ILLINOIS POLLUTION CONTROL BOARD
December 17, 1992
ALICE
ZEMAN,
TONY BERLIN,
)
RICHARD ZILKA, MICHAEL
TURLEK, KEVIN GREENE,
)
Petitioners,
v.
)
PCB 92—174
(Landfill Siting)
VILLAGE
OF SUMMIT AND
)
(Consolidated with
WEST
SUBURBAN
RECYCLING
)
PCB 92- 177)
AND ENERGY CENTER, INC.,
)
Respondents.
DONNA
QUILTY,
)
)
Petitioner,
)
V.
)
PCB
92—177
BOARD OF TRUSTEES AND
)
(Landfill Siting)
MAYOR OF THE VILLAGE OF
)
(Consolidated
with
SUMMIT AND WEST
SUBURBAN
)
PCB
92-174)
RECYCLING & ENERGY
CENTER,
)
INC.,
)
Respondents.
ORDER OF
THE
BOARD
(by J.
Anderson):
On
December 8,
1992, respondent Village of
Summit
(Village)
filed a Motion to Reconsider the Board’s Order of November 19,
1992. The petitioner,
Alice Zeman, et al., (petitioner)
filed a
response on December 15, 1992.
Also, on
December
4, 1992, respondent West Suburban
Recycling and Energy Center, Inc. (WSREC) filed a Motion to
Dismiss petitioner Donna Quilty (Quilty).
On December 11, 1992,
Quilty
filed a reply. On December 15, 1992, respondent WSREC
filed a motion for leave to file a reply and a reply.
There is
an issue
of the timeliness of the motion. to dismiss.
The Board
intends
to rule on the motion to dismiss because a jurisdictional
question is involved, and grants WSREC leave to file a reply.
Village’s Motion to Reconsider.
The Board grants the Village’s motion to reconsider. For
the reasons expressed below, upon reconsideration, the Board
affirms its November 19, .1992 Order.
0138-0 151
2
The. Board’s November 19th Order accepted for hearing a third
party consolidated “SB 172” appeal of a siting approval by the
Village.
Among other things in the Order, the Board required
that the Village, within 21 days, prepare and file the record on
appeal, including the submittal of seven copies of the transcript
of the Village hearing and three copies of any other documents.
The Village asserts that it is not required to so prepare
and certify the record of the proceeding “until it is paid to do
so by the petitioner’t.
(Motion at 2). The Village cites to
Section 39.2(n) of the Environmental Protection Act (Act), which
provides in pertinent part:
.. .
the petitioner in the review proceeding shall pay to
the county or municipality the cost of preparing and
certifying the record of proceedings.
The Village sent an estimated bill of $5000 to the
petitioner.
In reply, the petitioner cites to other language in Section
39.2(n)
of the Act which, the reply notes,
is not cited in the
Village’s motion. (Resp. at 2). The language provides:
In the event the Petitioner is a citizens’ group that
participated in the siting proceeding and is so located
as to be affected by the proposed facility, such
petitioner shall be exçmpt from paying the costs of
preparing and certifying the record.
The petitioners, assert that they are citizens who reside in
the Village or in close proximity
to the affected site, or
actively participate in solid waste issues, and thus are directly
affected by the facility.
They assert that they are entitled to
a fee exemption, and claim that if the requested costs are
imposed
it
would force them to abandon
their petition. They also
assert that the Board hearing has already been scheduled and, if
the record is not timely filed prior to hearing, they will be
denied a fair hearing for lack of opportunity to review the
record. They state the Board is acting within its discretion in
its imposing the record requirements. (Pet. reply).
The Board finds that the petitioners clearly constitute a
citizens’ group as envisioned in the statute, and thus are not
required to ty the fee. The
legislative intent is clear.
On June 22, 1989, Senator Doris Karpiel sponsored an
amendment on 3rd reading to House Bill 98 to exempt citizens’
groups from the fee
payment
at issue here. Prior to the vote on
the bill, Senator Karpiel stated in pertinent part:
0138-0152
3
And if you will bear with me, I have told the Pollution
Control Board that I would read into the record the
meaning of “citizens groups.” It means a group of
individual citizens that have joined together to
participate in a regional pollution control facility
siting hearing. This group may be a voluntary
association that is formed on an ad hoc basis that may
or may not have a name or bylaws. It also can be a
group that has incorporated. It cannot be a husband
and wife or a family. It does not include the
—-
local
Chamber of Commerce, labor organizations, or township
board
of trustees. It also does not include persons
owning or operating a nearby competing landfill
facility, or units of local governments acting alone.
It has to be a true citizens group, such as the
Citizens Against the Bartlett Bale Fill in my district.
• State of Illinois 86th General Assembly Reaular Session
Senate Transcript 52nd legislative day. June 22. 1989.
/
The Bill passed with 55
—
0, with 1 present, and became P.A.
86—959. (Ibid).
The Board also finds that, even if the petitioners had not
been exempt from the fee, the Village has no authority to fail to
respond to a Board order because of a fee dispute flowing from a
provision in Section 39.2. We point out to the Village that it
is Section 40.1, not Section 39.2, of the Act, that governs
petitions for hearing before the Board, as is repeatedly stated
in the Board’s November 19th order. We also emphasize that if a
third party, or an applicant for that matter, files an appeal
pursuant to Section 40.1, that person has a right to be heard.
In that Section 40.1 provides that the hearing be based
exclusively on the record before the county or municipality, we
have held in every SB172 appeal, both before and after the fee
provisions were added to the statute, that it is the county or
municipality that must prepare and file the record.
The Village also asserts that there is no requirement in the
Act that it “file multiple copies of the record of proceedings
and that such record is to be compiled in accordance with Supreme
Court Rules”. The Village argues that, while the Board refers to
Supreme Court Rules for preparing of the record, Section 39.2(n)
of the Act refers to the Code of Civil Procedure. (R. 1,2).
Section 39.2(n) states in pertinent part:
Should the petitioner in the review proceeding fail to
make payment, the provisions of Section 3-109 of the
Code of Civil Procedure, as now or hereafter amended,
shall apply.
0138-0(53
4
This provision is clearly irrelevant, given our finding that
the citizens ‘group fee’ exemption applies in this case.
The Village states that if the Village is paid to prepare a
record it will make multiple copies “in compliance with the Board
order”. (Motion at 4,5). However, the Village also states that
if the Illinois Supreme Court can function with only one copy, so
can the Board “which uses a hearing officer”. (Motion at 5).
We first note that, whatever the point is for the Village’s
last comment,’ we remind the Village that the members of this
full time Board and its professional staff must review the record
after holding a hearing and take final action within a 120 day
time frame. In this case the Village itself has by its actions
foreshortened even that time frame. We also note that the
Board’s procedural rules require an original and 10 copies (see
35 Ill. Adm. Code 101.103 (b)). This order reduces that number,
in recognition of the volume of materials involved in these
records.
In any event, it is this Board’s authority and
responsibility to interpret the statute so as to give effect to
the appeal process in a manner that assures that its hearing and
deliberative process are not compromised.
Upon reconsideration, the Board affirms its November 19,
1992 Order.
We note that the Village never filed a motion for extension
,of time to file the record. Failure to file the record on or
before January 4, 1993 will subject the Village to sanctions
pursuant to 35 Ill. Adm. Code 101.280.
‘WSREC’s Motion to Dismiss Petitioner Quilty.
For the reasons expressed below, the Board denies WSRIC’s
motion to dismiss.
In support of its motion, WSREC asserts that Quilty has~no
standing to appeal because she did not participate in the
Village’s hearing.
There is no dispute that Quilty was physically in attendance
at the Village’s hearing, and that she did not otherwise
‘~articipate. (WSREC Reply at 3; Quilty Reply at 4 (unnumbered)).
cjuilty argues in part that the Village’s procedures prevented her
1
The Board notes that the hearing officer is not the
decisionmaker and issues no recommendations or findings in this
matter.
0138-01514
5
from actively participating and that the fundamental fairness of
the procedures are an issue on appeal.
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.”
The Act does not define what is meant by “participated”.
WSREC argues that if the legislature ‘had intended
“attendance” to constitute “participation”, it would have said
so. (Motion at 3). The Board notes that one could just as easily
argue that if the legislature had intended “testify or question”
to constitute participation, it would have said so. WSREC also
argues that mere attendance would make it difficult if not
impossible to ascertain whether any given petitioner satisfies
the “participated” requirement, given the potential for “ingress
and egress through multiple doors of a high school auditorium.”
(Motion at 3). One could just as easily respond that the hearing
process would be overwhelmed if everyone who wanted to be part of
a citizen appeal had to be allowed to testify or ask questions,
no matter bow repititious.
Alternatively,
if, in the interests
of maintaining an orderly process for example, the decisionmaker
would not allow all such persons to speak or ask questions, would
this not prejudice their right to appeal?
‘The Board has already dealt with what constitutes
“participated” in two prior SB 172 appeals, and in each case the
Board has held that attendance satisfies the requirement. (Board
of Trustees of Casner Township et al. and John Prior v. Couty of
Jefferson (April 4, 1985) PCB 84—175, 84—176 consolidated; Peter
Valessares et
p1.
v. The County Board of Kane County et p1. (July
16, ‘1987) PCB 87—36).
In çasfler, the Board stated:
...the question is whether this “mere” attendance is
sufficient. The Board believes that it is. One of the
clear purposes of the county level hearing requirement
in the SB 172 process is to encourage public
participation in siting decisions. Allowing public
access to environmental proceedings and the (sic)
encouraging citizen participation are some of the
fundamental policies of the Act. To require some higher
level of “participation” for a third party appeal would
discourage that clear policy.
(Casnerl at 6).
In Valessares, the Board first quoted Black’s Law
Dictionary~
,
which defines “participate” in pertinent part as:
0138-0155
6
PARTICIPATE. To receive or have a part or share of; to
partake of; experience in common with others; to have
or enjoy a part pr share in common with others;
partake; as to “participate” in a discussion. To take
a part in; as to participate in joys or sorrows.
(citations omitted). (Black’s Law Dictionary, 1275
(4th ed. 1968)).
The Board then stated:
This definition, especially the “experience in common
with others”, is sufficiently broad to cover those
individuals who take the time and effort to attend the
public hearing and listen to the testimony, even if
they do not ask questions or make statements on the
record. For these reasons the Board holds that
personal attendance at a county board hearing is
adequate participation to meet this element of
standing.
(Valessares at 6).
The Board thus construes the “participated” requirement as
satisfied for purposes of Donna Quilty’s standing to appeal. She
has shown that she physically appeared at the hearing.
The Board denies WSREC’s motion to dismiss.
IT IS SO
ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order ‘was
adopted on the /7~
of
__________________,
1992 by a
vote of
__________
~
Dorothy M. ~hn,
~l
Clerk
£~
Illinois Po~ution Control Board
0(38-0 156