BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND and CATTLE, L.L.C.
)
)
Petitioners,
)
)
vs.
)
)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
No.
PCB 09-43
(pollution Control Facility
Siting Appeal)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on February 24,2009, we filed with the Illinois Pollution
Control Board, via electronic filing,
PETITIONERS' OBJECTION TO THE MOTION FOR
LEAVE TO FILE AMICUS BRIEF BY KANKAKEE REGIONAL LANDFILL, LLC
AND MOTION TO STRIKE APPEARANCE OF FOX MORAINE, LLC. in the above
entitled matter, which is attached hereto and herewith served upon you.
Donald
J. Moran
PEDERSEN
&
HOUPT
161 North Clark Street
Suite
3100
Chicago, Illinois 60601
(312) 641-6888
Attorney Registration No. 1953923
WASTE MANAGEMENT
OF ILLINOIS, INC. and
KENDALL LAND and CATTLE, L.L.C.
By:
slDonald J. Moran
One of Their Attorneys
CERTIFICATE OF SERVICE
I, Victoria Kennedy, a non-attorney, on oath certify that I caused to be served the
foregoing,
PETITIONERS' OBJECTION TO THE MOTION FOR LEAVE TO FILE
AMICUS BRIEF BY KANKAKEE REGIONAL LANDFILL, LLC AND MOTION TO
STRIKE APPEARANCE OF FOX MORAINE, LLC.
, to be served upon the following
parties listed below, both (1) electronically and (2) by U.S. Mail from161 N. Clark Street,
Chicago, IL 60601 on this 24th day of February 2009.
James F. McCluskey
James
S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
E-mail: jfrnccluskeY@momlaw.com
jharkness@momlaw.com
Eric
C. Weis
Kendall County
State's Attorney
807 West John Street
Yorkville, IL 60560
E-mail: eweis@co.kendall.il.us
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.i1.us
George Mueller
Mueller Anderson, P .C.
609 East Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
sNictoria Kennedy
Victoria Kennedy
Electronic Filing - Received, Clerk's Office, February 24, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
and KENDALL LAND and CATTLE, L.L.C.
)
)
Petitioners,
)
)
vs.
)
)
)
COUNTY BOARD OF KENDALL COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
No.
PCB 09-43
(pollution Control Facility
Siting Appeal)
PETITIONERS' OBJECTION TO THE MOTION FOR LEAVE
TO FILE AMICUS BRIEF BY KANKAKEE REGIONAL LANDFILL, LLC
AND MOTION TO STRIKE APPEARANCE OF FOX MORAINE, LLC.
Petitioners, WASTE MANAGEMENT OF ILLINOIS, INC. ("WMII"), and KENDALL
LAND and CATTLE, L.L.C.
("KLC"), by and through their attorneys, PEDERSEN
&
HOUPT,
P.C., object to the Motion for Leave to File Amicus Brief filed by Kankakee Regional Landfill,
LLC ("Motion to File Amicus Brief"), and move to strike the appearance
of Fox Moraine, LLC,
filed
by Kankakee Regional Landfill, LLC.
In
support thereof, WMII and KLC state as follows:
ISSUES PRESENTED IN PETITION FOR REVIEW
1.
On December 24, 2008, WMII and KLC filed with the Illinois Pollution Control
Board
("Board") their Petition for Hearing to Contest Site Location Denial ("Petition for
Review") pursuant to Section 40. 1 (a) of the lllinois Environmental Protection Act ("Act").
2.
The Petition for Review contests and objects to the County Board of Kendall
County's ("County Board") November
20, 2008 decision denying WMII and KLC's request for
site location approval for the proposed Willow Run Recycling and Disposal Facility ("Willow
Electronic Filing - Received, Clerk's Office, February 24, 2009
Run"). The denial was based on the County Board's finding that statutory criteria (ii) and (iii)
were not met. The Petition for Review challenges the denial on the grounds that the decision was
fundamentally unfair and against the manifest weight
of the evidence.
3.
The County Board has filed an Appearance and its interest is being represented
by
two sets oflawyers, namely by James F. McCluskey and James S. Harkness from the law firm of
Momkus McCluskey, LLC, as well as by Eric C. Weis, the Kendall County State's Attorney.
4.
On February 12, 2009, Kankakee Regional Landfill, LLC filed its Motion for
Leave to File Amicus
Brief in this appeal.
l
Kankakee Regional Landfill, LLC, acknowledges
that the basis for denial is contained
in the record, but adds a conc1usory statement of its belief
that there may be additional reasons to deny the application.
(See
Kankakee Regional Landfill,
LLC's Mot.,
~5.)
5.
WMll and KLC timely object to Kankakee Regional Landfill, LLC's Motion to
File Amicus Brief. For the reasons discussed below, the Motion should
be denied.
STANDARD FOR PERMITTING
AMICUS CURIAE
BRIEFS
6.
Section 101.11 O( c) of the Illinois Administrative Code ("Code") provides:
Amicus curiae briefs may
be filed in any adjudicatory proceeding
by any interested person,
provided permission is wanted by the
Board.
Response briefs maybe allowed by permission of the
Board, but not as
of right. The briefs must consist of argument
only and
may not raise facts that are not in evidence in the relevant
proceeding. Amicus curiae briefs, and any responses, will
be
considered by the Board only as time allows. The briefs will not
delay decision-making
ofthe Board.
1
On February 6, 2009, the Village of Minooka, another objector to Willow Run who
participated
in the local siting proceeding, filed its Motion for Leave to File Amicus Brief and to
add the Village
of Minooka to the Service List. WMll and KLC have already objected to the
Village
of Minooka's Motion by separate response.
2
35 TIL
Adm. Code 101.11O(c) (emphasis added). Thus, as expressly stated, it is within the
discretion
of the Board to permit
amicus curiae
briefs.
7.
Amicus curiae
briefs are not allowed as a matter of right due to the risk of
injecting irrelevant, duplicative or unnecessary matters into an appeal, as well as the delay and
cost associated with the interference. A third party seeking leave to file an
amicus curiae
brief
must demonstrate that the proposed brief will provide the reviewing court with unique ideas,
arguments, or insights helpful
to the resolution of the case that will not be addressed by the
litigants themselves.
See Kinkel
v.
Cingular Wireless,
L.L.c.,
2006 Ill. LEXIS 1, *2-3 (2006).
As the Supreme Court in
Kinkel
explained:
Briefs which essentially restate arguments advanced by the litigants
are of no benefit to the court or the adversarial process. To the
contrary, they are a burden on the court's time and on the resources
of the litigants who must review and respond to them.
In
some
cases, they may represent an improper attempt to inject interest
group politics into the appeals process.
ld.
2006 Ill. LEXIS at *3.
In
addition to the concerns expressed in the
Kinkel
case, as discussed
below, in the context
of appeals before the Board, additional caution should be taken before
allowing
amicus curiae
briefs in light of the Act's prohibition against third party appeals of siting
denials.
ARGUMENT OPPOSING THE MOTION TO FILE AMICUS BRIEF
8.
Kankakee Regional Landfill, LLC's Motion to File Amicus Brief should be denied
because there
are no arguments it could make on this record that Kendall County is unable or
unwilling
to present. The decision to disapprove the application was based on the denial of two
3
criteria, criteria (ii) and (iii). The evidence relating to criteria (ii) and (iii) are set out in the
record, and there is nothing that can
be added to the record with regard to the criteria. The
County Board, through its attorneys, will
be filing a brief arguing that the denial of criteria (ii)
and
(iii) is supported by the record. The County Board is fully capable of addressing the facts
and arguments relating to those criteria. Kankakee Regional Landfill, LLC's opposition to
Willow Run (or landfills in general) and its arguments concerning criteria (ii) and (iii) factors are
not unique, and will repeat or restate the arguments that will
be raised by the County Board. The
criteria
(ii) and (iii) issues will be sufficiently represented by the County Board, and therefore,
any
brief by Kankakee Regional Landfill, LLC will be of no aid to the Board and should not be
allowed.
9.
Moreover, permitting Kankakee Regional Landfill, LLC to file an
amicus
curiae
brief runs counter to the Act, which does not allow third party participants to appeal
denials
of siting applications.
See
415 ILCS
5/40.l(a),
(b). Section 40.1 (a) ofthe Act only
allows the applicant to appeal a decision denying local siting approval for a new pollution control
facility.
See
415 ILCS
5/40.
1 (a). A third party participant may only appeal a decision
granting
local siting approval.
See
415 ILCS
5/40.1
(b);
see also Waste Management o/Illinois Inc.
v.
Illinois Pollution Control Board,
160 Ill. App. 3d 434,443-44,513 N.E.2d 592,598 (2d Dist.
1987); McHenry County Landfill, Inc.
v
Environmental Protection Agency,
154 TIL App. 3d 89,
94-95,506 N.E.2d 372,376 (2d Dist. 1987). Granting the Motion to File Amicus Briefwill
allow Kankakee Regional Landfill, LLC to, in effect, circumvent Section 40.1 the Act. The
Village
of Minooka is also attempting to bypass Section 40.1's proscription by asking for leave to
4
file its own
amicus curiae
brief. Pennitting objectors to file
amicus curiae
briefs
in
the appeal of
a siting denial simply because they have an interest or issue they want to raise would nullify the
prohibition in Section 40.1, and create a third party right
to appeal a siting denial when the
legislature
has provided no such right.
10.
On February 12, 2009, Mr. George Mueller, representing Kankakee Regional
Landfill,
LLC, filed his appearance as counsel of record in this appeal for Fox Moraine, LLC.
While Mr. Mueller represented Fox Moraine, LLC in the prior siting application filed for Willow
Run in
2007, he did not so indicate to the Kendall County Board in the proceedings on this siting
application.
In
any event, neither Fox Moraine, LLC nor Kankakee Regional Landfill, LLC may
appear
as parties in this appeal. 415 ILCS 5/4.1. Additionally, this Board's Procedural Rules do
not pennit an attomeyto file an appearance on behalf of non-parties.
See
35 IAC §§ 101.110(c),
101.400.
11.
In
summary, Kankakee Regional Landfill, LLC's
amicus curiae
brief will not set
forth arguments or perspectives that are unique
from those presented by the County Board, and
would introduce redundant or irrelevant matter into the appeal. This would complicate and
lengthen the proceedings and require the unnecessary expenditure of substantial time and
resources by the Board and the parties.
It
would also pennit Kankakee Regional Landfill, LLC
to circumvent Section 40.1 of the Act. For all ofthese reasons, the Board should deny the
Motion
to File Amicus Brief.
5
WHEREFORE, WASTE MANAGEMENT OF ILLINOIS, INC., and KENDALL LAND
and CATTLE, L.L.C respectfully request that the Board deny the Motion for Leave to File
Amicus Brief filed by Kankakee Regional Landfill, LLC, strike the appearance of Fox Moraine,
LLC filed by the attorney for Kankakee Regional Landfill, LLC, and grant such other and further
relief as the Board deems appropriate.
Donald J. Moran
Lauren Blair
PEDERSEN
&
HOUPT, P.C.
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Respectfully Submitted,
WASTE MANAGEMENT OF ILLINOIS, INC.,
an~~LAND~L.C
By:_
~----f-----
One of Th Attorneys
6