RECEIVED
CLERK’S
OFFICE
ILLINOIS POLLUTION CONTROL BOARD
/~PR
92003
CITY OF
KANKAKEE,
)
STATE OF IWNOIS
)
PCB 03-125
Pollution
Control Board
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS,
INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
PCBO3-133
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLiNOIS, iNC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
PCBO3-134
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF
ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
PCBO3-135
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF
ILLINOIS, INC.
)
)
Respondents.
)
70356575v1 813053
MOTION TO SEVER WASTE MANAGEMENT OF ILLINOIS, INC.’S
APPEAL
OF
TWO SITING CONDITIONS FROM THE FOUR APPEALS CHALLENGING THE
KANKAKEE
COUNTY SITING APPROVAL
NOW COMES Respondent,
COUNTY
OF KANKAKEE, by
and through
its
attorneys,
HINSHAW &
CULBERTSON,
and
hereby
files
its
Motion
to
Sever
Waste
Management
of
Illinois,
Inc.’s
Appeal
of
Two
Siting
Conditions
From
the
Four
Appeals
Challenging
the
Kankakee County Siting Approval, and in support thereof, states as follows:
1.
On March
28,
2003,
Waste
Management of Illinois
filed a
Motion
to
Sever
Its
Appeal
of Two
Siting
Conditions
From
the
Four Appeals
Challenging
the Kankakee
County
Siting Approval (which is
attached hereto as Exhibit A).
2.
The County
of Kankakee hereby joins
and
adopts
the
arguments made
in
said
motion, as its own as though fully stated verbatim herein.
3.
The
County
of
Kankakee
agrees
with
Waste
Management
of
Illinois
that
consolidation of Waste Management’s
appeal of two
siting conditions
with
the appeals of the
Petitioners ofthe siting approval, will uimecessarily complicate the proceedings.
Consolidation
will
also, result in a confusing
and incongruous briefing and argument
at the IPCB
level
as well
as the Appellate Court level.
Consolidation will also prejudice
any
attempt to
resolve and
settle
Waste
Management’s
appeal
of the
conditions,
and
present
absolutely
no
saving
of judicial
resources.
4.
The only
issue the Petitioners have raised involves whether or not
the County’s
decisions as to
each ofthe Section 39.2
criteria were against the manifest weight ofthe evidence
and
the fundamental fairness ofthe
County’s proceedings.
None of the Petitioners
objected to
Condition
2(h) and
2(x) which were imposed by the County Board.
The only parties that have
any interest, or right to file briefs on
the propriety of those petitions, are the County ofKankakee
2
70356575v1
813053
and
Waste
Management
of Illinois,
Inc.
Accordingly,
Waste
Management’s
appeal
should
obviously be bifurcated from the other appeals at issue in this case.
WHEREFORE,
County
of Kankakee,
respectfully
requests
the
Board
enter
an
order
severing PCB 03-144 from PCB 03-125, 03-133, 03-134 and 03-135,
and providing such other
and further relief as the Board deems appropriate.
Respectfully Submitted,
On behalfofthe COUNTY OF KANKAKEE
By:
Hinshaw & Culbertson
f~~~hnTd
Pgrh,&
~
Charles F. Heisten
Richard S. Porter
One of Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
This document utilized
100
recycled paper products
70356575v1 813053
‘~PR04
2003
11:02
FR
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CITY OF KANKAKEE,
Petitioner,
V.
COUNTY
OF
KANKAKEE,
COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF
ILLINOIS,
INC.,
Respondents.
MERLIN
KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF
ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Peiir~oner,
-
V.
COUNTY OF
KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS.
INC..
Respondents.
KEITH
RUNYON,
Petitioner,
V.
COUNTY OF
KANKAKEE, COUNTY
BOARD
OF KANKAKEE, and WASTE
MANAGEMENT
OF
ILLINOIS,
INC..
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
)
)
)
)
)
)
)
)
)
)
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)
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)
)
)
)
TO
2149~200330256~P.02/06
RE~*V~L7
CLERK’S ~~flCE
Mf~R28
Z003
STATE OF IWNOIS
pollution Control
Board
PCB 03-03-125
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-133
(Third-Parry Pollution Control
Facility Siting Appeal)
PCB 03-J 34
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
362303
•~1PR04 2003 11:02 FR
TO 214S~~200330256~
P.03/06
fl~CEIVED
CLERK’S
OFFICE
Respondents.
)
MAR
2
8
2003
WASTE MANAGEMENT
OF ILLINOIS,
INC.
STATE
OF IWNOIS
Pollution
Control
Board
FenuonerfRespondent,
)
)
VS.
)
PCB
03-144
)
(Pollurion
Control
)
Facility
Siting Appeal)
KANKAKEE
COUNTY
BOARD,
)
)
Respondent.
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO SEVER ITS
APPEAL OF TWO SITING CONDITIONS FROM THE FOUR APPEALS
CHALLENGING THE KANKAKEE COUNTY SITING APPROVAL
Petitioner/Respondent WASTE MANAGEMENT OF ILLINOIS, iNC.
(“WIvITI”), by its
attorneys, Pcdcrsen
& Houpt, moves the
Pollution Control
Board (“Board”) to sever WMII’s
appeal
(PCB 03-144) from the third-party appeals filed by
the City of Kankakee (the “City’)
(PCB
03-125), Merlin Karlock (“Karlock”) (PCB
03-133), Michael Watson (Watson)
(PCB
03-134) and Keith Runyon
(“Runyon”)
(PCB
03-135).
In support thereof, WMfl states as
follows:
1.
On February
25,
2003, the City filed a third-party petition asking the Board to
review the County of Kankakee’s (the “County”) January 31, 2003 decision granting local
siting
approval (“Site Location Approval”) of WMII’s August
16, 2002 application to expand the
Kankakee Landfill.
On March 3,
2003, Karlock, Watson and Runyon
all
uilcd separate third-
party petitions likewise seeking a review of the Site Location Approval.
2.
The City appeals on the grounds that
the
County’s decision was against the
manifest weight ofthe evidence on four of the criteria in Section
39.2 of the Act,
and the
3423O~
2
~PR 04 2003 11:02 FR
TO 2149~200330256~P.04/06
County’s proceedings were fundamentally unfair.
Karlock appeals on the grounds that
the
County lacked jurisdiction, the County’s decision was against the ‘manifest weight of the
evidence on four of the statutory criteria, and the proceedings were fundamcntally unfair.
Watson appeals on the grounds that the County lacked jurisdiction, the County’s
decision was
against the manifest weight of the evidence on
seven of the
statutory criteria, and the proceedings
were fundamentally
unfair.
Runyon appeals on the ground that the County’s decision was
against the manifest weight of the evidence on one
ofThe statutory criteria.
3.
On March
6, 2003, the Board consolidated all
four of the third-party petitions,
~
sponte.
4.
On
March 7,
2003,
WMII filed
its
Petition for
Review of Site Location Approval
Conditions.
W1’vffl’s appeal
contests and objects to Special Conditions 2(h) and 2(x), which the
County issued
as part of the Site Location Approval, on the grounds that they (i) arc ncithcr
reasonable nor necessary to accomplish the purposes of Section
39.2
of the
Act; and (ii) are not
supported by the record
and have not been
demonstrated to be either technically appropriate or
operationally reasonable,
5.
On
March
20, 2003,
the Board,
sua sponte,
consolidated WMJIs
appeal
with the
third-party appeals for the purpose of hearing.
WMU asis the Board to
sever its appeal
in light
of the standards for consolidation articulated in Section
101.406 of the Board’s
Procedural
Rules
(the
“Rules”).
6.
Section
101.406 of the Rules provides
that consolidation is proper only: “if
consolidation is in the interest of convenient,
expeditious, and complete determination of claims,
and
if’ consolidation would not cause material
prejudice to any party.”
35
III. Adm.
Code Section
3
.~PR04 2003 11:02 FR
TO 2149~200330256UP.05/06
101.406 (2002).
7.
In this case., the consolidation of WMII’s appeal with the third-party appeals ofthe
City, Karlock, Watson
and Runyon will not serve the interests of a convenient and expeditious
determination
of
claims.
The challenges that WMII raises it its appeal
--
i.e.,
that Special
Conditions 2(h) and 2(x) are not reasonable or necessary to accomplish
the purposes of Section
39.2 ofthe Act, and are not supported by
(he record
--
are completely separate and distinct from
thechallenges
to
the siting approval raised by the third-party petitions.
WMII is not challenging
the
siting
approval.
Its arguments are specific to the County’s Special Conditions 2(h) and 2(x).
WMII wil
be relying on
facts in the record that are unique to its arguments and unrelated
to the
facts relied upon
by the
third-party petitioners in
their challenge to the
siting approval.
Thus,
consolidating WMII’s appeal
with
the third-party appeals will unnecessarily complicate these
proceedings by combining
unrelated issues and divergent arguments based
on different facts.
8.
Moreover, consolidation of these matters for the purpose of the hearing materially
prejudices
WMJJ, who
will be
required to initiate and complete discovery and go to hearing
under the scheduling deadlines established in the third-party
appeals, which
were filed as early as
10 days before WMJI filed its appeal.
WM~I would
also be unduly
burdened by the post-hearing
briefing schedule, in that it would be required to prepare and file its opening
brief
to the
County
simultaneously with the third-party petitioners’
opening briefs
to WMII and the County, followed
by the preparation and filing of four response briefs to the third-party petitioners’
opening briefs,
followed by
the preparation and filing
of its reply brief to the County’s response to WMII’s
opening brief.
9.
Based upon the standards set forth
in Section
101.406 of the Rules, the
3623C1~
4
.~PR04 2003 11:02 FR
TO 2149~200330256~P.06/06
consolidation
of WMII’s appeal with
the third-party appeals for hearing purposes is not proper.
As the Board ruled in
Sierra Club
v.
Will Counry Board,
Nos. PCB 99-136, PCB
99-139, PCB
99-l4Oslip op.
at 4 (April
15,
1.999), the proper procedure under these circumstances is to
consolidate the third-party
appeals challenging the siting approval, decline
to
consolidate the
WMJI
appeal ofthe siting conditions, and “direct the Clerk of the Board and the
assigned hearing
officer to handle these cases
in
a coordinated fashion to the extent practicable, including for
purposes of record maintenance and hearing.”
WHEREFORE. WASTE MANAGEMENT OF ILLINOIS, INC. respectfully requests
that the Board enter an
order severing PCB 03-144 from PCB 03-125, 03-133, 03-134 and 03-
135, and providing such other and further relief as the Board deems appropriate.
Respectfully submitted,
WASTE MANAGEMENT OF ILLINOIS,
INC.
By~~0~
One of Its Attorneys
Donald J.
Moran
Lauren Blair
PEDERSEN &
HOUPT
161
North Clark Street
Suite 3100
Chicago, Illinois 60601
(312)641-6888
5
**
TOTF~LPAGE.06
**
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section
1-109 ofthe Illinois Code of Civil
Procedure,
hereby
under
penalty
of perjury under
the
laws of the
United
States of America,
certifies that on April
8, 2003,
a copy ofthe foregoing was served upon:
Dorothy M.
Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Attorney George Mueller
501
State Street
Ottawa, IL 61350
(815)
433-4705
(815)
433-4913 FAX
Donald J. Moran
Pederson & Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149 FAX
Elizabeth Harvey, Bsq.
Swanson,
Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL
60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
One Dearborn Square,
Suite 550
Kankakee, IL
60901
(815) 933-3385
(815)
933-3397 FAX
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL 60901
(815)
937-6937
(815) 937-0056
FAX
Keith Runyon
1165 Plum Creek Drive
Bourbonnais, IL 60914
(815)
937-9838
(815)
937-9164 FAX
Jennifer J. Sackett Pohlenz
175
W. Jackson Boulevard
Suite 1600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 FAX
Kenneth A. Bleyer
923 W.
Gordon Terrace #3
Chicago, IL 60613-2013
Patricia O’Dell
1242 Arrowhead Drive
Bourboimais, IL 60914
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph,
11th Floor
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By depositing
a copy thereof,
enclosed in
an
envelope
in the United States
Mail at Rockford,,
Illinois, proper postage prepaid, before the hour of 5:00 P.M., addressed as above
Firm No. 695
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, Illinois
61101
(815) 490-4900
70354265v1 813053