COUNTY OF KANKAKEE, COUNTY BOARD OF
KANKAKEE, and WASTE MANAGEMENT OF
ILLINOIS, INC.
Respondents.
CL~RR’SOPFiC~
APR
3 2003
STATE OF ILL!NO1S
PCB 03—125
Pollution Control
Board
(Third-Party Pollution Control
Facility Siting Appeal)
COUNTY OF
KANKAKEE,
COUNTY BOARD OF
KANKAKEE, and WASTE MANAGEMENT OF
ILLINOIS, INC.
Respondents.
Petitioner,
COUNTY OF
KANKAKEE,
COUNTY BOARD OF
KANKAKEE, and WASTE MANAGEMENT OF
ILLINOIS, INC.
Respondents.
KEITH RUNY
ON,
Petitioner,
Vs.
COUNTY OF
KANKAKEE,
COUNTY BOARD OF
KANKAKEE,
and WASTE
MANAGEMENT OF
ILLINOIS,
INC.
Respondents.
PCB 03—134
(Third-Party Pollution Control
Facility Siting Appeal)
CITY OF KANKAKEE,
vs.
ILLINOIS POLLUTION CONTROL BOARD
Petitioner,
MERLIN KARLOCK,
vs.
Petitioner,
PCB 03—133
(Third—Party Pollution Control
Facility Siting Appeal)
MICHAEL WATSON,
Vs.
WASTE MANAGEMENT OF ILLINOIS, INC.,
Petitioner,
VS.
COUNTY OF KANKAKEE,
PCB 03—135
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03—144
(Pollution Control Facility
Siting Appeal)
Respondent.
CITY OF KANKAKEE’S RESPONSE TO
WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO SEVER ITS
APPEAL OF TWO SITING CONDITIONS FROM THE FOUR APPEALS
CHALLENGING THE
KANKAKEE
COUNTY SITING APPROVAL
NOW COMES the City of Kankakee, a Municipal Corporation, (hereinafter
the “City”) by and through its attorneys, L. Patrick Power and Kenneth A.
Leshen, Assistant City Attorneys, and filing its response to Waste
Management of Illinois, Inc.’s (hereinafter “WMII”) Motion to Sever,
states as follows:
1. On March 20, 2003, the Board, following the dictates of Section
101.406 of the Board’s Procedural Rules (hereinafter the “Rules”),
consolidated all pending appeals in this cause, finding that consolidation
was in the interest of convenient, expeditious and complete (emphasis
added) determination of claims, and that consolidation would not cause
material prejudice to any party.
2. WMII asserts in its Motion the conclusory statements that the
special conditions imposed by the County in order to protect the health
and safety of its citizenry are matters distinct and separate from all
other appeals filed in this case. To the contrary, the imposition of
these special conditions directly dovetails with the arguments raised by
the City in its appeal. For example, the City argues that WMII has
mischaracterized the permeability, thickness and regularity of the
materials relied upon to protect the public safety, that the inward
hydraulic gradient is not sufficiently established or understood, and that
WMII failed to do a piezometric study of the clay beneath the liner in the
proposed plan. The City’s appeal places these issues in the context of
the fundamental unfairness of the hearings conducted by the County of
Kankakee. Therefore, the facts which will necessarily be relied upon by
WMII in presenting its appeal will be the same as the facts to be
considered by the Illinois Pollution Control Board (hereinafter the
“Board”) in its consideration of the each of the other appeals.
3. WMII seeks to establish prejudice to itself by relying on its own
delay in filing its appeal, arguing that it will be required to go to
hearing under the scheduling deadlines established in the consolidated
case. WMII chose to file its appeal at the tail end of its deadline.
WMII chose to insist that the hearing move forward at a rapid pace, while
at the same time waiving the decision deadline. WMII participated in the
conference call during which the deadlines were established. It is
disingenuous in the extreme for WMII to have controlled the deadlines and
now to claim prejudice as a result of its own actions.
4. WMII’s Motion to Sever focuses on the perceived hardship to
itself and fails to focus at all on the extra and duplicative work that
severance would require. The Board would be forced to review two sets of
transcripts and to make two separate decisions on matters that are
inextricably intertwined. Attorneys for the four third—party appellants
would be required to attend two hearings, file two sets of discovery
requests, and file two sets of briefs, all at drastically increased cost
and time to the appellants. The increase in effort by WMII is minimal, if
any; the increase in effort and expense to the four appellants and to the
Board would be drastic.
5. WMII’s reliance on its cited cases is inapposite. In each of the
cited cases, the Board had considered consolidation of the applicant’s
appeal with the appeals filed by the third-party appellants and had
declined to do so. In the instant case, the Board, after consideration of
the appropriate factors, exercised its discretion and consolidated the
applicant’s appeal with the appeals of the third-party appellants. WMII
without any assertion that the Board abused its discretion, is now asking
the Board to reverse its decision. As outlined hereinabove, WMII has a
markedly insufficient basis to request such a reversal.
WHEREFORE, the City respectfully requests that this Court enter its
order upholding its previous decision consolidating all pending appeals
related to this cause, denying the severance motion of WMII, and ordering
such other and further relief as this Court deems just, necessary and
proper.
Respectfully submitted,
CITY
F
NKAKEE
BY:___
Ken eth A. Leshen
One
of Its Attorneys
PREPARED BY:
Kenneth A. Leshen
Assistant City Attorney
One Dearborn Square, Suite 550
Kankakee, IL 60901
815/933—3385
Reg. No. 03127454
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois
Code of Civil Procedure, hereby under penalty of perjury under the laws of the
United States of America, certifies that on April 1, 2003, a copy of the
foregoing document was served upon:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph,
11th
Floor
Chicago, IL 60601
Karl Kruse, Chairman
Kankakee County Board
189 East Court Street
Kankakee, IL 60901
Charles F. Helsten, Esq.
Hinshaw & Culbertson
P. 0. Box 1389
Rockford, IL 61105—1389
Edward D. Smith, State’s Attorney
do Brenda Gorski, Asst. SA
189 East Court Street
Kankakee, IL 60901
Kenneth A. Bleyer
Attorney at Law
923 West Gordon Terrace #3
Chicago, IL 60613—2013
Leland Milk
6903 South Route 45—52
Chebanse, IL 60922
Keith L. Runyon
1165 Plum Creek Drive, Unit D
Bourbonnais, IL 60914
Bruce Clark
Kankakee County Clerk
189 East Court Street
Kankakee, IL 60901
Donald J. Moran, Esq.
Pederson & Houpt
161 North Clark, Suite 3100
Chicago, IL 606013242
Richard S. Porter, Esq.
Hinshaw & Culberton
P. 0. Box 1389
Rockford, IL 61105—1389
Jennifer J. Sackett Pohlenz
Attorney at Law
175 W. Jackson Blvd., Ste. 1600
Chicago, IL 60604
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
George Mueller
Attorney at Law
501 State Street
Ottawa, IL 61350
Elizabeth Harvey, Esq.
Swanson, Martin
&
Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
L. Patrick Power
Assistant City Attorney
956 North Fifth Avenue
Kankakee,
IL
60901
815/937—6937
Reg. No. 2244357
Kenneth A. Leshen
Assistant City Attorney
One Dearborn Square, Suite 550
Kankakee, IL 60901
815/933—3385
Reg. No. 03127454
by depositing a copy thereof, enclosed in an envelope in the United States Mail
at Kankakee, Illinois, proper postage prepaid, before the hour of 5:00 p.m.,
addressed as above.
~
SUBSCRIBED AND SWORN TO b fore
4
this
1st
of April, 2003.
No ry Pub ic
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