ILLINOIS POLLUTION CONTROL BOARD
February 5, 2009
IN THE MATTER OF:
PETITION OF MAXIMUM INVESTMENTS,
LLC FOR AN ADJUSTED STANDARD
FROM 35 ILL. ADM. CODE 740.210(a)(3)
FOR STONEY CREEK LANDFILL IN
PALOS HILLS, ILLINOIS
)
)
)
)
)
)
)
AS 09-2
(Adjusted Standard – Land)
ORDER OF THE BOARD (by G.T. Girard):
On November 7, 2008, Maximum Investments, LLC (petitioner) filed a request for an
adjusted standard from 35 Ill. Adm. Code 740.210(a)(3). On December 18, 2008, the Board
found that the petition contained two deficiencies that required the Board to decline to accept the
petition and the petition was dismissed. On January 12, 2009, petitioner filed a motion asking
the Board to reconsider the December 18, 2008 order. For the reasons discussed below the
Board grants the motion and will accept the petition. However, the Board directs petitioner and
the Illinois Environmental Protection Agency to address certain issues delineated below.
BACKGROUND
In the December 18, 2008 order the Board found two deficiencies. The first deficiency
was a jurisdictional issue. Pursuant to Section 28.1(d)(1) of the Environmental Protection Act
(Act), “petitioner shall submit to the Board proof that, within 14 days after filing of the petition,
it has published notice of the filing of the petition by advertisement in a newspaper of general
circulation in the area likely to be affected.” 415 ILCS 5/28.1(d)(1) (2006). The Board’s
procedural rules require that within 30 days of the filing of the petition the petitioner must file a
certificate of publication. The Board found that proof of newspaper publication had not been
filed and found that the Board lacked jurisdiction to hear the requested adjusted standard petition
for that reason.
A second deficiency was that an attorney did not file the petition and had not entered an
appearance. Though an individual may represent himself or herself, any person other than an
individual must appear through an attorney in a Board adjudicatory proceeding, such as an
adjusted standard action.
See
35 Ill. Adm. Code 101.100(a)(2);
In re
Recycle Technologies, Inc.
for Adjusted Standard under 35 Ill. Adm. Code 720.131(c)
, AS 97-9 (Sept. 3, 1998). The Board
noted that although the Board generally allows for an amended petition when a non-attorney
signs a filing, the jurisdictional deficiency warrants dismissal of the petition.
MOTION TO RECONSIDER
In the motion to reconsider, petitioner asserts that a certificate of publication was timely
filed with the Board. Mot. at 1. Specifically, petitioner indicates that the notice was published in
the
Southtown Star
on November 18, 2008 and the Board erroneously failed to docket the
2
certificate.
Id
. The petitioner also filed an amended petition with the motion to reconsider which
was filed by petitioner’s attorneys.
Id
. Petitioner asks that the Board reinstate this matter and
consider the amended petition.
DISCUSSION
In ruling on a motion for reconsideration, the Board will consider factors including new
evidence or a change in the law, to conclude that the Board’s decision was in error. 35 Ill. Adm.
Code 101.902. In Citizens Against Regional Landfill v. County Board of Whiteside, PCB 93-
156 (Mar. 11, 1993), we observed that “the intended purpose of a motion for reconsideration is
to bring to the court’s attention newly discovered evidence which was not available at the time of
hearing, changes in the law or errors in the court’s previous application of the existing law.”
Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st
Dist. 1992). Petitioner has pointed to new evidence,
i.e.
that the certificate of publication was
filed with the Board. Therefore, the Board will grant the motion to reconsider.
A search of the Board’s files resulted in the Board finding the certificate of publication
which had been misfiled and not docketed. The Board notes that the certificate of publication
indicates that notice of the adjusted standard was published on November 18, 2008, within 14
days after the filing of the petition. Therefore, the Board’s dismissal on December 18, 2008, for
lack of jurisdiction was in error. In addition, the filing of an amended petition by petitioner’s
attorneys cures the second deficiency. The Board reinstates the petition and accepts the amended
petition filed by the petitioner’s attorneys.
The Board has an additional concern regarding the requested relief. The Board has clear
authority to grant adjusted standards to rules of general applicability under Section 28.1 of the
Act (415 ILCS 5/28.1 (2006)); however, the Board cannot adjust statutory requirements.
See
415 ILCS 5/28.1(a) (2006). In this case, petitioner requests adjustment of a standard adopted in
the Board’s rules that also appears to be a statutory requirement.
See e.g.
415 ILCS 5/58.2 and
58.7 (2006). The Board directs the petitioner and the Illinois Environmental Protection Agency
to address this issue in briefs to be filed with the Board. The hearing officer is directed to
establish a briefing schedule with the parties.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on February 5, 2009, by a vote of 5-0.
____________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
3
