ILLINOIS POLLUTION CONTROL BOARD
)
)
)
)
V.
)
)
)
)
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
)
)
)
RECEJIVED
CLJ~RK’S
OFFrt~
JUL 302003
STArE OF ILLINOIS
PCB 03-1 25
Pollution Control Board
PCB 03-1 33
PCB 03-1 34
PCB 03-1 35
(consolidated)
(Pollution Control Facility Siting Appeals)
NOTICE OF FILING
To:
(See attached Service List.)
PLEASE TAKE NOTICE that on this 30th day of July 2003, the following was filed
with the Illinois Pollution Control Board, attached and herewith served upon you:
County of Kankakee and County Board of Kankakee
Motion to Compel Payment of Record Costs
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm l.D. No. 29558
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
0198-001
CITY OF KANKAKEE,
Petitioner,
of Its Attorneys
SERVICE
LIST
KANKAKEE
COUNTY/WMII LANDFILL SITING
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles F. Heisten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Kenneth A. Leshen
One Dearborn Square
Suite 550
Kankakee, IL 60901
Donald Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL 61350
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL 60901
Jennifer J. Sackett Pohlenz
Querry & Harrow, Ltd:
175 West Jackson Boulevard
Suite 1600
Chicago, IL 60604
(via hand delivery)
Keith Runyon
1165 Plum Creek Drive
Unit D
Bourbonnais, IL 60914
Kenneth A. Bleyer
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 60613-2013
Leland Milk
6903 S. Route 45-52
Chebanse, IL 60922-5153
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
RECEJEVE!J~
0198-001
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
JUL 302003
CITY OF KANKAKEE,
)
STATE OF ILLINOIS
)
PCB 03-125
POllUtIOfl
Control Board
Petitioner,
)
PCB 03-133
PCBO3-134
v.
)
PCB03-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
MOTION TO COMPEL PAYMENT OF RECORD COSTS
Respondents COUNTY OF KANKAKEE and COUNTY BOARD OF KANKAKEE
(collectively, “County”), by its attorneys Hinshaw & Culbertson and Swanson, Martin &
Bell, hereby move the Board to compel payment of the County’s costs incurred in
preparing the record on appeal. The County seeks an order compelling petitioners
CITY OF KANKAKEE (“City”) and MICHAEL WATSON (‘Watson”) to pay their share of
the County’s costs.
1.
On March 6, 2003, the Board issued its order accepting this case. The
Board specifically ordered petitioners to pay the County’s cost of preparing and
certifying the record, pursuant to Section 39.2(n) of the Environmental Protection Act
(415 ILCS 5/39.2(n)) and Section 107.306 of the Board’s procedural rules (35 III. Adm.
Code 107.306).
2.
The County prepared and certified the record, incurring copying costs of
$4206.19. (See Exhibit A.) Pursuant to Section 39.2(n), Section 107.306, and the
Board’s March 6, 2003 order, the County then demanded payment from petitioners.
3.
The County demanded payment from petitioners Waste Management of
Illinois, Inc. (WMII), Watson, and the City. The County did not demand payment from
petitioners Karlock and Runyon, because they are “citizens.” The Board’s rule clearly
exempts “citizens” from the payment of record costs. 35 III. Adm. Code 107.306.
4.
To date, only WMII has paid its one-third share ($1402.07) of the County’s
copying costs. Despite the County’s demand, it has not received payment from either
Watson or the City.
5.
The County anticipates that Watson will claim that he is “citizen,” and thus
is exempt from payment. However, Watson owns and operates United Disposal of
Bradley, a waste hauling and transfer station company which serves an area of
Kankakee County.
(See, e.g.,
C1271, Tr. pp. 64-67.) Watson’s attorneys noted that
Watson owns United Disposal. (C1272, Tr. pp. 19-20.) The legislative history of
Section 39.2(n) makes clear that owners and operators of competing disposal
companies are not exempt as “citizens groups.” Senator Karpiel, the sponsor of the
citizens group exemption, specifically stated that “citizens group” means:
a group of individual citizens that have joined together to participate in a
regional pollution control facility siting hearing.. .It also does not include
persons owning or operating a nearby competing landfill facility, or units of
local government acting alone.
State of Illinois 86th General Assembly Regular Session Senate Transcript,
52’~legislative day, June 22, 1989 (emphasis added),
quoted in Shaw v.
Village of Do/ton,
PCB 97-68 (November 21, 1996) and
Zeman v. Village
of Summit,
PCB 92-174 (December 17, 1992).
The legislative history of Section 39.2(n) is relevant, because there is no definition of
“citizens group” in the statue, or in the Board’s regulations. Thus, it is appropriate to
look to the legislative history. The legislative history is especially appropriate on this
issue, as Senator Karpiel stated that the purpose of her comments was to respond to a
request
Senator
from the
Karpiel
Board
stated
that
“I
the
have
meaning
told the Pollution
of “citizens
Control
group”
Board
be
that
given.
I would
1
read into the record
the meaning of ‘citizens groups’.” State of Illinois 86th General Assembly Regular Session Senate
Transcript, 52nd legislative day, June 22, 1989,
quoted in Shaw v. Village of Do/ton,
PCB 97-68
(November 21, 1996) and
Zeman v. Village of Summit,
PCB 92-174 (December 17, 1992).
2
6.
Mr. Watson, as the owner and operator of United Disposal, is the owner of
a competing disposal facility.
Although Senator Karpiel’s statement referenced
specifically “landfill facilities,” it is clear that the legislative intent is to prohibit a
competitor in the waste industry from using the “citizens group” exemption for the
payment of record costs. It would be illogical to prohibit the owner of a “landfill” from
using the citizen group exemption, while allowing the owner of a transfer station or
hauling service to use that same exemption.
7.
As the owner and operator of a competing disposal facility, Mr. Watson is
not a “citizens group.” Therefore, Mr. Watson does not qualify for an exemption from
the requirement that he pay his share of the County’s costs.
8.
Likewise, the City is not a “citizens group,” and must pay its share of the
County’s costs. Senator Karpiel’s statement specifically states that a unit of local
government is not a citizens group. (See paragraph 5, above.) The City is a unit of
local government, and thus cannot qualify as a citizens group.
9.
The County anticipates that the City may allege that it refuses to pay the
County’s costs based on the City’s claim that the County has failed to pay the City’s
record costs in an unrelated landfill siting appeal.2 Whether the County owes the City
for costs in unrelated appeal is not relevant to the issue here: whether the City is
exempt from the Section 39.2(n) requirement that all those who are not citizens groups
must pay the County’s record costs. It is clear, based on the legislative history, that a
unit of local government is not a citizens group. Therefore, regardless of disputes
between the City and the County in other cases (which have not been brought to the
2
Whether the County does or does not owe the City for record costs in an unrelated appeal is not
at issue here. Thus, the County neither admits nor denies that it may be responsible for a portion of the
City’s record costs.
3
Board), the City owes its share of the County’s record costs.
10.
This issue is quite simple: the statute and the Board’s regulations require
petitioners to pay the County’s record costs. The Board specifically ordered, in its
March 6, 2003 order, that these petitioners pay the County’s costs. Watson and the
City have failed to comply with the statute, the regulation, and the Board’s order.
Neither Watson nor the City qualify as a “citizens group,” which would be exempt from
payment. Therefore, Watson and the City owe the County their share of the County’s
copying costs.
11.
If Watson and the City fail to pay their share of the County’s copying costs,
the County asks that the petitions for review filed by Watson and the City be dismissed,
pursuant to the provisions of Section 39.2(n) and Section 3-109 of the Code of Civil
Procedure (735 ILCS 5/3-1 09).
WHEREFORE, the County moves this Board to compel Watson and the City to
pay their share of the County’s copying costs; that the payment be made to the County
within 14 days of the Board’s decision on this motion; that the failure of Watson and/or
the City to pay their share of the costs be grounds for dismissal of their respective
petitions for review; and for such other relief as the Board deems appropriate.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
2
C~
A
~
~
(I
JI
~
~ EIi4ethS.Harv~y!
One of Its Attorneys
4
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815/490-4900
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
5
05/02/03 15:30 FAX 832 348 “‘38
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INVOICE
Page
1
Invoice #
L05149957
Invoice Date
03/31(2003
Due Date
04/10(2003
Customer #
L05-SWAF’l
Order #
03030667
SOLD TO:
SWANSON, MARTIN & BELL
ATTN:ELIZABETH HARVEY
ONE IBM PLAZA SUITE 2900
CHICAGO,IL 60611
SHIP TO:
SWANSON, MARTIN & BELL
ATTN :ELIZABETH HARVEY
ONE IBM PLAZA SUITE 2900
CHICAGO,IL 60611
L
Please pay from this copy. The
party
named on this bill isheld responsible forpayment.)
Payment From:
SWANSON, MARTIN & BELL
ATTN:ELIZABETH
HARVEY
ONE IBM PLAZA SUITE 2900
CHICAGO,IL 60611
Amount Enclosed
$
Invoice
Invoice Date
Customer #
Order#
L051 49957
03/31/2003
L05-SWAN
03030667
Please Remit to:
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11:58:14
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MAY 02 ‘03 15:32
PAY THIS
AMOUNT:
I
4206.19
EXHIBIT -
A
Order bate
Ordered By
Reference (Case #
Account Manager
03/28/2003
ELIZABETH HARVEY
0198-001
KERRY INNIS
Description
‘
Quantity
Unit Price
Extension
565
A Litigation Copy
5463.00
0.0800
437.0400
567
C Litigation Copy
22640.00
0.1400
3169.6000
642
OS Copying
60.00
1.2500
75.0000
000
Color Oversize
39.00
13.4500
524.5500
0
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THE ABOVE DESCRIBED WORK HAS BEEN
ASSURES PAYMENT OF THIS INVOICE WITHIN
Non-Taxable:
Postage:
4206.19
0.00
30 DAYS. ALL INVOICES ARE DUE UPON RECEIPT.
PER MONTH OR THE
MAXIMUM
LEGAL RATEWILL BE
INTEREST AT THE RATE OF THE LESSER 1.5
CHARGED ON INVOICES NOT PAID IN 30 DAYS.
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PAY THIS
AMOUNT:
4206 19
Received and approved by:
Date:
832 348 1638