1. NOTICE OF FILING
      2. ATTORNEY’S CERTIFICATE OF SERVICE
      3. ATTORNEY’S CERTIFICATE OF SERVICE
BEFORE THE ILINOIS POLLUTION CONTROL BOARD
CLERK’S
OPF!CF
ROCHELLE WASTE DISPOSAL, L~L.C.
)
JUN
2o
2003
Petitioner,
)
No.
PCB 03- 218
STATE
OF
ILLINOIS
Con
Board
vs.
)
)
(Pollution Control Facility
)
Siting Appeal)
)
CITY COUNCIL OF THE CITY OF
)
ROCHELLE, ILLiNOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Counsel or Parties on attached Certificate ofService.
-
YOU ARE HEREBY NOTIFIED, that on June 26,
2003, we filed an original and
nine copies ofthe accompanying Petitioner’s Objection to Petition to Intervene with the
Illinois Pollution Control Board,
a copy ofwhich is herewith served on you.
ROCHELLE WASTE DISPOSAL, L.L.C.
By:___
Michael F. O’Brien
Michael F. O’Brien
McGreevy, Johnson & Williams, P.C.
6735
Vistagreen Way
P.O. Box 2903
Rockford, IL 61132
815/639-3700
815/639-9400 (Fax)
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER.
ATTORNEY’S CERTIFICATE OF SERVICE
The undersigned, being first duly sworn on oath, depose and say that I am an
attorney and served the foregoing instrument upon the within named:
Rochelle City Council
Office ofthe City Clerk
do Bruce McKinney, City Clerk
Rochelle City Hall
Sixth Street & Fifth Avenue
Rochelle, IL 61068-0601
Dennis Hewitt, Esq.
Rochelle City Attorney
Hewitt Law Offices
1124 Lincoln Highway
P.O. Box 605
Rochelle, IL 61068
Charles Heisten, Esq.
Hinshaw & Culbertson
100 Park Avenue
Rockford, IL 61101
George Mueller, Esq.
501
State Street
Ottawa, IL 61350
by sealing a true and correct copy ofthe same in an envelope, addressed
as shown above,
with sufficient United States postage and by depositing said envelope, so sealed and
stamped, in the United States Mail at Rockford, Illinois, at or about the hour of‘5
o’clock p.m., on thQ2f~~day
of June, 2003.
Michael F. O’Brien
McGreevy, Johnson & Williams, P.C.
6735 Vistagreen Way
P.O. Box 2903
Rockford, IL 61132
815/639-3700
815/639-9400 (Fax)
00330109.DOC
Michael F.
O’Brien
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER.
RECEIVED
CLERK’S
OFF~
BEFORE THE ILINOIS POLLUTION CONTROL BOARD
JUN
30
20U3
ROCHELLE WASTE DISPOSAL, L.L.C.
)
Pollution
Gontrol
Board
Petitioner,
)
No. PCB 03- 218
)
vs.
)
)
(Pollution Control Facility
)
Siting Appeal)
)
CITY COUNCIL OF THE CITY OF
)
ROCHELLE, ILLINOIS,
)
)
Respondent.
)
PETITIONER’S
OBJECTION TO PETITION TO
INTERVENE
The Petitioner, Rochelle Waste Disposal, L.L.C. (“RWD”), objects to
the Petition
to Intervene filed by the Concerned Citizens ofOgle County (“CCOC”), and in support
thereof states the following:
1.
As set forth in Riverdale Recycling, Inc.
v. Illinois Environmental
Protection Agency, PCB 00-228, 2000 WL 1160737 (August 10, 2000), “it
is well
settled that third parties cannot intervene in cases where the local governments
denied
siting approval, pursuant to Section 39.2 ofthe Act.
415
ILCS
5/39-2
(1998); Land and
Lakes Company v.
Village ofRomeoville (September 1,1994), PCB
94-195;
see
also,
Waste Management ofIllinois, Inc. v.PCB,
160 Il1.App.3d 434, 513 N.E.2d 592 (2d Dist.
1987)” (emphasis added).
2.
The CCOC relies on Section 101.402 ofthe Board’s General Rules, which
are “generally applicable to proceedings before the” Board, but the more specific
-
-
provisions ofPart
107 apply to
“adjudicatory proceedings before the Board concerning
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
petitions to review a pollution control siting decision made by. local government pursuant
to
Sections 39.2 and 40.1 ofthe Act.”
35 Ill.Adm.Code 107.100(a).
3.
Section 107.202(b) ofthe Board’s Rules
specifically sets forth the only
intervention permitted in such siting review proceedings:
Where the interest ofthe public would be served, the Board or hearing
officer may allow intervention by the Attorney General or the State’s
Attorney ofthe county in which the facility will be located.
35
Ill.Adm.Code
107.202(b).
4.
The rules “generally applicable” to adjudicatory proceedings before the
Board “should be read in conjunction with the procedural rules for the Board’s specific
processes,” such as the procedure set forth in Part
107, which specifically governs
proceedings to review local siting decisions, and the only intervention permitted by Part
107
is intervention by the Attorney General or the State’s Attorney.
~
Saline County
Landfill, Inc. v.
Illinois Environmental Protection Agency, PCB 02-108, 4
(April 18,
2002) (permitting intervention by State’s Attorney under new rules).
5.
Both the General Rules (Section 101.100(a)) as well as the rules
specifically applicable to the Board’s review oflocal siting decisions (Section
107.100(b)) provide that in the event of such a conflict between the General Rules and
the more specific rules set forth in subsequent Parts,
“the more specific requirement
applies.”
35 Ill.Adm.Code 101.100(a).
Compare 35 Ill.Adm.Code
107.100(b).
6.
Although objectors who participated in the local siting hearing are entitled
to file a petition to review the
granting
ofsiting approval under Section 40.1(b) ofthe
Act, the Act does not provide for a third-party appeal where the local siting authorityhas
denied
siting approval.
See Waste Management ofIllinois, Inc. v. Illinois Pollution
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
2
Control Board,
160 Ill.App.3d 434, 443,
513 N.E.2d
592, 598,
112 Ill.Dec. 178,
184
(2d
Dist.
1987) (“following a county board denial ofa site approval request, section 40.1 of
the Act precludes objectors from becoming parties to a PCB review hearing”).
7.
With respect to intervention in such proceedings, “the Illinois Supreme
Court has distinguished the role ofa state official, representing the public interest such
as the county State Attorney
from that ofa private citizen.”
Land and Lakes Co.
v.
Village ofRomeoville, PCB 91-7,
1991
WL 46281
(February 7,
1991).
8.
The CCOC’s suggestion that the Rochelle City Council will not
“vigorously, and withoutreservation” defend its denial ofsiting approval (Petition to
Intervene 2) is contrary to the presumption that a governmental body already adequately
represents the interest ofa proposed intervenor who seeks to
defend the actions ofsuch a
governmental body.
See,
e.g., American National Bank and Trust Company ofChicago
v.
City ofChicago,
865
F.2d 144,
148
(7th
Cir.
1989).
9.
“When
a governmental entity is involved,
‘interested parties legitimately
may assume that their elected officials will adequately represent their interest as members
ofthe general public.”
People ex rel. Birkett v. City ofChicago, 329 Ill.App.3d 477,
490, 769 N.E.2d 84, 96, 263
Il1.Dec.
882,
894
(2d Dist. 2002), aff’d as to
denial of
intervention but rev’d in part, 202
I11.2d 36, 779 N.E.2d 875, 269 Ill.Dec. 21(2002).
10.
The City ofRochelle’s ownership ofthe existing landfill and its
obligations to RWD under the host agreement are no basis for suggesting that the City
Council has a disqualifying bias or that it will not defend this appeal.
See,
e.g., B & E
Hauling,
Inc. v. Pollution Control Board,
107 Ill.2d 33, 481
N.E.2d 664, 89 Ill.Dec.
821
(1985).
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
3
11.
The CCOC’s intervention is neither necessary nor appropriate under the
Act.
See Clean Quality Resources, Inc.
v.
Marion County Board, PCB 90-216,
1991
WL
121360 (February 28,
1991) (denying objectors’ intervention in petition to review denial
of site location approval); McHenry County Landfill, Inc. v. Illinois Environmental
Protection Agency,
154 Ill.App.3d 89,
94-95, 506
N.E.2d 372, 376,
106 Ill.Dec.
665,
669
(2d Dist.
1987) (“The Act thus does not provide for a third-party appeal where the PCB
has refused site approval,” and “the
PCB is powerless to
expand its authority beyond
that which the legislature has expressly granted to it”).
WHEREFORE, the Petitioner, Rochelle Waste Disposal, L.L.C., objects to the
Petition to Intervene filed by the Concerned Citizens ofOgle County and requests that the
Petition be denied.
ROCHELLE WASTE DISPOSAL, L.L.C.
By:______
Michael F. O’Brien
Michael F. O’Brien
McGreevy, Johnson & Williams, P.C.
6735 Vistagreen Way
P.O. Box
2903
Rockford, IL 61132
815/639-3700
815/639-9400 (Fax)
THIS DOCUMENT IS PRINTED ON RECYCLED
PAPER
4
ATTORNEY’S CERTIFICATE OF SERVICE
The undersigned, being first duly sworn on oath, depose
and say that I am an
attorney and served the foregoing instrument upon the within named:
Rochelle City Council
Office ofthe City Clerk
c/o Bruce McKinney, City Clerk
Rochelle City Hall
Sixth Street & Fifth Avenue
Rochelle, IL 61068-0601
Dennis Hewitt, Esq.
Hewitt Law Offices
1124 Lincoln Highway
P.O. Box
605
Rochelle, IL 61068
Charles Heisten, Esq.
Hinshaw &
Culbertson
100 ParkAvenue
Rockford, IL 61101
George Mueller, Esq.
501
State Street
Ottawa, IL
61350
by sealing a true and correct copy ofthe same in an envelope, addressed
as shown above,
with sufficient United States postage and by depositing said envelope, so sealed aDd
stamped, in the United States Mail at Rockford, Illinois, at or about the hour of~.3
o’clock p.m., on the~2(J~day
ofJune, 2003.
Michael F.
O’Brien
McGreevy, Johnson &
Williams, P.C.
6735 Vistagreen Way
P.O. Box 2903
Rockford,
IL 61132
815/639-3700
815/639-9400 (Fax)
00330069.DOC
Michael F. O’Brien
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
5

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