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BEFORE THE ILLINOIS POLLUTION CONTROL BO9~~ ~CE
MAR 28 2003
CITY OF KANKAKEE,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
STATE OF ILUNOIS
PCB 03-O3-l~l1utiOfl
Control Board
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-135
(Third-Party Pollution Control
Facility Siting Appeal)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
RECEiVED
WASTE MANAGEMENT OF ILLINOIS, INC.
)
CLERIVS OFFICE
)
Petitioner/Respondent,
)
VS.
)
PCB 03-144
PollutIon
STATE OF
Control
ILLINOIS
Board
)
(Pollution Control
)
Facility Siting Appeal)
KANKAKEE COUNTY BOARD,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on March 28, 2003, we filed with the Illinois Pollution
Control Board, the attached
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
in the above entitled
matter.
WASTE MANAGEMENT OF ILLINOIS, INC.
~
Lauren Blair
One of Its Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
Attorneys for Petitioner
161 N. Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
362529
This Document Is Printed on Recycled Paper
RECE!VED
CLERK’S OFFICE
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Charles F. Helsten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
(815) 963-9989 (fax)
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite 550
Kankakee, IL 60901
(815) 933-3385
(815)
933-3397 (fax)
Jennifer J. Sackett Pohlenz, Esq.
175 W. Jackson Boulevard, Suite 600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 (fax)
George Mueller, Esq.
501 State Street
Ottawa, IL 61350
(815)
433-4705
(815)
433-4913 (fax)
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 (fax)
L. Patrick Power, Esq.
956
North Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815)
937-0056 (fax)
Keith Runyon
1165 Plum Creek Drive
Bourbonnais, IL 60914
(815) 937-9838
(815) 937-9164 (fax)
Victoria L. Ken~ddy
PROOF OF SERVICE
MAR 2 8 2003
Victoria L. Kennedy, a non-attorney, on oath states that she served the foi~~i~
~
MANAGEMENT
OF
ILLINOIS, INC.’s MOTION
TO
SEVER ITS APPE~
~O ~
CONDITIONS FROM THE FOUR APPEALS CHALLENGING THE
KANKAI~E
~j~czrd
SITING APPROVAL
on the following parties by depositing same in the U.S. mail at 161 N. Clark St.,
Chicago, Illinois 60601, at 5:00 p.m. on this2.~ day of March, 2003:
Bradley Halloran, Hearing Officer
Kenneth A. Bleyer
Illinois Pollution Control Board
923 W. Gordon Terrace #3
James R. Thompson Center
Chicago, IL 60613
100 West Randolph Street, Suite 11th Floor
.
Chicago, Illinois 60601
Patricia O’Dell
(312) 814-8917
1242 Arrowhead Drive
(312) 814-3669 (fax)
Bourbonnais, IL 60914
362303
6
S 0~Pic~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
M/1~
2 ~
2003
CITY OF KANKAKEE,
)
)
Petitioner,
)
)
v.
)
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
STATE OP
ILLINOIS
on Contra/Road
PCB 03-03-125
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF
ILLINOIS, INC.,
362303
RECE!VED
Respondents.
)
CLERK’S OFFICE
WASTE MANAGEMENT OF ILLINOIS, INC.
)
MAR 28 2003
Petitioner/Respondent,
)
Pollution
STATE OF
Control
ILLINOIS
Board
vs.
)
PCB
03-144
)
(Pollution Control
)
Facility Siting Appeal)
KANKAKEE COUNTY BOARD,
)
)
Respondent.
)
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
Petitioner/Respondent WASTE MANAGEMENT OF ILLINOIS, INC. (“WMJJ”), by
its
attorneys, Pedersen & Houpt, moves the Pollution Control Board (“Board”) to sever WIvifi’s
appeal (PCB 03-144) from the third-party appeals filed by the City of Kankakee (the “City”)
(PCB 03-125), Merlin Karlock (“Karlock”) (PCB 03-133), Michael Watson (“Watson”) (PCB
03-134) and Keith Runyon (“Runyon”) (PCB 03-135). In support thereof, WMIE states as
follows:
1.
On February 25, 2003, the City filed a third-party petition asking the Board to
review the County of Kankakee’s (the “County”) January 31, 2003decision granting local siting
approval (“Site Location Approval”) of WMII’s August 16, 2002 application to expand the
Kankakee Landfill. On March 3, 2003, Karlock, Watson and Runyon all filed separate third-
party petitions likewise seeking a review of the Site Location Approval.
2.
The City appeals on the grounds that the County’s decision was against the
manifest weight of the evidence on four of the criteria in Section 39.2 of the Act, and the
362303
2
County’s proceedings were fundamentally unfair. Karlock appeals on the grounds that the
County lacked jurisdiction, the County’s decision was against the manifest weight of the
evidence on four of the statutory criteria, and the proceedings were fundamentally unfair.
Watson appeals on the grounds that the County lacked jurisdiction, the County’s decision was
against the manifest weight of the evidence on seven of the statutory criteria, and the proceedings
were fundamentally unfair. Runyon appeals on the ground that the County’s decision was
against the manifest weight of the evidence on one of the statutory criteria.
3.
On March 6, 2003, the Board consolidated all four of the third-party petitions,
sua
sponte.
4.
On March 7, 2003, WMIH filed its Petition for Review of Site Location Approval
Conditions. WMTI’s appeal contests and objects to Special Conditions 2(h) and 2(x), which the
County issued as part of the Site Location Approval, on the grounds that they (i) are neither
reasonable nor necessary to accomplish the purposes of Section 39.2 of the Act; and (ii) are not
supported by the record and have not been demonstrated to be either technically appropriate or
operationally reasonable.
5.
On March 20, 2003, the Board,
sua sponte,
consolidated WMIII’s appeal with the
third-party appeals for the purpose of hearing. WMII asks the Board to sever its appeal in light
of the standards for consolidation articulated in Section 101.406 of the Board’s Procedural Rules
(the “Rules”).
6.
Section 101.406 of the Rules provides that consolidation is proper only: “if
consolidation is in the interest of convenient, expeditious, and complete determination of claims,
and if consolidation would not cause material prejudice to any party.” 35111. Adm. Code Section
362303
3
101.406 (2002).
7.
In this case, the consolidation of WMII’s appeal with the third-party appeals of the
City, Karlock, Watson and Runyon will not serve the interests of a convenient and expeditious
determination of claims. The challenges that WMII raises it its
appeal--i.e.,
that Special
Conditions 2(h) and 2(x) are not reasonable or necessary to accomplish the purposes of Section
39.2 of the Act, and are not supported by the record
--
are completely separate and distinct from
the challenges to the siting approval raised by the third-party petitions. WMIH is not challenging
the siting approval. Its arguments are specific to the County’s Special Conditions 2(h) and 2(x).
WMII will be relying on facts in the record that are unique to its arguments and unrelated to the
facts relied upon by the third-party petitioners in theirchallenge to the siting approval. Thus,
consolidating WMTI’s appeal with the third-party appeals will unnecessarily complicate these
proceedings by combining unrelated issues and divergent arguments based on .different facts.
8.
Moreover, consolidation of these matters for the purpose of the hearing materially
prejudices WMJI, who will be required to initiate and complete discovery and go to hearing
under the scheduling deadlines established in the third-party appeals, which were filed as early as
10 days before WMII filed its appeal. WMII would also be unduly burdened by the post-hearing
briefing schedule, in that it would be required to prepare and file its opening brief to the County
simultaneously with the third-party petitioners’ opening briefs to WMII and the County, followed
by the preparation and filing of four response briefs to the third-party petitioners’ opening briefs,
followed by the preparation and filing of its reply brief to the County’s response to WMIJI’s
opening brief.
9.
Based upon the standards set forth in Section 101.406 of the Rules, the
362303
4
consolidation of WMJI’s appeal with the third-party appeals for hearing purposes is not proper.
As the Board ruled in
Sierra Club v. Will County Board,
Nos. PCB 99-136, PCB 99-139, PCB
99-l40slip op. at 4 (April
15,
1999), the proper procedure under these circumstances is to
consolidate the third-party appeals challenging the siting approval, decline to consolidate the
W7VHI appeal of the siting conditions, and “direct the Clerk of the Board and the assigned hearing
officer to handle these cases in a coordinated fashion to the extent practicable, including for
purposes of record maintenance and hearing.”
WHEREFORE, WASTE MANAGEMENT OF ILLINOIS, INC. respectfully requests
that the Board enter an order severing PCB 03-144 from PCB 03-125, 03-133, 03-134 and 03-
135, and providing such other and further relief as the Board deems appropriate:
Respectfully submitted,
WASTE MANAGEMENT OF ILLINOIS, INC.
~
One ofIts Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
362303
5