ILLINOIS POLLUTION CONTROL BOARD
    November 20, 1986
    RICK MOORE, LEONARD MORRIS AND
    )
    EDITH SIMPSON,
    )
    Petitioners,
    v.
    )
    PCB 86—197
    WAYNE COUNTY BOARD AND
    )
    DAUBS LANDFILL, INC.,
    Respondents.
    ORDER OF THE BOARD (by 3. Anderson):
    This action is a third—party appeal filed November 6, 1986,
    pursuant to Section 40.1(b) of the Environmental Protection Act
    (“Act”) (Ill. Rev. Stat. Ch. 111—1/2, par. 1040.1(b).
    Petitioners appeal the decision of the Wayne County Board
    approving site location suitability approval.
    By Order of November 6, 1986, the Board directed petitioners
    to file an amended petition and all parties to file memoranda
    concerning the timeliness of the filing of the petition for
    appeal. The following pleadings have been filed in response to
    that Order: separate motions to dismiss filed November 18 by the
    Wayne County Board (County) and Daubs Landfill, Inc. (Daubs); a
    letter received November 19, 1986 from petitioner Rick Moore
    requesting an extension of time to reply; and two November 19
    filings from petitioner’s attorney, which are an amended petition
    and a memorandum concerning the timeliness of filing.
    The Board will first address Mr. Moore’s letter. Due to his
    inability to contact his attorney to determine whether timely
    filings had been made in his behalf, Mr. Moore himself made a
    partial response to the Board’s Order, requested additional time
    to provide additional information, and asked that he be
    personally served in this matter. The Board appreciates Mr.
    Moore’s concerns regarding the timely progression of his action,
    and advises him that no extension of time is necessary as the
    filings required on the November 6 Order have been made on his
    behalf. Further, the Board will transmit courtesy copies of its
    Orders in this matter to Mr. Moore at his home address via first—
    class mail. The Board cannot, however, undertake to mail Mr.
    Moore copies of all filings made by all other parties in this
    matter, and will not order that Mr. Moore as well as his attorney
    be personally served by all other parties in this action, as
    communications to a party who is represented by any attorney are
    properly made through that attorney.
    74-118
    —2—
    The Board notes that it is the professional responsibility
    of petitioners’ attorney not only to timely take all actions
    necessary to press his client’s action, but also to maintain
    appropriate communication with those clients concerning the
    progress of the case. The Board cautions counsel to take
    appropriate steps to fulfill his responsibilities.
    As to the issue of the timeliness of the filing of this
    appeal, all parties are in agreement that the County’s decision
    was rendered on September 30, 1986, that Section 40.1(b) of the
    Act provides for the filing of third—party appeals within 35 days
    of that decision, and that November 4 is the 35th day following
    that decision. However, as November 4 was a legal holiday,
    pursuant to Section 101.105(b) of the Board’s Procedural Rules,
    the due date for filing was extended until November 5. Yet, the
    petition was not received by the Board until November 6.
    By affidavit attached to the supplemental petition,
    petitioner asserts that the petition was mailed on November 3,
    and in its memorandum asserts that the Board should consider the
    date of filing as the postmark date consistent with the so—called
    “mailbox rule” contained in Supreme Court Rule 373.
    In an action involving a permit appeal pursuant to Section
    40 of the Act which provides a 35 day appeal period similar to
    that of Section 40.1(b), the Board construed the adoption of a
    limited version of the mailbox rule as appropriate to further the
    purposes of the Act. In that case, Interstate Pollution Control,
    Inc. v. IEPA, PCB 86—19, Order or March 27, 1986, the Board
    stated that:
    “as to actions which must be commenced by a person
    within a statutorily defined time period, the Board
    will deem the initial pleading to be timely
    received if the accompanying certificate of service
    states that service was commenced before the
    expiration of the statutory period. However, the
    Board will continue to calculate its own decision
    period as commencing the day after the Board’s
    actual receipt of the petition.”
    In recognition of its rationale in Interstate, as well as of
    the precedents cited by petitioners in their memorandum, the
    Board reaches a similar result here. The Board will deem the
    November 6 petition which was mailed on November 3 as timely
    received on November 5. The Board’s decision deadline will be
    calculated as commencing November 7.
    Respondent’s motions to dismiss are denied. The Clerk is
    directed to provide all parties with a copy of the Interstate
    ruling.
    74-119
    —3—
    This petition is accepted for hearing, and shall proceed
    according to the procedural directives contained in the Board’s
    Order of November 6, 1986.
    IT IS SO ORDERED.
    3. T. Meyer dissented.
    I, Dorothy M. Gurin, Clerk of the Illinois Pollution Control
    Board, hereby certify tti4t the above Order was adopted on
    the ~=~‘~Z day of ______________________, 1986, by a vote
    of .5~—/
    .
    Dorothy M./Gunn, Clerk
    Illinois Pollution Control Board
    74.120

    Back to top