ILLINOIS POLLUTION CONTROL BOARD
October 2, 1997
SIERRA CLUB and JIM BENSMAN,
Petitioners,
v.
CITY OF WOOD RIVER and NORTON
ENVIRONMENTAL,
Respondents.
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PCB 98-43
(Landfill Siting Review)
ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on an appeal filed pursuant to Section 40.1(b) of the
Environmental Protection Act (Act) (415 ILCS 5/40.1(b) (1996)) on September 22, 1997, by
the Sierra Club and Jim Bensman (petitioners) from the August 18, 1997 decision of the City
of Wood River (City) granting local siting approval to Norton Environmental for the pollution
control facility located in Madison County.
The cited section of the Act requires the Board to hear the instant petition if it has been
filed by a third party other than the applicant if the party participated in the public hearing
conducted by the county board or municipal governing body which granted siting approval,
unless it determines that the petition is duplicitous or frivolous, or that the petitioner is so
located as to not be affected by the proposed facility. 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.
The petition indicates that the Sierra Club and Jim Bensman each participated in the
City’s public hearing. 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.
Therefore, the Boards finds, pursuant to 35 Ill. Adm. Code 103.124(a), that the complaint is
neither duplicitous nor frivolous, that the petitioners participated in the prior public hearing,
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.
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INVALIDITY OF REPRESENTATION OF SIERRA CLUB BY JIM BENSMAN
While the matter may properly proceed to hearing as both parties have standing to
bring the action, there is an additional issue which must be addressed concerning
representation of the Sierra Club by Jim Bensman. The petition relates that the Sierra Club is
a not-for-profit public benefit corporation incorporated in the state of California (Pet. at 2).
Jim Bensman is described, among other things “as a member of the Executive Committee of
the Piasa Palisades Group of the Sierra Club and its Conservation Chair. He is authorized to
represent the Sierra Club before the Board.” Pet. at 2. He is not described as being an
attorney.
Although the Board’s current procedural rules would allow the Sierra Club 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 believes 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. Accordingly, the Sierra Club must be represented by an attorney.
Rather than dismissing the Sierra Club from the action immediately as some case law
would suggest, the Board finds that special circumstances of the type also found in RTI apply
here. Consistent with RTI, the Board grants the Sierra Club 30 days in which to retain an
attorney and for that attorney to file an amended petition in this case on the Sierra Club’s
behalf. If an amended petition and attorney’s appearance are not filed on or before October
31, 1997, the Sierra Club will be dismissed from this action.
The Board stresses that under the Attorney Act and the Board’s rules, individuals such
as Jim Bensman may continue to represent themselves in adjudicatory proceedings before the
Board without aid of attorney. See 705 ILCS 205/11 (1996); 35 Ill. Adm. Code
101.107(a)(1). Since there is no question as to Mr. Bensman’s standing or ability to represent
himself in this action, the statutory decision deadline will continue to be calculated from the
date of his filing of the petition on September 22, 1997, unless an acceptable waiver is filed by
Norton Environmental. (See “Waiver of the Decision Deadline” below.)
RECORD BEFORE THE CITY OF WOOD RIVER
P.A. 82-682, also known as SB-172, as codified in Section 40.1(a) of the Act (415
ILCS 5/40.1(a) (1996)), provides that the hearing before the Board is to “be based exclusively
on the record before the county board or the governing body of the municipality.” The statute
does not specify who is to file with the Board such record or who is to certify to the
completeness of the correctness of the record.
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As the City alone can verify and certify what exactly is the entire record before it, in
the interest of protecting the rights of all parties to this action, and in order to satisfy the
intention of SB-172, the Board believes that the City must be the party to prepare and file the
record on appeal. The Board suggests that guidance in so doing can be had by reference to
Rules 321 through 324 of the Illinois Supreme Court. 107 Ill. 2d R. 321-324. The record
shall contain legible versions of all documents, transcripts, and exhibits deemed to pertain to
this proceeding from initial filing through and including final action by the local government
body. The record shall contain the originals of all documents, shall be arranged as much as
possible in chronological sequence, and shall be sequentially numbered, placing the letter “C”
before the number of each page. In addition to the actual documents which comprise the
record, the 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 number upon which they start and end. The original and nine copies of
the certificate shall be filed with the Board, and a copy of the certificate shall be served upon
the petitioner(s). The original and nine copies of the transcript of the local hearing and the
original and three copies of any other documents in the record shall be filed with the Board.
The Clerk of the City of Wood River is given 21 days from the date of this order to “prepare,
bind and certify the record on appeal” (107 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
Pollution Control Board may refuse to accept the document for filing.
WAIVER OF THE DECISION DEADLINE
Section 40.1(a) of the Act (415 ILCS 5/40.1(a) (1996)) provides that if there is no final
action by the Board within 120 days, petitioner may deem the site location approved.
The Board has construed identical “in accordance with the terms of” language
contained in Section 40(b) of the Act (415 ILCS 5/40(b) (1996)) concerning third-party
appeals of the grant of hazardous waste landfill permits as giving the person who had requested
the permit: (1) the right to a decision within the applicable statutory time frame (now 120
days), and b) the right to waive (extend) the decision period (Alliance for a Safe Environment,
et al
. v. Akron Land Corp.
et al.
(October 30, 1980), PCB 80-184). The Board therefore
construes Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (1996)) 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. Pursuant to Section 105.104 of the Board’s Procedural Rules
(35 Ill. Adm. Code 105.104), it is each party’s responsibility to pursue its action, and to insist
that a hearing on the petition is timely scheduled in order to allow the Board to review the
record and to render its decision within 120 days of the filing of the petition.
TRANSCRIPTION COSTS
The issue of who has the burden of providing transcription in Board site location
suitability appeals has been addressed in Town of Ottawa,
et al
. v. IPCB,
et al
., 129 Ill. App.
3rd, 472 N.E. 2d 150 (3rd District, 1984). In that case, the Appellate Court ordered the
Board to assume transcription costs (Ottawa, 472 N.E.2d at 155). The Illinois Supreme Court
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denied leave to appeal on March 14, 1985. In cognizance of this ruling, the Board will
provide for stenographic transcription of the Board hearing in this matter.
SCHEDULING AND CONDUCT OF THE HEARING
The hearing must be scheduled and completed in a timely manner, consistent with
Board practices and the applicable statutory decision deadline, or the decision deadline as
extended by waiver (the siting applicant may file a waiver of the statutory decision deadline
pursuant to 35 Ill. Adm. Code 101.105). The Board will assign a hearing officer to conduct
hearings consistent with this order, and the Clerk of the Board shall promptly issue appropriate
directions to that assigned hearing officer.
The assigned hearing officer shall inform the Clerk of the Board of the time and
location of the hearing at least 30 days in advance of hearing so that a 21-day public notice of
hearing may be published. After hearing, the hearing officer shall submit an exhibit list, a
statement regarding credibility of witnesses, and all actual exhibits to the Board within five
days of the hearing.
Any briefing schedule shall provide for final filings as expeditiously as possible and, in
time-limited cases, no later than 30 days prior to the decision due date, which is the final
regularly scheduled Board meeting date on or before the statutory or deferred decision
deadline. Absent any future waivers of the decision deadline, the statutory decision deadline is
now January 20, 1998 (120 days from September 22, 1997); the Board meeting immediately
preceding the decision deadline is scheduled for January 8, 1998.
If after appropriate consultation with the parties, the parties fail to provide an
acceptable hearing date or if after an attempt the hearing officer is unable to consult with the
parties, the hearing officer shall unilaterally set a hearing date in conformance with the
schedule above. The hearing officer and the parties are encouraged to expedite this proceeding
as much as possible.
IT IS SO ORDERED.
Board Members G.T. Girard and J. Theodore Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 2nd day of October 1997, by a vote of 5-2.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
