BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
C C)
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LOWE TRANSFER, INC. and
MARSHALL LOWE,
Co-Petitioners,
vs.
COUNTY BOARD OF McHENRY
COUNTY, ILLINOIS,
Respondent.
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RECEIVED
CLERK’S
OFFTflE
JUL
7
2003
PCB 03-221
(Pollution Control Board
STATE
OF
ILLINOIS
Siting Appeal)
Pollution
Control Board
NOTICE
OF FILING
TO:
See List Referenced in Proof of Service
PLEASE TAKE NOTICE that on July 2, 2003, we filed with the Illinois Pollution Control Board, the
attached
so-Petitioners’ Response to the Village of C’ary ‘s Motion
to Intervene
in the above entitled matter.
LOWE TRANSFER, INC. and
MARSHALL LOWE
By:________
PROOF OF SERVICE
David W. McArdle
I, a non-attorney, on oath state that I served the foregoin~
Response on the followingparties by
depositing same in the U.S. mail at or before
5:00
p.m.
on this 2~day of July, 2003:
Charles F. Helsten
Hinshaw
and Culbertson
100 Park Avenue. P. 0. Box 1389
Rockford, Illinois
61105-1389
SUBSCRIBED and SWORN to before
me this 2~day of July, 2003/~)
V
ID(
~
Notary Public
David W.
McArdle, Attorney Registration No.
06182127
ZUXOWSKI ROGERS
FLOOD & MCARDLE
50 Virginia Street
Crystal Lake, Illinois 60014
(815) 459-2050
H:\LOWE\notfihing.response.wpd
Percy L. Angelo
Mayer, Brown, Rowe & Maw
190
South LaSalle Street
Chicago, Illinois 60603
S
ii
OFFICIAL SEAL’
SUSAN K.
BAUER
Notaty
Public,
State
of Illinois
MyCommissjot~Expires
04/03/05
THIS FILING
IS PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
LOWE TRANSFER, INC. and
)
CLE~XI~D
MARSHALL LOWE,
)
Co-Petitioners,
)
JUL
7
2003
)
PCB 03-221
vs.
)
(Pollution Control Board
STATE
OF
ILLINOIS
)
Siting Appeal)
Pollution
Control Board
COUNTY BOARD
OF McHENRY
)
COUNTY, ILLINOIS,
)
Respondent.
)
RESPONSE
TO
VILLAGE OF CARY’S MOTION TO INTERVENE
Co-Petitioners, LOWE TRANSFER, INC.
and MARSHALL LOWE (“Lowe”), by Zukowski,
Rogers, Flood & McArdle, their attorneys, respectfully request that the Pollution Control Board deny the
Village of Cary’s (“Cary”) Motion to Intervene as a party in this siting appeal.
In support of its response,
Lowe states as follows:
1.
On June 5, 2003, Lowe filed the instant appeal contesting the May
6, 2003, decision of
the County Board of
McHenry
County, Illinois (“County Board”) denying Lowe’s application for site
location approval for a proposed waste transfer station pursuant to Section 40.1(a) of the Illinois
Enviromnental Protection Act (“Act”) (415 ILCS
5/40.1(a)).
2.
Cary seeks leave to intervene on the basis that (a)
its citizens will be significantly
impacted by the proposed transfer station;
(b) its participation is necessary to insure that the County’s
decision is vigorously defended on appeal and (c)
to the extent the Lowe applicationwas
granted, and it
was approved with respect to several criteria, (it)
also seeks to participate to the extent necessary to
preserve its right to appeal any grant ofthe Lowe application.
Cary’s motion to Intervene,
¶~J
7-9.
3.
The Board’s procedural rules at 35
Ill. Adm. Code 107.200 provides that proper party
petitioners are
either the applicant if the application was denied or “other participants” at the hearing if
the application
was granted:
THIS FILiNG IS
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The following persons may file apetition forreview ofa decision concerning siting of a
new pollution control facility pursuant to Section 40.1
ofthe Act:
a)
Siting applicants.
Any person who has properly applied to
one or more units of local government, pursuant to Section 39.2 of the Act, for
• siting approval of a new pollution control facility and has been denied siting
approval under Section 39.2 of the Act, may file apetition for review of the
decisionto deny siting.
b)
Other persons.
Anyperson who has participated in the public hearing conducted
by the unit of local government and is located as to be affected by the proposed
facility may file a petition for review .of the
decision to grant siting.
Emphasis
added.
(35
Ill. Adm.
Code 170.200)
In this case,
Lowe’s application was denied andtherefore, Lowe
is the only proper petitioner on appeal.
4.
The Board’s procedural
rules
at 35
Ill. Adm. Code 107.202
further provides that, on
appeal, the only parties to the appeal of a denial at the County Board level are the petitioner and the
County Board:
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 a respondent.
(35
Ill. Adm. Code 170.202)
5.
Section 101.402 permits intervention by persons under limited situations.
The past
decisions of the Illinois Pollution Control Board and Appellate courts have consistently denied
intervention status to third parties following a County Board denial of a site approval request.
See,
McHenry CountyLandfill, Inc. v. Environmental Protection Agency,
154 Ill. App. 3d
89
(2h1d
Dist 1987)
(the
court determined
that 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);
Laidlaw
Waste Systems, Inc. v.
The McHenry County Board,
PCB 8 8-27 (3/10/87) (the Board denied intervention status to adjacent
THIS FILING iS PRINTED ON RECYCLED PAPER
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villages raising jurisdictional issues relating to defective noticeby an applicant
where villages fully
participated in CountyBoard
proceedings).
6.
This application ofthe law was reaffirmed by the Second District in
Waste Management
ofIllinois, Inc.
v. Illinois Pollution Control Board,
160
Ill. App. 3d 434
(2w’ Dist 1987).
Since the
McHenry CountyLandfill
and
Waste Management
decisions, the Pollution Control Boardhas
also
consistently denied intervention when there is a local siting application denial.
See,
Waste Management
ofIllinois, Inc.
v. Lake
CountyBoard,
PCB 87-75 (July
16, 1987);
City ofRockford v.
Winnebago County
Board,
PCB 87-92
(November 19,
1987);
McLean County Disposal Company, Inc.
v.
County qfMcLean,
PCB 87-133
(March
10, 1988);
Waste Management ofIllinois, Inc.
v. McHeniy CountyBoard,
PCB
88-
39 (March 24,
1988);
Laidlaw WasteSystems, Inc.
v. McHenry CountyBoard,
PCB 88-27 (June 16,
1988);
City ofRocl~fordv.Winnebago CountyBoard,
PCB 88-107 (November
17, 1988);
Clean Quality
Resources, Inc. v. Marion CountyBoard,
PCB 90-216 (February 28, 1991)
7.
The “significant impact” of the Lowe transfer station on the residents of the village of
Cary is no different than the proposed landfill on the aquifer below the Villages of Algonquin and Lake
in the Hills (“Villages”) in PCB Docket No.
88-27.
In Docket No.
88-27, the McHenry County Board
denied a landfill siting.
In Docket No. 88-27,
after fully participating in extended hearings before the
County Board, the Pollution Control Board denied intervention status
to the Villages who argued that
adverse water quality impacts andjurisdictional issues qualified them for intervention.
See, Laidlaw
Waste Systems v.
The McHenry County Board,
PCB 8 8-27 (3/10/88).
8.
Cary’s assertion in its motion that its participationis “necessary to
insure the county’s
deáision is vigorously defended” arrogantly assumes the incompetence or questions the capability of the
County board and its counsel,
Charles Heisten.
All one needs to
do
is search for Mr. Helsten’s name in
the field of transfer stations and landfill siting cases to see just how misleading Cary’s position really is.
The record is complete,
the rules set out who the parties are on appeal, and there is only one issue, i.e.,
whether the County Board’s decision was against the manifest weight ofthe evidence.
Established law
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prohibits
third
party participationwhen the applicant’s request was denied below and Cary’s motion
should be denied.
WHEREFORE, Co-Petitioners, LOWE TRANSFER,
INC.
and MARSHALL LOWE, request
that the Village of Cary’s Motion to Intervene as
a party in this proceeding be denied.
Respectfully submitted,
LOWE TRANSFER, INC.
and
MARSHALL LOWE
By: Zukowski, Rogers, Flood & McArdle
By:________
David W. McArdle
David W. McArdle, Attorney No:
06182127
ZUKOWSKI, ROGERS, FLOOD & MCARDLE
Attorney for: Lowe Transfer, Inc. and Marshall Lowe
50 Virginia Street
Crystal Lake, Illinois
60014
815/459-2050;
815/459-9057
(fax)
H:\LOWE\resprnot2inlervenewpd
THIS FILING IS PRINTED ON RECYCLED PAPER
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