1. PROOF OF SERVICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE
MANAGEMENT OF ILLINOIS,
INC.~dKENDALLCOUNTYLAND
AND CATTLE, LLC,
Petitioner
v.
COUNTY BOARD OF KENDALL
COUNTY, ILLINOIS,
Respondent
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)
)
)
)
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)
)
)
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PCB 09-43
(Pollution
Control Board Facility Siting
Appeal)
NOTICE OF FILING
To: All Counsel of Record, See Attached Service List
PLEASE TAKE NOTICE that the undersigned has, on this 6th day of March, 2009,
caused to be filed with the Clerk of the Illinois Pollution Control Board, via electronic filing, the
attached
County Board of Kendall County's Combined Response to Petitioners' Objections to
the Village
of Minooka's and Kankakee Regional Landfill, LLC's Motion for Leave to File
Amicus Brief
on behalf of the County Board of Kendall County, Illinois, a copy of which is
herewith served on you.
James F. McCluskey
James
S. Harkness
Jennifer
L.
Friedl~d
Mornkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
Tel: (630) 434-0400
Fax: (630) 434-0444
jfinccluskey@momlaw.com
jharkness@momlaw.com
jfriedl~d@momlaw.com
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Respectfully submitted,
County Board
of Kendall County, Illinois
By:
Is/James
S. Harkness
Electronic Filing - Received, Clerk's Office, March 6, 2009
PROOF OF SERVICE
Under penalties as provided by law, pursuant to Section
1-109
of the Code of Civil
Procedure, Sabrina Sanders, the undersigned non-attorney certifies that she served a true and
correct copy
of the foregoing Notice of Filing and all referenced enclosures, by (1) e-mail
transmission and (2)
U.S. Mail to all respective addresses as listed on the Service List from Lisle,
Illinois
60532 on March 6,2009.
James F. McCluskey
James
S. Harkness
Jennifer
L.
Friedland
Momkus McCluskey, LLC
1001
Warrenville Road, Suite 500
Lisle, IL 60532
Tel: (630) 434-0400
Fax: (630) 434-0444
jfmccluskey@momlaw.com
jharkness@momlaw.com
jfriedland@momlaw.com
W:\26_59\4587.080523\PLEADINGs\NOF 3.6.09.DOC
lsi
Sabrina Sanders
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, INC.)
and KENDALL COUNTY LAND AND
)
CATTLE,
LLC,
)
)
Petitioners,
)
)
vs.
)
)
COUNTY BOARD OF KENDALL COUNTY, )
ILLINOIS,
et. a/.,
)
)
Respondent.
)
PCB 09-43
(Pollution Control
Board Facility
Siting Appeal)
COUNTY BOARD OF KENDALL COUNTY'S COMBINED RESPONSE TO
PETITIONERS' OBJECTIONS TO
THE VILLAGE OF MINOOKA'S AND
KANKAKEE
REGIONAL LANDFILL. LLC'S MOTIONS FOR LEAVE TO FILE
AMICUS
BRIEF
NOW COMES Respondent, County Board of Kendall County, Illinois ("County
Board"), by its attorneys MOMKUS McCLUSKEY, LLC, and as its Combined Response
to
Petitioners' Objections to the Village of Minooka's and Kankakee Regional Landfill,
LLC's (hereinafter,
"Kankakee Regional") Motions for Leave to File
Amicus
Brief, states
as
follows:
1.
On February 6, 2009, the Village of Minooka filed its Motion for Leave to
File
Amicus
Brief in this matter. On February 20, 2009, the Petitioners filed their
Objection to the Motion for Leave to
File
Amicus
Brief by the Village of Minooka.
2.
On February 12, 2009, Kankakee Regional Landfill, LLC ("Kankakee
Regional") filed its Motion for Leave to File
Amicus
Brief in this matter. On February 24,
2009, the Petitioners filed their Objection to the Motion for Leave to File
Amicus
Brief by
Kankakee
Regional Landfill.
3.
Because Petitioners argue the same basis for objecting to the Village of
Minooka's and Kankakee
Regional's Motions for Leave to File
Amicus
Brief, Respondent
responds to
Petitioners' objection in this combined motion.
4.
The public hearings on Petitioners' Application for the siting of a solid
waste facility in Kendall County took place from approximately September 11, 2008 to
October 1, 2008. On November 20, 2008, the County Board denied the Application for
siting
approval, finding that Criterion 2 and 3 were not met.
5.
At the public hearings, the Village of Minooka participated as an objector
to the Siting
Application by appearing and participating by filing evidence, cross-
examination
of the Applicants', now Petitioners', experts and by presenting expert
testimony
relating to Criterion 2 and 3. The Village of Minooka's boundaries extend
within two (2) miles from the proposed site and its water service
will be affected by the
siting
of this Application.
6.
At the public hearings, Kankakee Regional also participated as an
objector to the Siting Application by appearing and partiCipating by filing evidence, cross-
examination
of witnesses, by presenting expert testimony and submitting proposed
findings
of fact.
STANDARD
FOR ALLOWING
AMICUS CURIAE
BRIEFS TO BE FILED
7.
Section 101.11
O(
c) of the Illinois Administrative Code states the following:
Amicus curiae briefs may be filed in any adjudicatory proceeding by
any
interested person,
provided permission is granted by the Board.
Response briefs may be
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 of the Board.
35111. Admin. Code 101.110(c) (emphasis added).
8.
Section 101.628(c) of the Illinois Administrative Code states the
following:
Public
Comments or Amicus Curiae Briefs. Participants may file public
comments subject to the requirements of this Section and the hearing
officer's
schedule for completion of the record. The Board also allows for
the
filing of amicus curiae briefs by non-party participants. Amicus curiae
briefs
will be allowed in accordance with Section 101.110 of this Part.
2
Electronic Filing - Received, Clerk's Office, March 6, 2009
35 III. Admin. Code 101.628(c).
9.
The
only
limitation on who may file an
amicus curiae
brief in an Illinois
Pollution
Control Board proceeding is that the person filing must be "interested." 35 III.
Admin. Code 101.110(c). The term "interested person" is not defined by the Illinois
Pollution Control Board Procedural Rules. Therefore, those words must be given their
plain and ordinary meaning.
Granite City Div.
of
Nat. Steel Co. v. IPCB,
155 1I1.2d 149,
181 (1993).
DISCUSSION
10.
In this matter, the Village of Minooka and Kankakee Regional are clearly
interested persons,
as they were both participants in the underlying siting proceeding
who filed evidence, presented expert testimony
and cross-examined the Applicant's
expert testimony.
Indeed, the Village of Minooka and Kankakee Regional participated in
demonstrating that Criterion 2 and 3 were not met, which is the issue that Petitioners
now appeal.
11.
Petitioners object to the Village of Minooka and Kankakee Regional filing
amicus
briefs because "there are no arguments [they] could make on this record that
Kendall County is unable or unwilling to present." (Petitioners' Objections, pages 3 and
4). Petitioners further state that the Vii/age of Minooka's and Kankakee Regional's
arguments are
"not unique, and will repeat or restate the arguments that will be raised by
the County Board." (Petitioners' Objections, page 4). Petitioners' suggestion that the
Village of Minooka's
and Kankakee Regional's participation and interest in these two
criteria-the certified issue
in this appeal-is irrelevant or diminimus is wholly unfounded.
First, these interested parties presented the witnesses against the
Application. Their
participation then and input now is essential
to the record and this appeal. Second, in
support of their argument, Petitioners specifically mis-quote and improperly rely soley on
3
Kinkel v. Cingular Wireless,
2006 III. LEXIS 1, *2-3 (2006). The County Board assumes
that this case
is also that cited as
Kinkel v. Cingular Wireless,
223 1I1.2d 1 (2006), which
does not contain the language quoted
by Petitioners, nor does it contain any discussion
relating to
amicus curiae
briefs.
12.
It is presumptuous of Petitioners to assume that "there are no arguments
[the Village of Minooka or Kankakee Regional can] make
on this record that Kendall
County is unable or unwilling to present." (Petitioners' Objections, pages 3 and 4). It is
possible that the Village of Minooka or Kankakee Regional may wish to present
arguments
to defend the County Board's denial of the Application other than those
arguments adopted
by the County Board. Further, it is especially bold of the Petitioners
to presume to know what the County Board
is able or willing to present when Petitioners'
allegations against the County Board are so vague that no party is yet aware of what
specific claims are being made. Petitioners, at this stage, have
merely alleged that it
objects to the County Board's
"denial of criteria (ii) and (ii) as fundamentally unfair,
unsupported
by the record and against the manifest weight of the evidence." (Petition
for Hearing to Contest
Site Location Denial, page 2). In response, the County Board has
issued a Notice of Demand for
Bill of Particulars so that it, and this Hearing Board, can
determine
exactly what Petitioners are taking issue with. Thus, Petitioners' objections
are premature at this
early stage, given that they have prevented the Pollution Control
Board from considering how or why the
amicus
briefs may be relevant due to such
vague
claims.
13.
Petitioners further argue that permitting the Village of Minooka and
Kankakee Regional to file
amicus curiae
briefs would violate Section 40.1 (a) of the
Illinois Environmental Protection Act, which prohibits third parties from appealing a
decision denying
local siting approval of a pollution control facility.
(Petitioners'
Objections, pages 4 and
5). Here, Petitioners once again misconstrue the issue and role
4
of
amicus curiae,
which is a limited advisory role, or "friend," to the court or agency.
Zurich Ins.
Co.
v. Raymark Industries, Inc.,
118 1I1.2d 23, 59-60 (1987).
Amici curiae
file
advisory opinions and are not able to engage in motion practice.
Id.
Allowing the Village
of Minooka and Kankakee Regional to file
amicus curiae
briefs is
in
no
way
the same as
allowing a third party to appeal a siting decision. This case was already appealed by
Petitioners. The
Village of Minooka and Kankakee Regional are Simply attempting to file
advisory briefs in support
of the siting decision that Petitioners appealed.
WHEREFORE, Respondent, County Board
of Kendall County, Illinois,
respectfully requests that the Illinois Pollution Control Board:
1)
Grant the Village
of Minooka's Motion for Leave to File
Amicus
Brief;
2)
Grant Kankakee Regional Landfill, LLC's Motion for Leave to File
Amicus
Brief; and,
2)
Grant any further relief it deems just and necessary.
James
F. McCluskey
James
S. Harkness
Jennifer
L. Friedland
MOMKUS McCLUSKEY, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
(630) 434-0400
(630) 434-0444
FAX
Attorneys for Respondent
Respectfully submitted,
COUNTY BO RD OF KENDALL COUNTY
ILUNOI
By:
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