BEFORE THE ILLINOIS POLLUTION CONTROL BOARD R
CLERK’S
JUL
E C
01
E
OFFICE
~
2004
V
E D
WASTE MANAGEMENT OF
)
STATE OF ILLINOIS
ILLINOIS, INC., A Delaware Corporation,
)
Pollution Control Board
)
Petitioner,
)
Docket
No.:
PCB 04-186
)
(Pollution Control Facility
VS.
)
Siting Appeal)
)
COUNTY BOARD OF
KANKAKEE,
)
)
Respondent.
)
MERLIN KARLOCK’S PETITION FOR LEAVE TO INTERVENE OR,
ALTERNATIVELY, FOR LEAVE TO FILE
AN
AMICUS CURIAE
BRIEF
Now comes Merlin Karlock, (Karlock) by his
attorney,
George Mueller, P.C., and
pursuant to Illinois Pollution Control Board (Board) Rule 101.402 requests this Board’s leave to
intervene as a
party
in this matter. In the alternative, and without waiving any rights including
rights on appeal, should such Motion be denied, Karlock seeks leave to file an
amicus curiae
briefpursuant to 101.628(c) ofthe General Rules ofthe Board. In support ofthis Petition,
Karlock states as follows:
1. On August 16, 2002, Waste Management ofIllinois, Inc. (WMI) filed an application
for site location approval ofa regional pollution control facility, namely a vertical and horizontal
expansion ofan existing municipal solid waste landfill in Kankakee County, Illinois. The
application was filed pursuant to Section 39.2 ofthe Environmental Protection Act. The
KankakeeCounty Board subsequently granted siting approval, and the Pollution Control Board
reversed on review, finding that the Kankakee County Board lackedjurisdiction to conduct the
siting proceedings because WMI had not properly served all adjoining landowners with pre-filing
1
notice as required by the Act. WMI then filed a second application for site location approval,
which application was denied by the Kankakee County Board on March 17, 2004.
2. Karlockparticipated actively as an objector, cross-examining witnesses, calling
witnesses, and offering exhibits and evidence in both the first and second hearings on the WMI
siting application. In addition, Karlock was a successful third-party petitioner in case PCB 2003-
133 in which the siting approval granted by the Kankakee County Board on WMI’s first
application was reversed. Accordingly, Karlock has actively and successfully participated in
these proceedings at every stage up to this point.
3. Karlock is the fee or beneficial owner of 160 acres ofland immediately north ofthe
proposed WMI site, and by reason ofhis owning real estate adjacent and contiguous to the
subject WMI property, his property rights will be immediately and directly affected by the
outcome ofthis case.
4. That there has been previously filed by Michael Watson, another adjacent property
owner who participated actively in the prior proceedings herein, a Motion To Intervene And In
The Alternative Motion For Leave To File An
Amicus Curiae
Brief. Karlock hereby adopts, as
his own by reference as if fully set forth herein, all ofthe legal arguments made by Watson and
all of the authorities cited by Watson in support ofthose arguments.
5.
That not allowing adjoining landowners to participate as interveners in landfill siting
appeals brought by unsuccessful applicants for local siting approval leads to both absurd and
unjust results. For example, in the event that WMI is successful in this appeal on the argument
that the County Board’s denial ofsiting approval was against the manifest weight ofthe
evidence, siting approval will be deemed to be granted by this Board’s reversal ofthe local
2
decision-maker. At that point, however, none of the parties who participated as objectors in the
local siting hearing will have the opportunity to file a Petition For Review with this Board
contesting the County Board’sjurisdiction to even conduct the local siting hearing, contesting the
fundamental fairness ofthe procedures, or contesting the County Board’s affirmative vote on
those substantive siting criteria which are not at issue in WMI’s instant appeal to the Board.
Moreover, if this Board reverses the Kankakee County Board, none ofthe objectors who
participated in the local siting hearing will have standing to appeal said reversal to the Appellate
Court even though WMI will then have final siting approvaljust as if the County Board had
granted local siting approval and the PCB had affirmed that local decision.
6. That, in fact, the Kankakee County Board’s decision ofMarch 17, 2004 finding that
substantive siting Criterion ii had been met and that the facility was so designed, located, and
proposedto be operated that the public health, safety, and welfare would be protected was
against the manifest weight ofthe evidence. This argument is moot only if the PCB affirms the
County Board’s denial ofsiting, and the Appellate Court affirms the PCB. This point is not only
relevant, but essential, to a complete determination ofall the issues if either the PCB or the
Appellate Court finds in favor ofWMI in this case and, absent intervention, adjoining
landowners who participated at the local siting hearing and made this argument at the local siting
hearing will forever be barred from having the issue fully adjudicated orreviewed.
7. Karlock fears that neither the County, nor its attorneys, will advocate as zealously or
thoroughly as possible in defending the Kai~kakeeCounty Board’s denial ofsiting approval.
That although the March 17, 2004 denial of siting approval by the County Board was by majority
vote, WMI correctly points out in Paragraph 6 of its Petition For Hearing to this Board that at a
r
L
reconsideration on April 13, 2004 prompted by WMI’s Motion for same, the County Board was
deadlocked in a 13-13 vote. The inclination ofthe County Board to continue to defend its denial
ofsiting is, therefore, not at all clear to Karlock. Moreover, the nature ofthe relationship
between the County Board’s attorneys, Hinshaw & Culbertson, and WMI was, itself, a
fundamental fairness issue argued by Karlockin PCB case 2003-133. Because the PCB found a
lack ofjurisdiction in that case, this issue was never reached. Attachedto this Petition, and made
a part hereof as Exhibit “A”, are Pages 13-16 ofKarlock’s Brief in chiefto this Board in PCB
case 2003-133.
These pages detail not only the fact that WMI offered to financially support the County’s defense
ofits Solid Waste Management Plan (which defense is arguably the only basis forthe County’s
opposition to the siting applications ofTown & Country Utilities, Inc. and Kankakee Regional
Landfill, LLC considered by this Board in cases PCB 2003-31 and PCB 2004-135), and that
Hinshaw & Culbertson represented the County in those cases, therebyprofiting from WMI’s
direct or indirect contributions. Additionally, Karlock’s previous Brief points out that Hinshaw
& Culbertson, from May, 2002 through September, 2002, addressed its bills for legal services to
the “Kankakee County Landfill.” It is believed that to date, Hinshaw & Culbertson has been paid
in excess of$700,000 for its representation of Kankakee County in connection with WMI’s
applications for siting approval and in connection with the closely related County opposition to
the applications of Town & Country.
8. During the local siting hearings on WMI’s application for siting approval, Hinshaw &
Culbertson purported to represent the “Kankakee County staff.” As such, they participated in
authoring a report and recommendations which, in fact, recommended that siting approval be
4
granted. The County Board’s denial ofMarch 17, 2004 was, therefore, a rejection ofits
attorney’s recommendation.
9. That Hinshaw & Culbertson, as the legal representative ofKankakee County, is
advocating positions in at least two other cases which are legally inconsistent with the position
which they are nowrequired to advocate on behalfofKankakee County. This Board’s reversal
oflocal siting approval in PCB case 2003-131 has been appealed to the Third District Appellate
Court by WMI, and the County represented by Attorneys Hinshaw & Culbertson has argued in
that case that local siting approval of WMI’s application was properly granted and that the PCB’s
reversal should, itself, be reversed. This is so even though the County BOard’s action ofMarch
17, 2004 denying siting approval on WMI’s second application is clearly a legislative
nullification and implied repeal ofits prior grant ofsiting approval. Additionally, Hinshaw &
Culbertson has argued in its Appellate Brief in case number3-03-0025, wherein Town & Country
Utilities, Inc. and Kankakee Regional Landfill, LLC seek reversal of the PCB’s decision in PCB
2003-31 that Town & Country’s Petition for local siting approval was inconsistent with the
County Solid Waste Management Plan in that the County’s preferred planning alternative was
expansion ofthe existing WMT facility.
10. Precedent for the proposition that an attorney’s inconsistent positions in different
cases undermines the strength ofhis arguments is actually found in a briefsubmitted to the PCB
by Kankakee County in which its authors assert that Karlock’s arguments in case PCB 2003-133
are undermined by an inconsistent position expressed by Karlock’s attorney in another case. A
copy ofPage 50 ofKankakee County’s Brief in PCB 2003-133 is attached hereto and made a part
hereof as Exhibit “B”, and this Board is asked to review footnote 9 on that page. The law firm of
5
Hinshaw & Culbertson, ofcourse, authored the County’s Brief and advanced the creative
argument about attorneys’ positions being undermined by prior inconsistent positions in other
cases.
WHEREFORE, Merlin Karlock prays that this Board grant him leave to intervene as an
additional Respondent for the purpose ofdefending the decision ofthe Kankakee County Board
denying WMI’s request for siting approval and for the further purpose of filing a Cross-Petition
seeking review ofthat portion ofthe proceedings which was fundamentally unfair and seeking
review ofthose portions of the County’s decision finding in favor ofWMI and which are against
the manifest weight of the evidence. Alternatively and without waiving the aforesaid prayer,
Merlin Karlock seeks leave to file an
amicus curiae
briefherein.
Respectfully Submitted,
Merlin Karlock, Intervener
BY:
Q~
His iQttomey
4~
GEORGE MUELLER, P. C.
Attorney atLaw
501 State Street
Ottawa, IL 61350
Phone: (815) 433-4705
6
requirements of the local siting ordinance and the decision maker’s refusal to enforce that siting
ordinance demonstrate collusion between the County and WMI and rendered the proceedings
fundamentally unfair.
V. The County
And WMI’s Act(ons~Both
Before And After The FilingOf The
Sltii~,gApplication. Demonstrated Collusion And Pre-Determination
Of
The
Issues.
Before the Application for siting approval was ever filed, WMI and Kankakee County
had a joint plan ofaction to grant siting approval for a WMI expansion and to oppose any
facility sited by the City ofKankakee. This collusive joint plan differs from that alleged in the
Residents Against A Polluted Environment case (PCB 97-139) in that here the evidence of
collusion is not circumstantial, but exists in the words and deeds ofthe co-conspirators, The first
amendment ofthe County Solid Waste Plan on October 9, 2001 contains a finding by the County
Board that, “the present landfill and its owner have served the County and its residents well for
27 years” and that “the expansion ofthe present landfill would meet the needs of the residents of
the County for waste disposal generated within the County for many years.” (C-701). Worst of
all, the County Board in this Resolution went on to find, without having heard any evidence
regarding the merits ofthe proposed expansion that, “the expansion ofthe current landfill would
have positive impacts on the County...” This is nothing short ofan unequivocal legislative
finding about the merits ofa siting application not yet filed. Moreover, the County Board found
in this Resolution that, “A second landfill would have negative impacts on County residents near
the facility
...“
This sentiment was reiterated in the second amendment to the County Solid Waste
Management Plan adopted the day before Town & Country filed its siting Application with the
(bIBJT~.
City ofKankakee where the County now found that, “A second non-contiguous landfill would
have impacts upon County residents located near any such proposed new facility.”
(C-703).
Kankakee County, in other words, committed itselflegislatively to oppose any new landfill other
than expansion ofthe existing WMI facility. How did the County Board know before reviewing
siting Applications and hearing evidence that expansion ofthe WMI facility would be good, and
that any other proposed facility would be bad?
In the meantime, WMI’s representatives were in the thick ofthis process. WMI’s
Division Vice-President, Dale Hoekstra, wrote a letter on January 7, 2002 to every Kankakee
County Board member stating in pertinent part that, “We have also confirmed our obligation to
provide a full and complete defense for the County in the event its Solid Waste Management
Plan is legally challenged, and furthermore, a legal challenge ofthis type will not impede our
ability to expand our existing facility.” (C-709). On March 11, 2002, the day before the
County’s second amendment ofits Solid WasteManagenient Plan, Hoekstra once again wrote to
every County Board member advising them that Waste Management representatives have
informed the Board in the past, “We relief in good faith on the October 9, 2001 Resolution
during the final negotiations that led to the amended Host Agreement” and “as we have informed
the County Board in the past, Waste Management is prepared to take a leadership role in
defending against any legal challenge to the County’s one landfill Solid Waste Management Plan
and contesting any other landfill development because it would be inconsistent
with
the
County’s Solid Waste Plan.” (C-71
1).
Kankakee County then retained both legal and technical
consultants to assist it in its opposition to the Town & Country Application pending before the
City ofKankakee. Bills to the County forthese services were in excess of$100,000 as of
14
November 18, 2002, well before the bulk of the work in the Town & Country appeal was
performed. (C-698, 699; Also C-717-795).
At some point, WMI and the County and their consultants got so busy working together
for their“common good” that they apparently lost sight ofwho was representing whom. As a
result, we see all of the invoices for legal services from Hinshaw & Culbertson, the legal
representatives for Kankakee County, from May 20, 2002 through September 30, 2002 being
addressed to:
Kankakee County Landfill
Ed Smith
450
East Court St.
Kankakee, IL 60901-3992 (C-699)
Ed Smith is the State’s Attorney ofKankakee County. The invoices ofNinshaw & Culbertson
furtherreveal that they worked for the County on solid waste planning issues, the opposition to
Town & Country’s Application, and the pending WMI Application. Some ofthe work
performed by J-Iinshaw & Culbertson in opposing the Town & Country Application pending
before the City ofKankakee was directly indicated on the invoices as being “chargeable to waste
siting filing application fee.”
(C-699,
718, 719, 781, 783).
The County can argue that the foregoing is a mistake, but it is still a fact and mistakes are
often the most telling evidence ofa party’s true intentions. The Board is asked to apply the same
reasoning it used in Concerned Citizens for a Better Environment vs. City ofHavana and
Southwest Energy Corporation, PCB 94-44, May 19, 1994) where it found great fault with the
hearing officer sending her invoices directly to the siting applicant. The Board in that case did
15
not find that the hearing officerwas, in fact, biased, but was critical because the extensive
contacts between the applicantand the hearing officer showed a “continued disregard on the part
ofthe applicant and the City ofHavana for adjudicatorydue process.” (94-44 at page 12).
Common sensein this case dictates that neither Kankakee County nor WMIhad any real
concern about adjudicatomy process, northat they made any real attempt to hide theircollusive
behavior. The amendments ofthe Solid Waste Plan, finding even before an application was filed
that the WMI expansion would be beneficial, the parties’ mutual disregard for the local siting
ordinance requirements, the parties’ joint efforts while WMI’s Application was pending to
oppose the Town & Country siting Application, and the County’s Attorneys’ billing practices all
lead to the inescapable conclusion that the proceedings were fundamentally unfair.
VI. The County’s Decision ThatThe Proposed Facility Is So Located,
Designe&
And Proposed To Be Operated As To Protect The Public Health,
Safety And
Welfare Was Against The Manifest Weight Of The Evidence.
A. Statement ofFacts
Joan Underwood, a licensed professional geologist employed by WMI’s consultant,
Earthtecb, testified regarding the geologic and hydro-geologic investigation at the site. (Cy. Hrg.
Volume 19, Pages 81, 82). She described three geologic layers at the site, the silurian dolomite
bedrock overlain by unconsolidated glacial materials from the Wedron group and the Mason
group. (Cy. Hrg. Volume 19, Page 101). She described the glacial materials as being generally
fine-grained and having lower permeability than a recompacted clay liner. (Cy. Hrg. Volume 19,
Page 105). The silurian dolomite bedrock is considered the uppermost aquifer beneath the site.
(Cy. Hrg. Volume 19, Page 93). She opined that the uppermost aquifer was probably 200 feet
deep, but acknowledged that in past studies and permit modifications, WMI had characterized
demonstrate that criterion two was met. C1349. fri some limited areas, the County staff
recommended conditions. to remedy areas with less information than others. The County Board
imposed those conditions. Finally, it is important to note that even Mr. Norris, Karlock’s expert
witness, did not testify that the proposed facility did not meet criterion two. Mr. Norris simply
believed that the information was insufficient to make a determination on compliance with
criterion two. C1268 at 5 1-52. Thus, there is no expert testimony in the record stating that the
proposed facility does not satisfy criterion two.
3.
The
IPCB
has not rejected the Location of tile proposed facility.
Finally, Karlock asserts that the location of the proposed facility is “functionally the
same” as the location found unsafe by the IPCB in
C’ounty of Kankakee v. City of Kankakee,
First,PCB
03-31the
fPCB’s(Januaryreversal9,
2003).of
sitingLike
thein
theother
city
argumentscase
wasregardingbased oncriterionfairly narrowtwo,
thisgrounds.claim fails.The9
applicant had performed only a single fifty foot boring in the entire proposed 256 acre waste
footprint, yet asserted that the results from that single boring trumped published regional
geological information and specific well log data for 89 wells in the vicinity of the proposed
facility. The IPCB found that the paucity of the applicant’s evidence regarding the geologic and
hydrogeologic features could not adequately rebut research which demonstrated that the Silurian
dolomite (upon which the proposed landfill would rest) is an aquifer. Tinder such circumstances,
the IPCB determined that the City’s approval on criterion two was against the manifest weight of
the evidence. The IPCB did not, in any way, indicate that the area in which the WMII facility is
‘~
The County Board notes that Karlock’s attorney represented Town and Country Utilities, the applicant in
City
of
Kankakee,
during which he argued that the location was safe and protective of the public health
,
safety,
and welfare. In the instant case, Karlock’s attorney argues that the “functionally” same location of the
proposed WMU facility is unsafe. This is especially ironic because Mr. Karlock’s attorney continues to
represent Town and Country in its refilled application, currently pending before the City of Kaukakee after
the IPCB’s reversal of the prior siting. In that refilled application before the City of Kankakee, Karlock’s
attorney asserts that the location is protective of the health, safety, and welfare. Apparently, whether the
location is actually unsafe is a function of which client one is representing on a given day.
50
70366146v1 8~3333
EIBITI
