BEFORE TIIE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC. )
and
KENDALL COUNTY LAND AND
)
CA1TLE, LLC"
)
Petitioner,
v.
COUNTY BOARD OF KENDALL COUNTY,
ILLINOIS,
Respondent.
l
)
)
)
NOTICE OF
l
FILING
TO:
All Counsel of Record (see attached Service List)
PCB No. 09.43
PLEASE
TAKE NOTICE that on March 30, 2009, the undersigned filed with the Dlinois
Pollution
Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Grundy Comty's
Reply in Support ofits Motion for Leave to lotervene, copies of which are attached hereto.
Dated:
March
30, 2009
Charles
F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105.1389
815.490.4900
Respectfully submitted,
On behalf of GRUNDY COUNTY, ILLINOIS
lsi
Charles F. Helsten
Charles F. Helsteo
One
ofIts Attorneys
70592031vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
WASTE
MANAGEMENT OF ILLINOIS, INC.
AND KENDALL LAND AND CATTLE, LLC,
Petitioners,
)
)
)
)
w
)
COUNTY BOARD OF KENDALL COUNTY,
l
ILLINOIS
)
)
PCB 09-043
(pollution Control Board Facility
Siting Appeal)
GRUNDY COUNTY'S REPLY IN SUPPORT OF ITS MOTION TO INTERVENE
NOW COMES the County of Grundy by and through its atOOmeys, State's Attorney
Sheldon
Sobol, and HINSHAW
&
CULBERTSON LLP, and fur its Reply in Support of its
Motion to Intervene, states as follows:
1.
Petitioners Miseharacterize Grundy County's Motion to Intervene
Petitioners assert that Grundy County's motion to intervene is predicated on an expansive
reading of !he Board's deeision in
Fox Moraine, LLC v. United City of Yorkville,
PCB 07-146
(August 23, 2007). (Petitioners' Opposition at 2). As a threshold matter, Grundy County's
motion and brief
in
support cite numerous bases that support intervention, including but not
limited to, the
Fox Moraine
decision.!
More importantly, Petitioner's reading of
Fox Moraine
as precluding Grundy County's
intervention relies upon
!he fact that the State's Attorney in
Fox Moraine
happened to be !he
State's Attorney of the county in which the facility was to be sited, The Board's decision,
however, did not state, as implied by Petitioners here, that the decision to grant the State's
Attorney's motion to intervene
in
that case was based on Section 107.202(b). 10 fact, !he Board
I
Notably,
FOJt MQraine
is not even mentioned
in
Grundy County's motion,
and:is
referenced
in
only one paragrapb
of Gnmdy COl.lllty's Memorandum of Law.
70594J85vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
never mentioned 107 .202(b) as forming the basis for its decision. The Board instead explained:
[Wlhen the third party is
I!
state's attorney or the Attorney General's Office
intervening to represent the public interest, a third party
may intervene.
See, e.g.,
Land and Lakes,
PCB 94-195, slip op. at 3.
The courts have also noted that intervention is based on the state's attorneys
analogous rights and duties to the Attorney General, so that a state's attorney may
intervene to represent the public interest.
See Land and Lakes Co.
v.
IPCB, 245
Ill.
App. 3d 631, 616 N.E.2d 349, 186 m. Dec. 396 (3d Disl 1993);
see also
Pioneer Processing, Inc. v. [EPA,
102 Il1.2d 119,464 N.E.2d 238,79
Ill.
Dec. 640
(1984). Therefore, the Board grants Kendall COllOty'S motion to intervene, subject
to the provisions
of35 Ill. Adm. Code 101.402(e).
Fox Moraine,
at *1-2 (emphasis added).
10 alleging that Grundy County's request to intervene seeks to bnpermissibly expand the
Board's holding in
Fox Moraine,
and "expand the plain language of Se<.1ion 107.202(b),"
Petitioners
oonveniently ignore the fact that the Board has discretionary authority to permit "any
person" to intervene. The regulations provide, at 35 m.Adm.Code 101.402, as follows:
Section 101.402
Iolervention of Parties
.)
The Board may permit any person to intervene in any adjudicatory
proceeding. If a person seeks to intervene in an adjudicatory proceeding, the
person must file a motion to do so with the Clerk
and serve a copy of the motion
on all parties to the proceeding. The motion must set forth the grounds for
intervention.
b)
10 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.
cj
Subject to subsection (bj
of this Section, the Board
will
permit any person
to intervene in any adjudicatory proceeding if:
2
1059438Svl 816579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
1)
The person has an Wlconditional statutory right to intervene in the
proceeding; or
2)
It
may be necessary for the Board to impose a condition on the
person.
d)
Subject to subsection (b) of this Section, the Board
may
pennit any person
to intervene in any adjudicatory proceeding if:
1)
The person has a conditional statutory right to intervene
in the
proceeding;
2)
The person may be materially prejudiced absent intervention; or
3)
The person is so situated that the person may be adversely affected
by a final Board order.
[d.
(emphasis added).
Petitioners' assertion that it would be an impennissihle expansion of the law for the
Board to
pennit Grundy County to intervene ignores both 35 m.Adm.Code 101.402(a) and
101.402(d)(2), (3), which clearly
pennit the Board to allow intervention by a party that may be
adversely affected by the final order in the appeal.
Finally, the assertion that allowing Grundy
County to intervene would run afoul of 415
ILes
5/40. 1 (a) is simply erroneous. The Environmental Protection Act, at 5/40.1(0), merely
limits those who
are authorized to initiate an appeal of decision that denies siting. The Act
imposes no special limitations on intervenors
in
such actions. Thus, the Board's authority to
grant leave to intervene derives from 35 1ll.Adm.Code 101.402 (set forth above), which
expressly authorizes intervention where the intetvenor may be materially prejudiced if
intervention is not permitted, or whether the person may be adversely affected by a final Board
order.
An
order granting Grundy County's request to intervene would, therefore, be fully in
keeping with Illinois law.
3
70S94385vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
2.
Grundy County has demonstrated that it may be adversely affected by the outcome
of the appeal.
Petitioners allege that Grundy County has provided nothing more than "simple and
conc\usory statements to support its
position" that its eitizens will be adversely affected if the
Board overturns the Kendall County Board's decision at issue
in
this appeal (petitioner's
Opposition at 1[12). Notably, the decision to deny siting was based on the Petitioners' failure to
show the facility would be safe, and failure to show that it would be located so as to minimize
incompatibility with the surrounding area and negative effect on the value of surrounding
property.
In claiming that Grundy County provided
nothing but "simple and conclusory
statements"
concerning the adverse impact of the proposed siting on Grundy County residents,
Petitioners blithely ignore the voluminous record of witnesses presented by Grundy County
during the siting
hearings, for which numerous citations were provided
in
Grundy County's
Memorandum in support of its Motion to Intervene.
(See
Grundy County's Memorandum of Law
at pp. 4.5).
The two cases cited by Petitioners at paragraph 12 of its Opposition brief, which purport
to supply support for its argument, are at a minimum, entirely inapposite, Among the
distingnishing factors is the glaringly obvious fact that neither case involves a siting appeaJ, and
in neither case was the would-be intervenor a party to proceedings below> as is
true
here.
The first opinion cited by Petitioners)
Stuart v. Fisher,
which was incorrectly cited as
"PCB 02-162/
1
was a noise enfOrcement case,
in
which a county sought to intervene, asserting
that if the Board's ruling was
in
conflict with the county's noise ordinance, it would adversely
affect that county; the Board disagreed.
Stuart v. Fisher,
PCB 02. 164 (January 23, 2003). Indeed,
in
Stuart,
which was, again, not a siting case, the would-be intervenor county offered no
4
70S94385vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
explanation why or how the county or its residents would be adversely impacted by a Board
decision
in
the case, except to argue that a Board decision
might
conflict
with
the county's Own
ordinance. This is nothing whatsoever like the instant appeal, where Grundy County participated
as a party in the proceedings from which Petitioners appeal, and where Grundy County presented
and examined witnesses and evidence demonstrating the public safety dangers presented by the
proposed facility,
as well as its incompatibility with the surrounding area.
(See
Memorandum
in
Support of the Motion to intervene, at pp. 4-5). Moreover, the Board need not search the recQrd
for the evidence: Grundy County has provided the Board with numerous citations to the record.
Jd.
The second supposed authority in support of the Petitioners' position was an underground
storage
tank
case, in which the Board declined to allow the City of Chicago to intervene, where
the basis alleged by the City was that it might be entitled
to obtain reimbursement for certain
costs,
along with the City's concern that a subsequent complaint for reimbursement might be
barred
as duplicative if the City did not iotervene. 2222
Elston LLC v. Purex Indus.,
PCB 03-
055, at *4 (January 23,2003). The Board explained that there would be no bar to a complaint for
reimbnrsement by the City, and that the City was ftee to file a reimbursement complaint,
whereupon consolidation
of the two aetions would likely be appropriate.
!d.
Agaio, the case
eited by
Petitioners could not be more unlike this appeal.
3.
Kendall County's tnterest. are dI,ttnct from those of Grundy County.
Petitioners assert, at paragraph 13, that Grundy County
has
not established that the
Kendall County Board is
"iocapable" of ma1cing arguroents to address the adverse impacts of the
proposed facility on
ClTUndy County's residents. There is no need for Grundy County show
Kendall County
to be "incompetent" to represent the interests of persons who are not Kendall
5
705943SSvl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
County residents. Kendall County simply has no duty to, and cannot be expected to
j
expend the
its taxpayers' resources to advocate on behalf of those who do not live in the County. Protection
of the health, safety, and welfare of Grundy County resideots falls upon the Grundy County
State's Attorney, not on the state's attorney of nearby oounties. 'Thus, Grnndy County's residents
would be materially prejudiced
if their distinct interests are not defended by their state's
attorney.
4.
Petitioners misrepresent the law concerning intervention to protect the rights of
third parties.
Petitioners allege, at paragraph 13, that "the Board has held that it is insufficient to base
intervention on the belief that
the
respondent will not adequately represent
the
concerns of
third
parties."
ld.
In
purported support of this assertion, Petitioners cite
Alloy Engineering
&
Casting,
Co.,
although they fail to supply a case number or date. Fortunately, the Board's website
provides a search tool that makes it possible to locate the case number, and a date for the
cited
opinion: PCB 01-155, September 6. 2001. The opinion, however, does not stand for the
proposition alleged by Petitioners.
Alloy Engineering
was an enforcement case brought by the State against the respondent
in that case for causing or allowing the emission
of oontaminants, and for failing to oomply with
its operating permit and with state air pollution regrdations.
'The would-be intervenors in
Alloy
were nearby homemvners who wanted to participate
in the
State's enforcement action, despite
the fact that they already had their own simultaneous civil suit against the respondent pending in
circuit court The Board declined to allow them to intetVene, noting that the Attorney General
had brought the enforcement action, and the Attorney Geoeral represents the ooncerns of all of
the People of the State of Illinois.
!d.
at *3 (emphasis added). 'Thus, the Board's holding in
Alloy
was not, as represented by Petitioners in
their
brief, that it is "insufficient to base intervention on
6
70594385vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
the belief that the respondent will not adequately represent the concerns of third parties."
(Petitioners' Opposition at
~13).
Rather, the Board observed, quite correctly, that where the
Illinois Attorney General brings an enforcement action against an alleged violator of the law, he
or she is necessarily representing the interests of the entire State of fllinois.
2
This is clearly not
the case in this landfill siting appeal.
S.
Grundy County'. motion
i.
timely.
On March 24, 2009, while this motion to intervene wa.., pending) Petitioners amended
their petition. Moreover,
as of the filing ufthis Reply, no depositions have been taken, no written
discovery
has been exchanged, and no hearings have been held.
In
other words, this appeal is
still
in early infancy, and granting the motion to intervene will therefore cause no delay and will
have no deleterious effect on the proceedings.
CONCLUSION
If the Petitioners are successful in overturning Kendall County's denial of their
application for siting, the resulting landfill will endanger
the health, safety, and welfare of
Grundy County residents. The evidence in the record shows that Petitioners' landfill would,
inter
alia.
threaten the integrity of the area aquifer from which many Grundy County residents derive
their water, risk downstream damage to the Aux Sable watershed basin through improvident
surface water runoff from the proposed facility, endanger
air
traffic safety at and near the Morris
1
!he
Board further noted, in
Alloy Engineering,
that if the Board found that the respondent violated the Act, its
order would require that respondents cease and desiiJt from further violations of the Act, an order thaI would not
adversely
affect the wowd-be intervwors. (ld. at *3). The Board went (In to explain that if it did not find the
respondent violated the Act, the
wou1d~be
intervenors would still not be adversely affected, and the ruling would
have no impact on their
civil
suit.
In
other words, the Board fuund that no matter which way the case was decided,
the would-be intervenors could not possibly experience an adverse effect from the decision.
7
70594385vi 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
Community Airport, and adversely impact traffic and roads in Grundy COWlty.
Because Grundy County's interests are separate and distinct from those of Kendall
COWlty, Kendall County can
no~
and should not be expected to, advance Grundy COWlty'S
interests. Accordingly, Grundy COWlty residents may be adversely affected by a final Board
Order, and their interests will
be materially prejudiced absent intervention. Grundy COWlty
therefore has a duty to intervene in order to protect the health, safety, and welfare
or its
residents,
Inasmuch as Petitioners' Amended Petition was filed during the pendency of this motion
to intervene,
Grundy
County's motion is timely, and its intervention would cause no undue
delay, would not materially prejudice the proceeding, and would not otherwise interfere with an
orderly or efficient proceeding. The Boaed should, therefore, grant Grundy County's Motion to
Intervene.
WHEREFORE. for the reasons set forth in
their
Motion to Intervene, the Memorandum
of Law in Support, and in this Reply, Grundy County respectf\tlly requests that the Board grant
the Motion to Intervene.
Dated: March 30,
2009
Sheldon Sobol
Grundy County Stale's Attorney
111
E
Washington St.
Morris, IL 60450
(815) 941.3276
Charles F. Heisten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105.1389
Phone: 8154904900
fax: 8154904901
Respeetfully submitted,
Grundy County, Illinois
By:
/s/ Charles
F. Helsten
One of Its Attorneys
8
70594385vl 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby
under penalty of peIjury under the laws of the United States of America,
certifies that
on March 30, 2009, she served a copy of the foregoing upon:
Donald J. Moran
Bradley
P. Halloran
Pedersen
&
Houpt
Illinois Pollution Control Board
161 N. Clark Street
JamesR.
Thompson Center
Suite 3100
100
West Randolph SI.
Chicago, IL 60601
Suite 11-500
dmoran@vedersenhou:gt.com
Chicago,IL 60601
hallorab@i.llcb.state.il.ui
Eric C. Weis
James F. McCluskey
Kendall County
State's Attorney
James
S. Harkoess
807 West Joho SI.
1001
Warrenville Road, Ste. 500
Yorkville, IL 60560
Lisle, IL 60532
eweis@co.kendall.il.us
jfincQlyskev@momlaw.com
jharkness@momlaw.com
Daniel J. Kramer
George Mueller
Law Office of Daniel J. Kramer
Mueller Anderson, P.C.
1107
A s. Bridge Street
609
Bast Bin. Road
Yorkville,
IL 60560
Ottawa, IL 61350
dkramer@dankramerlaw.com
george@muelleranderson.com
Rennetta Mickelson
Kendall County Clerk
111 Fox
Street
Yarkville, IL 60560
nnickelson@co.kendall.il.us
Vi. E-Mail and by depositing a copy thereof, enclosed in an envelope in the United States Mail
at Rockford, Iltinois. proper postage prepaid, before the hour
of 5:00 p.m., addressed as above.
HlNSHA W
&
CULBERTSON LLP
100 Park
Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
70592028vJ 876579 62802
Electronic Filing - Received, Clerk's Office, March 30, 2009
