PRIME
LOCATION
PROPERTIES.
LLC,
Petitioner,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
John
Therriault,
Acting Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street,
Suite
11-500
Chicago,
IL
60601
Prime
Location
Properties,
LLC
Attn:
Joe
Keebler
P.O.
Box
242
Carbondale,
IL
62903
CLERKJS
OFFICE
MAY
2
6
2009
STATE
OP
Pollut
0,.
Control
Boarg
Fred
C.
Prillaman
Patrick
Shaw
Mohan, Alewelt,
Prillaman
&
Adami
1 North
Old
Capitol
Plaza,
Suite 325
Springfield,
IL 62701-1323
PLEASE
TAKE
NOTICE
that I have
today
filed
with the
office of
the
Clerk
of
the Pollution
Control
Board
an APPEARANCE
and a
MOTION
TO
DISMISS,
copies
of which
are
herewith
served upon
you.
Respectfully
submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent
THOMAS
DAVIS
Assistant
Attorney
General
Attorney
Reg.
No.
3124200
500
South Second
Street
Springfield,
Illinois
62706
217/782-7968
Dated:
May21,
2009
BEFORE
THE
POLLUTION
CONTROL
BOARD
OF
THE
STATE OF
ILLINOIS
)
)
)
PCB
No.
09-67
)
(UST
Appeal)
)
)
NOTICE
—1—
BEFORE THE POLLUTION
CONTROL
BOARD
OF
THE STATE
OF ILLINOIS
PRIME
LOCATION
PROPERTIES,Petitioner,
LLC,
))
MAY
262009
v.
)
PCB No.
09-67
STATE
OF
ILLINOIS
ILLINOIS
ENVIRONMENTAL
)
(UST Appeal)
POIIti
Control
Board
PROTECTION
AGENCY,
)
Respondent.
)
APPEARANCE
On behalf of the
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
by
LISA
MADIGAN,
Attorney
General
of the State of
Illinois, Thomas
Davis, Assistant
Attorney
General
of
the State of
Illinois, hereby
enters
his
appearance
as attorney of record
pursuant
to Section
101.400(a) of the
Board’s Procedural
Rules.
Respectfully Submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
LISA MADIGAN,
Attorney
General
of the State of Illinois,
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation Division
BY:
THOMAS
DAVIS, Chief
Environmental
Bureau
Assistant
Attorney General
Attorney Reg.
No. 3124200
500
South
Second
Street
Springfield, Illinois
62706
217/782-7968
Dated:
May
21, 2009
This filing submitted
on
recycled
paper.
-3-
BEFORE
THE
POLLUTION
CONTROL
BOARD
OF
THE STATE
OF
ILLINOIS
ED
PRIME
LOCATION
PROPERTIES,
LLC,
)
F,C!
Petitioner,
)
MAY
262009
v.
)
PCB
No. 09-67
ILLINOIS
ENVIRONMENTAL
)
(UST Appeal)
PROTECTION
AGENCY,
)
oarcj
Respondent.
)
MOTION
TO
DISMISS
NOW
COMES
the
Respondent,
the
Illinois
Environmental
Protection
Agency
(“Illinois
EPA”),
by
LISA
MADIGAN,
Attorney
General
of the
State of
Illinois,
Thomas
Davis,
Assistant
Attorney
General,
and, pursuant
to 35
Ill. Adm.
Code
10 1.500,
hereby respectfully
moves the
Illinois
Pollution
Control
Board
(“Board”)
to
dismiss
the above
action
and in
support
of said motion,
the
Illinois
EPA states
as
follows:
1.
On March
9,
2009, Joe
Keebler,
property owner
of
Prime
Location
Properties,
LLC filed
a
Petition
on
behalf
of Prime Location
Properties,
LLC.
2.
Joe
Keebler
is not registered
as
an
attorney
with the Attorney
Registration
and
Disciplinary
Commission.
3
On
March
19,
2009,
the
Board issued
an
order
directing
the
Petitioner
to file
an amended
petition
for review
accompanied
by the
appearance
of an attorney.
4.
On
April
20, 2009,
Patrick
Shaw,
an attorney
with Mohan,
Alewelt,
Prillaman
& Adami,
filed
a
Petition
on behalf
of
Prime
Location
Properties,
LLC.
5.
April 20, 2009
is
past
the date by
which
an appeal
needed
to be
filed in
this
case by an
attorney
for
the appeal
to be valid.
The
Illinois
EPA
decision
was dated
on
January
27, 2009.
Certified
Mail shows
that
the
decision was
received
on February
13,
2009.
See Exhibit
1. The
35
day time
frame
for
appeal
in
this case ended
on
March.
20,
2009.
-4-
6.
Further, Board
rules
clearly state
that
the petition for review
must be filed
by
an
attorney.
35
Ill.
Adm. Code 101.400(a)(2).
In its December
21, 2000 order
in R00-20, the rulemaking
adopting
this
regulatory
provision
the
Board
stated
as
follows:
The
Board clarifies that
a
person must be
a
licensed
attorney
to appear
before the Board
on behalf
of others in an adjudicatory
proceeding.
This contrasts with the
Board’s
current
procedural
rule (see 35 Ill. Adm.
Code 101.107), which
generally
allows officers
or
employees who
are not attorneys to
represent corporations
in proceedings other than
enforcement actions.
The Board
bases
the new provision
(see
Section 101
.400(a)(2))
in
the
Attorney Act
(705 ILCS 205/1 etseq.
(1998)), the Corporation
Practice of Law
Prohibition
Act (705
ILCS 220/1 et seq. (1998))
and Illinois case
law. In addition, the
new
provision is consistent
with the recent line
of Board
decisions
that
found various
activities
in adjudicatory proceedings
before the
Board
to
constitute
the
practice
of
law.
See,
e.g.,
In
re Petition of Recycle
Technologies,
Inc. for an Adjusted
Standard Under
35
Ill. Adm. Code
721.13 1(c)
(July
10, 1997), AS 97-9.
7.
Any judgment in
a case
initiated
by a
non-attorney
is void,
even
if
subsequent
appearances
are made by
an
attorney.
See,
Housing
Authorityof Cook Counlyv.
Tonsul, 115
Ill.
App. 3d 739, 741
(
1
st
Dist. 1983)
(a
cause
prosecuted by a lay
agent acting on
behalf of a corporation
is
a
nullity
since
it violates the
rule
against a
corporation appearing
“in
any
proceeding in any court
through an agent
who
is
not a
licensed attorney”).
8.
A corporate
party cannot
file
a
valid notice
of appeal
in its own behalf without
the advice
and
services of an
attorney, and because
the corporate
party’s notice
of appeal was signed
on behalf
of
the corporation by
the secretary
of the
corporation,
and did not
indicate that counsel
represented
the
corporation
in the preparation
and filing of the
notice of
appeal,
the
appeal would
be dismissed.
Midwest
Home
Savings & Loan
v.
Ridgewood,
123
Ill.
App. 3d
1001,
1004
(5th
Dist. 1984).
9.
The
petition for
hearing before the Board
to contest
the decision of the Agency
is filed
pursuant to
Section 40
of
the
Act.
The Illinois
Supreme Court
in ESG Watts, Inc.
v. Pollution
Control
Board
(2000),
191
Ill. 2d 26, 30, held
that
a
party
seeking to invoke special
statutory
jurisdiction thus
“must
strictly
adhere to the
prescribed procedures”
in the statute.
Petitioner herein
-5-
has
failed
to do so.
10.
Therefore,
this
case should
be dismissed
due to the
fact
that
the initial filing was
in violation
of Board rules
and it could
not be
cured
by a
filing of an attorney after
the
due date
of the appeal had
run.
CONCLUSION
For
the
reasons stated herein,
the Illinois EPA respectfully
requests
that the Board grant
this
Motion
to
Dismiss.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
LISA MADIGAN,
Attorney
General
of the State of
Illinois,
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY
THOMAS
DAVIS,
Chief
Environmental
Bureau
Assistant
Attorney
General
Dated May
21, 2009
This filing submitted
on
recycled paper.
-6-