ILLINOIS POLLUTION CONTROL BOARD
July 24, 2003
CITIZENS AGAINST LANDFILL
EXPANSION,
Complainant,
v.
AMERICAN DISPOSAL SERVICES OF
ILLINOIS, INC. and LIVINGSTON
COUNTY BOARD,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 03-236
(Citizens Enforcement - Noise)
ORDER OF THE BOARD (by T.E. Johnson):
On June 24, 2003, Citizens Against Landfill Expansion (CALE) timely filed a petition
asking the Board to review a May 15, 2003, decision of the Livingston County Board (County
Board) approving the application of American Disposal Services of Illinois, Inc. (American
Disposal) to expand the Livingston County Landfill. On July 7, 2003, American Disposal filed a
motion to dismiss. On July 18, 2003, CALE filed a response to the motion. Also on July 18,
2003, CALE filed a motion for leave to amend the petition for review. For the reasons below,
the Board denies American Disposal’s motion and accepts CALE’s petition for hearing. CALE’s
motion for leave to amend is denied as moot.
MOTION TO DISMISS
American Disposal argues that the Board should dismiss the petition because CALE, an
unincorporated voluntary association of residents, did not participate in the siting hearings before
the county board, as required by Section 40.1(b) of the Environmental Protection Act (Act).
Mot. at 1, 415 ILCS 5/40.1(b) (2002). American Disposal states that Section 40.1(b) provides in
part:
a third party other than the applicant who participated in the public hearing
conducted by the county board or governing body of the municipality may
petition the Board within 35 days for a hearing to contest the approval of the
county board or governing body of the municipality. Mot. at 1, citing 415 ILCS
40.1(b) (2002).
American Disposal argues that Carolyn Gerwin, the attorney who filed the petition for CALE,
only participated at the hearings as an individual objector, and she is therefore only entitled to
bring the petition as an individual. Mot. at 1.
2
In support of its motion, American Disposal attaches Gerwin’s entry of appearance for
the siting hearings, where she indicated she would be participating as a witness and an objector.
Mot. at 2, Exh. A. American Disposal notes that Gerwin did not mention she was representing
any other people or groups. Mot. at 2.
American Disposal also argues that during the hearings, Gerwin “vaguely indicated” that
she was acting as the attorney for some other objectors, but did not name those individuals. Mot.
at 2. Referencing the hearing transcript, American Disposal argues that Gerwin identified herself
to the hearing officer as “Carolyn Gerwin on behalf of myself and several private citizens.” Mot.
at 2, Exh. B. Also at hearing, Gerwin stated “My name is Carolyn Gerwin, and I am here today
officially as an objector and as objectors’ counsel.” Mot. at 2, Exh. C.
American Disposal argues that CALE was only referenced twice during the hearings.
CALE was mentioned by Julie Russow in an unsworn comment. Mot. at 2, Exh. E. Russow
stated “And this is the kind of activity that Citizens Against Landfill Expansion would like to see
our own county officials take.” Exh. E. Gerwin included CALE in a question to one of
American Disposal’s witnesses. Mot. at 2, Exh. F. Specifically, Gerwin asked, “That figure
appeared on some of the materials that our Objector's group or CALE had circulated, right?”
Exh. F.
American Disposal concludes that there was no indication that Gerwin was representing
anyone other than herself at the hearings. Mot. at 3.
RESPONSE
CALE Members’ Participation
CALE responds that it participated in all aspects of the siting process through its
members and counsel. Resp. at 2. Specifically, CALE states that Doris Burnside, Julie Russow,
Phyllis Ryan and Barb Christensen are all members of CALE, and they participated at the
hearings. Resp. at 2. Burnside sat at the objectors’ table with Gerwin, CALE’s counsel, during
the five days of testimony. Resp. at 2, Exh. A. Burnside also made a public comment and
submitted documents at the hearings. Resp. at 2, Exh. A.
CALE further argues that Russow made a public comment at the hearings and submitted
a written comment. Resp. at 2, Exh. B. Russow also attended all the afternoon and evening
sessions of the hearings. Resp. at 2. CALE notes that American Disposal acknowledges that
Russow directly referenced CALE in her public comments. Resp. at 2, Exh. B.
CALE states that Ryan and Christensen made public comments. Resp. at 2, Exh. C.
CALE also states that Burnside, Russow, Christensen and Gerwin represented other CALE
members who did not attend the hearings. Resp. at 2, Attachment 2.
3
Gerwin’s Participation
CALE argues that the county board’s siting ordinance does not indicate that an
unincorporated, voluntary association of citizens must file a formal “entry of appearance.” Resp.
at 2. Specifically, the ordinance requires that “members of the public who desire to be
participants in the hearing must submit written notification . . . to the County Clerk ten days
before the first day of the public hearing.” Resp. at 2, Exh. E. CALE states that Gerwin
provided notice of her intent to participate, and American Disposal acknowledged her notice.
Resp. at 2-3; Mot. at 2.
CALE argues that Gerwin presented witnesses on CALE’s behalf. Resp. at 3, Exh. F.
Specifically, Professor Sondra Sixberry testified for CALE. Resp. at 3, Exh. F. Additionally,
during hearing, Gerwin stated, in regard to Professor Sixberry, that “She's providing services not
to the governmental body but to our citizens group . . .” Resp. 3, Exh. F. CALE notes that no
one questioned the reference to the citizens group or asked that the group be further identified.
Resp. at 3.
CALE argues that American Disposal knew that Gerwin, Burnside and Russow were
leaders for CALE. Resp. at 3. Gerwin presented copies of petitions opposing the landfill’s
expansion when American Disposal began to apply for the expansion. Resp. at 3, Exh. A.
Additionally, members of CALE, including Gerwin and Burnside twice met with landfill
representatives at the landfill's offices. Resp. at 3, Exh. A. In sum, CALE claims that its
existence and leadership were known to all of the parties before, during and after the hearings.
Resp. at 3.
Exemption from the fee for certification of record
CALE argues that because it participated at the hearings as an informal association of
concerned citizens, CALE may claim the exemption under Section 39.2(n) of the Act and not
pay the costs of preparing and certifying the record. Resp. at 4.
MOTION FOR LEAVE TO AMEND PETITION FOR REVIEW
On July 18, 2003, CALE also filed a motion for leave to amend the petition for review to
add individual members of CALE as additional petitioners, if the Board grants American
Disposal's motion to dismiss. As the Board discusses below, the motion to dismiss is denied, and
therefore the motion for leave to amend is denied as moot.
ANALYSIS
The Board has previously found that “mere” attendance at a local hearing is sufficient to
confer standing to appeal. Alice Zeman
et al.
v. Village of Summit, PCB 92-174 and 92-177
(cons.) (Dec. 17, 1992). The record is clear that Gerwin and identified members of CALE
attended the siting hearings conducted by the county board, and therefore have standing to
appeal. The only question is whether they have standing to appeal on behalf of CALE.
4
The record shows that Gerwin indicated that she was representing herself and other
private citizens at the siting hearings. Specifically, Gerwin suggested that CALE was the group
she was representing when she referred to CALE as “our objectors group” during questioning of
one of American Disposal's witnesses. Gerwin also stated that Professor Sixberry was providing
services to “our citizens group.” In her opening statement, Gerwin stated she was there as “an
objector and as objectors' counsel.” Moreover, members of CALE participated at the hearings,
and Russow specifically mentioned CALE in her public comments.
The Board finds there is evidence in the record showing that CALE participated at the
underlying hearings. Not only did Gerwin represent herself and CALE at the hearings, but
CALE was also represented by individual members. Accordingly, CALE satisfied the
requirements for an appeal under Section 40.1(b) of the Act. Therefore, pursuant to Section
39.2(n) of the Act, CALE is exempt from paying the costs of preparing and certifying the record.
The Board denies American Disposal’s motion to dismiss and finds CALE's motion to
amend the petition moot.
ACCEPT FOR HEARING
Under the Act, before the Illinois Environmental Protection Agency can issue a permit to
develop or construct a new or expanding pollution control facility, the permit applicant must
obtain siting approval for the proposed facility from the local government (
i.e.
, the county board
if in an unincorporated area or the governing body of the municipality if in an incorporated area).
If the local government denies siting or approves siting with conditions, the siting applicant may
appeal the local government’s decision to the Board.
See
415 ILCS 5/39(c), 40.1(a) (2002); 35
Ill. Adm. Code 107.
In this case, the county board granted American Disposal’s application for expansion of
the Livingston Landfill located in Pontiac, Livingston County. CALE appeals on the grounds
that (1) the county board lacked jurisdiction; (2) the procedures used by the county board to
reach its siting decision were not fundamentally fair; and (2) the county board's decision was
against the manifest weight of the evidence as to criteria (i), (ii), (iii) and (viii). 415 ILCS
39.2(a) (2002)
The Board accepts the petition for hearing. CALE has the burden of proof. 415 ILCS
5/40.1(a) (2002);
see also
35 Ill. Adm. Code 105.506. Hearings will be based exclusively on the
record before Livingston County Board. Accordingly, though the Board hearing affords
petitioner the opportunity to challenge the local government’s reasons for its decision,
information developed after the local government’s decision typically is not admitted at hearing
or considered by the Board. However, if relevant, evidence may be introduced on (1) the local
government’s jurisdiction over the siting application; and (2) the fundamental fairness of the
procedures used by the local government in reaching its decision.
See
415 ILCS 5/40.1(a)
(2002); Land & Lakes v. PCB, 319 Ill. App. 3d 41, 48, 743 N.E.2d 188, 194 (3d Dist. 2000).
Hearings will be scheduled and completed in a timely manner, consistent with the
5
decision deadline (
see
415 ILCS 5/40.1(a) (2002)), which only American Disposal may extend
by waiver.
See
35 Ill. Adm. Code 107.504; 35 Ill. Adm. Code 101.308). If the Board fails to
take final action by the decision deadline, American Disposal “may deem the site location
approved.” 415 ILCS 5/40.1(a) (2002).
Currently, the decision deadline is October 22, 2003 (the 120th day after June 24, 2003).
See
35 Ill. Adm. Code 107.504. The Board meeting immediately before the decision deadline is
scheduled for October 16, 2003. The Livingston County Board must file the entire record of its
proceedings within 21 days after the date of this order.
See
35 Ill. Adm. Code 107.302. The
record must comply with the content and certification requirements of 35 Ill. Adm. Code
107.304, 107.308. Although 35 Ill. Adm. Code 107.304(c) sets forth the number of copies to be
filed, the Livingston County Board may file five copies of the hearing transcript, and one
original and five copies of all other documents in the record with the Board. Pursuant to Section
39.2(n) of the Act, CALE is exempt from paying the costs of preparing and certifying the record.
415 ILCS 39.2(n) (2002).
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
