BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RESPONSE IN OPPOSITION TO MOTION TO DISMISS
INTRODUCTION
IV. JUDICIAL PRECEDENT SUPPORTS THE BOARD'S PRACTICE.
CONCLUSION
LLC FILE DETAIL REPORT
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BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

PRIME LOCATION PROPERTIES, LLC,

)

Petitioner,

)

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

)

PCB 09-67

(LUST

Pennit Appeal)

NOTICE OF FILING AND PROOF OF SERVICE

To:

John T. Therriault, Acting Clerk

Illinois Pollution Control Board

100 West Randolph Street

State

of Illinois Building, Suite 11-500

Chicago, IL 60601

Thomas Davis

Assistant Attorney General

500 S. Second Street

Springfield, IL 62706

Carol Webb

Hearing

Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

Springfield, Illinois 62794-9274

PLEASE TAKE NOTICE that I have today electronically filed with the Office of the

Clerk

of the Illinois Pollution Control Board, pursuant to Board Procedural Rule 101.302 (d), a

RESPONSE IN OPPOSITION TO MOTION TO DISMISS, a copy of which is herewith served

upon

the hearing officer and upon the attorneys of record in this cause.

The undersigned hereby certifies that a true and correct copy of this Notice of Filing,

together

with a copy of the document described above, were today served upon the hearing

officer and counsel

of record of all parties to this cause by enclosing same in envelopes addressed

to such attorneys and to said hearing officer with postage fully prepaid,

and by depositing said

envelopes

in a U.S. Post Office Mailbox in Springfield, Illinois on the 4th day of June, 2009.

Fred C. Prillaman

Patrick D.

Shaw

BY:

Respectfully submitted,

PRIME

LOCATION PROPERTIES, LLC,

Petitioner

MOHAN, ALEWELT, PRILLAMAN

ADAMI

North Old Capitol Plaza, Suite 325

Springfield,

IL 62701-1323

Telephone: 217/528-2517

Facsimile: 217/528-2553

Electronic Filing - Received, Clerk's Office, June 4, 2009

BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

PRIME LOCATION PROPERTIES, LLC, )

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 09-67

(UST

Appeal)

RESPONSE IN OPPOSITION TO MOTION TO DISMISS

NOW COMES Petitioner, PRIME LOCATION PROPERTIES, LLC, by its undersigned

counsel, pursuant to Section

101.500 of the Board's Procedural Rules (35 TIL Admin. Code §

101.500(d)), and responds to the Motion to Dismiss as follows:

INTRODUCTION

On March 9, 2009, Prime Location Properties, LLC timely filed a petition asking the

Board to review a January

27,2009 detennination of the Illinois Pollution Control Board. (Order

of Board, dated May 7, 2009) The petition was filed by Joe Keebler, whom Petitioner concedes

is not licensed to practice law in the

State of Illinois. Instead, Keebler, is a member of Prime

Locations, LLC. See Exhibit 1 (Illinois Secretary of State records). Prime Locations, LLC is the

owner

of underground storage tanks that it is seeking to take corrective action regarding.

(petition,

, 1) On March 19,2009, the Board accepted the petition for review as timely, but

directed

Petitioner to file an amended petition for review, accompanied by the appearance of an

attorney,

by April 20th. (Order of Board, dated Mar. 19,2009) Petitioner did so, and the

amended petition was accepted on May

7,2009 by Board Order. The Agency was directed to file

the administrative record by May

20,2009, which it has not done. On May 26,2009, the Agency

Electronic Filing - Received, Clerk's Office, June 4, 2009

filed a motion to dismiss the amended petition on the grounds that an attorney did not file a

petition for review within the original deadline.

CHANGING THE BOARD'S LONGSTANDING PRACTICE AND

INTERPRETATION

OF ITS RULES WOULD BE ARBITRARY.

For decades, non-attorneys, usually either engineers or administrators, represented

corporations in proceedings before the Board. Cf. In re Petition

of Recyc1e Technologies, AS

No. 97-9 (July 10, 1997) (Manning, concurring). This practice was embodied in fonner rule

107(a)(2), which stated that

"a corporation may appear through any officer, employee, or

representative, or

by an attorney at law licensed and registered to practice in the State of Illinois,

both." This rule was repealed by the Board's new procedural rules, effective January 1, 2001.

25 Ill. Reg. 446 (R00-20 proceedings).

Repeatedly, the Board has responded to non-attorney filings

by requiring the petitioner to

file an amended petition, accompanied

by an appearance of an attorney.

I It

does not appear that

the Agency has ever before objected to non-attorney filings, either before or after the

2001

procedural rule change. The Agency's fonn denial letter indicates that the "owner or operator"

may appeal this final decision without any reference to the need for counse1. (Amend. Pet. Rev.

I k,

Estate of Eggert, PCB No. 08-35 (Dec. 6,2007); City of O'Fallon v. IEPA, PCB

No. 07-102 (May 3,2007); Village of River Forest v. IEPA, PCB No. 06-176 (June 1,2006);

Magie Bros.lPenreco v.

IEPA, PCB No. 06-142 (Mar. 16,2006); IEPA v. Ray Logsdon Estate,

AC No.

05-54 (Mar. 3, 2005); IEP A v. Northern Illinois Servo Co., AC No. 05-40 (Jan. 6, 2005);

Mac's Convenience Stores v. IEPA, PCB No. 05-101 (Dec. 16,2004); IEPA V. G.T.

L .. Inc.,

A.C. No.

05-04 (Aug. 19,2004); Johnson Oil CO. V. IEPA, PCB No. 04-190 (Aug. 5, 2004);

Johnson Oil Co. v. IEPA, PCB No. 04-183 (July 22,2004); Martin Oil Mktg. v. IEPA, PCB No.

04-93 (Dec. 18,2003); Randall Industries

V. IEPA, PCB No. 03-219 (Sept. 18,2003); Vandalia

Community

School District # 203 v. IEPA, PCB No. 02-50 (Nov. 1,2001); J.R

Sons v. IEPA,

PCB

No. 01-130 (Aug. 9,2001); PremcorRefining Group v. IEPA, PCB No. 01-116 (April 19,

2001).

Electronic Filing - Received, Clerk's Office, June 4, 2009

Ex. 1) To adopt a new construction of the Board's rules at this time, that is inconsistent with the

Board's long-standing practice, without apparent objection from the

IEP A, would be entirely

arbitrary.

See Illinois Environmental Protection Agency v. Pollution Control Bd., 118 Ill. App.

3d 772, 780 (1 st Dist. 1983). On this ground alone, Petitioner believes the motion must be

denied, but for the sake

of addressing any lingering concerns, Petitioner hereinafter addresses

why the Board's long-standing practice is reasonable and necessary.

II.

THE BOARD'S PRACTICE IS CONSISTENT WITH THE ILLINOIS

ENVIRONMENTAL PROTECTION ACT.

Courts generally defer to an agency's interpretation of its own rules and regulations, so

long as the

"interpretation of its own rules had a reasonable basis in law." Daniels v. Police Bd.,

338 Ill. App.

3d 851, 859 (1 st Dist. 2003). The Illinois Environmental Protection Act charges the

Board with the authority to adopt such procedural rules as are necessary to accomplish the

purposes

of the Act. (415 ILCS

5/26)

"An administrative agency has the power to construe its

own rules and regulations to avoid absurd or unfair

results." Modine Mfg. Co. v. Pollution

Control Bd., 40 Ill. App. 3d 498, 502 (2d Dist. 1976).

The applicable portions

of the Act merely state that an applicant may seek review of an

Agency decision before the Board. (415

ILCS 5/40(a)(1);

5/57(c)(4))

Nowhere, does the Act

direct the Board to require an attomey;2 at most, it states that a party

"may" be represented by

counsel at the hearing. (415

ILCS

5/32)

Board proceeding, though of various kinds, are generally

2 Consequently, the Agency's citation to

ESG Watts, Inc. v. PCB, 191 Ill. 2d 26 (2000) is

inapposite. There, the appellant failed to name a party required by the statute giving rise to the

right to appeal. No such statutory limitation

to review exists here.

Electronic Filing - Received, Clerk's Office, June 4, 2009

mixed between the legal and the technical, the formal and the informal. Indeed, the Act indicates

that

"Board members are 'technically qualified' individuals only and not required to have any

legal

training." Environmental Protection Agency v. Fitz-Mar. Inc., 178 Ill. App. 3d 555, 563

(1st Dist. 1988). The environmental permitting and planning process has often been described as

"administrative continuum," see IEPA v. IPCB, 138 Ill. App. 3d 550,551 (3rd Dist. 1985), in

which the petition for review to the Board is preceded by a more informal process before the

Agency, that frequently does not involve lawyers on either side. The issues of law and fact

before the Board are framed, not

by the formal filing of complaint and answer as they are in the

courts, but

by the denial letter issued by Agency. EPA v. PCB, 86 Ill. 2d 390, 405 (1981).

Undersigned counsel is unaware

of an Agency lawyer ever signing the Agency denial letter, and

in this case, the denial letter certainly was not. (See Amend. Pet., Ex. 1) While the Board has

struggled with the question

of at what point, if any, the practice of law begins in this mixed

process, there is no basis to conclude that it does so automatically with the filing

of the petition

for review.

The Act does not require an attorney, but the Board has in its discretion, citing prudential

concerns discussed in In re Petition

of Recycle Technologies decided to take a conservative

approach. As discussed further in the next section, the Board has substantial discretion in

establishing its practices and procedures, but cannot do so to work an injustice or defeat the

purposes

of the Act.

III.

THE BOARD'S PRACTICE IS CONSISTENT WITH THE ADMINISTRATIVE

PROCEDURE ACT.

Additional guidance is provided by the Administrative Procedure Act (5 ILCS

10011-1

Electronic Filing - Received, Clerk's Office, June 4, 2009

seq.),

which the Board is required to follow. (415 ILCS 5/26) Therein, administrative agencies

are authorized to establish procedures addressing

"representation of parties." (5 ILCS 100/10-

10) However, the APA also requires that "[a]n opportunity shall be afforded all parties to be

represented by legal

counsel." (5 ILCS 100/1O-25(b)) Taken together these provisions authorize

the Board to adopt rules concerning representation, but whether such rules are promulgated, an

opportunity must always be given to the party to obtain representation. The Board's practice is

consistent with these provisions, while the Agency's newfound position would deny Petitioner

the opportunity for legal representation.

IV.

JUDICIAL PRECEDENT SUPPORTS THE BOARD'S PRACTICE.

The Illinois Supreme Court has rejected the automatic voiding of cases initiated by non-

attorneys.

"Although the nullity rule is well established in our courts, because the results of its

application are harsh it should be invoked only where it fulfills its purposes of protecting both the

public and the integrity

of the court system from the actions of the unlicensed, and where no

other alternative remedy is

possible." Applebaum v. Rush Univ. Med. Ctr., 231 Ill. 2d 429, 435

(2008). For example, where a complaint was filed by a lay agent of the corporation and not by a

licensed attorney, it was improper to void the lawsuit where an attorney was present throughout

the litigation. Moushon v. Moushon, 147 Ill. App. 3d

140, 147 (3d Dist. 1986).

these cases it

is error for a trial court not to allow the plaintiff to proceed to trial with substituted counsel.

Janiczek

v. Dover Management Co., 134 Ill. App. 3d 543,547 (lst Dist. 1985); see also Paddock

v. Department of Employment Sec., 184 IlL App. 3d 945,950 (1st Dist. 1989) (where non-

attorney represented appellant on administrative review, the cause would be remanded ''to the

trial court to afford plaintiff an opportunity to appear pro se or to retain counsel to appear for

Electronic Filing - Received, Clerk's Office, June 4, 2009

her"). Relying upon Janiczek, the Board has previously ruled that the purposes of the Act would

be well served

if an attorney is retained before proceeding further. In re Petition of Recycle

Technologies, AS No. 97-9 (July

10, 1997)

Dismissing the appeal would not protect the petitioner

"from the mistakes of the ignorant

and the schemes

of the unscrupulous." Janiczek, l34 TIL App. 3d at 546. One does not protect

the unwary from the traps

of litigation by pushing them into the deadliest. While there is no

statutory requirement that a petition be signed by an attorney, the thirty-five day time limit to file

a petition for review is clear. Moreover, the idea

of protecting litigants is strained where

is the

litigant's own member acting

on its behalf. Limited liability companies act through their

members and the actions

ofthe members are those of the company. (805 ILCS 18/l3-5((a)(1»

This is obviously not a situation in which a litigant has been deceived into paying for legal

services from a fraud. While not directly applicable, the Supreme Court's allowance

representation by corporate officers in small claims court (S. Ct. R. 282(b », belies the notion that

companies seeking to represent themselves are inherently

trOUbling.

Undoubtably, the Board has an interest in safeguarding "the administration of its

proceeding from those lacking the requisite

skills." Janiczek, l34 TIL App. 3d at 546. However,

the Board is able to do so without the harsh sanction

of dismissal, by orders, like the one entered

in this case, which not only direct a party to obtain an attorney,

but stay any decision deadline as

well. While

Petitioner reiterates that it does not believe the filing of a petition for review

constitutes the practice

of law, the Board's "conservative" approach to this issue is

understandable, so long as it is measured with the opportunity to obtain counsel.

Electronic Filing - Received, Clerk's Office, June 4, 2009

CONCLUSION

Petitioner, prays for an order, denying the motion to dismiss, and for such other and

further relief as the Board deems meet and just.

BY:

Respectfully submitted,

PRIME

LOCATION PROPERTIES, LLC,

Petitioner,

MOHAN, ALEWELT, PRILLAMAN

ADAMI,

itsattorn~

__ _

Patrick D. Shaw

MOHAN, ALEWELT, PRILLAMAN

ADAMI

N. Old Capitol Plaza, Suite 325

Springfield, IL

62701

Tel: (217) 528-2517

Fax: (217) 528-2553

C:\Mapa\Prime Location Prop\Response Mot Dism,wpd/crk

6/4/09

2:49 pm

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