ILLINOIS POLLUTION CONTROL BOARD
October 7, 2004
JANIS ROSAUER and BATAVIA ILLINOIS
RESIDENTS OPPOSED TO SITING OF
WASTE TRANSFER STATION,
Petitioners,
v.
ONYX WASTE SERVICES MIDWEST, INC.
and CITY OF BATAVIA, ILLINOIS,
Respondents.
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PCB 05-1
(Third-Party Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by T.E. Johnson):
For the reasons provided in this order, the Board grants the motion for summary
judgment of siting applicant Onyx Waste Services Midwest, Inc. (Onyx). The third-party
petitioners, Janis Rosauer and “Batavia Illinois Residents Opposed to Siting of Waste Transfer
Station,” do not meet the standing requirements of the Environmental Protection Act (Act) (415
ILCS 5 (2002)). Because the third-party petitioners lack standing to appeal the City of Batavia’s
(City) decision granting siting approval to Onyx for a waste transfer station, the Board lacks
jurisdiction and therefore dismisses this appeal.
Below, the Board will first describe the procedural history of this case before discussing
and ruling on Onyx’s motion for summary judgment.
PROCEDURAL HISTORY
On July 12, 2004, a petition was filed with the Board on behalf of an organization called
“Batavia Illinois Residents Opposed to Siting of Waste Transfer Station” (Batavia Residents),
asking the Board to review a pollution control facility siting decision made by the City. The
petition was filed by one Batavia resident, Janis Rosauer, and includes a list of Batavia resident
signatures supporting the petition. In the City’s June 7, 2004 siting decision, the City granted
Onyx’s application to site a waste transfer station in Batavia, Kane County.
In a July 22, 2004 order, the Board found that the petition was timely because it was filed
within 35 days after the City’s action to approve siting. However, the Board held that it could
not accept the petition for hearing at that time because of several procedural deficiencies with the
petition. Specifically, the petition did not state the statutory prerequisites for third-party standing
to bring a siting appeal, nor did the petition state all of the grounds for appeal. Additionally, the
petition was filed by an individual, Ms. Rosauer, who was not identified as an attorney. The
Board stated that under its procedural rules, though an individual may represent himself or
2
herself, a non-attorney cannot represent an organization or other persons in an adjudicatory
proceeding before the Board.
The Board granted Ms. Rosauer leave to file an amended petition by August 23, 2004, to
cure the identified deficiencies. The Board further held that the amended petition must be filed
either (1) by an attorney on behalf of the organization or on behalf of Ms. Rosauer, or (2) by Ms.
Rosauer solely on her own behalf. In addition, the Board noted that the filing of an amended
petition would restart the 120-day statutory period for the Board to decide the appeal.
On August 23, 2004, based on the original petition, Onyx filed a motion for summary
judgment or, alternatively, a motion to reconsider the July 22, 2004 order of the Board. Also on
August 23, 2004, through an attorney, Ms. Rosauer and Batavia Residents filed an amended
petition to contest the City’s grant of siting. On September 2, 2004, to address the amended
petition, Onyx filed an amended motion for summary judgment or, alternatively, a motion to
reconsider the July 22, 2004 order. To date, neither Ms. Rosauer nor Batavia Residents has filed
a response to either of Onyx’s motions.
1
DISCUSSION
The Board first gives background on pollution control facility siting under the Act. The
Board then discusses the amended petition and the amended motion for summary judgment
before ruling on the motion.
Statutory Framework
Under the Act, before the Illinois Environmental Protection Agency can issue a permit to
develop or construct a new pollution control facility, such as a waste transfer station, the permit
applicant must obtain siting approval for the 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). Section 39.2 of the Act (415 ILCS 5/39.2 (2002)), commonly referred to as “S.B. 172” for
the originating legislation, provides the process through which the local government must decide,
based on nine statutory criteria, whether to approve or disapprove a request to site a new
pollution control facility.
To receive siting approval, the siting applicant must demonstrate to the local government
that the proposed facility meets all nine criteria.
See
415 ILCS 5/39.2(a)(i)-(ix) (2002). The
criteria include whether the proposed facility is designed, located, and proposed to be operated to
protect public health, safety, and welfare; and whether it is located so as to minimize
incompatibility with the character of the surrounding area.
See
415 ILCS 5/39.2(a)(ii), (iii)
(2002). If the local government denies or conditionally grants siting, the applicant may appeal
the decision to the Board.
See
415 ILCS 5/40.1(a) (2002). If the local government approves
siting, certain third parties may appeal the local government’s decision to the Board.
See
415
ILCS 5/40.1(b) (2002); 35 Ill. Adm. Code 107.
1
The Board cites the third-party petitioners’ amended petition as “Am. Pet. at _” and Onyx’s
amended motion as “Am. Mot. at _.”
3
Section 40.1(b) of the Act (415 ILCS 5/40.1(b) (2002)) addresses third-party appeals.
That Section provides:
If the county board or the governing body of the municipality . . . grants approval
under Section 39.2 of this Act, 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, within 35 days after the date on which the local
siting authority granted siting approval, petition the Board for a hearing to contest
the approval of the county board or the governing body of the municipality.
Unless the Board determines that such petition is duplicative or frivolous, or that
the petitioner is so located as to not be affected by the proposed facility, the Board
shall hear the petition . . . . 415 ILCS 5/40.1(b) (2002).
The Board’s procedural rules likewise provide:
Section 107.200 Who May File Petition
The following persons may file a petition for review of a decision concerning
siting of a new pollution control facility pursuant to Section 40.1 of the Act:
***
b) Other persons. Any person who has participated in the public hearing
conducted by the unit of local government and is so located as to be
affected by the proposed facility may file a petition for review of the
decision to grant siting. Associations that file a petition before the Board
must be represented by an attorney . . . . 35 Ill. Adm. Code 107.200.
Amended Petition of Ms. Rosauer and Batavia Residents
In this case, on June 7, 2004, the City granted Onyx’s application to site a waste transfer
station in Batavia, Kane County. Through the amended petition filed on August 23, 2004, Ms.
Rosauer and Batavia Residents seek to contest the City’s siting decision before the Board. The
amended petition states that Ms. Rosauer “participated in the public hearing conducted by the
City of Batavia by submitting a written comment after the close of the public hearing within the
time period allowed for submission of written comments.” Am. Pet. at 1.
The amended petition describes Batavia Residents as an “unincorporated citizens’ group
of at least 200 residents, various members of which participated in the siting proceeding.” Am.
Pet. at 1. According to the amended petition:
At least sixty (60) members of Batavia Residents submitted written comments
opposed to the siting approval after the close of the public hearing but within the
time period allowed for the submission of written comments. Eleven (11)
members of Batavia Residents appeared personally at the public hearings and
offered questions and/or comments.
Id
. at 1-2.
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Onyx’s Amended Motion for Summary Judgment
In its amended motion for summary judgment, Onyx argues that there is “no genuine
issue as to the dispositive fact that neither Petitioner participated in the public hearing in this
matter, and Illinois law bars them from challenging the City’s decision.” Am. Mot. at 1.
Alternatively, Onyx moves the Board to reconsider its July 22, 2004 order, arguing that the
Board lacks the authority (1) to allow an amended petition to be filed on Ms. Rosauer’s behalf
after the 35-day appeal period and (2) to have the filing of an amended petition serve as the
starting point for the Board’s statutory 120-day decision period.
Id
. at 8-10.
The City’s amended motion for summary judgment is supported by the affidavit of
Randy Recklaus, Assistant City Administrator of the City of Batavia.
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According to the
affidavit, a pollution control facility committee (PCF Committee) consisting of seven Batavia
City Council members conducted a public hearing on the Onyx siting application from April 12
through April 16, 2004. Affid. at 1-2. After the public hearing and subsequent public comment
period, the PCF Committee recommended approval of Onyx’s siting request. The City Council
followed the PCF Committee’s recommendations and approved, with conditions, Onyx’s siting
application on June 7, 2004.
Id
. at 2.
In his affidavit, Mr. Recklaus states that he attended the entire public hearing, with the
exception of a 15 to 20-minute period during which an individual named Greg Popovich was
commenting. Affid. at 2. According to Mr. Recklaus:
No individual who participated in the Public Hearing identified him- or herself as
a member or representative of “Batavia, Illinois Residents Opposed To Siting Of
Waste Transfer Station.” *** No individual who participated in the Public
Hearing identified herself as Janis Rosauer or as a representative of Janis Rosauer.
Id
.
Mr. Recklaus further states that he reviewed the transcript of the local siting hearing.
Affid. at 2. According to Mr. Recklaus, the transcript confirms that no member or representative
of Batavia Residents participated in the hearing and that neither Ms. Rosauer nor any
representative of Ms. Rosauer participated in the hearing.
Id
. at 1-2.
Based on Mr. Recklaus’ affidavit, Onyx argues that neither petitioner “participated” in
any phase of the City’s public hearing within the meaning of Section 40.1(b) of the Act so as to
confer standing. Am. Mot. at 4. Onyx maintains that the amended petition provides no valid
basis for the Board to exercise subject matter jurisdiction.
Id
. at 3. As for Ms. Rosauer, Onyx
notes that the amended petition simply states that she filed a written comment “after the close of
the public hearing.”
Id
. at 5. According to Onyx, the Act makes clear that such written
comments are not part of the public hearing, quoting Section 39.2(c) of the Act (415 ILCS
5/39.2(c) (2002)), which authorizes the submittal of public comments up to “30 days after the
date of the last public hearing.”
Id
.
2
The Board cites the affidavit as “Affid. at _.”
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Onyx also argues that the amended petition provides no basis for the Batavia Residents
organization to have standing for this appeal. That certain of the group’s members may have
participated at hearing fails to establish standing for the group, according to Onyx, because:
Petitioners have pointed to nothing suggesting that any Group member
represented or acted on behalf of the Group at the Public Hearing. In fact, there is
nothing in the Amended Petition demonstrating that the Group even existed at the
time of the Public Hearing. Am. Mot. at 6.
Onyx concludes that it is entitled to summary judgment because there is no genuine issue
of material fact that petitioners failed to participate in the City’s public hearing on the siting
application and “[t]his failure is a complete bar to challenging the City’s siting approval under
[Section 40.1(b) of the Act].” Am. Mot. at 7.
Board Analysis and Ruling
Onyx has moved the Board for summary judgment, alleging that the third-party
participants lack standing to bring this appeal of the City’s siting approval. Whether the third-
party petitioners are “so located” as to be “affected” by Onyx’s waste transfer station is not at
issue for purposes of ruling on Onyx’s motion. 415 ILCS 5/40.1(b) (2002). Nor has Onyx
challenged the petition as “duplicative or frivolous.”
Id
. What is at issue now is whether Ms.
Rosauer and Batavia Residents “participated” in the City’s siting hearing.
Id
.
Summary judgment is appropriate when the pleadings, depositions, admissions,
affidavits, and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998);
see also
35 Ill. Adm. Code
101.516(b). When ruling on a motion for summary judgment, the Board “must consider the
pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing
party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” and therefore the
Board should grant it only when the movant’s right to the relief “is clear and free from doubt.”
Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Putrill v. Hess, 111 Ill. 2d 229, 240, 489
N.E.2d 867, 871 (1986). “Even so, while the nonmoving party in a summary judgment motion is
not required to prove [its] case, [it] must nonetheless present a factual basis, which would
arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d
994, 999 (2d Dist. 1994). Neither Ms. Rosauer nor Batvia Residents has filed a response to
Onyx’s amended motion for summary judgment. Petitioners therefore waive any objection to
the Board granting the motion.
See
35 Ill. Adm. Code 101.500(d).
Section 40.1(b) of the Act allows a third party to challenge a local government’s grant of
siting approval for a pollution control facility only if, among other things, the third party
“participated in the public hearing conducted by the county board or governing body of the
municipality.” 415 ILCS 5/40.1(b) (2002). The Board has held that the filing of a public
comment after the close of public hearing does not constitute participation in the local hearing
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under Section 40.1(b) so as to give standing. In Valessares v. County Board of Kane County,
PCB 87-36 (July 16, 1987), the Board interpreted the meaning of “participated in the public
hearing”:
By its plain language, this statutory phrase limits the universe of potential
petitioners to those persons who physically attended the public hearing or were
present by a duly authorized representative. The Act uses the terms “public
hearing” and “public comment” in different contexts within Section 39.2, which
provides the relevant procedures for county board action. Appeal rights
established in Section 40.1(b) only use the term “public hearing.” Consequently,
the Board holds that simply submitting a public comment after the close of the
public hearing does not constitute an adequate basis for standing to seek review.
Valessares, PCB 87-36, slip op. at 4;
see also
Nelson v. Kane County Board, PCB
94-51, 94-58 (consol.) (Apr. 21, 1994) (finding lack of standing where third party
only filed public comment).
There is no indication in the record that Ms. Rosauer or anyone representing her attended
the City’s public hearing. Ms. Rosauer has presented no factual basis that would arguably entitle
her to judgment. On this record, the Board finds that there is no genuine factual question that
Ms. Rosauer only filed a written public comment after the local hearing. Even construing the
pleadings against Onyx, the Board finds that Onyx is entitled to judgment as a matter of law.
Because Ms. Rosauer did not participate in the local hearing, she lacks standing under the Act to
appeal the City’s siting decision. The Board therefore grants Onyx’s motion for summary
judgment with respect to Ms. Rosauer.
The Board has held that mere attendance at a local hearing is sufficient to constitute
participation under Section 40.1(b) of the Act.
See
,
e.g.
, Valessares, PCB 87-36, slip op. at 6
(“the Board holds that personal attendance at a county board hearing is adequate participation to
meet this element of standing.”);
see also
Zeman v. Village of Summit, PCB 92-174, PCB 92-
177 (consol.) (Dec. 17, 1992). However, to confer third-party appeal standing on a citizens
organization or group, there must be some indication in the record that members or
representatives of that group were attending the local siting hearing
on behalf of
the group.
The Board addressed this issue in Slates v. Illinois Landfills, Inc., PCB 93-106 (July 22,
1993). In that case, a citizens group, C.A.R.E., argued that it had standing to appeal a local
siting approval because the organization “appeared at the public hearing through [four]
members.” Slates, PCB 93-106, slip op. at 2. However, the siting applicant argued that “none of
these four individuals indicated at the hearing in any way that they were affiliated with C.A.R.E.
[and] no person at the public hearing made any reference to C.A.R.E.”
Id
. The Board found that
the citizens group lacked standing:
[T]he Board finds no evidence that any individual participated in the public
hearing on behalf of C.A.R.E. None of the testimony or comments made by [any
of the four members of the group] mention C.A.R.E. or refer to any type of group.
The sign-in sheet for the public hearing also does not show any indication that
anyone was appearing on behalf of C.A.R.E or any other group. [citation
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omitted] Because there is no evidence in the record that any individual
participated in the hearing on behalf of C.A.R.E., we find that C.A.R.E. as a
group does not have standing under Section 40.1 to appeal [the local
government’s siting] decision. Thus, C.A.R.E. is dismissed as a petitioner.
Id
.
(the Board also held that each of the four members of C.A.R.E. who attended the
local hearing, and who were named individually as party petitioners, had standing
to appeal as individuals);
see also
Citizens Against Landfill Expansion v.
American Disposal Services of Illinois, Inc., PCB 03-236 (July 24, 2003) (finding
that citizens group had standing where record showed that individual at local
hearing referred to group she was representing).
There is no indication in the record that anyone attended the City’s siting hearing on
behalf of the group Batavia Residents. Batavia Residents has presented no factual basis that
would arguably entitle it to judgment. On this record, the Board finds that there is no genuine
factual question that nobody attended the local hearing on the group’s behalf. Even construing
the pleadings against Onyx, the Board finds that Onyx is entitled to judgment as a matter of law.
Because Batavia Residents did not participate in the local hearing, the group lacks standing
under the Act to appeal the City’s siting decision. The Board therefore grants Onyx’s motion for
summary judgment with respect to Batavia Residents.
CONCLUSION
After carefully reviewing the pleadings, the Board finds that there is no evidence in this
record that either Ms. Rosauer or the group Batavia Residents participated in the City’s public
hearing on Onyx’s waste transfer station siting application. Therefore, neither third-party
petitioner has standing under Section 40.1(b) of the Act to appeal the City’s grant of siting. The
Board accordingly does not have jurisdiction over this appeal. The standing requirements of the
Act are very specific and the Board has no discretion to waive them if they are not met.
Because there is no genuine issue of material fact and Onyx is entitled to judgment as a
matter of law, the Board grants Onyx’s amended motion for summary judgment and dismisses
this appeal. Having granted Onyx’s amended motion for summary judgment, finding that the
Board lacks jurisdiction here, the Board further finds that Onyx’s alternative motion to
reconsider the Board’s July 22, 2004 order is moot and as such the Board denies it.
ORDER
1. The Board grants Onyx’s amended motion for summary judgment because Ms.
Rosauer and Batavia Residents lack standing under the Act to appeal the City’s
siting decision.
2. The Board denies as moot Onyx’s alternative motion to reconsider the Board’s
July 22, 2004 order.
3. The Board dismisses this appeal.
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IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 7, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
