RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~UBK’SOFF~
LOWE TRANSFER, INC. and
)
ju~
192003
MARSHALL LOWE,
)
STATE OF ILLINOiS
pollution Control
Board
Co-Petitioners,
)
)
PCB 03-22 1
vs.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD OF MCHENRY
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
To:
See attached
Please take notice that I have this day filed with the Illinois Pollution
Control Board the
Village of
Cary’s Motion to Intervene and Appearances on behalfofthe Village of Cary,
copies ofwhich are attached and hereby served upon you.
Dated:
June 19, 2003
Percy L. Angelo
Patricia F. Sharkey
Kevin Desharnais
Mayer, Brown, Rowe & Maw
190
South LaSalle Street
Chicago, Illinois 60603
312-782-0600
ofCary
THIS
FILING IS PRINTED
ON RECYCLED PAPER
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARDRECE~VEO
CL~R1~S
OFRC~
LOWE TRANSFER, INC. and
)
MARSHALL LOWE,
)
JUN
3~
92003
)
STATE OF ILLINOIS
Co-Petitioners,
)
PCB 03-221
Pollution
Control
Board
vs.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD OF MCHENRY
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
VILLAGE OF CARY’S MOTION TO
INTERVENE
The Village of Cary, by its attorneys, Mayer, Brown, Rowe & Maw, hereby moves for
intervention as a party participant in this siting appeal pursuant to 35 Ill. Adm. Code 10 1.402.
In
support ofits motion, Cary states as follows:
1.
On June
5,
2003, co-petitioners Lowe Transfer, Inc.
and Marshall Lowe (together,
“Lowe”) filed the instant appeal contesting the May 6, 2003
decision ofthe County Board of
McHenry County (the “County”) denying Lowe’s application for site location suitability
approval for a proposed waste transfer station.
The proposed transfer station would have been
located on a 2.46 acre site offofU.S. Route
14
in McHenry County, just outside the limits ofthe
Village ofCary (the “Site”).1
2.
The proposed Site is so located as to have a significant impact on the Village of
Cary.
The Site is adjacent to the Village of Cary and is within Cary’s municipal planning
area.
It is just west ofand in close proximity to residential areas within the Village ofCary, including
the decades old Bright Oaks subdivision ofover 400 units only 1300 feet away.
The fifty-five
acre Plote Property, recently annexed to the Village for development ofa residential subdivision,
The
facts
stated herein are
taken from the record assembled by
the McHenry County Board in its facility
siting hearings.
THIS FILING IS PRINTED ON
RECYCLED PAPER
directly abuts the site,
with the result that the proposed waste transfer station site is directly
adjacent to property zoned residential within the Village ofCary.
Such location bars use ofthe
Lowe site for a garbage transfer station pursuant to 415 ILCS 5/22.14.
The site is also in close
proximity to commercial areas in
Cary used and proposed for use as shopping areas for Cary
residents.
The McHenry County Conservation District property known as the Hollows is
adjacent to the west and north ofthe Site, and is frequently used by Cary residents for
recreational purposes including hiking, fishing, boating, picnicking and camping.
Other
recreational areas within the Village ofCary are also
located so as to be potentially impacted by
the proposed transfer station.
As identified below, groundwater and surface waters affected by
the proposed site have an immediate impact on the Village of Cary and on the lakes,
“high
quality” and
“irreplaceable” wetlands and water supply wells used by the Village.
3.
The County issued its
timely decision denying siting approval after holding
11
days of public hearing, during which extensive testimony and cross-examination was presented
and substantial evidence and public comment was received.
4.
The Village ofCary participated extensively in the proceedings before the
County, participating actively on every day of hearings, presenting the testimony ofnumerous
expert witnesses, including
all but
one ofthe experts presented by
site opponents, introducing
extensive
evidence, cross-examining petitioner’s witnesses, and calling the applicant, Marshall
Lowe, as a witness after he failed to appear in his
own case-in-chief.
The evidence presented
included:
a)
The testimony of a hydrogeologist with extensive experience in the
McHenry County area, including testimony regarding the sensitive
hydrogeology ofthe area, and the threat to area groundwaters, surface
waters, the Cary drinking water wells, and wetlands designated as “high
quality” and “irreplaceable” by the U.S.
Corps ofEngineers, which is
posed by the proposed transfer station design calling for injection of
2
THIS FILING IS PRINTED ON RECYCLED PAPER
runoff directly into the groundwater.
These affected groundwaters,
surface waters and wetlands are immediately downgradient ofthe
proposed site.
b)
The testimony ofan environmental engineer with extensive experience in
designing and operating waste transfer stations,
including testimony on the
design of the proposed facility and the proposed plan ofoperation, noting
the extremely small size ofthe site, the lack ofany sprinkler or other fire
protection system other than a pit into which burning wastes could be
pushed, the lack ofsufficient turning radii on site for the larger transfer
trailers accessing the site, the failure to provide adequate protection to
prevent site wastewater from entering into groundwater, and odor, noise,
litter and dust impacts to nearby areas including
Cary, the nearby and
adjacent residential areas and the Hollows recreational
area.
c)
The testimony of a certified urban planner, including testimony
on the
inconsistency of the proposed transfer station with the
Cary
Comprehensive Plan and
with surrounding residential, commercial and
park and recreational uses.
d)
The testimony ofa traffic engineer, including testimony on the impacts of
the proposed transfer station on traffic in the vicinity ofthe site and the
failure to provide basic traffic information and to even consider traffic
routes to be
used by transfer trucks accessingthe site.
e)
The testimony ofthe Village ofCary Administrator on the impacts ofthe
proposed transfer station on the Village ofCary, Lowe’s failure to contact
the Village to determine compatibility, the failure ofthe site to comply
with the
Cary Comprehensive Plan and the effect on nearby and adjacent
commercial and residential development projects in the Village.
f)
Testimony ofthe applicant regarding his complete, and admitted, lack of
experience in the field oftransfer station operations and submission of
evidence obtained from Illinois EPA ofhis environmental record with
regard to his existing businesses.
5.
The Board’s procedural rules at 35 I1l.Adm. Code
101.402, provide
in relevant
part:
a)
The Board may permit
any person to intervene in
an adjudicatory
proceeding....
b)
In determining whether to grant a motion to intervene, the Board
will consider the timeliness ofthe motion
and whether intervention
will unduly delay or materially prejudice the proceeding
or
otherwise interfere with an
orderly or efficient proceeding.
3
THIS FILING
IS PRINTED ON RECYCLED PAPER
c)
Subject to subsection (b) ofthis
Section, the Board will permit any person
to
intervene in any adjudicatory proceeding if:
1)
The person has an unconditional statutory right to intervene in the
proceeding; or
2)
It may be necessary for the Board to
impose a condition on the
person.
d)
Subject to subsection (b) ofthis Section, the Board may permit any
person to intervene in any adjudicatory proceeding if:
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.
A siting appeal is an adjudicatory proceeding.
35 Ill.
Adm.
Code 107.100(a).
6.
Under Section 22.14 of the Environmental Protection Act, 415
ILCS
§
5/22.14,
it
is illegal
to
locate a garbage transfer station within 1000 feet of any dwelling or an area zoned
residential.
The 55 acre Plote property which adjoins the proposed Lowe facility has been
included in the Cary
Comprehensive Plan for residential use for over a decade and extensive
testimony at hearing showed the ongoing negotiationsbetween the Village and the Plote family
over
several years time to develop a plan for the residential developmentofthe property.
The
Village has invested in
an extension of water and
sewer service to the Plote property in
preparation for its residential use.
Thatproperty has now been annexed by the Village of Cary,
and the siting ofthe Lowe garbage transfer station would infringe the unconditional
statutory
rights ofthe Village and the Plote family under Section 22.14,
and by infringing those rights
would necessarily impose an extremely onerous condition on the Village and the Plote family if
4
THIS FILING IS PRINTED ON RECYCLED PAPER
the Board were to overturn the decision ofthe
County.2
In fact, developmentofthe Lowe station
would prevent the long-planned residential development ofthe Plote property and render useless
the public investments for water and sewer service made by the Village in
connection with that
development.
Accordingly, the Board must permit the Village to intervene pursuant to
35 Ill.
Adm. Code
§
101.402(c).
7.
In addition, Cary should be permitted to intervene under Section
101.402(d).
A
decision by the Board overturning the County’s denial ofsiting would infringe the Village’s
rights under Section 22.14 ofthe Act and would render useless the investments made by the
Village.
In addition, Cary is so located as to be materially prejudiced if it is not allowed to
intervene in this proceeding, and as to
be adversely impacted by an unfavorable Board decision.
As described above, the Site is located adjacent to the Village of Cary, and
is adjacent and
in
close proximity to residential, commercial and recreational areas therein, such that the citizens of
Cary will be significantly
impacted by the proposed transfer station.
Cary was the primary
participant in the proceedings before the McHenry County Board, supplying much ofthe
evidence on which the Board’s decision was based.
In addition to the expert testimony described
above, Cary provided, among other things, the following evidence at hearing:
—
evidence with respect to the nature and environmental compliance (or more
particularly noncompliance) ofLowe’s existing operations.
It was the Village of
Cary which called Mr. Lowe as a witness
—
he declined to testify as a witness
in
his own case—and elicited and provided evidence concerning his existing
operations and their environmental record.
Mr. Lowe’s appeal specifically
2
Mr. Lowe testified at the hearing before the County that he expedited his application filing
in
hopes of
siting his garbage transfer station before the Plote property could be annexed by the
Village.
5
THIS FILING
IS PRINTED ON RECYCLED PAPER
challenges the right ofthe County to have considered evidence ofMr. Lowe’s
experience and record.3
—
evidence, by way ofofficial aerial maps, that the “high quality” and
“irreplaceable” wetlands mentionedbut not located in the application were,
in
fact, directly and immediately down
gradient of the proposed site.
—
evidence ofthe groundwater impacts ofthe proposed facility including impacts to
downgradient lakes, high quality and irreplaceable wetlands and the Cary water
supply wells.
—
evidence as to the nature ofthe surrounding residential and commercial land uses,
much of which was left out ofthe application which incorrectly described the area
as primarily industrial
(based on the original industrial zoning ofthe Hollows,
now used as a recreational area, and the Plote property, planned and now zoned
for residential use).
—
evidence as to the analysis done by the County’s consultant.
It was the Village of
Cary which called the consultant as a witness.
The County itself presented no
evidence.
The consultant’s comments were presented as public comment, not as
evidence subject to cross-examination, after the close ofthe public hearing.
—
evidence ofthe effort by Lowe to subvert the County proceeding.
The Village of
Cary, through a freedom of informationrequest to the County, provided evidence
to the record showing that Lowe’s attorney also represents the County, that Lowe
Lowe’s appeal
fails
to explain, however, how the County’s consideration was improper since
the
Environmental Protection Act specifically
provides for such
consideration.
415
ILCS 5/39.2(a).
The remainder of
his appeal
is similarly devoid ofexplanation of what was wrong with the County action, creating the risk that no
one
will know what Lowe
is actually complaining about until perhaps his post-hearing briefto this Board.
Lowe has
also
failed to show that
he timely objected at hearing to any of the
issueshe now
seeks to raise on
appeal.
6
THIS FILING
IS
PRINTED ON RECYCLED PAPER
triedto hire the County’s own
consultant
and then hired a consultant
recommended by the
County’s consultant, that at Lowe’s initiative, the County
reviewed and provided comments on drafts ofLowe’s application before its filing,
and that at Lowe’s request the County agreed to keep Lowe’s pending application
anonymous before its filing.
Lowe further sought to limit and impede the
participation of objectors.
The record in this case would have been seriously incomplete, and controlled entirely by
the applicant, without the participation of the Village of Cary, the Plote family, the residents of
Bright Oaks and the citizens ofCary and the surrounding communities.4
8.
The participation ofthe Village in this proceeding is necessary to insure that the
County decision is vigorously defended on appeal and that the Board is informed of the
overwhelming support in the record for the County decision.
9.
Lowe seeks to appeal,
among other issues, on the basis that the McHenry County
Board “granted” its application as to certain criteria with conditions.
To the extent the Lowe
application was granted, and it was approved with respect to several criteria, the Village ofCary
also seeks to participate to the extent necessary to preserve its right to appeal any grant ofthe
Lowe application and to
address the Lowe
appeal ofa condition to the McHenry County Board’s
approval ofany criteria.
10.
Cary’s motion for intervention is timely, and
its participation will not delay or
otherwise prejudice the proceeding.
Cary is filing this petition for intervention shortly after
In light of the Lowe efforts to work ex
parte
with the County, and the limited
information made available
through
its freedom of information request, the Village of Cary feared possible bias in favor of Lowe by the County
and noted that concern at hearing.
It was
gratified by the
careful and open-minded attention given
to its decision by
the County Board and
its Siting Committee and
is surprised to see Lowe raise as contested issues on appeal matters
which he himself proposed in his application (e.g. host community fees and Mr. Lowe’s lack of experience, which
were included in the siting application).
7
THIS FILING IS PRINTED ON RECYCLED PAPER
Lowe filed its petition for review, and prior to any
action by the Board.
Further, the Board’s
decision in this matter will necessarily be based on the record developed in the siting proceeding
before the County, in which Cary was an active participant, which record will already be before
the Board.
Cary’s familiarity with the record below will assist the Board in understanding all
issues in this case.
11.
35 Ill.
Adm.
Code
107.202, which identifies the parties necessary to
a siting
proceeding, is to be read in conjunction with 35 Ill. Adm.
Code 101.402, which provides for
joinder ofa party in an adjudicatory proceeding where a condition may be imposed on the
intervening party, where necessary to allowthat party to protect an
important interest and to
avoid material prejudice.
Cary has made the requisite showing that it will be
impacted by action
ofthe Board overturning the County decision, that it has important interests and
investments in
need ofprotection, including interests guaranteed by 415
ILCS 22.14 barring a garbage transfer
station within
1000
feet ofan area zoned residential, and that it will be prejudiced if not allowed
to intervene.
WHEREFORE,
Cary requests that it be given intervention as a party in this proceeding.
Respectfully Submitted,
The Village of Cary
Dated: June 19, 2003
B,~ii.~~~T)
One of its
orneys
Percy L. Angelo
Patricia F. Sharkey
Kevin G. Desharnais
Mayer,
Brown, Rowe &
Maw
190 S. LaSalle Street
Chicago, IL 60603-3441
(312) 782-0600
8
THIS
FILING IS PRINTED ON RECYCLED
PAPER
Certificate of Service
Kevin Desharnais, an attorney, hereby certifies that on June 19, 2003 he
served copies of
the foregoing
Notice of Filing, Village of
Cary’s
Motion to Intervene and Appearances on
the following persons by
U.S. Mail, First Class, proper postage prepaid:
David McArdle
Zukowski,
Rogers, Flood & McArdle
50
Virginia Street
Crystal Lake, IL
60014
Mr. Michael W. Tryon
Chairman, McHenry County Board
McHenry County Government Center
2200 North Seminary Avenue
Woodstock, IL
60098
Assistant
State’s Attorney
R.
Glenn Gable
State’s Attorneys Office
McHenry County Government Center
2200 North Seminary Avenue
Woodstock, IL
60098
Ms. Katherine
C.
Schultz
McHenry County Clerk
McHenry County Government Center
2200 North Seminary Avenue
Woodstock, IL
60098
THIS FILING IS PRINTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFrr~
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
JUN
1
~
2003
LOWE TRANSFER,
INC. and
)
STATE OF ILLINOIS
MARSHALL
LOWE,
)
Pollution
Control Board
Co-Petitioners,
)
)
PCB 03-221
vs.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD OF
MCHENRY
COUNTY, ILLINOIS,
)
)
Respondent.
)
APPEARANCES ON BEHALF OF THE VILLAGE OF CARY
The undersigned hereby file their appearances in this proceeding, on behalf ofthe
Village of Cary.
~
~
One~1’
ttorneys
Dated: June 19, 2003
Percy L. Angelo
Patricia F.
Sharkey
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw
190
S. LaSalle Street
Chicago, IL 60603-3441
(312) 782-0600
THIS
FILING IS PRINTED ON RECYCLED PAPER