BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
SUTI’ER SANITATION,
INC. and
)
LAVONNE HAKER,
)
V.
Petitioners,
ILLINQIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles J. Northrup
Sorling, Northrup, Hanna
Cullen & Cochran, Ltd.
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL
62705
John M. Heyde
Sidley Austin Brown & Wood, LLP
10 South Dearborn Street
Chicago, IL 60603
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
Christine G. Zeman
Hodge Dwyer Zeman
3150 RolandAvenue
P.O. Box 5776
Springfield, IL 62705-4900
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a RESPONSE TO RUFFNER, ET AL., MOTION TO INTERVENE, copies of which are
herewith served upon you.
Respectfully submitted,
ILLINOI
NVIRONMENTAL PROTECTION AGENCY,
Resp de
JohnJ. im
/
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: June 22, 2004
RECE~VED
CLERK’S OFFICE
JUN 28 2004
STATE OF ILLINOIS
Pollution Control Board
)
)
)
)
)
PCB No. 04-187
(Permit Appeal)
NOTICE
Rc~
BEFORE THE POLLUTION CONTROL BOARD
JUN 28 2004
OF THE STATE OF ILLINOIS
Polluflo,-,
STATE OF
Control
ILLINOIS
Board
SUTTER SANITATION, iNC. and
)
LAVONNE HAKER,
)
Petitioners,
)
v.
)
PCB No. 04-187
ILLiNOIS ENVIRONMENTAL
)
(Permit Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO RUFFNER, ET AL., MOTION TO INTERVENE
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, Joim J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Iii. Adm. Code 101.500 and 101.504, hereby respectfully responds
to the Motion to Intervene (“motion”) filed by Jesse Ruffner and Family, Lloyd Stock, and Stock
& Company, LLC’s (“petitioning intervenors”). In response to the petitioning intervenors’
motion, the Illinois EPA states as follows:
1.
As noted by the petitioning intervenors, the Illinois Pollution Control Board’s
(“Board”) authority to grant intervention to non-party requestors is found in Section 101.402 of
the Board’s procedural rules
(35
Ill. Adm. Code 101.402). There is no claim by the petitioning
intervenors, and indeed none is provided in Section 101 .402(c) of the Board’s procedural rules,
that the petitioning intervenors have a statutory right to intervene. Thus, the only means by
which the petitioning intervenors may be granted party status is for the Board to find that the
discretionary provisions of Section 101.402(d) are applicable and weigh in favor of the
petitioning intervenors. However, based upon the language within that provision, the Board
should not so find.
2.
Section 10 1.402(d) provides:
Subject to subsection (b) of this Section, the Board may permit any person to intervene in
any adjudicatory proceeding if:
1
1)
The person has a conditional statutory right to intervene in the proceeding;
2)
The person may be materially prejudiced absent intervention; or
3)
The person is so situated that the person may be adversely affected by a
final Board order.
3.
To prevail, the petitioning intervenors must demonstrate at least one ofthe three
criteria in Section 101.402(d) has been met. The petitioning intervenors have not met that
burden. First, the petitioning intervenors have not demonstrated that they have any conditional
statutory right to intervene. Section 101 .402(d)(1). There is no conditional statutory right that
has been proffered by the petitioning intervenors; rather, they instead cite to Section 22.14 ofthe
Illinois Environmental Protection Act (“Act”) (415 ILCS 5/22.14) as the relevant statutory
provision.
4.
The Illinois EPA agrees with the petitioning intervenors that Section 22.14 is
relevant and undoubtedly will be considered and interpreted by the Board in the ultimate
resolution of the pending appeal. But, that provision does not confer any right, conditional or
otherwise, upon a private third-party to intervene in any related permit appeal. The application
and enforcement of that provision is left to the Illinois EPA, which is a named party in the
present action. The Illinois EPA, as the entity obligated to ensure compliance with that section,
has taken and will continue to take all necessary steps before the Board to present its case.
5.
With all due respect to the petitioning intervenors, however, that obligation rests
solely with the Illinois EPA in a permit appeal context. Ifthe Board were to allow intervention
in this case, it would possibly allow a party other than the Illinois EPA to become directly
involved in what is a clear act of the Illinois EPA’s permitting authority. Section 39(a) of the
Act (415 ILCS
5/39(a))
provides that the Illinois EPA is the agency charged with the
2
responsibility of reviewing and acting upon permit applications. The Illinois EPA did so here,
and its actions are subject to appeal before the Board, which is a circumstance that has come to
pass. The Illinois EPA and the Petitioner in this action are thus falling squarely within their
statutory roles in the permit appeal process. To allow a private third-party to interject itself in
these proceedings is without any basis in the Act.
6.
Next, the petitioning intervenors must show that they will be materially
prejudiced absent intervention. Section 101 .402(d)(2). Again, the petitioning intervenors have
failed to make this requisite showing, largely because they fail to acknowledge the other means
by which they may participate in the proceedings. Non-parties to a permit appeal may be, and
routinely are granted, the leave to file an
amicus curiae
brief setting forth any relevant arguments
or positions for the Board’s consideration. While a person filing an
amicus
brief is not a formal
party to the action, that person’s arguments are nonetheless considered by the Board in reaching
its final decision. The Illinois EPA will have no objection to the petitioning intervenors filing an
amicus
brief on any aspect ofthe pending appeal.
7.
Further, if a hearing is held in this matter, the petitioning intervenors are again
provided an opportunity to participate by making public comments that will be taken by the
Board with the rest of the hearing record.
These capabilities provide a more than sufficient
opportunity for the petitioning intervenors to present any arguments they feel appropriate to the
Board, either through an
amicus curiae
brief or by making public conmients at a hearing. These
options preclude the petitioning intervenors from making any credible argument that failure to
grant them intervention would result in material prejudice.
8.
The last component for the Board’s consideration in a case of discretionary
intervention is whether the person is so situated that the person may be adversely affected by a
3
final Board order. Section 101 .402(d)(3). Here again, based on the facts presented in this case,
the petitioning intervenors have not made a persuasive argument that they deserve to be granted
intervention. The crux ofthe petitioning intervenors argument is that the Board’s final decision
here may result in a hardship upon them, in that it may allow for the permitting of a transfer
station in close proximity to their residence or property.
9.
Although each of the petitioning intervenors claims a similar yet distinct adversity
that may befall them should the Board ultimately decide that the Illinois EPA’s decision should
be reversed, the common theme and argument made by the petitioning intervenors is that they
should be allowed to live or conduct business in the location in dispute without a transfer station
located nearby. This is an extension ofthe protection and prohibition set forth in Section 22.14
of the Act. Again, as argued above, the Illinois EPA is the sole entity -charged with the
responsibility of enforcing that section, and the illinois EPA has not and will not shirk from that
responsibility.
10.
Also, there is a question as to what sort of “Pandora’s box” would be opened if
the petitioning intervenors were granted intervenor status based on a claim that they were
adversely impacted here. Although the petitioning intervenors are basing their arguments on
location that is within the setback distance set forth in Section 22.14, their argument is
essentially that they will suffer some consequence if a permit is granted to a facility that they
find objectionable.
11.
If that is the standard by which future motions to intervene are to be judged, then
obviously there is a much larger (yet equally described) group of persons that may claim in the
future that the permitting of some other facility in proximity to their homes or business interests
is also objectionable. That circumstance alone is not and should not be deemed sufficient to
4
warrant granting of a motion to intervene, since the contentions of those complaining parties
might not be based on any particular statutory provision.
-
12.
The Board has not issued any final order that is persuasive in support of the
petitioning intervenors’ arguments. The petitioning intervenors cite favorably only to the case of
Saline County Landfill, Inc. v. Illinois EPA, PCB 02-108. In that case, the Board granted
intervenor status to the County of Saline based upon their status as a governmental entity
charged with interpretation oflocal siting approval, an issue that was key to the resolution ofthe
appeal.
13.
Here, the only roles played by the petitioning intervenors are not in dispute, as the
acts are essentially acknowledged on a chronological basis. Just how those acts should be
applied to the resolution of this appeal is what remains, but it is not necessary for the petitioning
intervenors to have party status in order for that factual application to occur.
14.
More relevant and applicable to the present appeal are the Board’s decisions in
other matters involving requests for intervention. For the most part, the Board has not viewed
motions to intervene with favor, properly setting forth the requisite regulatory standard in
Section 101.402. This is a standard that should not be easily met, as intervention is a significant
act with implications to parties that are otherwise clearly identified by statute.
15.
Interestingly, in the case of2222 Elston LLC v. Purex Industries, et a!., PCB 03-
55 (January 23, 2003), the Board considered a request for intervention filed by the City of
Chicago (“City”). In that case, the Board gave no special deference to the City based on its
status as a governmental entity, but rather reviewed the attendant facts. The Board was not
persuaded that the City had provided sufficient justification to allow for intervention, despite the
City’s argument that financial implications may result from an adverse Board decision.
5
16.
In another case involving a request by a governmental entity to intervene, the
Board ruled that intervention was not warranted even when the entity argued that it may be
adversely impacted in terms of its local ordinance. The Board did not find that such argument
met the burden imposed by.Section 101.402(d), but noted that the entity could participate in the
proceeding through the filing of an
arnicus curiae
brief. Stuart v. Fisher, PCB 02-164 (January
23, 2003).
17.
Based on those decisions, it is clear that the Board considers the standard of
whether to grant discretionary intervention to be a strict one. Based on the facts presented here,
the petitioning intervenors have not presented a persuasive case that they should be granted
intervention.
WHEREFORE, for the reasons set forth above, the Illinois EPA respectfully requests that
the Board deny the petitioning intervenors’ motion.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res
en
John
.
Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: June 22, 2004
This filing submitted on recycled paper.
6
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on June 22, 2004, I served true and
correct copies of a RESPONSE TO RUFFNER, ET AL., MOTION TO INTERVENE, by
placing true and correct copies in properly sealed and addressed envelopes and by depositing
said sealed envelopes in a U.S. mail drop box located within Springfield, Illinois, with sufficient
First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles J. Northrup
Sorling, Northrup, Hanna
Cullen & Cochran, Ltd.
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL 62705
John M. Heyde
Sidley Austin Brown & Wood, LLP
10 South Dearborn Street
Chicago, IL 60603
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
Christine G. Zeman
Hodge Dwyer Zeman
3150 Roland Avenue
-
P.O. Box 5776
Springfield, IL 62705-4900
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
Respo e t
JolmJ. ~m
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
