RECE~VED
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
JUN 152004
OF THE STATE OF ILLINOIS
STATE
OF
ILLINOIS
SUTTER SANITATION, INC.
and
)
Pollution Control Board
LAVONNE HAKER,
)
)
Petitioners,
)
)
v.
)
PCB No. 2004-187
)
(Permit Appeal
-
Land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
SUTTER SANITATION INC’ S
RESPONSE TO RUFFNER, STOCK AND STOCK AND CO.
MOTION TO INTERVENE
NOW COMES Petitioner Sutter Sanitation, Inc. (“Sutter”) and hereby responds and objects
to the Motion ofMr. Jesse Ruffner and Family, Mr. Lloyd Stock, and Stock and Company’s, LLC’s
Motion to Intervene (“Movants”). In support ofits response and objection, Sutter states:
I.
Introduction
1.
On September 16, 2002 the Effingham County Board approved local siting for
Suffer’s solid waste transfer station (the “facility”). The Suffer facility is located in a former grain
elevator site in an agricultural area. The property across the county road from the Suffer facility is
owned by Stock and Company, LLC (“Stock LLC”). Movant Stock LLC appealed Effingham
County’s siting approval to the Illinois Pollution Control Board (“IPCB”) and
lost.
Movant Stock
LLC then appealed the IPCB decision to the Appellate Court and
lost.
During the period under
which the siting approval wasbeing contested by Stock LLC two things happened. Movant Lloyd
Stock (“Stock”) placed a mobile home on the Stock LLC property acrosstheroadway from the Suffer
facility, and Suffer submitted a permit application to the Illinois Environmental Protection Agency
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(“Illinois EPA”) for the facility. After numerous comments and arguments were presented to the
Illinois EPA for and against issuing the permit, the Illinois EPA denied the permit application. The
primaryand most significant denial point was based upon:the ihinoisEPA’s interpretationofSection
22.14 of the Illinois Environmental Protection Act (“Act”)(415 ILCS
5/22.14).
This Section
generallyprohibits a transfer station within 1000 feet of a residence. The Illinois EPA apparently
consideredthe “after the fact” placement of a mobile home on the Stock LLC property across from
the Suffer facility an impediment to issuing the permit. Suffer contests this interpretation.
2.
The Motion to Intervene at issue is merely the continuation ofStock’s plan to defeat
the Suffer facility by whatever means available. However, the Movants have no statutory right to
intervenein this matter, have provided no legally supportable arguments forintervention,have failed
to identify how their ability to participate by other available procedural means is insufficientand why
their formal involvement as a party in support of the Illinois EPA’s permit decision is somehow
necessary to assist the Illinois EPA in justifying their decision or to the IPCB in evaluating the
Illinois EPA’s decision. Accordingly, the IPCB should deny the Motion to Intervene.
II.
Factual Background
3.
On April 19, 2002, Suffer submitted an application for local siting approval ofa solid
waste transfer station to the Effingham County Board. In August, 2002, the Effingham County
Board held a hearing on the Suffer application. Stock LLC, and its manager Duanne Stock,
participated at that hearing. On September 16, 2002, the Effingham County Board approved the
Suffer application by unanimous vote. Stock appealed to the IPCB. After a public hearing during
which evidencewas heard, and public comment received (including from Stock and Stock LLC), the
IPCB affirmed the Effingham County Board’s decision (Landfill 33. Ltd and Stock & Co. v.
Effingham County Board and Sutter Sanitation Services, PCB No. 03-43 & 03-52
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(Consolidated)(February 20, 2003)). Stock LLC appealed the IPCB’s decision to the Illinois
Appellate Court citing numerous errorscommitted by the IPCB. The Appellate Court, Fifth District,
affirmed the IPCB decision in full via a Rule 23 Order (Stock and Co., LLC v. Illinois Pollution
Control Board. et al., No.
5-03-0099
(mandate issued June 7, 2004).
4.
Subsequent to the Effingham County Board’s approval of Suffer’s application in
September, 2002, Stock (and or Stock LLC) moved a mobile homeonxo theproperty acrüssthe street
from the Suffer facility. Prior to this time the Stock property was vacant agricultural land. During
the pendency of the IPCB and Appellate review, Suffer submitted its Application for Permit to the
Illinois EPA. Stock submitted comments challenging the grant ofa permit because of the location
of the mobile home across the street (ostensibly within the 1000 foot “setback” requirements of
Section 22.14 ofthe Act). Suffer contested this as a valid grounds forpermit deni~i,but the Illinois
EPA denied the Suffer permit application on this basis. This appeal followed.
5.
Movants filed their motion to intervene on May 28, 2004. The Motion was served
upon Petitioner no sooner than June 1, 2004.
III.
Standard ofReview
5.
Motions to intervene are governed by IPCB procedural rule 101.402
(35
Ill.Adm.
Code 101.402). Indeed, there is no dispute that the applicable regulation establishing the elements
to be considered for interventionis set out at 101.402(b) and (d) (See Mot. par.
5).
Whether to grant
or deny intervention under this regulation is discretionary. E.g. People v. Alloy Engineering and
Casting Co., PCB No. 0
1-155
(September 6, 2001). That regulation provides in relevant part:
101.402
Intervention of Parties
b)
In determining whether to grant a motion to intervene, the Board will consider the
timeliness of the motion and whether intervention will unduly delay or materially
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prejudice the proceeding or otherwise interfere with an orderly or efficient
proceeding.
d)
Subject to subsection (b) of this 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 personmay be adversely affected by a final Board
order.
35 Ill.Adm. Code 101.402.
The issue of intervention have been interpreted by the Courts and the IPCB on numerous
occasions. Ingeneral, interventionby objectors is disfavored and not routinely grantedbythe~IPCB.
Prairie Rivers Network v. Illinois EPA et al,, PCB No. 01-112(NPDES Permit Appeal)(April 19,
200 l)(intervention denied to private company); People v. Alloy Engineering and Casting Co., PCB
No. 01-155(Enforcement
—
Air)(September 6, 2001 )(intervention denied to 45 facility neighbors);
2222 Elston LLC v. Purex Industries. Inc. et a!., PCB No. 03-5
5
(Citizens UST
Enforcement)(January 23, 2003)(intervention denied to the City of Chicago); Rochelle Waste
Disposal. LLC v. City of Rochelle, PCB No. 03-218(Siting Appeal)(July 10, 2003)(intervention
denied to voluntarycitizen association); Lowe Transfer, Inc. et al. v. McHenry County, PCB No. 03-
221 (Siting Appeal)(July 10, 2003)(interventiondeniedto village); Stuart v. Fisher, PCB No. 02-164
(Citizens Enforcement
--
Noise)(January 23, 2003)(intervention denied to Will County). Inthese
cases, intervention was denied on a number ofgrounds, including the failure to demonstrate any
material prejudice or adverse effects as required by the regulation. Some argumentsthat have been
raised in support ofintervention andwhich have not been deemed sufficient to demonstratematerial
prejudice or adverse effect so as to support intervention include: an inference of financial
reimbursement 2222 Elston LLC, PCB No.
03-55
(January 23, 2003); “significant impact” based
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upon proximity of location, participation in the underlying matter, ability to more “vigorously
defend” a decision, and protecting rights under the Act (Lowe Transfer, PCB No. 03-221 (July 10,
2003); ensuring compliance under the Act (Alloy Engineering and Casting Co., PCB No. 01-155
(September 6, 2001); or business interests (Prairie Rivers Network, PCB No. 01-1 12 (April 19,
2001).
6.
The one consistent, if not dispositive factor, that the IPCB repeatedly refers to in
intervention opinions is the fact that even though intervention may not be allowed, potential
intervenors have the significant procedural opportunity to participate in a proceeding via public
comment oramicus curiae briefs. E.g. Rochelle WasteDisposal, PCB No. 03-218 (July 10, 2003)(In
denying intervention to a citizen group, the Board noted the right to participate through public
comments or amicus curiae briefs). The availability of these mechanisms allows objectors and
“would be intervenors” the opportunity to participate without the need for formal intervention.
7.
From time to time, the IPCB does allow intervention. However, intervention is
permitted only in limited circumstances. One such circumstance is when a government body seeks
to intervene on behalf of its citizenry in siting cases. Lowe Transfer, PCB No. 03-221 (July 10,
2003)(”A third party may intervene only when the third party is a state’s attorn~yor the Attorney
General’s Office interveningto representthe public interest.”) Another circumstance hasbeen where
a government body seeks to intervene on behalfofthe public at large and where the issue involved
directly attacks issues ofthat body’s authority. Saline County Landfill, Inc. v. Illinois EPA, PCB No.
04-1 l7(February 19,2004); cfLowe Transfer, PCBNo. 03-221 (July 10, 2003)(Intervention denied
to Village).
III.
Argument
8.
As apreliminarymatter, and notwithstanding the IPCB
‘
s treatment ofthe intervention
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issue under Section 101.402 of its procedural rules, the statutory authority ofthe IPCB to grant
interventions may be in question. This issue was raised in Riverdale Recycling, Inc. et al. v. Illinois
EPA, PCB No. 00-228 (August 10, 2000). While that decision has been questioned because it was
issued before the IPCB issued its “new” intervention rules (See Saline County Landfill. Inc. v.
Illinois EPA, PCB No. 02-108 (April 18, 2002)), the IPCB was clear that intervention was not
allowed in permit appeals:
“After the holdings in Landfill, Inc. and Citizens Utilities, the legislature revisited the
issue ofthird-party appeals, and has since enacted two specific sections regarding appeals
of Resource Conservation and Recovery Act (RCRA) and NPDES permit denials. See
415 ILCS 40(b),(e) (1998). The legislature never granted general authority to the Board
to allow third-party appeals or interventions in other cases involving permit denials. The
silence of the Illinois General Assembly after the explicit requirement for statutory
authority in Landfill, Inc. and Citizens Utilities is a clear indication that the Board does
not have authority under the Act to accept third-party appeals or interventions in this
matter.”
To the extent the IPCB revisits this issue, the Movants in this case have no right to intervene.
9.
Analyzing Movants arguments in light ofthe regulation and legal precedent set out
above should lead.the IPCB to conclude that intervention is not warranted in this case. As set out
in 10 1.402, a numberofprerequisites must be present. None of these are present in this case. four
elements must be established:
Delay, Prejudice, Interference (101.402(b))
10.
A threshold determination must be made that the intervention would not “unduly
delay or materially prejudice the proceeding or otherwise interfere with an orderly or efficient
proceeding” (35 Ill. Adm. Code 10 1.402(b)). In this case, granting the Movants motion would have
the potential for delaying this case and making the proceeding disorderly and inefficient. First, the
Movants benefit by delaying Suffer’s operations at the facility. Stock and Stock LLC’s past conduct
as demonstrated by their numerous appeals is indicative oftheir attempts to delay the resolution of
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this matter. It should be expected that those attempts to delay will continue if they are allowed to
intervene in this matter. Second, adding three additional parties will make any proceedings
disorderly and inefficient by multiplying participation at hearing,at status conferences, fordiscovery
and with respect to briefing and motions. This will necessarily inject some disorder into these
proceedings. Perhapsmore importantly, in that the Movants are seeking to affirm the Illinois EPA’s
decision, accommodating such duplicity of argument and action will make the proceedings
inefficient.
Conditional Statutory Right to Intervene (101.402(d)(1))
11.
None ofthe three Movants have
any
right to intervene, let alone a statutory one.
Unlike RCRA or NPDES permit appeals, no statutory provision ofthe Act gives them a right to
intervene in a solid waste permit appeal. Consistent with the clarity of this point, none of the
Movants cite or claim such a statutory right, conditional or otherwise, in the Motion. Movant
Ruffner does refer to a desire to enforce the provisions ofSection 22.14 ofthe Act (Mot. par. 10).
However,this desire to enforceprovisions ofthe Act doesnot providea statutory orconditional
right
to intervene. In fact, the potential intervenors in the Lowe Transfer case argued they needed to
intervene forthat same purpose; to ensure theirrights~wereprotectedunderSection22.14. As noted
above, intervention was denied.
Material Prejudice and Adverse Affect Absent Intervention (101 .402(d)(2)(3))
12.
With respect to all three Movants, none of them will be materially prejudiced or
adversely affected by not being allowed to intervene. First, it is important to note that the Movants
seek to intervene in support of the Illinois EPA’s permit decision. The Movants have made no
argument that the Illinois EPA’s decision is incorrect. The Illinois EPA, whose decisionis at issue,
will presumably zealously and competently argue to affirm its own decision in this case just as
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adequately, if not more so, than could the Movants. Second, as noted above, the Act provides
Movants with more than adequate opportunity to participate in this proceeding without the necessity
offormal intervention. The availability ofsuch participation has been repeatedlycited bythe IPCB
in denying motions to intervene: Movants can participate by filing comments or amicus curiae
briefs. Movants do not even address this issue in theirMotion hecausetheykiiowit istnidisputabie.
For these reasons alone, the Movants should be denied intervention.
13.
Movant Ruffners’ specific argument ofmaterial prejudice and adverse effect, to the
extent that it can be discerned from the Motion, is that they should be allowed to live where they
want to. This is not an issue that is before the IPCB in this appeal. Ruffners have no ownership
interest in the property upon which they are currently renting a mobile home. While they have not
disclosed any lease terms in their Motion, presumably the Ruffners are not bound to the land like
serfs or vassals of historical times. The Ruffners are free to move and live anywhere they want.
Renting a mobile home for some unknown term fails to support an argument for intervention.
Certainly, Movants have cited to no authority in support of such an argument. Furthermore, the
Ruffhers moved into the mobile home well after the Suffer facility had been identified, established
and approved as a transfer station (Mot. par. 10). For these reasOns, Ruffners specific claims are
insufficient.
14.
Movant Stock’s claims are equally insufficient. The only material prejudice and
adverse effect claimed by Stock is that the transfer station will infringe upon his financial and
management interests in the mobile home(s) that he placed~nthepn~p~rtysubsequenttoE-ffingham
County’s siting approval because he may be unable to rent them. First, Stock has cited no case or
opinionwhere financial and management interests oftangible property have ever been the basis of
intervention. In fact, based upon the IPCB opinions cited above just the opposite appears to be the
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case. Only where a representative body of the community at large has sought to intervene has
intervention been allowed (and not always then). Second, it needs to be made clear that the only
interest Stock has in this area is an interest in the mobile homes. Presumably, those homes are
mobile and that nothing is preventing Mr. Stock from taking advantage ofthat mobility and moving
those homes to other locations. Third, Stock’s claims that he will not be able to rent the mobile
homes is pure speculation. No information is provided that would support that argument.
Speculation and hypothetical interests are insufficient to support a claim forintervention. Soyland
Power Cooperative, Inc. v. Illinois Power Co., 213 Ill.App.3d 916, 157 Ill.Dec. 393 (4th Dist. 1991).
Finally, and as is the case with the Ruffners, to the extent any prejudice is at issue it is entirely of
Stock’s own making. Movant Stock knew full well that the Effingham County had approved siting
forthe Suffer facility. Despite this knowledge, he placed a mobile home on the property. As noted
in the introductory paragraph, this placement is nothing more than part ofStock’s plan to circumvent
Effingham County’s, the IPCB’s, and the Illinois Appellate Court’s siting approval. To the extent
Stock is unable to rent the mobile homes (for which we have no evidence), that is a problem ofhis
own making, not that of Sutter or the Illinois EPA. These arguments do not support intervention.
15.
Finally, Stock LLC, makes essentially the same arguments as Stock. Specifically,
Stock LLC cites to a potential for negative financial impact. Here too, this is pure speculation.
Stock LLC provides no information on property values (recall here that in approving the siting the
Effingham County Board has determined that the Suffer facility is not inconsistent with the
surrounding area and will minimize any effect on property values). Stock LLC has provided no
information on how the property’s useis in the leastbit effected. In addition, Stock LLC claims that
the Suffer facility will create negative environmental and psychological effects concerning its
property (Mot. par. 12). Again, such a claim is not supported by a scintilla of fact or evidence.
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Indeed, we know environmental impacts, if any, will be minimal because Effingham County, the
IPCB, and the Appellate Court have all viewed the suitability ofthe Suffer facility and found it to
be appropriate. Claims ofpsychological effects is simply wild speculation. Finally, aswith Movants
Ruffners and Stock, any perceived problem is a loss ofStock LLC’s own making. Stock LLC has
been an early and consistent participant in this proceeding, going all the way back to the original
application filing in April 2002, and yet it chose to “rent” (we don’t really know what the
arrangements with Stock are) its property or otherwise make it available (to a relative no less) for
the placement ofa mobile home afterthe Effingham County’s siting approval. Clearly, these facts
do not support the IPCB allowing intervention.
IV.
Conclusion
16.
For the foregoing reasons, Petitioner Suffer Sanitation, Inc. respectfully requests that
the Illinois Pollution Control Board deny Movants’ Petition to Intervene.
Respectfully submitted.
SUTTER SANITATION, INC., and
LAVONNE HAKER, Petitioners
,—--~
__~7
By:
~
~
~
~—-~
On~t)fTheirAttorneys
~--~~—-~
Sorling, Northrup, Hanna
Cullen & Cochran, Ltd.
Charles J. Northrup, ofCounsel
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL 62705
Telephone: 217.544.1144
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PROOF OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document was served by
placing same via Federal Express in a sealed envelope addressed to:
Ms. Dorothy M Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Il. 60601
and by Hand Delivery to:
Mr. John J. Kim, Attorney
Renee Cipriano, Director
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 N. Grand Avenue, East
Springfield, Ii. 62794-9276
Ms. Carol Sudman
Hearing Office
Illinois Pollution Control Board
1021 North Grand Ave. East
Post Office Box 19276
Springfield, IL 62794-9274
Mr. Christine Zeman
Hodge, Dywer & Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
and by U.S. Mail to:
Mr. John M. Heycle
Sidley, Austin, Brown & Wood
10 South Dearborn
Chicago, IL 60603
on the/~1~ofJune, 2004, with postage fully prepaid.
~~
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