ILLINOIS POLLUTION CONTROL BOARD
    June 8, 2000
    AMERICAN BOTTOM CONSERVANCY,
    EAST ST. LOUIS COMMUNITY ACTION
    NETWORK, KATHY ANDRIA, and JACK
    NORMAN,
    Petitioners,
    v.
    VILLAGE OF FAIRMONT CITY and
    WASTE MANAGEMENT OF ILLINOIS,
    INC.,
    Respondents.
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    PCB 00-200
    (Pollution Control Facility
    Siting Appeal)
    ORDER OF THE BOARD (by C.A. Manning):
    On May 24, 2000, petitioners filed an appeal pursuant to Section 40.1 of the
    Environmental Protection Act (Act) (415 ILCS 5/40.1 (1998)). This appeal arises from the
    decision of the Village of Fairmont City which approved local siting for Waste Management of
    Illinois of a proposed expansion of the Milam pollution control facility located in the Village of
    Fairmont City, St. Clair County, Illinois. The Board sets this matter for hearing.
    In the instant petition, petitioners challenge the Village of Fairmont City’s decision on
    grounds of lack of jurisdiction, fundamental unfairness, and failure to provide a complete copy
    of the application. Section 103.123(a) of the Board’s procedural rules, which implements
    Section 31(d) of the Act (415 ILCS 5/31(d) (1998)), provides that the Board determine whether
    this matter is duplicitous or frivolous. This section further states that if the complaint is
    duplicitous or frivolous, the Board shall enter an order setting forth its reasons for so ruling and
    shall notify the parties of its decision.
    An action before the Board is duplicitous if the matter is identical or substantially similar
    to one brought in another forum. Brandle v. Ropp (June 13, 1985), PCB 85-68. 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 Metal. Co. (May 17,
    1973), PCB 73-173.
    There is no evidence before the Board to indicate this matter is identical or substantially
    similar to any matter brought in another forum, nor is there any evidence that the Board cannot
    grant the relief requested. There is also no evidence before the Board to suggest that the
    petitioners are so located as to not be affected by the proposed facility. The petition indicates
    that the petitioners participated in the previous public hearing pursuant to the requirements of
    Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (1998)). At this time, therefore, the Board
    finds that the petition is neither duplicitous or frivolous, that the petitioners participated in the
    public hearing conducted by the Village of Fairmont City, and that the petitioners are or may be
    so located as to be affected by the proposed facility. Accordingly, this matter shall proceed to
    hearing.
    While the matter may properly proceed to hearing as both Kathy Andria and Jack
    Norman, as individuals, have standing to bring the action, there is an additional issue which
    must be addressed concerning representation of the American Bottom Conservancy (ABC) and
    the East St. Louis Community Action Network (ESLCAN) by Kathy Andria and Jack Norman.
    The petition relates that the American Bottom Conservancy and the East St. Louis Community
    Action Network are both not-for-profit public corporations incorporated in the state of Illinois
    (Pet. at 2). Kathy Andria and Jack Norman are described as directors of the ABC. Kathy
    Andria is also identified as the chairperson for ESLCAN.
    1
    Neither Kathy Andria nor Jack
    Norman are identified as being an attorney.
    Although the Board’s current procedural rules would allow ABC and ESLCAN to be
    represented by a non-attorney (see 35 Ill. Adm. Code 101.107(a)(2)), the Board recently held
    that these rules violated the provisions of the Attorney Act (705 ILCS 205/1 (1996)) and the
    Corporation Practice of Law Prohibition Act (705 ILCS 220/1 (1996)). See In the Matter of:
    Petition of Recycle Technologies, Inc. for an Adjusted Standard from 35 Ill. Adm. Code
    720.131(c) (July 10, 1997), AS 97-9 (hereinafter RTI). Specifically, the Board found that a
    non-attorney could not represent a corporation in an adjusted standard proceeding without
    violating both the Attorney Act and the Corporation Practice of Law Prohibition Act. The
    Board has also held that the rationale employed to find that a non-attorney was prohibited from
    representing a corporation in an adjusted standard proceeding applies equally to the situation
    presented in this matter. See Sierra Club and Jim Bensman v. City of Wood River and Norton
    Environmental (October 2, 1997), PCB 93-43 (hereinafter Bensman). Accordingly, ABC and
    ESLCAN must be represented by an attorney.
    Rather than dismissing ABC and ESLCAN from the action immediately as some case
    law would suggest, the Board finds that special circumstances of the type also found in RTI and
    Bensman apply here. Consistent with RTI and Bensman, the Board grants ABC and ESLCAN
    30 days in which to retain an attorney and for that attorney to file an amended petition in this
    case on ABC’s and ESLCAN’s behalf. If an amended petition and attorney’s appearance are
    not filed on or before July 8, 2000, ABC and ESLCAN will be dismissed from this action.
    Pursuant to Section 40.1(b) of Act, the hearing is to be based “exclusively on the record
    before the county board or governing body of the municipality.” Although the Act does not
    specifically state who is required to file such record with the Board, the Board believes that the
    Village of Fairmont City must prepare and file the record on appeal.
    1
    Although the petition also identifies Jack Norman as the chairperson of the Kaskaskia Group
    of the Sierra Club and its Conservation Chair, and states that he is authorized to “represent the
    Sierra Club before the Board,” The Sierra Club has not been named as a party. Pet. at 3.
    The record shall contain legible versions of all documents, transcripts, and exhibits
    deemed to pertain to this proceeding from initial filing through the including final action by the
    local government body. The record shall also contain the originals of all documents and shall
    be sequentially numbered, placing the letter “C” before the number of such page. In addition
    to the actual documents which comprise the record, the Village of Fairmont City Clerk shall
    also prepare a document entitled “Certificate of Record on Appeal” which shall be an index of
    the record that lists the documents comprising the record and shows the page numbers upon
    which they start and end. Seven copies of the certificate, seven copies of the transcript of
    Village of Fairmont City hearing, and three copies of any other documents in the record shall
    be filed with the Board; a copy of the certificate shall be served upon the petitioner. The
    Village of Fairmont City Clerk is given 21 days from the date of this order to “prepare, bind
    and certify the record on appeal.” See 155 Ill. 2d R. 324. If the record is not legible,
    sequentially numbered, or fails to include an appropriate index of record, the Clerk of the
    Board may refuse to accept the document for filing. For further guidance in preparing and
    filing the record on appeal, the Village of Fairmont City may refer to the Illinois Supreme
    Court Rules 321 through 324. See 155 Ill. 2d R. 321-324.
    Section 40.1(a) of the Act provides that if there is no final action by the Board within
    120 days, “petitioner may deem the site location approved.” Section 40.1(b) of the Act, under
    which this action is brought, states only that “the Board shall hear the petition in accordance
    with the terms of subsection (a) of this Section and its procedural rules governing denial
    appeals.”
    The Board has construed identical “in accordance with the terms of” language contained
    in Section 40.1(b) of the Act concerning third-party appeals of the grant of hazardous waste
    landfill permits as giving the person who had requested the permit: (a) the right to a decision
    within the applicable statutory timeframe (now 120 days), and (b) the right to waive the decision
    period. See Alliance for a Safe Environment v. Akron Land Corp. (October 30, 1980), PCB
    80-184. The Board therefore construes Section 40.1(b) in like manner, with the result that
    failure of this Board to act in 120 days would allow the site location applicant to deem the site
    location approved.
    A hearing on the petition should be timely scheduled in order to allow the Board time to
    review the record and to render its decision within 120 days of the filing of the appeal.
    Petitioner may, however, waive the statutory decision deadline pursuant to 35 Ill. Adm. Code
    101.105. Absent any future waivers of the statutory decision deadline, the statutory decision
    deadline is September 21, 2000. This matter will be handled at the Board meeting preceding
    that date.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 8th day of June 2000 by a vote of 7-0.
    ---+-++++
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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