 319

Beardstown,

Illinois 62618

Craig Myers, Registered Agent

M.K.

O’Hara Construction, Inc.

900

B.

15th

Street, P.O. Box

139

Beardstown, Illinois

62618

and the original

and nine

(9) true and

correct copies.ofthe

same

foregoing instruments on the

same

date by U.S. Mail with postage thereon fully prepaid

To:

Dorothy Gunn, Clerk

Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

Illinois Environmental Protection Agency

1021 ‘North Grand Avenue East

P.O. Box19276

Springfield, Illinois 62794-9276

(217) 782-5544

iI)~~

0

Jai~sM. Kropid

-

‘

Sp

cial Assistant Attorney General

THIS

FILING

SUBMITTED ON RECYCLED PAPER