BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFiCE
WASTE MA1’~TAGEMENTOF ILLINOIS, INC.,
))
STATEOFIUJNOIS
JUL U
1 ‘6~’
Petitioner,
)
No. PCB 04-186 PoHuUon Contro’ Board
)
vs.
)
(Pollution Control Facility
)
Siting Appeal)
)
COUNTY BOARD OF KANKAKEE COUNTY, )
ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on July 1, 2004, we filedwith the Illinois Pollution
Control Board, the attached Waste Management of Illinois,
Inc.’s Objection to Michael
Watson’s Motion to Intervene.
W
TB MANAGEMENT OF ILLINOIS, INC.
By:
C
One ofIts A omeys
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312)641-6888
r
DiM
392428 vi July 1,2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CL~RK’5OFFiCE
JUL U 1 2C04
WASTE MANAGEMENT OF ILLINOIS, INC.,
)
STATE OF ~LL~N0~S
PollutIon Contro’ Board
Petitioner,
)
No. PCB 04-186
)
vs.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE COUNTY, )
ILLINOIS,
)
)
Respondent.
)
WASTE MANAGEMENT
OF ILLINOIS,
INC.’S OBJECTION
TO MICHAEL WATSON’S MOTION TO INTERVENE
Waste Management ofIllinois, Inc.
(“WMII”),
by and through its attorneys, Pedersen &
Houpt, P.C. objects to Michael Watson’s (“Watson”) Motion to Intervene. In support thereof,
WMII states as follows:
1.
On April 21, 2004, WMII filed with the Illinois Pollution Control Board (“Board”)
its Petition for Hearing to Contest Site Location Denial (“Petition for Review”) pursuant to
Section 40.1(a) ofthe Illinois Environmental Protection Act (“Act”).
2.
The Petition for Review contests and objects to the County Board ofKankakee
County’s (“County Board”) decision denying WMII’s request for site location approval ofthe
expansion ofthe Kankakee Landfill on the grounds that (i) the siting process and procedures used
in reaching the decision were fundamentally unfair; and (ii) the denial ofsite location approval,
and the finding that certain statutory criteria were not met, were against the manifest weight of
the evidence.
392176
3.
On June 22, 2004, Watson filed a Motion to Intervene seeking (i) “to gather,
respond to and present evidence related to the issues being raised by WMII
...“;
(ii) to seek
discovery that is not sought by Kankakee County; and (iii) to make legal arguments not raised by
Kankakee County.
(See
Watson Motion to Intervene, ¶~J4,10).
4.
For the reasons discussed below, Watson’s Motion to Intervene should be denied.
5.
Permitting third party objectors to intervene in the appeal ofa decision denying
local siting approval would run counterto the provisions ofthe Act, as well as the Board’s
Procedural Rules (“Rules”), governing the appeal process. Section 40.1 ofthe Act and Section
107.200(a) ofthe Rules allow the applicant to appeal a decision denying local siting approval of
a pollution control facility.
See
415 ILCS
5/40.1(a)
(2002); 35 Ill. Adm. Code 107.200 (2002).
A third party may only appeal a decision
granting
local siting approval.
See
415 ILCS
5/40.1(b);
35 Ill. Adm. Code 107.200(b)
6.
Illinois courts have interpreted Section 40.1 ofthe Act to preclude third parties
from seeking review ofa decision denying siting for a facility.
Waste Management ofIllinois
Inc. v. Illinois Pollution Control Board,
160 Ill. App. 3d 434, 443-44, 513 N.E. 2d
592, 598
(2d
Dist. 1987);
McHeniy County Landfill, Inc. v Environmental Protection Agency,
154 Ill. App. 3d
89,
94-95,
506 N.E.2d 372, 376 (2d Dist. 1987). The Board, in turn, has held that allowing third
parties to intervene in appeals would be, in effect, granting applicant status to someone who does
not fall within the parameters ofSection 40.1(a).
Land & Lakes, Co. v. Randolph County Board
of Commissioners,
No. PCB 99-69, slip op. at p. 1-2 (March 18, 1999);
Land and Lakes
Company v. Village ofRomeoville,
No. PCB
94-195,
slip op. at p.
4-5
(September 1, 1994).
392176
2
7.
Third party objectors are precluded from intervention in an appeal from a denial
of a siting approval.
Rochelle Waste Disposalv. City Council ofthe City ofRochelle, Illinois,
No. PCB 03-218, slip op. at 2 (July 10, 2003);
Waste Management ofIllinois, Inc. v. County
Board ofKane County, Illinois,
No. PCB 03-104, slip op. at 2 (February 20, 2003). The only
intervention allowed in the appeal of
a
siting denial is by a state’s attorney or the Attorney
General representing the public interest.
Rochelle Waste Disposal,
slip op. at 2.
8.
Watson contends that he should be allowed to intervene because he is an adjacent
property ownerwhose property rights will be directly and adversely impacted by the proceeding.
(Motion to Intervene, ¶~f6,9, 10, 12.) His contention is meritless. Neither the Act northe cases
construing it allow an adjacent property owner to appeal from a denial ofa local siting request.
415 ILCS
5/40.1; Rochelle Waste Disposal,
slip op. at 2;
Kane County,
slip op. at 2. Moreover,
the motions to intervene denied in
Rochelle Waste Disposal
and
Kane County
were made by
objectors who alleged
a
direct and adverse effect by a grant of siting approval, as Watson has
done here. Such allegations do not confer the right to appeal or intervene.
See
415 ILCS
5/40.1;
Lowe Transfer, Inc. v. County Board ofMcHenry County, Illinois,
No. PCB 03-221, slip op. at 1
(July 10, 2003);
Rochelle Waste Disposal,
slip op. at 2;
Kane County,
slip op. at 2.
9.
Finally, the Village has failed to state sufficient grounds warranting intervention
under Section 101.402 of the Board’s Procedural Rules. Subsection (d) ofSection 101.402,
provides that, subject to Section 101.402(b), the Board maypermit
a
person to intervene in an
adjudicatory proceeding if the person: (1) has
a
conditional statutory right to intervene in the
proceeding; (2) may be materially prejudiced absent intervention; or (3) is so situated that the
392176
3
person may be adversely affected by a final Board order. 35 Ill. Adm. Code 101.402(d). Watson
claims that he may be adversely affected by
a
final Board order.
(See
Motion to Intervene, ¶9).
However, Watson has not provided anything more than
a
conclusory statement to support his
position that he will be adverselyaffected by a grant ofsiting approval. The Board has held that
simplistic statements of adverse effects and material prejudice unsupported by facts will not
make
a
case for intervention.
Stuart v. Fisher,
No. PCB 02-162, slip op. at p. 1-2 (January 23,
2003);
2222 Elston LLC v. Purex Industries, Inc.,
No. PCB
03-55,
slip op. at p. 2-4 (January 23,
2003).
10.
Watson also claims that intervention is needed so that he can argue points oflaw
that the County Board maynot raise.
(See
Motion to Intervene, ¶10). However, the Board has
held that it is insufficient to base intervention on the beliefthat the respondent will not
adequately represent the concerns ofthird parties.
See Alloy Engineering & Casting Co.,
slip op.
atp.
5-6.
WHEREFORE, Waste Management of Illinois, Inc. respectfully requests that the
Pollution Control Board enter an order denying Michael Watson’s Motion to Intervene, and for
such other and further relief as the Board deems appropriate.
Respectfully Submitted,
Management ofIllinois, Inc.
One ofIts/Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN
&
HOUPT, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
392176
4
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served the foregoing Waste
Management of Illinois, Inc.’s Objection to Michael Watson’s Motion to Intervene
by
enclosing same in an envelope addressed to the following parties as stated below, and by
depositing same in the U.S. mail at 161 N. Clark St., Chicago, Illinois 60601, on or before 5:00
p.m. on this 1st day ofJuly, 2004:
Mr. Charles F. Heisten
Hinshaw & Culbertson
P.O. Box 1389
Rockford, IL 61 105-1389
Elizabeth S. Harvey
SWANSON,
MARTIN &
BELL
One
IBM
Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
Jennifer J. Sackett Pohlenz,
175 W. Jackson Boulevard,
Chicago, IL 60604
Mr. Edward Smith
Kankakee County State’s Attorney
450 East Court Street
Kankakee,IL 60901
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, Illinois 60601
Victoria L. Kennedy
‘~
Esq.
Suite 1600
DiM 392428 vi July 1,2004
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