NOTICE OF FILING

FURTHER AFFIANT SAY~’H NOT.
~!FWAVIT OF LLOYD STOCK
• Company, LLC since September of2002.
1. OFFICIAL SEALLORRIE M. FOOR
CERTIFICATE OF SERVICE

RECE~VED

CLERK’S OFFICE

MAY

2004

STATE OF ILLINOIS

Pollution Control Board

BEFORE THE

ILLNOIS

POLLUTION CONTROL BOARD

SUTTER SANITATION, INC.

and

LAVONNE HAKER,

vs.

Petitioners,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB No. 2004-187

(Permit Appeal

—

Land)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

(VIA HAND DELIVERY)

(SEE PERSONS ON

ATTACHED LIST)

Carol Sudman, Esq.

Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue

East

Post Office Box

19274

Springfield, Illinois

62794-9274

(VIA FIRST CLASS MAIL)

PLEASE TAKE NOTICE that I have today served for filing with the Office of the

Illinois Pollution Control Board an original and nine copies of

MR.

JESSE RUFFNER

AND FAMILY, MR. LLOYD STOCK, AND STOCK & COMPANY, LLC’S

MOTION

TO INTERVENE

attached herewith, copies of which are herewith served

upon you.

Respectfully submitted,

Dated:

May 28, 2004

MR. JESSIE RUFFNER

AND

FAMILY

and MR. LLOYD STOCK

By:

One ofTheir Attorneys

John M. Heyde, Esq.

SIDLEY AUSTIN BROWN & WOOD LLP

10 South Dearborn Street

Chicago, Illinois

60603

(312) 853-7716

THIS FILING

SUBMITTED ON

RECYCLED PAPER

RECE~VED

CLERK’S OFFICE

MAY

2004

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

STATE OF

ILLINOIS

SUTTER SANITATION, INC. and

)

Pollution

Control Board

LAVONNE HAKER,

)

Petitioners,

)

vs.

)

PCB No. 2004-187

)

(Permit Appeal

—

Land)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

MR.

JESSE RUFFNER

AND FAMILY, MR. LLOYD STOCK,

AND STOCK & COMPANY,

LLC’S MOTION

TO INTERVENE

NOW COME MR. JESSE RUFFNER and

FAMILY (“Ruffner Family”), and

MR. LLOYD STOCK (“Mr. Stock”), by their attorneys, SIDLEY AUSTIN BROWN &

WOOD LLP,

and STOCK & COMPANY, LLC (“Stock & Co.”), by its attorneys,

HODGE DWYER ZEMAN, and hereby move for intervention as party participants in

this permit appeal pursuant to 35111.

Admin. Code

10 1.402.

In support oftheir motion,

the Ruffner Family, Mr.

Stock, and Stock & Co.

state as follows:

On October 1, 2003, Sutter Sanitation, Inc. and Lavonne Haker

(“Petitioners”) filed an Application for Permit (“Application”) with the Illinois

Environmental Protection Agency (“Illinois EPA” or “Agency”) to

develop a garbage

transfer station in Effingham County, Illinois (the “Site”).

On March 30, 2004, the Agency denied the Petitioners’

Application to

develop the Site because Petitioners failed to provide proof that granting the Application

would not result in violations ofthe Illinois Environmental Protection Act (“Act”).

copy of the denial letter is attached as Exhibit A.

Printed on Recycled Paper

The Agency’s denial letter states in part that:

Issuance ofa permit for this facility would violate Section 22.14 of

the Act because the proposed garbage transfer station would be

located closer than

1000 feet from a dwelling that was so located

before the application was submitted to

the Illinois EPA.

Denial Letter at 2.

On April 26, 2004, Petitioners filed the instant appeal with the Illinois

Pollution Control Board (“Board”) contesting the March 30, 2004, determination of the

Agency denying the request for a permit to

develop the

Site.

The Board’s procedural

rules at 35

Iii.

Admin. Code

101.402, provide in

relevant part:

The Board may permit any person to intervene in any

adjudicatory proceeding.

In determining whether to grant a motion to intervene, the

Board will consider the timeliness of the motion and

whether intervention will unduly delay or materially

prejudice the proceeding or otherwise interfere with an

orderly or efficient proceeding.

Subject to

subsection (b) ofthis Section, the Board may

permit any person to intervene in any adjudicatory proceeding

if:

The person has a conditional statutory right to

intervene in the proceeding;

The person may be materially prejudiced absent

intervention; or

The person is so situated that the person may be

adversely affected by a final Board order.

35 Iii. Admin.

Code

101.402.

A permit appeal is an adjudicatory proceeding pursuant to the definition of

“adjudicatory proceeding” found in the Board’s procedural rules at 35

Ill. Admin.

Code

10 1.202.

This Motion to Intervene

is timely, and will not unduly delay or materially

prejudice the proceeding or otherwise interfere with an orderly or efficient proceeding.

The Board accepted the Petitioners’ appeal on May 6, 2004, and the Hearing Officer has

set a telephonic status

conference for June 3, 2004.

The statutory decision deadline is

August 24, 2004.

In order to insure

an efficient and orderly proceeding that does not

result in undue delay, the Ruffner Family, Mr. Stock,

and Stock & Co. propose to

proceed, file all motions, briefs, and all other necessary legal documents,jointly in this

matter.

As set forth in Sections

101.402 (d)(2) and (d)(3) allowing “any person” to

intervene, the Ruffner Family, Mr. Stock, and Stock & Co. will be materially prejudiced

absent intervention allowing full and meaningful participation in the Board proceeding

and are so situated that they will be adversely affected by a final Board

order overturning

the Agency’s denial in this

matter.

Iii. Admin. Code

101 .402(d)(2)-(3).

Under Section 22.14 ofthe Act, 415

ILCS

5/22.14, it is illegal to establish

a pollution control facility for use as a garbage transfer station, which is located less than

1000 feet from

any dwelling.

As discussed below, there are currently two dwellings

located within

1000 feet ofthe

Site on property owned by Stock & Co.

10.

The Ruffner Family currently resides at 2187 North 300th Street, Mason,

Illinois, which is located directly across the Street, and within

1000 feet, ofthe Site.

The

Ruffner Family has lived in a dwelling at this

address since October

1, 2003.

The

Ruffner Family is~expecting

the birth of their first child in June 2004.

The Ruffner

Family also submitted comments to

the Agency after Petitioners submitted the

Application.

A Board decision contrary to the Agency’s denial ofthe Application would

infringe on the Ruffner Family’s rights under Section 22.14.

There

is no doubt that the

Ruffner Family would be

adversely affected by a reversal of the Agency’s decision and

would be materially prejudiced absent intervention in this matter.

Pursuant to Section

22.14, the Ruffner Family has an absolute right to live

in their current dwelling without

the development of a garbage transfer station within

1000 feet oftheir doorstep.

Accordingly, the Board should permit the Ruffner Family

to intervene pursuant to 35

Ill.

Admin. Code

101.402(d).

11.

Mr.

Stock is related to

the owners of Stock & Co., but is not himself an

owner in Stock &

Co.

Mr.

Stock manages a number of homes in the Mason area,

including both the mobile home, which he also

owns, and

a newer manufactured home,

which are both across the street and within 1000 feet of the Site.

The mobile

home was

rented and inhabited by two previous tenants beginning in the fall of2002, before the

Application was submitted to the Agency.

Mr.

Stock appeared and provided public

comment at the Board hearing regarding the siting appeal and submitted comments to the

Agency after Petitioners submitted the Application.

A decision by the Board overturning

the Agency’s denial of the Application would infringe on Mr.

Stock’s financial and

management interest in the mobile and manufactured homes located on the

Stock & Co.

property.

Mr.

Stock would be

adversely affected

by a reversal ofthe Agency’s decision

and would be materially prejudiced absent the ability to

intervene in this matter and

represent his private

interests.

Development ofthe

Site as a garbage transfer station

would discourage the Ruffner Family from continuing to

lease the property and further

discourage any future potential tenants for the two homes managed by

Mr.

Stock.

Accordingly, the Board should permit Mr.

Stock to intervene pursuant to 35

Ill. Admin.

Code

101.402(d).

12.

Stock

& Co. owns farmland in Effingham County, along County Road

25,

directly across the street and to the west of the Site.

Historically, a dwelling was located

on Stock & Co.’s property, although for several years a dwelling did

not exist.

Stock &

Co. acquired this property on May 4,

1999, in part so as to locate

homes, including the

mobile home and manufactured home now present on the property.

The mobile home

located on the property was first inhabited in the fall of 2002.

Prior to the Ruffner

Family, Ms.

Bridie Knierim and Mr. Andrew Wharton successively leased and

inhabited

the mobile home located on the

Stock & Co. property.

On March 21, 2002,

Stock & Co. received notice from Petitioners

regarding the

proposed development of the Site.

On April

19,

2002, the Application for Local Siting

Approval for Proposed Solid

Waste Transfer Station was filed with the Effingham

County Board and a representative ofStock & Co. (Mr. Duane Stock) attended the local

siting hearing held on August

14, 2002,

to ask questions ofthe witnesses and make public

comments.

Stock & Co. also participated in an appeal of the Effingham County

siting

decision before the Board and to the Fifth District Appellate Court, and submitted

comments to the Agency after Petitioners submitted the Application.

Thus, Stock & Co.

has been actively engaged in all ofthe proceedings related to the proposed development

ofthe Site.

A decision by the Board overturning the Agency’s denial ofthe Application

would infringe on Stock & Co.’s rights, the property interests in the land and the mobile

and manufactured homes located within

1000 feet of the Site, under Section 22.14 of the

Act.

Such a decision by the Board to allow development ofthe Site as a garbage transfer

station would

discourage the Ruffner Family from continuing to lease the property and

discourage any future potential tenants due to the negative environmental and

psychological effect of a garbage transfer station less than 1000 feet from their residence.

Concomitantly, this impact on the tenants would have a negative financial effect on the

property interests ofStock & Co., and would

also limit any future development beyond

that which has already occurred, development that was intended when the land was

purchased in

1999, before any notice or siting proceedings in this matter.

Stock & Co.

would clearly be adversely affected by a reversal of the Agency’s decision and

would be

materially prejudiced absent intervention in this matter.

Accordingly, the Board should

permit Stock & Co. to intervene pursuant to 35

Ill. Admin.

Code

10 1.402(d).

13.

The participation of the Ruffner Family, Mr.

Stock, and Stock & Co.

necessary to

this proceeding to insure, along with the other reasons stated above,

that the

property, leasehold,

financial, and business interests of all three entities are adequately

represented and defended, in addition to the governmental interests that the Agency will

representing in defending its denial ofthe Application.

14.

The Board’s recent procedural rule revisions clearly allow the Board to

permit the Ruffne~

Family,

Mr.

Stock, and Stock & Co.

to intervene pursuant to

35111.

Admin. Code

101.402.

The Board has not addressed the issue ofthe intervention of

private

third parties since the adoption of the newprocedural

rules on January

1, 2001.

However, the Board has addressed the issue ofintervention in the context of local

governmental units.

In Saline

County Landfill, Inc. (SCLI) v. Illinois EPA, PCB No. 02-

108 (April

18, 2002) the Board allowed intervention and noted that the Village of

Riverdale was denied intervention in

a case involving a permit appeal “prior to the

Board’s new procedural rules which changed the Board’s prior rule and policy on third

party intervention (see 35

Ill. Adm. Code

101.402).”

SCLI, PCB No. 02-108, slip op. at

The Board’s recent decision denying intervention to the Village of Cary (“Cary”)

in Lowe Transfer,

Inc., et a!.

v. McHenry County Board, PCB No. 03-221 (July

10, 2003)

is distinguishable from the present case.

In Lowe Transfer, the McHenry County Board

denied a siting request by a developer, as opposed to the denial ofa permit by the

Agency.

Cary, as a governmental entity,

proposed several reasons to the Board as to

why

intervention was necessary; however, those arguments primarily related to Cary’ s status

as the protector of its citizens and the

future development potential ofCary in the area of

the proposed pollution control facility.

These interests were

similar, if not identical, to

the interests ofMcHenry County, which was already a party.

Cary did not own, live in,

or manage a dwelling within

1000 feet ofthe proposed garbage transfer station, as Mr.

Stock, the Ruffner Family, and Stock & Co. do in the present case.

The significant

private property interests held by the three proposed interveners in this case set them

apart and clearly ~iarrant intervention pursuant to the Board’s newprocedural rule and

policy.

The interests ofthe Ruffner Family, Mr. Stock, and

Stock & Co.

also

make this

case differ from cases in which citizen groups have sought to

intervene to

oppose

permits.

The Ruffner Family, Mr.

Stock, and

Stock & Co. are not groups advancing

particular views of policy; rather, they are residents, homeowners, and a landowner

within a specific radius that the Genera! Assembly sought to protect in enacting Section

22.14.

As a result, they have interests that would be more adversely affected should the

Board reverse the Illinois EPA’s permit decision than would most others who might seek

to intervene in Board adjudications.

15.

The Ruffner Family, Mr.

Stock, and

Stock & Co. through their

undersigned attorneys, request this Board’s leave to intervene and to

participate fully as

parties in this matter; however, as noted above, the Ruffner Family, Mr.

Stock, and

Stock

& Co. propose to proceed, file a!!

motions, briefs, and all other necessary legal

documents,jointly in

this matter.

16.

Pursuant to Section 101.504, the facts asserted herein are substantially part

of the record before the Illinois EPA and

therefore, also ofrecord in this proceeding

before the Board, except primarily as to the material prejudice and adverse

effect absent

intervention.

Accordingly, affidavits on behalf ofthe Ruffner Family, Mr.

Stock, and

Stock

& Co.

are attached as Exhibits

B, C, and D.

(Exhibits B and C, were not available

in hard copy form at the time ofthis filing; faxed copies, therefore, are included.

We will

supplement this filing promptly with the hard copy originals as soon as we receive them.)

Wherefore, MR. JESSE RUFFNER AND FAMILY, MR.

LLOYD STOCK, and

STOCK &

COMPANY, LLC request that they be allowed to intervene as parties in this

proceeding.

In the alternative, MR. JESSE RUFFNER AND FAMILY, MR. LLOYD

STOCK, and STOCK & COMPANY, LLC request leave to file an

amicus curiae

briefin

this matter.

Respectfully submitted,

MR. JESSE RUFFNER AND FAMILY

and MR. LLOYD STOCK

By:___________________

________________________

One ofTheir Attorneys

Dated: May 28, 2004

John M.

Heyde, Esq.

SIDLEY AUSTIN BROWN & WOOD LLP

South Dearborn Street

Chicago, Illinois

60603

(312) 853-7716

STOK:001/FiI/Appeal

—

PCB 2004-187/Motion to Intervene

redline

STOCK & COMPANY, LLC

By:

2~’-~&-~

/7-” N

Lead Attorney

Christine G. Zeman

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois

62705-5776

(217) 523-4900

Exhibit

APR—ø22~O4

~8:38

21?7S2~S~?

(

•

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY

1021

NORTh

G~No

AVENuE

E~sr,

P.O.

Box

19276,

SPRiNGfIELD, II.LINOIS

62794-9276, 217-782-3397

JAMES

THOMPSON

CENTER,

100

WEST

RANDOLPH,

SuITE

11-300,

CHICAGO.

II. 60601, 312~814-6O26

Ro~bR.

BLACOJEVCCH,

GOVERNOR

R~NE~

CIPRIANO,

DIRECTOR

217/524-3300

March

30,

2004

Owner

Mrs. LaVonne Haker

303 South Main Street

Altamont, Illinois

62411

Re:

0490305004

‘Effingharn County

Sutter Transfer Station

Log No. 2003-366

Permit File

Dear Mrs.

Naker and Mr. Sutter:

CERTIFIED MAIL

7001

2510

0002

1279

4630

7001

2510

 0002 1279 4647

Operator

Sutter Sanitation

 Service,

 Inc.

Attention:

Mr. Tracy Sutter

Post Office Box

569

Shumway, Illinois

62461

This will aCknowledge receipt of your Application for Permit to develop a solid waste

management site, dated September 29, 2003, etc., and received by the Illinois EPA on October 1,

2003, etc.

The application for Log 2003-366 consists ofthe following documents:

__________

Dated

______________

Document

Date Received

Original Application

Additional Information

September 29, 2003

November 24, 2003

December 3,

2003

December

12, 2003

December

12,

2003

December 23,

2003

January 21, 2004

January 29, 2004

January 30, 2004

• October 1, 2003

November 26, 2003

December 4,

2003

December

15,

2003

December

16,

2003

December 29, 2003

January 26, 2004

January

30, 2004

January 30,

2004

Your permit application fora transfer station

for municipal waste including garbage, is denied.

You have failed to provide proof that granting this permit would not result in violations ofthe

Illinois Envirortrncntal Protection Act (Act).

Section

39(a)

ofthe Act 415

ILCS

5/39(a)

requires the’Illinois EPA

to provide the applicant with specific reasons for the denial ofpermit.

The following reason(s) are given:

4J02

North

M.ljn

S1rc~(,

Sockforct

6)03

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PLAi~4~

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2l~.4000

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Page2

I.

 The application states the floor ofthe

transfer

 building will be

inspected and

 improved,

but failed to describe the procedures for inspection orrepair.

Specifically, the

application failed to identify what the inspection might accomplish or reveal, or what

improvement might be necessary to the floor to make it suitable foruse as a transfer

station.

Additional

information requested in response to this issue, dated December 12,

2003, and received December 16, 2003, proposed no testing or criteria for pass/fail, only

that the concrete floor consisted of

8.5

inches ofconcrete over 2-3 inches ofaggregate

subbase.

The application indicated the two cores were rernoyed from the floor, but test

results on the cores and procedure for sealing were not provided.

The applicant has not

submitted adequate proof that the

tipping floor

is designed to prevent a release ofwaste

to the environment in accordance with Sections

12(a) and

21(a) ofthe Act.

The application failed to include specific handling

and management procedures to be

followed when certain wastes not allowed for landfill

disposal by Title V ofthe Act are

discovered mixed

in the waste received at the transfer station:

Lead acid batteries

(automotive), landscape waste, potentially infectious medical waste (P1MW), PCB waste,

and used oil.

The application failed to include handling and management procedukes to

be followed when wastes that require additional or special handling:

Asbestos and used

tires.

Issuance ofa permit for

this facility would violate Section 22.14 ofthe Act because the

proposed garbage ~-ansfer

station would

be located closer than 1000

feet from a dwelling

that was so located before the

application was submitted

the Illinois EPA.

Based upon the deficiencies noted above, the application does not adequately demonstrate

compliance with

IAC

807.207(a).

Within 35 days after the date of mailing of the Illinois

EPA’s final decision, the applicant rrt.ay

petition for a hearing before the Illinois Pollution Control Board to

contest the decision of the

Illinois EPA,

however, the 35-day period for petitioning

for a hearing may be extended for a

period of time not to exceed 90 days by written notice provided to the Board from the applicant

and

the Illinois EPA

within the 35-day initial appeal period.

Sincerely,

Joyce L. Muni~(PE.

Manager, Penfiit Section

•

Bureau ofLand

JLM~~:bjh\042

761 s.doc

cc:

David Kimmie, P.E., Hurst-Rosche Engineers Inc.

Charles J. Northrup, Sorting, Northrup,

Hanna, Cullen & Cochran) Ltd.

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May—27—2D~4

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IF!

AFF~DAVITQF

JESSE

RU~FNER

I, Jesse R.uffrier, being first duly

sworn,

deposeà~and

itates

t’~L14

1 live at

2187

North

~00~Street, Mason, Illinois, with t

expu

~tin~the birth

our

fist

Child

in Juno

2004.

,•

I live across the

strCet

andwithin

1000 feet of the

pro~c

tra~fer

station.

1 have read the foregoing Motion to

Intervene., and it i~

the

be.st

ofmy

knowledge.

FURTHER AFFIANT SAY~’H

NOT.

1iv~Ni.~~*

•ov~

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May—27—2014

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 F—435

COUNTY OF

EFFINGHAM)

)

SS.

STATE OF

IILThJOIS

)

~!FWAVIT

OF LLOYD

STOCK

 Lloyd

Stock,

being

first duly sworn, deposes

and

states as

folk

•

I own

and ~nanage

the mobile home, which is across

strei-t

within

•

60C

feet ofthe prc~posed

garbage

transfer

station.

•

~-T~

•

p

have leased the land

which

the mobile home is la

•

ted

flair

~.tock

•

Company, LLC since September of2002.

•

I also manage the

manufactured

home that is located

:t to

‘nabile

honie and is

also within

1000

feet

ofthe proposed garbage

transfer

OR.

I have

read the foregoing Motion to

Intervene,

and it I

cue

2Irld

:~~rrect

the

best ofmy laiowledge.

FURT1-1P~RAFFIANT

SAYETH NOT.

Subscribed and sworn

before

me this ~~of

2004.

-G

ó~

c~)

OFFICIAL ~

ç

•

AMANDA R.

/1MER

No~~”

Public

•

 NOTARY

PU3L!C,

STA

IL!.INC.

MYC0MM1SSI0II~

8i16/1•

.t•~.•

•

STOIC.:0OI/Pil/Appeal

—

PCB

2004.1

87/At

tidavit

—

Lloyd

Stock

.•o•b~

St~

MP’~—27—2ø04 13:49

 P.02

Exhibit

COUNTY OF

CHRISTIAN

STATE OF

ILLiNOIS

)

SS.

)

AFFIDAVIT OF DUANE

RICHARD

STOCK

Duane Richard

Stock, being first duly sworn,

deposes and states as follows:

I am the Registered Agent for Stock &

Company, LLC (“Stock & Co.”),

an Illinois limited liability company in good standing.

I own a business for farm management and real estate sales, DR. Stock,

Inc.,

205

South Washington Street, Post

Office Box

151, Taylorville,

Illinois.

I have read the foregoing Motion to Intervene, and it is true and correct to

the best ofmy knowledge.

FURTHER AFFIANT SAYETH

NOT.

OFFICIAL

SEAL

LORRIE

FOOR

NOTARyPUBLIC,

STATE

OF ILLINOIS

2004.

CERTIFICATE

OF SERVICE

I, John M.

 Heyde, the undersigned, hereby certify that I have

served the attached

MR. JESSE RUFFNER

 AND FAMILY,MR. LLOYD STOCK,

AND

STOCK &

COMPANY, LLC’S MOTION TOINTERVENE upon:

Ms. Dorothy M.

Gunn

Clerk of theBoard

Illinois Pollution ControlBoard

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

via hand delivery; and upon:

John

 J. Kim,Esq.

Divisionof Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Post Office Box

19276

Springfield, Illinois 62794-9276

Carol Sudman, Esq.

Hearing Officer

Illinois PollutionControl Board

1021 North GrandAvenue East

Post Office Box

19276

Springfield, Illinois 62794-9274

Charles

J.

Northrup,

Esq.

Sorling,Northrup, Hanna,

Cullen and Cochran, Ltd.

Suite 800 Illinois Building

607 East Adams Street

Springfield, Illinois 62705

by depositing said documents in the United States Mail in Chicago, Illinois, proper

postage prepaid, onMay28, 2004.

John M. Heyde

STOK:OO1/Filings/Appeal-PCB

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2004-187/NOF-COS

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Motion to

Intervene