RECE~VED
CLERK’S OFFICE
JU~2 2 2004
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARI~TATEOF ILLiNOIS
Pollution Control Board
WASTE MANAGEMENT OF
)
ILLINOIS, iNC., A Delaware
)
Corporation,
)
)
Docket Number:
PCB 04-186
Petitioner,
)
(Pollution Control Facility
vs.
Siting Appeal)
)
COUNTY BOARD OF KANKAKEE,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See
Attached Service List
PLEASE TAKE NOTICE that on this 22~day
ofJune, 2004,
we had filed with the Illinois
Pollution Control Board, the attached document entitled:
MICHAEL WATSON’S MOTION TO
INTERVENE, AND IN
THE
ALTERNATIVE, MOTION FOR LEAVE
TO
AN
AMICUS
CURIAE
BRIEF,
a copy ofwhich is hereby served upon you.
Intervener, Michael Watson
By:
(T~-~-~
~
Oneéf”his att~n~ys
Jennifer J. Sackett Pohlenz
QUERREY & HARROW, LTD.
175 West Jackson Boulevard, Suite 1600
Chicago, Illinois 60604
(312) 540-7000
PROOF OF SERVICE
Karen Gryczan, a non-attorney, on oath
,
certifies that she served the
foregoing
Notice of
Filing, and document set forth herein, on the
attorneys named on the attached
service
list via
U.S. Mail at 175 W. Jackson Blvd., Chicago, linois this 22~day of
June,
2004, before the hour of5:00 p.m.
x
Under penalties as
provided by law
pursuant to
IL. REV. STAT. CHAP 110 SEC 1-1091 certify
that the statements set forth herein are true and correct.
SERVICE LIST
Illinois Pollution Control Board
Clerk’s Office
James R. Thompson Center
Ste. 11-500
100 W. Randolph Street
Chicago, IL 60601
One
Original
and
9 copies
Charles Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
815-490-4901 Fax
Representing County
Board ofKankakee
Via U.S. Mail
Keith Runyon
1165 Plum Creek Drive
Bourbonnais, IL 60914
Pro-Se
Via U.S. Mail
Christopher W. Bohien
Barmann, Kramer & Bohien, P.C.
200 East Court Street, Suite
502
P.O. Box 1787
Kankakee, IL 60901
Representing
City ofKankakee
Via U.S. Mail
Donald Moran
Pedersen
&
Houpt
161 North Clark Street, Suite 3100
Chicago, IL 60601-3242
312-261-1149 Fax
Representing Waste Management ofIllinois,
Inc.
Via U.S~Mail
Elizabeth S.
Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
312-321-0990 Fax
Representing County Board ofKankakee
Via U.S. Mail
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL 61350
Representing Interested Party Karlock
Via U.S. Mail
Kenneth A. Bleyer
Attorney at Law
923 W Gordon Terrace #3
Chicago, IL 60613-2013
Representing Interested Party
Via U.S. Mail
Printed on Recycled Paper
Document #: 934021 vi
CLERK’S
OFFICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
STATE
~‘~‘I’~~’
OF
22ILLINOIS
2004
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
POIlUtlOfl Control Board
A Delaware corporation,
)
)
Petitioner,
)
)
Docket Number:
PCB 04-186
v.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE
)
)
Respondent.
)
MICHAEL WATSON’S MOTION TO INTERVENE,
AND
IN THE ALTERNATIVE,
MOTION FOR LEAVE TO
AN
AMICUS CURIAE
BRIEF
Now comes MICHAEL WATSON (Watson), by
and
through his attorneys, QUERREY
& HARROW, LTD.,
pursuant to Illinois Pollution Control Board (hoard) Rule 10 1.402, 35
Ill.
Adm. Code Section 101.402, requests
this Board’s leave to intervene
in this matter. In
the
alternative, without waiving and expressly reserving all rights (including rights on
appeal)
concerning Watson’s motion
to intervene, should such motion be denied, Watson seeks leave to
file an
amicus curiae
brief
pursuant to Section 1010.110(c), and in
accordance with Section
101.628(c) of the General Rules of the Board. In support of this motion, Watson states as
follows:
1. Waste Management of Illinois,
Inc. (WMII) filed a site location application to expand
Kankakee County Landfill WMII on August 16, 2002 (Application
I). After siting proceedings
were held, the County Board of the County of Kankakee, Illinois (Kankakee) approved
Application I. However, on appeal to the Illinois Pollution Control Board (Board), that approval
was vacated, as WMII failed to provide proper pre-filing notice.
Printed on Recycled Paper
2. WMII filed a second site location application to expand Kankakee County Landfill on
September 26, 2003 (Application
II), and on March 17, 2004, Kankakee
denied
that application.
3. WMII now seeks review of Kankakee’s denial of Application II in this Pollution
Control Facility Siting Appeal.
4. The movant, Watson, seeks leave to intervene in the Pollution Control Facility Siting
Appeal as he will be directly and adversely affected if WMII is successful on its appeal, if the
Board reverses Kankakee’s decision to deny Application II. Further, there is a new recOrd being
created during this appeal concerning allegations by WMII
related to fundamental fairness and,
as an adjacent property owner, Watson
should have an opportunity to gather, respond to and
present evidence related to the issues being raised by WMH, as a party to this proceeding.
5. Watson actively participated in the siting proceedings on both Application I and
Application II. Further, Watson is a party to WMII’s appeal to the Appellate Court for the Third
District Board’s ruling on Application I.
6.
Watson owns over five hundred
(500)
acres of land surrounding the proposed
expansion and is a beneficial owner of land adjacent to the proposed expansion site on at lèást
two sides. If the Board overrules Kankakee’s denial, and orders Application II approved,
Watson’s property rights will be directly.and adversely impacted.
Watson Should Be Allowed to Intervene in the Board Proceq4i~~g
7. Board Procedural Rule 101.402 provides that the Board “may permit any person to
intervene in
any
adjudicatory proceeding
. . .“
(Rule 101.402(a)). In determining whether to
allow a motion to intervene, the Board Rule direct that it look at two factors: timeliness of the
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motion and whether intervention will unduly delay or materially prejudice the proceeding or
otherwise interfere with an orderly or efficient proceeding. (Rule 101.402(b)).
8. Further, Section 101.402(d) of the Board’s Procedural Rules provides that
“. . .
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.”
9.
Watson will be materially prejudiced absent intervention and his is
so situated that he
may be adversely affected by a final Board order. If Kankakee’s decision
denying Application II
is reversed by the Board without Watson being allowed to be a party to the proceeding, such
action deprives
Watson of-his property rights, as a landowner, without due process of law, to the
extent that the adjoining
and
non-adjoining, but surrounding property of which he is a beneficial
owner
will be devalued,
physically impaired, or otherwise impacted. As such, Watson has an
ascertainable right and interest in the outcome
of this appeal of Kankakee’s denial of Application
10 Additionally, Watson will be prejudiced, as he will be unable, unless a party to this
proceeding, to seek discovery from WMII concerning
ex parte
communications it may have had
with Kankakee prior to Kankakee’s decision in this matter
(i.e.,
if WMII is alleging unfairness
and alleging
ex parte
communications by
persons other than the applicant, discovery as to
whether WMII had
ex parte
communications is
likewise relevant). Likewise, Watson will be•
prejudiced if Kankakee does not raise arguments he would have raised in defense of the County
Board’s decision and since attorneys for Kankakee are representing it both in the appeal in
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Application I and this appeal on Application II, Kankakee is representing two opposing positions
concerning this proposed facility: one to allow it and the other to deny it. Allowing Watson
intervener status, allows him to seek discovery that is not sought by Kankakee and make legal
arguments not raised by Kankakee.
11.
Further, the
Illinois Supreme Court has consistently held that adjacent landowners in
zoning cases, which
are analogous to the present type of case for purposes of this intervention
argument, are entitled to intervene because their particular interests extend beyond the public’s.
interest.
Elmhurst-Chicago Stone Co. v. Village of Bartlett (1975),
26 Iii. App. 3d 1021, 325
N.E.2d 412(intervention denied, but Court distinguished landowners as being a “substantial”
distance from the property for which zoning was contested);
Anundson
v. City of Chicago
(1970), 44 Ill. 2d 491,
495-96,
256 N.E.2d 1;
Bredberg v. City of Wheaton
(1962), 24 Ill. 2d 612,
623-24, 182 N.E.2d 742.
12. Watson recognizes that,
in some cases, third-party objectors have been precluded.
from intervening-in an appeal from the denial of siting approval.
Lowe Transfer, Inc. v. County
Board of McHenry,
PCB 03-221 (July 10, 2003);
Waste Management ofIllinois, Inc. v. County
BOard of Kane County,
PCB 03-104, (March 20, 2003);
Rochelle Waste Disposal v. City council
of the
City
of
Rochelle,
PCB 03-218 (July 10, 2003);
Land And Lakes Company v. Village Of
Romoeville,
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PCB No. 94-195 (September 1, 1994);
Waste Management of Illinois, Inc. v.
-
Pollution Control Board,
160 Ill.App.3d 434, 513 N.E.2d 592 (2d Dist. 1987). However,
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Watson’s interest is
distinguishable from the facts of all
of these cases, because, unlike the thjrd-
parties in these cases who had a generalized interest in the outcome of the siting proceeding,
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Watson-is an adjacent property owner who has specific property rights which will be affected-by
this proceeding.
13.
Unlike
Waste Management ofIllinois, Inc. v. Pollution Control Board,
160 Ill.App.3d
434, 513 N.E.2d 592 (2d Dist. 1987) and
Rochelle Waste Disposal v. City council of the City of
Rochelle,
PCB 03-218 (July 10, 2003), the
third-parties
seeking to intervene were citizen groups
with generalized interests in the proceeding, Watson is a landowner adjacent on at least two sides
of the proposed expansion. Watson is representing himself
and a very direct and
immediate
impact to his property rights, as opposed to more indirect and varying rights asserted by the
groups involved in the
Waste Management of illinois, Inc.
and
Rochelle Waste Disposal
cases
cited above.
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14.
Unlike
Lowe Transfer, Inc. v. County Board of McHenry,
PCB 03-22 1 (July 10,
2003) and
Waste Management of Illinois, Inc. v. County Board of Kane County,
PCB 03-104,
(March 20,2003), where
the third-party objectors were-villages with a
generalized interest.in the
-
-outcome of the siting- approval and
were denied leave
to intervene; Watson is directly affected
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because he owns a large expanse of land surrounding the proposed landfill expansion and the
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adjacent to the proposed expansion on two sides.
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15.
Finally, Watson distinguishes
Land And Lakes Company v. Village Of Romoeville,-
PCB No. 94-195 (September 1, 1994), where the Forest Preserve District brought the motion to
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intervene. The Forest Preserve District was an adjacent landowner, but its argument in -support
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of its motion to intervene was that it had a “statutory obligation to protect and preserve the flora,
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fauna,
and scenic beauties within the district.” Watson’s interests are not
based on such a
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general statutory obligation; rather, his interests are more immediate and direct and based- on-his
ownership right and use ofhis property.
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16.
Simply put, Watson is an adjacent property owner whose due process and individual
property rights stand to be substantially and adversely affected if the WMII prevails on
Application II before the Board.
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17. Despite the general rule established by the Board that it will not allow intervention of,
at least, non-adjacent landowners, the Board has stated it will allow intervention for a state’s
attorney or the Attorney General’s Office intervening to represent the public interest.
See, e.g.,
-
Land and Lakes,
slip op. at 3. Just as in zoning proceedings where the state’s attorney or
-
Attorney General’s Office are allowed to intervene, so to are adjacent landowners, albeit for
different reasons.
See, e.g., City of Elgin v. County of Cook,
169 Ill. 2d
53;
660 N.E.2d .875
(S.Ct.
1995), rehearing denied
(January 29, 1996). Thus, the Board should make the same
exception from the general rule of law it has developed regarding intervention here as it has with
~
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respect -to state’s attorneys and the Attorney- General’s Office, and allow adjacent landowners,
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whose rights and interests are different from and more direct than those being represented by.a
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government entity,to intervene.
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-18. The Illinois
supreme court has consistently held that adjacent landowners are entitled
to intervene because their particular interests extend beyond the public’s interest, even though
one factor considered in zoning cases when determining whether to allow a non-governmental
entity’s intervention, is whether local government unit adequately represents the health, safety
and welfare interests of the general public and of distant landowners.
Anundson v. City of
Chicago
(1970), 44 Ill. 2d 491, 495-96, 256 N.E.2d 1;
Bredberg v. City of Wheaton
(1962), 24
6
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Printed on Recycled Paper
Ill. 2d 612, 623-24, 182 N.E.2d 742. Similarly, Watson’s health and safety interest, by virtueof
-
his ownership interest in adjoining property, is more tangible and immediate than the interest -of
the public at large.
See, City of Chicago v. John Hancock Mutual Life Insurance
Co.,
127 Ill.
App. 3d 140; 468 N.E.2d 428 (1st Dist. 1984).
19. Intervention is appropriate to protect
a private interest notwithstanding the
participation of a public entity. For example, in
Natural Resources Defense Council v. Costle
-
561 F.2d 904
(D.C.
Cir. 1977), the court held that applicants, rubber and chemical companies,~
should have been allowed to intervene in a suit brought by environmentalists to force the
--
Environmental Protection Agency to promulgate regulations. The court recognized the-
Environmental Protection Agency’s good faith efforts in defending the suit, however, stated that
the differing scope of interests by the rubber and chemical companies justified intervention.
-Id-
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561 F.2d904,912.
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20. As such, Watson requests this Board’s leave to intervene in this matter and to
participate fully as a party in support of Respondent Kankakee’s decision to deny Application II-
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because \VMII did not meet its burden ofproofwith respect to Criteria 1, 3 and 6.
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21. This motion is not brought to unduly delay or materially prejudice the proceeding or
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otherwise interfere with an orderly or efficient proceeding.
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Alternatively, Watson Should Be Allowed to File an Amicus Curiae Brief
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22. In the alternative, should the Board determine to deny Watson’s intervention request,
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Watson seeks leave to file an
Amicus Curiae- Brief
pursuant to Section 1010.110(c), and in
-
accordance with Section 101.628(c) ofthe General Rules ofthe Board.
AnAmicus Curiae-Brief
can be filed by any interested person, provided permission is granted by the Board. In
Lowe
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Transfer, Inc. v. County Board of McHenry County,
PCB 03-221 (August 7, 2003); the Board
denied the Village of Cary’s motion to intervene in the siting appeal, but allowed Cary to file an
Amicus Curiae Brief
23. Although Watson seeks, as an alternative remedy in
this motion, to be allowed to file
an
amicus
brief, he
is not waiving any argument on appeal that this remedy insufficiently
-
protects -his rights. In
People v. P.H.,
145 Iii. 2d 209, 164 Ill. Dec. 137, 582 N.E.2d 700
(S.Ct.1991), the Illinois Supreme Court
explained the role of
amicus
curiae
in an appeal: “An
amicus curiae
is not a party to the action but is, instead, a ‘friend’ of the court. As such, the sole
function of an
amicus
is to advise or to make suggestions to the court.” The
Court further
provided that an
amicus
takes the case as he finds it, with the issues framed by the parties, -he is
not a party to the action, and arguments made by him, but not espoused by the parties,-have no
binding effect on the parties.
P.H,
145 Ill. 2d at 234.
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24. A
new record is being developed during the course of this appeal on the issue
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of
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fundamental fairness, Watson’s participation as an
amicus
fails-to
provide him with the standing
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to partake in the discovery process. Further, relegating his role in the appeal to a
amicus,
and
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thus, excluding his arguments and evidence he may have obtained during discovery, which may
-
not be raised by Kankakee from any binding effect and consideration, respectively, is insufficient
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to protect his property rights at interest in the outcome of this proceeding.
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25. Without waiving this argument, Watson, however, seeks status as an
amicus,
in
-
the
alternative that the Board denies that portion of this Motion related to intervention. In support
thereof, Watson states that he is a non-party participant as set forth in Section 101.628(c) of the
Board Rules, because he has taken part in the facility siting procedure in several ways including
8
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but not limited to, participating, through counsel, at the public hearing and filing
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a public
comment for Application II which is a subject oIthis appeal.
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26. In addition, Watson has
an interest on the outcome ofthe appeal as a non-party, as he
is a beneficial owner of well over five hundred
(500)
acres of land
surrounding the proposed
expansion site and adjacent to the proposed expansion site on at least two
sides. Accordingly,
and if
denied status as
an intervener, the Board should grant Watson permission to file an
Amicus
Curiae Brief
WHEREFORE, MICHAEL WATSON respectfully prays that the Illinois Pollution
Control Board grants his Motion to Intervene, or in the alternative, grants permission to Watson
to file an
Amicus Curiae Brief in
this matter.
Dated: June 22, 2004
Respectfully Submitted,
MICHAEL WATSON
By:____
Jennifer J. Sackett Pohlenz
Querrey & Harrow, Ltd.
175 W. Jackson Blvd., Suite 1600
Chicago, Illinois 60604
Phone: (312) 540-7000
Facsimile: (312) 540-0578
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