RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S
JUL 052005
OFFICE
WASTE MANAGEMENT OF TLLTNOTS, INC.,
vs.
Petitioner,
COUNTY BOARD OF KANKAKEE COUNTY,
ILLiNOIS,
Respondent.
)
)
)
)
STATE OF ILLINOIS
Pollution Control Board
No. PCB 04-186
)
(Pollution Control Facility
)
Siting Appeal)
)
)
)
)
TO:
All Attorneys ofRecord
NOTICE OF FILING
PLEASE TAKE NOTICE THAT on July 1,
2005,
I mailed for filing with the Illinois Pollution
Control Board, Chicago, Illinois, the attached
Respondent’s Response to Keith Runyon’s
“Rational and Motions”,
a copy ofwhich is herewith served upon you.
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
COUNTY BOARD OF KANKAKEE COUNTY,
ILLINOIS,
DATED:
7/i
fo?~
BY:
70414041 vi 842014
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JUL 052005
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
P
Petitioner,
)
)
No. PCB 04-186
vs.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
RESPONDENT’S RESPONSE
TO KEITH RUNYON’S
“RATIONAL AND
MOTIONS”
NOW COMES Respondent, COUNTY BOARD OF KANKAKEE COUNTY,
ILLINOIS, by and through its Attorneys, HINSHAW & CULBERTSON LLP, and as and for its
Response to Keith Runyon’s “Rational and Motions,” states as follows:
I. BACKGROUND
1.
On September 26, 2003, Waste Management ofIllinois, Inc. (“WMII”) filed a site
location application with the County Board of Kankakee, Illinois (“County Board”) for
expansion ofan existing landfill located in the County ofKankakee, Illinois.
2.
On March 17, 2004, the County Board denied WMII’s application.
3.
WMII has sought review of the County Board’s decision pursuant to Section
40.1(a) ofthe Illinois Environmental Protection Act (“Act”).
4.
Keith Runyon and two other objectors at the local siting hearing, Merlin Karlock
and Michael Watson, sought to intervene in these proceedings one year ago, in June and July of
2004, arguing that the County and its attorneys would not advocate zealously in defending the
County Board’s denial ofsiting approval.
70455851vi 842014
5.
This Board properly denied intervention to those individuals but allowed them to
file amicus curaie briefs, which Mr. Runyon, Mr. Karlock and Mr. Watson each did in May of
2005.
6.
Despite this Board’s previous ruling denying intervention, Mr. Runyon again
requests leave to file a motion to intervene, asserting that he should be entitled to intervene in
this proceeding because, according to Mr. Runyon, “the County’s Attorney has abandoned his
defense of the County’s denial,” so “there is no one defending the County’s denial and the rights
and interests ofthe objectors and the citizens of the County.” (Runyon’s pleading, p. 1)
7.
Mr. Runyon further requests “that this Board bar the County ofKankakee and it’s
Attorney from further participation in this matter.” (Runyon’s pleading, p. 1)
8.
Mr. Runyon does not cite to any legal authority in support of his requests to
intervene or to bar the County and its Attorney from participating in this matter.
II. ARGUMENT
A.
MR. RUNYON’S REQUEST FOR LEAVE TO INTERVENE SHOULD BE
DENIED BECAUSE THE COUNTY BOARD, THROUGH ITS COUNSEL, IS
ZEALOUSLY DEFENDING ITS DENIAL OF WMII’S APPLICATION.
9.
In his “Rational and Motions,” Mr. Runyon makes accusations against the County
Board and its Attorney that have absolutely no basis in fact.
Specifically, Mr. Runyon
unjustifiably and wrongfully accuses the County Board’s legal counsel of failing to defend the
County Board’s denial of WMII’s application.
10.
The facts, however, clearly establish that counsel for the County Board has and
will continue to vehemently and zealously defend the County Board in its decision to deny siting
approval to WIVIH.
2
7045585iv1 842014
11.
Despite Mr. Runyon’s contention that counsel for the County Board is “biased in
Waste Management’s favor,” counsel for the County Board has continuously represented the
County Board’s interests against WMII throughout the course ofthis proceeding.
12.
In fact, in March of 2005, counsel for the County Board opposed a Motion to
Compel filed by WMII, arguing that WMII should not be allowed to delve into the mental
processes ofCounty Board members.
13.
Soon thereafter, on April 4, 2005, counsel for the County Board filed a Motion in
Limine to bar WMII from presenting any evidence or testimony about statements made by a
County Board member during her State Representative Election Campaign regarding landfills in
Kankakee County.
14.
Moreover, on April 6 and 7, 2005, counsel for the County Board participated in
this Board’s hearing, and at that hearing properly defended the County Board and its members by
repeatedly objecting to WMII’s attempts to illicit improper information from County Board
members.
15.
Currently, counsel for the County Board is in the process of drafting its Post-
Hearing Brief, which is due on or before July 22, 2005. In that Brief, counsel for the County
Board will refute each and every argument presented in WIVIII’s Brief and will persuasively
argue that the County Board’s decision denying WMII’s siting application was correct and
fundamentally fair.
16.
Mr. Runyon’s assertions that Hinshaw & Culbertson LLP is somehow not
adequately representing the County Board because ofits “bias in Waste Management’s favor”
is simply nonsense, as evidenced by Hinshaw &Culbertson LLP’s vigorous defense of the
3
70455851v1 842014
County Board’s denial of WMII’s application before, during and since the Illinois Pollution
Control Board Hearing.
17.
Mr. Runyon has provided no factual support for his accusation that the County
Board will not vigorously defend its denial of siting approval, and his Motion is based only upon
unsupported accusations, including the improper and incorrect insinuation that counsel for the
County Board is being paid by WMII.
18.
This issue was thoroughly addressed and reconciled in PCB 03-125, 133, 134,
135 (cons.) after Hinshaw & Culbertson LLP clearly established that it has always represented
and been paid by the County of Kankakee.
See
Affidavit of Joan Lane submitted as public
comment in PCB 03-125, 133, 134 and 135 (cons.), and attached hereto as Exhibit A.
19.
Furthermore, as set forth in an affidavit drafted by the Kankakee County Planning
Director, and submitted as public comment in PCB 03-125, 133, 134 and 135 (cons.), the law
firm of Hinshaw & Culbertson LLP never represented WMII in connection with the Kankakee
County Landfill. See Affidavit ofMike VanMill, attached hereto as Exhibit B.
20.
Mr Runyon also suggests that counsel for the County Board has somehow
“advocated in favor of Waste Management” by defending the County’s approval of WIM11’s
first application. However, the fact that Hinshaw & Culbertson LLP defended the County
Board’s decision to grant site location approval of WMII’s previous application does not prove
any advocation, but actually establishes Hinshaw & Culbertson LLP’s loyalty and commitment to
vigorously defend its clients in all cases on the separate merits of each case.
21.
As is made clear in his “Rational and Motions,” Mr. Runyon has not and cannot
allege any real facts to support his accusation that the County and its attorneys will not advocate
4
70455851v1 842014
zealously and, instead, relies on a letter drafted by the County Board’s counsel regarding a
proposed stipulation to remand in support ofhis accusations against the County and its counsel.
22.
However, Mr. Runyon fails to point out that that the letter written by Mr. Helsten
specifically states that the request for remand “does not in anyway obviate or negate the County
Board’s denial of the application for site location approval in question, and unless that prior
determination is rescinded and/or modified, that prior determination stands.” See Letter,
attached hereto as Exhibit C.
23.
This provision, in and of itself, specifically and directly establishes that the
County Board and its attorney will continue to stand by and defend the County Board’s denial of
site location approval.
24.
Because Mr. Runyon has failed to present a single piece of evidence to support
his accusation that the County Board of Kankakee County and its attorney has not and will not
zealously defend the County Board’s decision, intervention is neither necessary nor appropriate.
See Rochelle Waste Disposal, L.L.C. v. City Council of Rochelle,
PCB 03-218 (June 19, 2003)
(finding that the a citizens group should not be allowed to intervene despite the group’s
accusations that the City counsel might not adequately defend its decision).
B.
MR. RUNYON’S REQUEST FOR LEAVE TO FILE A MOTION TO
INTERVENE SHOULD BE DENIED BECAUSE THE UNANIMOUS
LEGAL
AUTHORITY PROHIBITS INTERVENTION.
25.
Mr. Runyon should not be granted leave to file a motion to intervene because
intervention is clearly prohibited by the IPCB Procedural Rules, the Illinois Environmental
Protection Act and IPCB precedent.
26.
Rule 107.200 of the PCB Procedural Rules sets forth who may file a petition for
review concerning siting of a new pollution control facility, and allows only two types of people
5
70455851v1 842014
to do so: 1) siting applicants when there has been a “decision to deny siting” or to “appeal
conditions imposed in a decision granting siting approval”; and 2) a person who participated in
the local siting hearing who is adversely affected by a unit of local government’s “decision to
grant siting.” 35 Ill. Adm. Code 107.200 (emphasis added).
27.
As set forth above, only the applicant may be a petitioner when a siting
application is denied by a local governing unit.
See
35 Ill. Adm. Code 107.200.
28.
Furthermore, Rule 107.202 specifically sets forth who may be parties to a review
of a local government’s decisions concerning a new pollution control facility. Rule 107.202
provides:
a)
In a petition to review a local government’s decision concerning a new
pollution control facility, the following are parties to the proceeding:
1)
The petitioner or petitioners are the persons described in Section
107.200 of this Part. If there is more than one petitioner, they must be
referred to as co-petitioners; and
2)
The unit(s) of local government whose decision is being reviewed
must be named the respondent(s). In an appeal pursuant to Section
107.200(b), the siting applicant must also be named as respondent.
b)
Where the interests of the public would be served, the Board or hearing
officer may allow intervention by the Attorney General or the State’s Attorney of
the county in which the facility will be located.
35 Ill. Adm. Code 107.202.
29.
Rule 107.202 clearly does not allow for an objector such as Mr. Runyon, to be a
party to this proceedings, as Rule 107.202 clearly limits the parties to the petitioner(s), the unit(s)
oflocal government, and the Attorney General or State’s Attorney (if they seek intervention).
30.
Therefore, IPCB Rules 107.200 and 107.202 clearly do not allow intervention.
31.
Mr. Runyon’s Petition to Intervene must also be denied pursuant to the plain
language of Section 40.1 ofthe Illinois Environmental Protection Act, which provides:
6
7045585iv1 842014
(a) Ifthe county board
* * *
refuses to grant approval
* * *
the applicant may
* *
*
petition for a hearing before the IPCB to contest the decision
* *
(b) Ifthe county board
* * *
grants approval
* * *
a third party other than the
applicant
* * *
may petition the IPCB
* * *
for a hearing to contest the approval
415 ILCS
5/40.1(a).
32.
While the Act allows for intervention by third parties when an application is
approved, “the Act thus does not provide for a third-party appeal where the PCB has refused to
grant site approval.”
McHenry County Landfill, Inc. v. Illinois Environmental Protection
Agency,
154 Ill.App.3d 89,
95,
506 N.E.2d 372, 376 (2d Dist. 1987);
see also Waste
Management of Illinois, Inc. v. Illinois Pollution Control Board,
160 Ill.App.3d 434, 444, 513
N.E.2d
592,
598 (2d Dist. 1987) (“following a county board denial of a site approval request,
section 40.1 ofthe Act precludes objectors from becoming parties to a PCB review hearing”).
33.
Based on the explicit language contained in Section 40.1 of the Act, this Board
must deny Mr. Runyon’s petition to intervene because “the PCB is powerless to expand its
authority beyond that which the legislature has expressly granted to it.”
McHenry County,
154
Ill.App.3d at
95, 506
N.E.2d at 376. As such, it would be improper and unlawful for this Board
to allow Mr. Runyon to intervene as a party in this proceeding.
See id.
(holding that “the PCB
improperly permitted the objectors to become parties to the proceeding before it” and therefore
finding that the objectors had no standing to appeal under section 41 ofthe Act).
34.
It is clear that Mr. Runyon’s Petition to Intervene should be denied, as this Board
has universally held that third-party objectors, like Mr. Runyon, are not entitled to intervention
when the local unit of government denies an applicant’s request for site location approval.
See
Rochelle Waste Disposal, L.L.C. v. City Council of Rochelle,
PCB 03-218 (July 10, 2003)
(explaining that a third-party objector did not have special intervention rights, and therefore
7
70455851v1 842014
could not intervene);
Waste Management ofillinois, Inc. v. County Board ofKane County,
PCB
03-104 (Feb. 20 (2003) (same);
Land and Lakes Co. v. Randolph County Board of
Commissioners,
PCB 99-69 (March 18, 1999) (finding that “allowing a third-party to intervene
would be granting party status to someone who does
not have
party status under Section 40.1 of
the Act”);
Lowe Transfer, Inc. v. County Board ofMcHenry County,
PCB 03-221 (July 10, 2003)
(“It is well established that third-party objectors are precluded from intervention in an appeal
from a denial ofsiting approval.”);
Riverdale Recycling, Inc. v. IEPA,
PCB 00-228 (same);
Land
and Lakes Co. v. Village ofRomeoville,
PCB 94-195 (Sept. 1, 1994) (same).
35.
Because it is well-settled that a third-party objector, like Mr. Runyon, has no right
to intervene in a case involving landfill siting approval where approval is denied by the local
governing body, Mr. Runyon’s should not be granted leave to file a motion to intervene.
C.
THE COUNTY BOARD AND ITS ATTORNEY CANNOT BE
BARRED
FROM
PARTICIPATING IN THIS PROCEEDING.
36.
Not only has Mr. Runyon failed to present any facts or evidence in support of his
request to bar the County Board and its attorney from further participation in this matter, but Mr.
Runyon has also failed to provide any legal authority that would allow this Board to do so.
37.
In fact, there is no legal authority to support Mr Runyon’s request, as both the
Illinois Environmental Protection Act and the Rules of the Illinois Pollution Control Board
specifically require that the County Board be a party in this proceedings.
38.
Section 40.1(a) of the Illinois Environmental Protection Act specifically provides
that when an applicant petitions for a hearing before the Illinois Pollution Control Board based
on a county board or municipality’s refusal to grant local siting approval, “the county board or
governing body of the municipality shall appear as respondent in such hearing.
. .“
415 ILCS
5/40.1(a).
8
70455851vi 842014
39.
Furthermore, Rule l07.202(a)(2) of the Illinois Pollution Control Board Rules
specifically provides: “In a petition to review a local government’s decision concerning a new
pollution control facility.
. .
the unit(s) of local government whose decision is being reviewed
must be named the respondent(s).” 35 Ill.Adm. Code 107.202(a)(2).
40.
Based on the provisions above, the County Board has an absolute right and duty
to participate in this proceeding and may do so through the attorney ofits choice.
41.
Consequently, this Board must deny Mr. Runyon’s request to bar the County
Board and its attorney from participating in this matter.
III. CONCLUSION
WHEREFORE, Respondent, COUNTY BOARD OF KANKAKEE, ILLINOIS,
respectfully requests that this Board deny Mr. Runyon’ s request for leave to file a motion to
intervene and deny his request to bar the County Board and its attorney from further participation
in this matter.
DATED:
7
~
COUNTY BO~ OF ~
COUNTY,
~H~A~ULBERTSON
LLP
Firm No.
695
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
9
7045585iv1 842014
AFFfl)AVIT
1, JOAN LANE, the undersigned being first duly sworn on oath depose and
state as
follows:
1.
1 am an employee ofHirishaw & Culbertson and the Administrative Assistant for
Charles F. Helsten who is a Special Assistant State~sAttorney for the County of Kankakee for
environmental and solid waste matters.
2.
Mr. Heisten and Hinshaw & Culbertson were hired by the State’s Attorney forthe
County ofKankakee in late 2001.
3.
At the time that Hinshaw & Culbertson and Mr. Helsien were hired by the
Kankakee County State’s Attorney, a file was opened, Matter Number 809319, at which time the
matter was referred to as the “Kankakee County Landfill”.
4.
I~wa.s responsibl~for opcning. the file for Mr. Heisten, and
at that
time I
inadvertently listed the Kankakee County Landfill as the both the “matter” atid the “client”.
5.
The landfill itself was not the client.
6.
Since the date that Hinshaw was first retained by the Kankakee County Stare’s
Attorney several other files have been opened for Hinshaw’s representation of the State’s
Attorney, Kankakee County or Kankakee County sraff, including Matter Numbers, 813053,
Sl3333~and 815142.
7.
I used the “tile intake sheet” for Matter Number 809319 as a template for the file
intake sheets for Matter Numbers 813053, 813333, 815142 and any other file opened on behalf
ofthe Kankakee County State’s Attorney, Karikakee County or Karikakee County staff.
8.
Because I used the file intake sheet for 809139 as a template for the subsequent
files, the same typo~aphica1error referencing that the client was “Kankakee County Landfill”
was
made in each of these subsequent files.
•
9.
All of the bills concerning the application to expand the landfill operated by
Waste
Management
in Kankakee County have been paid by Kankakee County.
2
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Nfl
10.
The reference to “Kankakeè Cour~tyLandfill” as the client on the file intake sheer
was merely an inadvertent typographical error.
11.
The result of the client being
identified as Kankakee County Landfill on
the file
intake sheets was that the invoices sent to Kankakee County State’s Attorney Edward Smith
erroneously indicated “Represent: Kankakee County Landfill”.
12.
In January 2003, I had the error corrected
on all of the
files.
13.
At no time has Hirishaw & Culbertson represented the Kankakee County landfill
or its operator, Waste Management of Illinois, Inc.,
in
regard to any siting application, host
agreement negotiation, or otherwise, in Kankakee County.
FURTHER
AFFIANT SAYETH NOT.
Under penalties as provided by law pursuant to Section 1-109 of,the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that she verily believes the sa e
t
be true.
SUBSCRIBED and SWORN to
before me this
,.~
/~~ayofMay, 2003.
~~
Notary Public
,~MACH~
a.r&TEci.f~O4~t
T~,u~oa~JQ0
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AFFIDAVIT
I, MIKE VAN MILL, the undersigned being first duly sworn on oath depose and state as
follows:
1.
1 arc the Kankakee
County Planning Director.
2.
I am familiar with
the attorneys that have
been hired by the
County of Kankakee
to assist in the legal aspects ofthe
County’s environmental
and solid waste management issues.
3.
In 2001 Attorney Charles Heisten and the law firm of Hinshaw & CuIbertso~
were hired by the State’s Attorney for County ofKankakee.
4.
.
At various times Hinshaw & Culbertson has represented the County of Kankakee,
County
staff, axidior the Kankakee County State’s Attorney.
5.
At no time did the State’s Attorney, Kankakee County, or Kanicakee County staff
retain Hinshaw & Culbertson or Mr. Heisten to represent Waste Management of Illinois, the
operator of the Kankakee County Landfill.
6.
•
The County of Kankakee has paid all of Hinshaw & Culbertson’s invoices which
are in any way associated with the negotiation of a host agreement with Waste Management of
Illinois.
7.
The County of Kankakee has paid all of iinshaw & Culbertson’s invoices
concerning the application of Waste Management of Illinois to site a landfill expansion in
•
Kankakee County.
•
FURTHER AFFLANT SAYETH NOT.
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure,. the
undersigned
certifies that the statements set forth
in
this instnirnent are true and
correct, except as to
matters
therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he v~ly elieves th~same
to be
MIKE VAN
SUBSCRIBED and SWORN to
“OFFICIAL SEAL
ANCELALSCHNELL
NOTARY PUBUC,
STATE OF ILLiNOIS
~IV
COMMISSION EXPIRES
0S108)05
II/IVd
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EXHIBIT
HINSHAW
•
___
& CULBERTSO
N LLP
•
•May 27, 2005
•
•
ATIORNEYS AT LA’JW
•
•
100 Park Avenue
Mr.
Donald J.
Moran
RO.
Box 1389
Pederson & Houpt
Rockford,
IL 61105-1389
161 N. Clark
Street, Suite 3100
Chicago, IL 60601-3242
815-490-4900
815-490-4901 (fax)
www.hinshawiaw.com
Re:
Waste Management II Siting Appeal (PCB No. 04-186)
Dear Mr. Moran:
Please
find
enclosed herewith a copy of a Resolution passed by the
Kankakee County Board on
May
25,
2005,
authorizing the
County to join a Stipulation which requests this matter
be
remanded by the Pollution Control Board to the Kankakee County
Board for
further
deliberation.
Please prepare such a stipulation for my review
and approval.
In my opinion, the Stipulation need only refer to the fact that the Kankakee County
Board is.
agreeing to this matter
being remanded back to the
County Board for further
deliberation;
nothing
more, nothing less.
Again, please note that the Resolution that was passed provides that the
remand request is
without prejudice to and
does not in
any way waive the position presently taken by the Kankakee
County Board in this matter on appeal. As I have also indicated to you, in my opinion, the
procedural request for remand alone does not in
anyway
obviate or negate the County Board’s
prior denial of the application for site location approval in question, and unless
that prior
determination is rescinded and/or modified, that prior determination stands.
I am providing a copy of this correspondence
and
the Resolution to amicus parties as well.
Should you have
any
questions concerning this matter, feel
free
to contact me.
Sincerely,
~~ONLLP
Charlesf. H~ste~ff
•
•
•
Direct
~l5-490-4906
chelste~@hinshaw1aw.corn
•
•
CFH:jml
• ., •i~. ~
70452317v1 842014
Mr. Donald J. Moran
May 27, 2005
Page 2
Enclosures
cc:
Jennifer Sackett Pohlenz
George Mueller
Keith Runyon
Ed Smith
Karl Kruse
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 July 1, 2005, a copy of the foregoing was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Edward Smith
Kankakee County State’s Attorney
450
East Court Street
Kankakee, IL 60901
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL
61350
Christopher Bohlen
Barmann, Kramer & Bohlen, P.C.
200 East Court Street, Suite 502
Kankakee, IL 60914
Kenneth A. Bleyer
923 W. Gordon Ter., #3
Chicago, IL
60613-2013
Keith Runyon
1165 Plum Creek Drive
Boubannais, IL 60914
Elizabeth Harvey
Swanson, Martin & Bell
One IBM Plaza
—
Suite 3300
330 N. Wabash
Chicago, IL 60611
Jennifer Sackett Pohlenz
David Flynn
Querry & Harrow
175 W. Jackson Blvd., Suite 1600
Chicago, IL 60604-2827
Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph, 11th Floor
Chicago, IL 60601
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,, Illinois,
proper postage prepaid, before the hour of 5:00 P.M., addressed as above.
HNSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61101-1389
(815)490-4900
This document utilized 100
recycled paper products
70408434v1 842014
