copy
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
CLERK’S OFFICE
JUL 0.72004
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
STATE OF ILLINOIS
)
Pollution Control Board
Petitioner,
)
)
No. PCB 04-186
vs.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE COUNTY,
)
ILLiNOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
All Attorneys ofRecord
PLEASE TAKE NOTICE THAT on July 6, 2004, I filed with the Illinois Pollution Control
Board, Chicago, Illinois, the attached
Respondent’s Objection to Michael Watson’s Motion to
Intervene and Motion for Leave to File an
Amicus Curiae
Brief, a copy ofwhich is herewith
served upon you.
DATED:________________
COUNTY BOARD OF ~~EE
COUNTY,
ILLINOIS,
BY: HINSHAW & CULBERTSON
C~kJ4h~J/-1~D~fr~
fwi~~J
Charles F. Helsten
HINSHAW & CUILBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)490-4900
70414041v1 833658
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S OFFICE
JUL 072004
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
STATE OF IWNOIS
Pollution Control Board
Petitioner,
)
)
No. PCB 04-186
vs.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE COUNTY,
)
ILLINOIS,
)
)
Respondent.
)
RESPONDENT’S
OBJECTION TO
MICHAEL
WATSON’S MOTION TO
INTERVENE
AND
MOTION FOR LEAVE TO FILE AN
AMICUS CURIAE
BRIEF
NOW COMES Respondent, COUNTY BOARD OF KANKAKEE COUNTY,
ILLINOIS, and as and for its Objection to Michael Watson’s Motion to Intervene and Motion for
Leave to File an
Amicus Curiae
Brief, states as follows:
I. BACKGROU1~D
1.
On September 26, 2003, Waste Management of Illinois, Inc. (“WMII”) filed a site
location application with the County Board of Kankakee, Illinois (“County Board”) for
expansion of an 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”), and Michael Watson, an objector in
the local siting hearing, seeks to intervene in these proceedings.
4.
Watson asserts that he should be allowed to intervene in the Pollution Control
Board (“PCB”) proceedings because: 1) he will be “directly and adversely affected if WMII is
successful on its appeal”; 2) he should have the opportunity to participate in discovery and the
presentation of evidence as an “adjacent property owner”; 3) he “actively participated” in the
70413683v1 833658
local siting hearing; and 4) his “property rights will be directly and adversely impacted” as the
owner of land surrounding the proposed expansion.
See
Watson’s Motion to Intervene
(“Motion”), paras. 4-6.
5.
In the alternative, Watson seeks leave to file an amicus curiae brief with this
Board. Motion, paras. 22-26.
II. ARGUMENT
A.
MR. WATSON’S MOTION TO INTERVENE SHOULD BE DENIED.
6.
In support of his Motion to Intervene, Watson cites to IPCB Procedural Rule
101.402, which he contends gives him the right to intervene in this case.
See
Motion, paras. 7-8.
However, Watson’s reliance on Rule 101.402 is clearly misplaced, as Rules 107.200 and
107.202, not Rule 101.402, govern who may be parties to an appeal ofa county board’s decision
regarding site location approval.
7.
Rule 107.200 sets forth who may file a petition for review concerning siting of a
new pollution control facility, and allows only two types of people 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).
8.
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.
9.
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:
2
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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.
10.
Rule 107.202 then clearly does not allow for an adjacent landowner, such as Mr.
Watson, to be a party to this proceedings, as Rule 107.202 clearly limits the parties to the
petitioner(s), the unit(s) of local government, and the Attorney General or State’s Attorney (if
they seek intervention).
11.
Therefore, despite Mr. Watson’s contention that Rule 101.402 somehow allows
him to intervene in this action, Rules 107.200 and 107.202 clearly do not allow intervention, and
the latter rules are controlling in this case based on the provisions contained in Parts 101 and 107
ofthe PCB Rules.
12.
The PCB made clear that the rules set forth in Part 101 are “general rules.”
See
35
Ill. Adm. Code Part 101 Table ofContents. As set forth in Part 101 ofthe IIPCB’s rules:
This Part sets forth the rules generally applicable to proceedings before the
Illinois Pollution Control Board (Board), and should be read in conjunction with
procedural rules for the Board’s specific processes, found at 35 Ill. Adm. Code
102 through 130, and the Board’s Administrative Rules, found at 2 Ill. Adm. Code
2175. In the event of a conflict between the rules of this Part and those found in
subsequent parts, the more specific requirement applies.
35 Ill. Adm. Code 101.100(a) (emphasis added).
13.
Part
107
ofthe PCB’s Rules provides more specific rules:
3
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a)
This part applies to adjudicatoryproceedings before the Board concerning
petitions to review a pollution control facility siting decision made by local
government pursuant to Section 39.2 and 40.1 ofthe Act.
b)
This Part must be read in conjunction with 35 Ill. Adm. Code 101, which
contains procedures generally applicable to all of the Board’s adjudicatory
proceedings. In the event ofa conflict between the requirements of 35 Ill. Adm.
Code 101 and those ofthis Part, the provisions ofthis Part apply.
35 Ill. Adm. Code 107.100 (emphasis added).
14.
A conflict exists between the intervention rules contained in Parts 101 and 107
because Rule 101.402 allows any person to intervene if certain requirements are met, while Rule
107.202 specifically provides that only the State’s Attorney or Attorney General may intervene in
a landfill siting appeal. Consequently, the more specific provisions of Part 107 control, and
require that Mr. Watson’s Motion to Intervene be denied.
15.
Mr. Watson’s Motion to Intervene must also be denied pursuant to the plain
language of Section 40.1 ofthe Illinois Environmental Protection Act, which provides:
(a) Ifthe county board
* * *
refuses to grant approval
* * *
the applicant may
* *
*
petition for a hearing before the IPCB to contest the decision
* *
(b) Ifthe countyboard
* * *
grants approval
* * *
a third party other than the
applicant
* * *
may petition the IIPCB
* * *
for a hearing to contest the approval
***
415 ILCS 5/40.1(a).
16.
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”).
4
70413683v1 833658
17.
Based on the explicit language contained in Section 40.1 of the Act, this Board
must not grant Mr. Watson’s motion 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. Watson 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).
18.
It is clear that Mr. Watson’s Motion to Intervene should be denied, as the IPCB
has universally held that third-party objectors like Mr. Watson 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
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 of siting approval.”);
Riverdale Recycling, Inc. v. IEPA,
PCB 00-228 (same);
Land
and Lakes Co. v. Village ofRomeoville,
PCB
94-195
(Sept. 1, 1994) (same)
19.
Mr. Watson attempts to distinguish the long line of cases in which the IPCB has
refused to allow intervention by asserting that his rights as a property owner are somehow unique
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and, therefore, his interest warrants intervention.
See
Motion, paras. 12-16. However, Mr.
Watson’s argument is seriously flawed for two reasons.
20.
First, Mr. Watson, an owner of property contiguous to the proposed landfill
expansion is not unique, as many of the interveners in the cases cited above were owners of
property adjacent to the proposed landfills, and claimed that they should be allowed to intervene
based on that fact, but the PCB disagreed.
See Land and Lakes Co. v. Village ofRomeoville,
91-
7 (Feb. 7, 1991) (finding that a forest preserve had not right to intervene because its interest was
that of an adjacent landowner);
Land and Lakes v. Romeoville,
PCB
94-195
(finding that a forest
preserve district that was an “adjacent landowner” had no right to intervene);
Lowe Transfer, Inc.
PCB 03-221 (denying intervention to a village located directly adjacent to a proposed landfill
despite
contentions that the landfill would have a “significant impact” on the village).
21.
Furthermore, Mr. Watson has no right as an individual property owner to assert a
private interest in a landfill siting review. In fact, as set forth above, the PCB rules clearly
establish that it is only appropriate for an individual representing the public interest to intervene,
which is why the PCB Rules specifically allow only the State’s Attorney or Attorney General to
intervene in an action such as this.
See Land and Lakes v. Romeoville,
PCB 91-7 (explaining that
the State’s interest in intervention is “to protect the public welfare”);
Land and Lakes v.
Romeoville,
PCB
94-195
(explaining that “a state’s attorney may intervene to represent the public
interest”);
Land and Lakes v. Randolph County,
PCB 99-69 (same);
Lowe Transfer, Inc.,
PCB
03-221
(same);
Rochelle,
PCB 03-218 (same);
Waste Management,
PCB 03-104 (same).
22.
In fact, it is appropriate for only the State’s Attorney or Attorney General to
intervene in the review of the denial of a site location application because “the Attorney General,
‘as chief legal officer of this State,
* * *
has the duty and authority to represent the interests of
6
70413683v1 833658
the People of the State to insure a healthful environment”, and the “State’s Attorney’s ‘rights and
duties are analogous to those of the Attorney General.”
Saline County Landfill, Inc. v. IEPA,
PCB 02-108 (April 18,
2002),
citing Pioneer Processing, Inc. v. IEPA,
102 Ill.2d 119, 464
N.E.2d 238 (1984) and
Land and Lakes Co. v. PCB,
245 lll.App.3d 631, 616 N.E.2d 349 (3d
Dist. 1993); see also Land and Lakes Co v. Romeoville, PCB 91-7 (Feb. 7, 1991) (explaining
that the State’s Attorney and Attorney General represent “a legitimate public interest”).
23.
Clearly, the PCB has determined that only an individual protecting the public
interest is allowed to intervene when the PCB is reviewing a local government’s decision to deny
site location approval. Therefore, Mr. Watson, who is attempting to protect only his private
interests, should not be allowed to intervene.
24.
Moreover, Mr. Watson’s private right as a property owner would not be affected
by reversal of the County Board’s denial, as Mr. Watson contends, because WMII submitted with
its application a Property Value Protection Plan to protect the property value of Mr. Watson’s
land, as well as other property surrounding the landfill. If W1vllI somehow violates that Plan,
Mr. Watson then will have a private right of action against the WlvllI. Clearly, such an interest is
not relevant to a landfill siting appeal, such as this, but is more appropriately raised in a court of
law if, in fact, Mr. Watson’s property is actually harmedby the landfill expansion.
25.
Mr. Watson also improperly asserts that his presence is necessary in this
proceeding because the County Board may not raise certain arguments that he would like raised
and because the County Board may not adequately defend its denial of site location approval.
See
Motion, para. 10.
26.
Such assertions are simply incorrect, and do not warrant Mr. Watson’s
intervention in this case. It is well settled that “when a governmental entity is involved,
7
70413683v1 833658
‘interested parties legitimately may assume that their elected officials will adequately represent
their interest as members of the general public.”
People ex rel. Birkett v. City of Chicago,
329
I1l.App.3d 477, 490, 769 N.E.2d 84, 96 (2d Dist.
2002),
rev’d in part on other grounds,
202 Ill.2d
36, 779 N.E.2d 875 (2002). Furthermore, the “adequacy of representation can be presumed
when the party on whose behalf the applicant seeks intervention is a governmental body or
officer charged by law with representing the interests of the proposed intervener.”
American
Nat’l Bank and Trust Co. of Chicago v. City of Chicago, 865
F.2d
144, 148 (7th Cir. 1989).
27.
Because it is clear that the County Board will adequately represent itself and
vigorously defend its denial of site location approval, Mr. Watson’s intervention is neither
necessary or appropriate.
28.
Finally, Mr. Watson cites to a number of zoning cases to support his position that
his Motion to Intervene should be granted because he is an adjacent landowner. See Motion,
paras. 11, 18. However, all of those cases are completely irrelevant because the intervention in
those cases was not decided pursuant to the Illinois Environmental Protection Act or PCB Rules,
but was decided pursuant to the Illinois Code ofCivil Procedure.
29.
As set forth above, the provisions relevant to intervention in this case are found in
the PCB’s Rules, located in the Illinois Administrative Code, not in the Illinois Code of Civil
Procedure. In fact, the PCB Rules specifically provide that “the provisions ofthe Code ofCivil
Procedure 735 ILCS 5 and the Supreme Court Rules Ill. S. Ct. Rules do not expressly apply
to proceedings before the Board.” 35 Ill. Adm. Code 101.100(b).
30.
Therefore, the zoning cases cited by Mr. Watson have absolutely no bearing on
this case, and should be entirely disregardedby this Board.
8
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31.
For the reasons set forth above, Mr. Watson’s Motion to Intervene should be
denied.
B.
MR. WATSON’S MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF
SHOULD BE DENIED.
32.
Mr. Watson argues that he should be granted leave to file an
amicus curiae
brief if
he is not allowed to intervene as a party in these proceedings; however, this Board should deny
Watson’s request to file an
amicus curiae
brief because, through his brief, Mr. Watson will be
attempting to present wholly new arguments to this Board that have not been previously raised
by the parties in the underlying action, as Mr. Watson has specifically admitted in his Motion.
See
Motion, para. 8.
33.
As an amicus, Mr. Watson is specifically precluded from presenting new
arguments. As explained by the Illinois Supreme Court, an
amicus curiae
is not a party to the
action but is, instead a “friend” of the court, and, as such, the sole function of an
amicus
is to
advise or make suggestions to the court.
People v. P.H.,
145 Ill.2d 209, 234, 582 N.E.2d 700,
711(1991). An
amicus
takes the case as he finds it, with the issues framed by the parties.
Id.
34.
Therefore, an
amicus curiae
has no right to present issues that are not raised by
the parties to the proceeding.
35.
In fact, issues addressed and arguments made only by an
amicus curiae,
and not
by the parties,
need not be considered.
See Archer Daniels Midland Co. v. Industrial
Commission,
138
Ill.2d
107, 117,
561
N.E.2d 623, 627 (1990);
P.H.,
145 I1l.2d at 234, 582
N.E.2d at 711-12;
In re J. W,
204
Ill.2d
50,
73, 787 N.E.2d 747, 761 (2003).
36.
Moreover, Mr. Watson should also be denied the right to right to become an
amicus curiae
because he is not a “friend” ofthe Board, but is attempting to become a part ofthis
proceeding as a competitor ofWMII.
9
70413683v1 833658
37.
Although Mr. Watson contends that he is simply interested in this action as a
concerned landowner, Mr. Watson has failed to point out in his Motion that he is also a
competitor to WMII.
38.
As such, Mr. Watson does not fit within the definition ofan
amicus curiae,
and he
should, therefore, be denied the right to file an
amicus curiae
brief. See Mines v. Olin Corp.,
171 Ill.App.3d 246, 248, 524 N.E.2d 1203, 1205 (1st Dist. 1988) (explaining that “an
amicus
curiae
is an impartial individual who suggests the interpretation and status of the law, gives
information concerning it, and those function is to advise in order that justice maybe done”)
(emphasis added).
39.
Additionally, Mr. Watson’s Motion for Leave to File an
Amicus Curiae
brief
should be denied because, through his brief, Mr. Watson will not simply be advising this Board
regarding the law, but he will be advocating a point of view and urging this Board to find in
favor of the County Board and against WMII. Such is not the role of an
amicus curiae. See
Mines,
171 Ill.App.3d at 248-49, 524 N.E.2d at 1205. Therefore, Mr. Watson’s Motion should
be denied.
Seeid.
40.
Furthermore, Mr. Watson’s Motion for Leave to File an
Amicus Curiae
Brief
should be denied because his presence in this case will unduly delay the proceedings.
41.
Just as it is relevant for the Board to consider whether an intervener “will unduly
delay or materially prejudice the proceeding or otherwise interfere with an orderly or efficient
proceeding”
(35
Ill. Adm. Code 101.402(b)), this Board should also consider whether an
amicus
curiae
will delay, prejudice or interfere with the proceeding.
42.
In this case, Mr. Watson will delay and interfere with the Board proceeding as he
has done in earlier proceedings between the same parties.
10
70413683v1 833658
43.
As Mr. Watson pointed out in his Motion, he was also involved in opposing the
first application filed by WMII in August 16, 2002. That case is now pending in the Third
District Court of Appeals, 03-03-0924. In that case, Mr. Watson has repeatedly delayed the
proceedings by requesting extensions oftime.
44.
If Mr. Watson were allowed to become an
amicus
in this case, he will likely do
the same and unduly delay these proceedings. As such, Mr. Watson’s Motion for Leave to File
an
Amicus Curiae
Brief should be denied.
III. CONCLUSION
WHEREFORE, Respondent, COUNTY BOARD OF KANKAKEE, ILLINOIS,
respectfully requests that this Board deny Mr. Watson’s Motion to Intervene and Motion For
Leave to File
Amicus Curiae
Brief.
~
~
COUNTY,
7~Y:
HAW & C
ERTSON
/
/
Che.
FirmNo.
695
/
HINSHAW & CIJLBERT. ON
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
11
70413683v1 833658
PROOF OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty ofperjury under the laws ofthe United States of America, certifies that
on July 6, 2004, a copy ofthe 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 6060 1-3218
Donald Moran
Pedersen & Houpt
161 N. Clark Street, Suite 3100
Chicago, IlL 60601
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL
61350
Kenneth A. Bleyer
923 W. Gordon Ter., #3
Chicago, IL 60613-20 13
773/348-4005
Elizabeth
Harvey
Swanson, Martin & Bell
One IBM Plaza
—
Suite 3300
330 N. Wabash
Chicago, IL 60611
Edward Smith
Kankakee County State’s Attorney
450
East Court Street
Kankakee, IL 60901
Christopher Bohlen
Barmann, Kramer & Bohien, P.C.
200 East Court Street, Suite 502
Kankakee, IL 60914
Keith Runyon
1165 Plum Creek
Drive
Boubannais, IL 60914
70414040v1 833658
Jennifer Sackett Pohlenz
David Flynn
Queny & Harrow
175 W. Jackson Blvd., Suite 1600
Chicago, IL 60604-2827
Brad Halloran
Hearing Officer
illinois Pollution Control Board
100 West Randolph, 1
1th 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 of5:00 P.M., addressed as above.
H1NSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61101-1389
(815)
490-4900
70414040v1 833658
