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

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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

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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