RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
WASTE MANAGEMENT OF ILLINOIS, INC.,
vs.
)
(Pollution Control Facility
)
Siting Appeal)
)
COUNTY BOARD OF KANKAKEE COUNTY,
)
ILLINOIS,
)
)
Petitioner,
)
)
)
)
JUL 092004
STATE OF ILLINOIS
No.
PCB 04-186 PollutIon Control Board
TO:
See Attached Service List
Respondent.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that on July 9, 2004, we filed with the Illinois Pollution
Control Board, the attached
Waste Management of Illinois, Inc.’s Objection to Merlin
Karlock’s Petition for Leave to Intervene.
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
w
MANAGEMENT OF ILLINOIS, INC.
(
DJM 392777 vi July 9,2004
RECEIVED
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOA1dLERK’S OFFICE
JUL 09 2004
WASTE
MANAGEMENT OF ILLINOIS, INC.,
)
)
PollutionSTATE OFControlILLINOISBoard
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
MERLIN KARLOCK’S
PETITION
FOR
LEAVE TO INTERVENE
Waste Management ofIllinois, Inc.
(“WMII”),
by and through its attorneys, Pedersen &
Houpt, P.C. objects to Merlin Karlock’s (“Karlock”) Petition for Leave to Intervene. In support
thereof, WIVIII states as follows:
1.
On April 21, 2004, WMII filed with the Illinois Pollution Control Board (“Board”)
its Petition forHearing to Contest Site Location Denial (“Petition for Review”) pursuant to
Section 40.1(a) ofthe Illinois Environmental Protection Act (“Act”).
2.
The Petition forReview contests and objects to the County Board ofKankakee
Count~s(“County Board”) decision denying WMffs 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.
DJM 392661
3.
On June 30, 2004, Karlock filed a Petition for Leave to Intervene for the purpose
of(i) defending the decision ofthe Kankakee County Board; (ii) filing a cross-petition claiming
fundamental unfairness; and (iii) filing a cross-petition claiming that certain findings ofthe
County were against the manifest weight ofthe evidence.
(See
Karlock Petition for Leave to
Intervene, p. 6.)
4.
For the reasons discussed below, Karlock’s Petition for Leave to Intervene should
be denied.
5.
Permitting third party objectors to intervene in the appeal ofa decision denying
local siting approval would run counter to 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 Iii. 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);
McHenry 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
DJM 392661
2
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 1-2 (March 18, 1999);
Land and Lakes Company
v. Village ofRomeoville,
No. PCB 94-195, slip op. at 4-5 (September 1, 1994).
7.
Karlockcontends that he should be allowed to intervene because he is an adjacent
property owner whose property rights will be directly and adversely impactedby the proceeding.
(Karlock Petition forLeave to Intervene, p. 2.) His contention is meritless. Neither the Act nor
the cases construing it allow an adjacent property owner to appeal from a denial of a local siting
request. 415 ILCS 5/40.1;
Rochelle Waste Disposal v. 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).
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
Karlock 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.
at2.
8.
Karlock claims that not allowing adjoining landowners to participate as
intervenors in an appeal ofa local siting denial would lead to “absurd and unjust results.”
(Karlock Petition for Leave to Intervene, p. 2.) In fact, allowing suchparticipation would
introduce chaos and wastefulness into the appeal process. Adjoining landowners would
complicate and lengthen the proceedings by seeking discovery and presenting argument on legal
issues (e.g. fundamental fairness) that have no bearing or relevance to the County Board decision
DJM 392661
3
being appealed. They would argue other matters not at issue, such as whether the County Board’s
determinations that certain criteria were met are themselves against the manifest weight of the
evidence. Such contention would require the substantial expenditure of administrative and
adjudicative time and resources by this Board and the parties to address matters not in dispute.
This is the reason the legislature has provided and the Courts have held that third party appeals of
local siting denials are not allowed. 415 ILCS 5/40.1;
Waste Management ofIllinois, Inc.,
513 N.E.2d at
598; McHenry County Landfill, Inc.,
506 N.E.2d at 376;
Lowe Transfer, Inc.,
slip
op. at 1.
9.
Finally, Karlock has failed to state sufficient grounds warranting intervention
under Section 101.402 ofthe Board’s Procedural Rules. Subsection (d) of Section 101.402,
provides that, subject to Section 101.402(b), the Board maypermit a person to intervene in an
adjudicatoryproceeding 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
person may be adversely affected by a final Board order. 35 Ill. Adm. Code 101.402(d). Karlock
claims that he may be adversely affected by a final Board order.
(See
Karlock Petition for Leave
to Intervene, p. 2.) However, Karlock has not provided anything more than a conclusoiy
statement to support his position that he will be adversely affected by a grant ofsiting approval.
The Board has held that simplistic statements ofadverse effects and material prejudice
unsupported by facts will not make a case for intervention.
Stuart v. Fisher,
No. PCB 02-162,
slip op. at 1-2 (January 23, 2003);
2222 Elston LLC v. Purex Industries, Inc.,
No. PCB
03-55,
slip op. at 2-4 (January 23, 2003).
10.
Karlock also claims that intervention is needed so that he can argue points oflaw
that the County Board may not raise.
(See
Karlock Petition for Leave to Intervene, pp. 3-4.)
DJM 392661
4
However, the Board has held that it is insufficient to base intervention on the belief that the
respondent will not adequatelyrepresent the concerns ofthird parties.
People of the State of
Illinois v. Alloy Engineering & Casting Co.,
No. PCB
01-155,
slip op. at 3 (September 6, 2001).
WHEREFORE, Waste Management ofIllinois, Inc. respectfullyrequests that the
Pollution Control Board enter an order denying Karlock’s Petition for Leave to Intervene, and for
such other and further relief as the Board deems appropriate.
RespectfullySubmitted,
W~eManagement ofIllinois, Inc.
By:~~One
ofIts 4ttorneys
I
Donald J. Moran
Lauren Blair
PEDERSEN
&
HOUPT, P.C.
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
DJM 392661
5
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 Merlin Karlock’s Petition for Leave 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 9th day ofJuly, 2004:
Mr. Charles F. Helsten
Hinshaw & Culbertson
P.O. Box 1389
Rockford, JIlL 61105-1389
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
George Mueller
Attorney at Law
501 State Street
Ottawa, IL 61350
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, IL 60601
Victoria L. Kennedy
DJM 392777 vi July9, 2004
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