ORDER OF THE BOARD (by C.A. Manning):

 

The Board has received three separate petitions requesting the Board to review an

August 19, 2002, decision of the City Council of the City of Kankakee (City). In its decision, the

City granted the application of Town & Country Utilities, Inc. and Kankakee Regional Landfill,

L.L.C. (Town & Country) to site a pollution control facility. The proposed facility, a landfill,

consists of approximately 400 acres located in Otto Township within the municipal boundaries

of the City of Kankakee.

 

The County of Kankakee and Edward D. Smith, States Attorney of Kankakee County

(the County); Byron Sandberg (Sandberg); and Waste Management of Illinois, Inc. (Waste

Management), in case numbers PCB 03-31, PCB 03-33, and PCB 03-35 respectively, appeal on

common grounds. All three petitioners argue that the procedures the City used to reach its siting

decision were fundamentally unfair, and that the City’s findings on several statutory siting

criteria were not supported by the manifest weight of the evidence. Each petitioner contends, for

example, that the manifest weight of the evidence does not show that the proposed landfill is

designed, located, and proposed to be operated so as to protect public health, safety, and welfare.

See

415 ILCS 5/39.2(a)(ii) (2000)

as amended by

P.A. 92-0574, eff. June 26, 2002.

Additionally, the County argues that the City lacked jurisdiction over Town & Country’s

application.

 

For the reasons set forth below, the Board accepts all three petitions and consolidates

them for hearing. The Board addresses procedural issues before turning to the petitions.

 

PROCEDURAL ISSUES

 

Concurrent with his petition for review of the City’s decision, Sandberg requested that

the Board waive the filing fee. The Environmental Protection Act (Act) (415 ILCS 5/1

et seq

.

(2000)) states that “[a]ny person who files a petition to contest a decision of the . . . governing

body of the municipality shall pay a filing fee.” 415 ILCS 5/40.1(c) (2000

as

 

amended by

P.A.

92-0574, eff. June 26, 2002. The Act requires a $75 filing fee to contest a local siting decision.

See

415 ILCS 5/7.5 (2000). The Board cannot waive the mandatory filing fee and consequently

denies Sandberg’s request for waiver.

 

Also, the Board notes that Sandberg is the only named petitioner in docket PCB 03-33.

Seven other citizens signed Sandberg’s petition; however, those citizens are not parties to this

siting appeal. The remaining signatories may participate in this proceeding through public

comment and any other means prescribed in the Board’s procedural rules.

See

35 Ill. Adm. Code

107.404.

 

Finally, nothing in Sandberg’s petition indicates that he is an attorney, yet he refers to

himself as the “[c]ontact person” for the signatories. Sandberg Petition at 2. To be clear,

because Sandberg is not an attorney, he is allowed to represent only himself. Under Illinois law,

an individual who is not an attorney, may not represent any other individuals or entities before

the Board.

See

35 Ill. Adm. Code 101.400(a);

see also

Sierra Club v. City of Wood River, PCB

98-43, slip op. at 2 (Oct. 2, 1997).

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3

 

THIRD-PARTY APPEALS

 

Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (2000)

as amended by

P.A. 92-0574, eff.

June 26, 2002) allows certain third parties to appeal a local government decision granting

approval to site a pollution control facility. Third parties who participated in the local

government’s public hearing and who are so located as to be affected by the proposed facility

may appeal the siting decision to the Board. 415 ILCS 5/40.1(b) (2000)

as amended by

P.A. 92-

0574, eff. June 26, 2002; 35 Ill. Adm. Code 107.200(b). The petition for review must, among

other things, specify the grounds for appeal and include a copy of the local government’s siting

decision. 35 Ill. Adm. Code 107.208. The third party must file the petition within 35 days after

the local government approves siting. 415 ILCS 5/40.1(b) (2000)

as amended by

P.A. 92-0574,

eff. June 26, 2002; 35 Ill. Adm. Code 107.204. Unless the Board determines that the third

party’s petition is “duplicative or frivolous,” the Board will hear the petition. 415 ILCS

5/40.1(b) (2000)

as

 

amended by

P.A. 92-0574, eff. June 26, 2002; 35 Ill. Adm. Code 107.200(b).

 

All three petitioners state that they appeared and participated in the City’s public hearing.

The petitioners specify the grounds for the appeal and include a copy of the City’s siting

decision. Each petition meets the content requirements of 35 Ill. Adm. Code 107.208. In

addition, the County filed its petition on September 20, 2002, while Sandberg and Waste

Management filed their petitions on September 23, 2002. Therefore, each petitioner filed its

petition within 35 days after the City’s August 19, 2002 decision.

 

HEARING AND DECISION DEADLINE

 

An action before the Board is duplicative if it is “identical or substantially similar to one

brought before the Board or another forum.” 35 Ill. Adm. Code 101.202. An action before the

Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”

or “fails to state a cause of action upon which the Board can grant relief.”

Id.

No evidence

before the Board indicates that any of the three actions are duplicative or frivolous. The Board

accepts the third-party petitions for hearing.

 

On its own motion, the Board consolidates all three appeals for hearing. Each petition

involves the same burden of proof and addresses common issues and respondents. Thus, for

reasons of administrative economy, consolidation is appropriate.

See

Sierra Club v. Will County

Bd., PCB 99-136, 99-139, 99-140, 99-141 (consol.), slip op. at 3 (Apr. 15, 1999).

 

Petitioners have the burden of proof. 415 ILCS 5/40.1(b) (2000)

as

 

amended by

P.A. 92-

0574, eff. June 26, 2002;

see also

35 Ill. Adm. Code 107.506. The record before the City will be

the exclusive basis for all hearings except when considering issues of fundamental fairness or

jurisdiction. 415 ILCS 5/40.1(b) (2000)

as

 

amended by

P.A. 92-0574, eff. June 26, 2002.

Hearings will be scheduled and completed in a timely manner, consistent with the decision

deadline (

see

415 ILCS 5/40.1(a), (b) (2000)

as amended by

P.A. 92-0574, eff. June 26, 2002),

which only Town & Country may extend by waiver (35 Ill. Adm. Code 107.504;

see also

35 Ill.

Adm. Code 101.308). If the Board fails to take final action by the decision deadline, Town &

Country “may deem the site location approved.” 415 ILCS 5/40.1(a) (2000)

as amended by

P.A.

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4

92-0574, eff. June 26, 2003. Currently, the decision deadline is January 18, 2003, for the

County’s petition (the 120th day after September 20, 2002) and January 21, 2003, for Sandberg’s

and Waste Management’s petitions (the 120th day after September 23, 2003).

See

35 Ill. Adm.

Code 107.504. The Board meeting immediately before either decision deadline is currently

scheduled for January 9, 2003.

 

THE CITY’S RECORD

 

The City must file the entire record of its proceedings within 21 days after the date of this

order. The record must comply with the content and certification requirements of 35 Ill. Adm.

Code 107.304, 107.308. Because Sandberg is an individual citizen, he is “exempt from paying

the costs of preparing and certifying the record.” 415 ILCS 5/39.2(n) (2000); 35 Ill. Adm. Code

107.306. However, the County and Waste Management must pay to the City the cost of

preparing and certifying the record. 415 ILCS 5/39.2(n) (2000)

as amended by

P.A. 92-0574,

eff. June 26, 2002; 35 Ill. Adm. Code 107.306.

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on October 3, 2002, by a vote of 5-0.

 

 

  

  

  

  

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board