498698.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND and CATTLE, L.L.C.
)
)
Petitioners,
)
No. PCB 09-43
)
vs.
)
(Pollution Control Facility
)
Siting Appeal)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on April 10, 2009, we filed with the Illinois Pollution
Control Board, via electronic filing,
PETITIONERS' OBJECTION TO GRUNDY
COUNTY'S MOTION FOR LEAVE TO FILE REPLY TO MOTION TO INTERVENE
in
the above entitled matter, which is attached hereto and herewith served upon you
.
WASTE MANAGEMENT OF ILLINOIS, INC.
and KENDALL LAND and CATTLE, L.L.C.
By:
/s/Lauren Blair
One of Their Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney Registration No. 1953923
1
Petitioners' Application for local siting approval was denied on criteria (ii) and (iii), not
on the basis of traffic and roads, or air traffic safety. Thus, Grundy County seeks to intervene to
raise issues unrelated and immaterial to the issues raised on appeal.
498623
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND AND CATTLE, L.L.C.
)
)
Petitioners,
)
No. PCB 09-43
)
vs.
)
(Pollution Control Facility
)
Siting Appeal)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
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PETITIONERS' OBJECTION TO GRUNDY COUNTY'S
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MOTION FOR LEAVE TO FILE REPLY TO MOTION TO INTERVENE
Petitioners, WASTE MANAGEMENT OF ILLINOIS, INC. ("WMII") and KENDALL
LAND AND CATTLE, L.L.C. ("KLC") (collectively "Petitioners"), by and through their
attorneys, PEDERSEN & HOUPT, P.C., object to Grundy County's Motion for Leave to File a
Reply in Support of its Motion for Leave to Intervene, pursuant to Section 101.500(e) of the
Illinois Pollution Control Board's ("Board") General Rules ("Rules"), 35 Ill. Adm Code
§101.500(e). In support thereof, Petitioners state as follows:
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INTRODUCTION
1.
On or about March 4, 2009, Grundy County filed a Motion to Intervene in this
appeal. Grundy County argues that it needs to intervene to address issues relating to (i) "the
integrity of the area aquifer"; (ii) "air traffic safety at and near the Morris Community Airport";
and (iii) the "impact [on] traffic and roads in Grundy County."
1
Electronic Filing - Received, Clerk's Office, April 10, 2009
2
Given that the Board has not yet ruled on Grundy County's Motion for Leave to File a
Reply, it was improper for Grundy County to file the Reply as a separate pleading, and the Board
should strike the Reply accordingly.
3
Grundy County's Memorandum in support of its Motion to Intervene was only six
pages.
498623
2
2.
On or about March 19, 2009, Petitioners filed a proper and timely Response
objecting to the Motion to Intervene. Petitioners' Response essentially argued two points. First,
Grundy County's reliance upon
Fox Moraine, LLC v. United City of Yorkville, City Council
, No.
PCB 07-146 (Aug. 23, 2007), is misplaced because in that case, the Board allowed intervention
by the State's Attorney of the county in which the facility was located, which is consistent with
Section 107.202(b) of the Rules, but the Board did not hold, or even imply, that it intended its
ruling in
Fox Moraine
to allow intervention of a State's Attorney from another county.
Additionally, Grundy County has failed to satisfy the standard for intervention set forth in
Section 101.402(b) of the Rules.
3.
On or about March 30, 2009, Grundy County filed its Motion for Leave to File a
Reply in support of its Motion for Leave to Intervene and, without leave
2
, filed its eight-page
Reply brief
3
. Grundy County argues that it should be given leave to file its Reply because
Petitioners "grossly mischaracterize and/or misrepresent the arguments in Grundy County's
motion, as well as governing law," and that it will be "materially prejudiced" in the absence of a
Reply. (Mot. for Leave, ¶¶3, 4.)
4.
Section 101.500(e) expressly states that: "The moving person
will not
have the
right to reply, except as permitted by the Board or the hearing officer to prevent
material
prejudice
." 35 Ill. Adm. Code §101.500(e) (Emphasis added).
5.
In reviewing motions for leave to file a reply, the Board requires a showing of
Electronic Filing - Received, Clerk's Office, April 10, 2009
498623
3
material prejudice.
City of Kankakee v. County of Kankakee
, No. PCB 03-125, 03-133, 03-134,
03-135 (May 1, 2003). Bald assertions that such prejudice will occur is insufficient.
See Illinois
v. Skokie Asphalt Co. Inc.
, No. PCB 96-98 (June 5, 2003), slip op. at 3.
6.
Here, Petitioners first take issue with Grundy County's assertion that the Response
grossly mischaracterizes and/or misrepresents Grundy County's arguments and governing law.
Petitioners' Response contains a fair analysis of Grundy County's purported basis to intervene
and makes meritorious arguments against intervention using appropriate interpretation of
governing law. In the Reply, Grundy County (i) nit-picks about typographical errors (
i.e.
, citing
Stuart v. Fisher
as PCB 02-162, rather than as PCB 02-164, and inadvertently omitting the case
number for
Alloy Engineering & Casting, Co.
); (ii) reargues its interpretation of
Fox Moraine
;
(iii) attempts to distinguish the case law cited in Petitioners' Response; and (iv) attempts to
bolster its argument that its citizens will be adversely affected by the appeal. Nothing in the
Reply shows that Petitioners' Response contains "gross" mischaracterizations or
misrepresentations, or anything other than fair argument. Grundy County simply attempts to
have the last word on the arguments without regard to the limitations of Section 101.500(e).
7.
Moreover, despite the conclusory statement that it will be "materially prejudiced,"
Grundy County has not demonstrated any material prejudice. Grundy County failed to cite any
legal authority for its apparent contention that Rule 101.500(e) was intended to permit reply
briefs so that the movant can clarify its arguments or distinguish the non-movant's arguments,
interpretations or characterizations of the movant's arguments and case law. Indeed, Section
101.500(e)'s express limitation on reply briefs seems to imply the opposite conclusion. Further,
there should be no question that the Board is capable of reviewing, analyzing and assessing the
arguments Grundy County's Motion to Intervene and Petitioners' Response, and making a
Electronic Filing - Received, Clerk's Office, April 10, 2009
498623
4
determination as to whether the points, authorities and arguments raised by the parties are fair
and accurate.
8.
Grundy County has failed to demonstrate that any material prejudice would occur
in this instance, and therefore its Motion for Leave to File a Reply must be denied in accordance
with Section 101.500(e).
WHEREFORE, WASTE MANAGEMENT OF ILLINOIS, INC., and KENDALL LAND
AND CATTLE, L.L.C. respectfully request that the Board deny Grundy County's Motion for
Leave to File a Reply in Support of its Motion to Intervene, and grant such other and further
relief as the Board deems appropriate.
Respectfully Submitted,
WASTE MANAGEMENT OF ILLINOIS, INC.,
and KENDALL LAND AND CATTLE, L.L.C.
By:__/s/ Lauren Blair___________
One of Their Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT, P.C.
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Electronic Filing - Received, Clerk's Office, April 10, 2009
498698.1
CERTIFICATE OF SERVICE
I, Lauren Blair, an attorney, on oath certify that I caused to be served the foregoing,
PETITIONERS' OBJECTION TO GRUNDY COUNTY'S MOTION TO INTERVENE,
to be
served upon the following parties listed below electronically on this 10th day of April 2009.
James F. McCluskey
James S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
E-mail: jfmccluskey@momlaw.com
jharkness@momlaw.com
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
E-mail: hallorab@ipcb.state.il.us
Eric C. Weis
Kendall County State's Attorney
807 West John Street
Yorkville, IL 60560
E-mail: eweis@co.kendall.il.us
George Mueller
Mueller Anderson, P.C.
609 E. Etna Rd.
Ottawa, IL 61350
george@muelleranderson.com
Charles Helsten
Hinshaw & Culbertson
100 Park Ave.
P.O. Box 1389
Rockford, IL 61105-1389
chelsten@hinshawlaw.com
Daniel J. Kramer
Law Office of Daniel J. Kramer
1107 S. Bridge St.
Yorkville, IL 60560
dkramer@dankramerlaw.com
s/Lauren Blair
Lauren Blair
Electronic Filing - Received, Clerk's Office, April 10, 2009
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