ILLINOIS POLLUTION CONTROL BOARD
August 6, 1998
MCHENRY COUNTY DEFENDERS, INC.,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and THE CITY
OF WOODSTOCK,
Respondent.
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PCB 98-173
(Permit Appeal - NPDES)
ORDER OF THE BOARD (by G.T. Girard):
On June 24, 1998, McHenry County Defenders, Inc. (petitioners) filed a petition to
contest the issuance of an NPDES permit pursuant to Section 40(e) of the Environmental
Protection Act (Act) (415 ILCS 5/40(e)(1996)). The permit was issued by the Illinois
Environmental Protection Agency (Agency) on May 20, 1998, to the City of Woodstock,
McHenry County, Illinois, for its South Sewage Treatment Plant. On July 8, 1998, the
Agency filed a motion to dismiss the petition. On July 15, 1998, petitioners filed a response
to the motion to dismiss and a motion to amend the petition.
The Agency in its motion asks the Board to either (a) dismiss the petition for review for
“failure to name a necessary party” or in the alternative to (b) order petitioners to amend the
petition by naming all necessary parties. In support of the motion, the Agency argues that
Section 40(e)(3) requires the Agency and the permit applicant to be named as respondents.
Petitioners has failed to name the City of Woodstock as a party, although the petitioners did
serve them with a copy of the petition, as indicated by the certificate of service.
In response, the petitioners argue that the Agency’s motion contains “no citation to any
statute, regulation, or case law” which would support a request for dismissal. The petitioners
maintain that there is no allegation that the substance of the petition is deficient. The
petitioners also assert that the Board’s procedural rules (35 Ill. Adm. Code 101, 105) do not
require that the applicant be named as a respondent and are therefore in conflict with the
statute.
ANALYSIS
Section 40(e) was added to the Act by Public Act 90-274 effective July 30, 1997.
Section 40(e) provides:
e.
1.
If the Agency grants or denies a permit under subsection (b) of
Section 39 of this Act, a third party, other than the permit applicant
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or Agency, may petition the Board within 35 days from the date of
issuance of the Agency’s decision, for a hearing to contest the
decision of the Agency.
2.
A petitioner shall include the following within a petition submitted
under subdivision (1) of this subsection:
A.
a demonstration that the petitioner raised the issues
contained within the petition during the public notice period
or during the public hearing on the NPDES permit
application, if a public hearing was held; and
B.
a demonstration that the petitioner is so situated as to be
affected by the permitted facility.
3.
If the Board determines that the petition is not duplicitous or
frivolous and contains a satisfactory demonstration under
subdivision (2) of this subsection, the Board shall hear the petition
(i) in accordance with the terms of subsection (a) of this Section
and its procedural rules governing permit denial appeals and (ii)
exclusively on the basis of the record before the Agency. The
burden of proof shall be on the petitioner. The Agency and permit
applicant shall be named co-respondents. 415 ILCS 5/40(e)
Thus, the Act requires the applicant to be named as respondent in a third party permit appeal.
The Board’s procedural rules governing NPDES permit appeals do as well. See 35 Ill. Adm.
Code 105.102(b)(5) “[t]he Agency shall appear as respondent” and 35 Ill. Adm. Code
105.102(b)(6) “[a]ll parties other than the petitioner who were parties to or participants at any
Agency hearing shall be made respondents.”
As indicated above, the addition of Section 40(e) of the Act is recent. This is in fact
the Board’s first case pursuant to Section 40(e) of the Act, so there is no case law directly on
point regarding the consequences of the failure to name a necessary party in an appeal under
this section of the Act. However, the Illinois Supreme Court has addressed the issue of failure
to name a necessary party under both the Administrative Review Law (735 ILCS 5/3) and the
Human Rights Act (775 ILCS 5/8).
Lockett v. Chicago Police Board, 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394
(1990) (Lockett) was a proceeding under a provision of the Administrative Review Law which
at that time required that “all persons, other than plaintiff, who were parties of record to the
proceedings before the administrative agency. . . be made defendants.” Lockett, 549 N.E.2d
at 1267, citing Ill. Rev. Stat.1985, ch. 110, par. 3-107. The court found that the procedures
under the Administrative Review Law are a departure from common law which must be
strictly adhered to and that the language of the Administrative Review Law is “mandatory and
specific, and admit[ting] of no modification.” Lockett, 549 N.E.2d at 1268. Therefore, the
court decided that the failure to name a necessary party to an administrative review proceeding
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was a fatal flaw, which appellant could not cure by seeking to amend the proceeding, beyond
the 35-day time limit The petition was accordingly dismissed.
The Illinois Supreme Court looked at the issue five years later in McGaughy v. Illinois
Human Rights Commission, 165 Ill. 2d 1, 649 N.E.2d 404, 208 Ill. Dec. 348 (1995)
(McGaughy). In each of two consolidated cases reviewed in McGaughy, the petitioners had
failed to name all parties of record as respondents in their respective petitions for review of the
commission’s action. McGaughy, 649 N.E.2d at 406. The court found that the failure to
name all parties was a fatal defect and the petitions for review must be dismissed. The court
based its decision on Section 8-111(A)(1) of the Human Rights Act which requires that a
petition for review must be filed with the appellate court within 35 days after entry of an order
by the Human Rights Commission in accordance with Supreme Court Rule 335. 775 ILCS
5/8-111(A)(1) (1994). Supreme Court Rule 335(a) requires that “the agency and all other
parties of record shall be named respondents.” McGaughy, 649 N.E.2d at 408, citing 134 Ill.
2d R. 335(a). The court further found that even though the petitioners served the parties it did
not relieve the petitioners of the obligation to name all necessary parties. The petitions were
dismissed.
1
In considering this decision it is important to note what the court did not address or
decide. The court did not specifically determine whether the statutory requirement was
jurisdictional or mandatory and, thus, whether or not it is subject to a good faith effort
modification. However, the court stated that under either classification, the consequence of
failing to name a necessary party was the same, requiring dismissal of the review proceeding.
McGaughy, 649 N.E.2d at 410, see also Bevis. The court noted that “neither petitioner
sought leave to amend her petition for review to join all necessary parties, and therefore we
need not consider here whether, and under what circumstances, amendments to defective
petitions should be allowed. See [Worthen].” McGaughy, 649 N.E.2d at 410. Thus, the
supreme court did not address the situation where, as here, a party seeks leave to amend the
petition to add a necessary party.
Although, as earlier mentioned, there are no cases interpreting Section 40(e)(3) of the
Act, on three occasions the appellate court for the fifth district has interpreted the
consequences of failure to name necessary parties in third party appeals under Section 40.1 of
the Act. These cases involve Board review of decisions by units of local government
regarding the siting of regional pollution control facilities. The three cases are: Worthen v.
Village of Roxana 253 Ill. App. 3d 378, 623 N.E.2d 1058, 191 Ill. Dec. 468 (5th Dist. 1993)
(Worthen); Environmental Control Systems, Inc. v. Pollution Control Board, 258 Ill. App. 3d
435, 630 N.E.2d 554, 196 Ill. Dec. 619 (5th Dist. 1994) (Environmental Control Systems);
and Bevis v. Pollution Control Board, 289 Ill. App. 3d 432, 681 N.E.2d 1096, 224 Ill. Dec.
475 (5th Dist 1997) (Bevis). In each of these cases, the appellate court found the good faith
effort test was applicable to cases under the Environmental Protection Act. See Bevis.
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In P.A. 89-685, effective July 1, 1997, the legislature amended the Administrative Review
Law to allow the amendment of a petition for review in certain circumstances.
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Worthen was decided after Lockett, but prior to McGaughy. In Worthen, the appellate
court addressed the issue of whether the failure to name a necessary party in the caption of a
petition for review is a fatal defect if the unnamed party is served with a copy and the
petitioner, without delay, requests leave to amend the petition to add the unnamed party. The
appellate court found that this scenario was distinguishable from Lockett and allowed the party
to amend the petition for review. A year later, in Environmental Control Systems, the court
found that the failure to name the county board as respondent in the petition for review
divested the court of jurisdiction and the case was dismissed. Environmental Control Systems
at 630 N.E.2d 558.
The Board followed this reasoning in dismissing a third party appeal of a landfill siting
in which the petitioner failed to name the applicant in the petition for review. Citing
McGaughy, the appellate court affirmed that decision in Bevis. The court noted that
petitioners had not cited a statutory basis for their assertion that they should be allowed to
amend their complaint, and specifically stated that “serving Daubs [the applicant] with a copy
of the appeal even though Daubs was not named as a respondent is insufficient.” Bevis at 681
N.E.2d 1100. However, the court distinguished this case from its decision in Worthen, stating
that the factual settings are “entirely distinct.” Bevis at 681 N.E.2d at 1100. The court
pointed out that while petitioners acknowledged that they were aware of Daubs and the
requirement that they name all applicants, they specifically declined to name Daubs as a
respondent. Thus, the court found that petitioners’ decision not to name a party a respondent
was “more one of strategy rather than one exhibiting a good-faith effort to comply with the
requirement.” Bevis at 681 N.E.2d at 1100.
In applying these precedents to the facts of this case, the Board is also guided by the
rule of statutory construction that courts will liberally construe a right to appeal so as to permit
a case to be considered on its merits. Cox v. Board of Fire and Police Commissioners, 96 Ill.
2d 399, 451 N.E.2d 842, 844, 71 Ill. Dec. 688, 690 (1983). In McGaughy, the Illinois
Supreme Court did not reach the question of amendment of a petition and thus, left
undisturbed the appellate court’s decision in Worthen. The appellate court distinguished Bevis
from its decision in Worthen and in Environmental Control Services, and specifically found
that it could not find that petitioner had made a good faith effort to name all parties or to
amend the petition to do so. Environmental Control Services at 630 N.E.2d 558. Here we are
dealing with a new statute with which petitioner have exhibited a good-faith effort to timely
comply. Therefore the Board denies the Agency’s motion to dismiss and grants the alternative
motion requiring the petitioners to amend the petition. The petitioners’s motion to amend is
also granted.
This matter is accepted for hearing. The hearing in this matter must be scheduled and
completed in a timely manner, consistent with Board practices and the applicable statutory
decision deadline (set out in Section 40 (a)(3) of the Act), or the decision deadline as extended
by a waiver.
As previously stated, this is the first case filed under Section 40(e)(3) of the Act. In
third party appeal cases of hazardous waste landfill permits under Section 40(b) of the Act
(415 ILCS 5/40(b)(1996), the Board has construed the Act as giving the person who had
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requested the permit: (1) the right to a decision within the applicable statutory time frame (now
120 days), and (2) the right to waive (extend) the decision period (Alliance for a Safe
Environment,
et al.
v. Akron Land Corp.
, et al.
(October 30, 1980), PCB 80-184). The
Board has consistently construed Section 40.1(b)in the same way; Section 40.1(b) -which
confers third party appeal rights in cases involving grant of local siting approval to pollution
control facilities. See,
e.g
. Sierra Club and Jim Bensman v. City of Wood River and Norton
Environmental (October 2, 1997), PCB 98-43.
The Board therefore construes Section 40(e) of the Act in like manner. The City of
Woodstock, the permit applicant, is the party with the right to a decision within 120 days and
is the only party with the right to waive the decision deadline. The result is that failure of this
Board to act within 120 days would allow the permit applicant, the City of Woodstock, to
pursue an appellate court order as detailed in Section 40 (b)(3) of the Act.
The Board will assign a hearing officer to conduct hearings consistent with this order,
and the Clerk of the Board will promptly issue appropriate directions to that assigned hearing
officer. The assigned hearing officer must inform the Clerk of the Board of the time and
location of the hearing at least 30 days in advance of hearing so that a 21-day public notice of
hearing may be published. Within five days after the hearing, the hearing officer must submit
to the Board an exhibit list, a statement regarding credibility of witnesses, and all exhibits.
Any briefing schedule must provide for final filings as expeditiously as possible and, in
time-limited cases, no later than 30 days before the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory or deferred decision
deadline. Absent any future waivers of the decision deadline, the statutory decision deadline is
now October 22,
1998 (120 days from June 24, 1998). The Board meeting immediately
preceding the decision deadline is scheduled for
October 15, 1998
.
.
If after appropriate consultation with the parties, the parties fail to provide an
acceptable hearing date or if after an attempt the hearing officer is unable to consult with the
parties, the hearing officer will unilaterally set a hearing date in conformance with the
schedule above. The hearing officer and the parties are encouraged to expedite this proceeding
as much as possible. The Board notes that Board rules (35 Ill. Adm. Code 105.102) require
the Agency to file the entire Agency record of the permit application within 14 days of notice
of the petition.
IT IS SO ORDERED.
Board Member K.M. Hennessey abstains.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 6th day of August 1998 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
