RECEIVED

CLERK’S OFFICE

~LUTIONCONTROL BOARD

APR

182005

STATE OF ILLINOIS

WASTE MANAGEMENT OF ILLiNOIS,

)

pollution

Control Board

INC.

)

)

Petitioner,

)

)

PCBO4-186

v.

)

(Pollution Control Facility

)

Siting Appeal)

COUNTY BOARD OF KANKAKEE

)

COUNTY,

)

)

Respondent.

PUBLIC COMMENT OF MERLIN KARLOCK

NOW COMES

Merlin Karlock, by his attorney, GEORGE MUELLER; P.C., and, for

his public comment as authorized by statute and rules in this matter, attaches and makes a part

hereof, his Brief as Petitioner/Appellant in Case No. 3-04-0649, pending before the Third

District Appellate Court.

Respectfully submitted,

MERLIN KARLOCK

BY:____

E

ELLER, his attorney

---

RECEIVED

CLERK’S OFFICE

APR 18 2005

David E. Neumeister

Jennifer J. Sackett Pohlenz

QUERRY & HARROW,

LTD.

175

W. Jackson Blvd., Suite #1600

Chicago, IL 60604

Donald J. Moran

PEDERSON & HOUPT

161 North Clark Street, Suite #3100

Chicago, IL 60601-1149

Keith Runyon

1165 Plum Creek Drive

Bourbonnais, IL 60914

Charles Heiston

100 Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

Kenneth

A.

Bleyer

Attorney at Law

923 West Gordon Terrace, #3

Chicago, IL 60613-2013

Dorothy M. Gunn

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street, 11-500

Chicago, IL 60601

GEORGE MUELLER, P.C.

50! State Street

Ottawa, Illinois 61350

(815) 433-4705-- Telephone

(815) 433-4913

—

Facsimile

Karl Kruse

Bruce Clark

Kankakee County Board

189 East Court Street

Kankakee, IL 60901

Christopher W. Bohien

200 E. Court Street, Suite #502

P. 0. Box 1787

Kankakee, IL 60901

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street, 11-500

Chicago, IL 60601

Elizabeth S. Harvey

One IBM Plaza, Suite #2900

330 North Wabash

Chicago, IL 60611

Edward Smith

Kankakee County State’s Attorney

450 East Court Street

Kankakee,

IL 60901

1ñ~IU~

A1

_

ING

STATE OF ILLINOIS

The undersigned do s ere y ce

1

y thct a copy of the foregoR~lu~e~iD~o11~b~

_____

of April, 2005, to the following persons, by placing same in an envelope, properly

addressed and sealed and placed in a mail box before 5:00 p.m. in Ottawa, Illinois, with proper

first-class postage affixed thereon:

---

No. 3-04-0649

FOR THE THIRD DISTRICT

MERLIN KARLOCK,

Petitioner

)

vs.

)

the Illinois Pollution Control Board,

WASTE MANAGEMENT OF ILLINOIS,

)

entered July

22,

2004.

INC., COUNTY BOARD OF

KANKAKEE

)

COUNTY, and THE ILLINOIS

)

Docket

No.

PCB 04-186

POLLUTION CONTROL BOARD,

)

Respondents

CONSOLIDATED WITH

NO.

IN THE APPELLATE COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

MICHAEL WATSON,

Petitioner

)

Petition for Review of an Ord

vs.

)

the Illinois Pollution Control

Board,

WASTE MANAGEMENT OF ILLINOIS,

)

entered July 22, 2004.

INC., COUNTY BOARD OF KANKAKEE

)

COUNTY, and

THE ILLINOIS

)

Docket No. PCB 04-186

POLLUTION CONTROL BOARD,

)

Respondents

BRIEF AND ARGUMENT OF PETITIONERIAPPELLANT

MERLIN KARLOCK

Ottawa, Illinois 61350

MAR

2 i 2005

(815) 433-4705

-

Telephone

(815) 433-4913

-

Facsimile

TH~BULitSTh~UT

~4.~ELL!~E

COURT

ORAL ARGUMENT REQUESTED

---

TABLE OF CONTENTS

POINTS AND AUTHORITIES

ii

NATURE OF THE CASE

ISSUES PRESENTED FOR REVIEW

1

JURISDICTIONAL STATEMENT

2

STATEMENT OF FACTS

2

ARGUMENT

7

I. THE AUTHORITY RELIED UPON BY THE POLLUTION CONTROL BOARD IN

DENYING KARLOCK’S PETITION TO INTERVENE IS MINIMAL AND EASILY

DISTINGUISHED

7

11. DENYING INTERVENTION N THIS CASE LEADS TO ABSURD AND UNJUST

RESULTS AND MAY BE INCONSISTENT WITH THE LEGISLATIVE INTENT

9

III. THE INCONSISTENT POSITIONS TAKEN BY KANKAKEE COUNTY’S

ATTORNEYS REQUIRE ALLOWING INTERVENTION BY A PARTY WHOSE

ONLY INTEREST IS THAT THE LOCAL DENIAL OF SITING BE AFFIRMED

....

11

VI. CONCLUSION

13

---

POINTS AND AUTHORITIES

STATUTES CONSTRUED

iii

415 ILCS 5/40.1

iii

JURISDICTIONAL STATEMENT

2

Citizens Against the Randolph Co. Landfill v. Pollution Control Board,

178 Iii.

App. 3d 686. 533 N.E.2d 401

(4th

Dist. 1988)

2

STATEMENT OF FACTS

2

ARGUMENT

7

I. THE AUTHORITY RELIED UPON BY THE POLLUTION CONTROL BOARD IN

DENYING KARLOCK’S PETITION TO INTERVENE IS MINIMAL AND EASILY

DISTINGUISHED

7

McHenry County Landfill, Inc. v. JEPA,

154 Iii. App. 3d 89 506 N.E.2d 372 (2”~’

Dist. 1987)

8. 9

Waste Management ofIllinois, Inc.

1’.

PUB.

160 Ill. App. 3d 434, 513 N.E.2d 592

(2~Dist. 1987)

7

Do/nick v. Redmond,

4 Iii. App. 3d 1037, 283 N.E.2d 113 (First Dist. 1972)

8

II. DENYING INTERVENTION IN THIS CASE LEADS TO ABSURD AND UNJUST

RESULTS AND MAY BE INCONSISTENT WITH THE LEGISLATIVE INTENT

9

In. re Application ofCounty Collector ofDuPage County for Judginentfbr

Delinquent Taxes for the Year 1992,

181 Ill.2d 237, 692 N.E.2d 264 (1998)

9

Lily Lake Road D~fenders

v.

county ofMcHenry,

156 I11.2d 1. 61 9 N.E.2d 137

(1993)

10

III. THE INCONSISTENT POSITIONS TAKEN BY KANKAKEE COUNTY’S

ATTORNEYS REQUIRE ALLOWING INTERVENTION BY A PARTY WHOSE

ONLY INTEREST IS THAT THE LOCAL DENIAL OF SITING BE AFFIRMED

....

11

CONCLUSION

.~..~...

13

---

4.15 ILCS 5/40

and its procedural rules governing denial appeals, such hear-

ing to be based exclusively on the record before the Agency.

The burden of proof shall be on the petitioner. The Agency

and the permit applicant shall be named co-respondents.

The provisions of this subsection do not apply to the

granting of permits issued for the disposal or utilization of

sludge from publicly-owned sewage works.

(c) Any party to an Agency proceeding conducted pursu-

ant to Section 39.3 of this Act may petition as of right to the

Board for review of the Agency’s decision within 35 days

from the date of issuance of the Agency’s decision, provided

that such appeal is not duplicative or frivolous. However,

the 35—day period for petitioning for a hearing may be

extended by the applicant for a period of time not to exceed

90 days by written notice provided to the Board from the-

applicant and the Agency within the initial appeal period. If

another person with standing to appeal wishes to obtain an

extension, there must be a written notice provided to the

Board by that person, the Agency, and the applicant, within

the initial appeal period. The decision of the Board shall be

based exclusively on the record compiled in the Agency

proceeding. In other respects the Board’s review shall be

conducted in accordance with subsection (a) of this Section

and the Board’s procedural rules governing permit denial

appeals.

(d) In reviewing the denial or any condition of a permit

issued by the Agency pursuant to rules and regulations

adopted under subsection (c) of Section 9.1 of this Act, the

decision of the Board shall be based exclusively on the record

before. the Agency including the record of the hearing,.if any,

held pursuant to paragraph (f)(3) of Section 39 unless the

parties agree to supplement the record. The Board. shall, if

it finds, the Agency

is

in error, make a final determination as

to the substantive limitations of the permit including a final

determination of Lowest Achievable Emission Rate or Best

Available Control Technology.

(e) (1) If the ~Agency grants or denies a permit under

subsection (b) of Section 39 of this Act, a third party, other

than. the permit applicant or Agency, may petition the

Board within 35 days from the date of issuance of the

Agency’s decision, for a hearing to contest the decision of

the Agency.

(2) A petitioner shall include the following within, a

petition submitted under subdivision (1) of this subsection:

(A) ~ demonstration that the petitioner raised the

issues contained within the petition during the public

notice period or during the public hearing on the

- -

NPDESp

lication,ifapubliche~athgwasheld;

and

,

(B) a demonstration that the petitioner is so situated

as to be affected by the permitted facility.

(3) If the Board determines that the petition is not

duplicative or frivolàus and contains a satisfactory demon-

stration under subdivision (2) of this subsection, the Board

shall hear the petition (i) in accordance with the terms of

subsection (a) of this Section and its procedural rules

governing permit denial appeals and (ii) exclusively on the

basis of the record before the Agthicy The burden of

proof shall be on the petitioner. The Agency and permit

applicant shall be named co-respondents.

(f) Any person who files a petition to contest the issuance

of a permit by the Agency shall pay a filing fee.

P.A. 76—2429, § 40, eff. July 1,. 1970. Amended by P.A. 77—

.1948, § 1, eff. Oct. 1, 1972; P.A. 78—500, § 1, eff. Oct 1, 1973;

P.A. 81—856, § 1, eff. Jan. 1, 198Q; PA. 81—1444, § 2, eff.

Sept. 4, 1980; P.A. 82—380, § 1, eff. Sept. 3, 1981; PA. 83—

431,. § 1, eff. Sept. 17, 1983; PA. 83—1057, §

2,

eff. Jan. 5,

1984; PA. 83—1362, Art. II, § 120, eff. Sept. 11, 1984; P.A.

84—1320, § 30, eff. Sept. 4, 1986; PA. 85—1331, § 1, eff. Jan

1, 1989; PA. 85—14-40, Art. III, § 3—32.1, eff. Feb~1, 1989;

PA. 86—1409,

.~

1, eff. Jan. 1, 1991; PA. 88—690, § 10, eff.

Jan. 24, 1995; PA. 90—274, §

5,

eff. July 30, 1997; P.A. 92—

574, § 5, eff. June 26, 2002.

Formerly Ill.Rev.Stat.1991, ch. 1i13~,¶ 1040.

5/40.1. Appeal of siting

approval

§ 40.1. Appeal of siting approval.

(a) If the county board or the govei’ning body of the

municipality, è.s determined by paragraph (c) of Section 39 of

•this Act,‘refuses to grant or grants’with conditions approval

under Section 39.2 of this Act, the applicant may, within.35

days after the date on which the local siting authority

disapproved or conditionally approved siting, petition for a

hearing before the Board to contest the decision of the

county board or the governiifg body of the municipality. The

Board shall publish 21 day notice of the hearing on the

appeal in a newspaper of general circulation published in that

county. The cou~ntyboard or governingbody of the muriici-

pality shall appear as respondent in such hearing, and such

hearing shall be based exclusively on the record before the

county board or the governing body of the municipality. At

such hearing the rules prescribed in Sections 32 and 33 (a) of

this Act shall apply, and the burden of proof shall be•On the

petitioner; however, no new or additional evidence in support

of or in opposition tO any finding, order, determination or

decision of the appropriate county board or governing body

of the municipality shall be heard by the Board. In making

its orders and determinations under this Section the Board

shall include in its consideration the written decision and

reasons for the decision ofthe county board or the governing

body of the municipality, the transcribed record of the hear-

ing held pursuant to subsection (d) of Section 39.2, and the

fundamental fairness of the procedures used by the county

board or the governing body of the municipality in reaching

its decision. The Board shall transmit a copy of its decision

to the office of the county board or governing body of the

municipality where it shall be available for public inspection

and copied upon payment of the actual cost of reproduction.

If there is no final action by the Board within 120 days after

the date on which it received the petition, the petitioner may

deem the site location approved; provided, however, that

thit period of 120 days shall not run for any period Of time,

not to exceed 30 days, during which the Board is without.

sufficient membership to constitute_the quorum r~p~j?y

. -

‘iub~en(ilyafSj~fi~n5 of this Act, and provided further,

that such 120 day period shall not be stayed for lack of

quorum beyond 30 days regardless of whether the lack of

quorum exists at the beginning of such 120 day period or

occurs during the running of such 120 day period.

(b) If the county board or the governing body of the

municipality as determined by paragraph (c) of Section 39 of

this Act, grants approval under Section 39.2 of this Act, a

third party other than the applicant who participated in the

public hearing conducted by the county board ‘or governing

boly of the municipality may, within 35 days after the date

on which the local siting authority granted siting approval,

petition the Board for a hearing to contest the approval of

the county board or the governing body of the municipality.

tJniess the Board determines that such petition is duplicative

or frivolous, or that the petitioner is so located as to not be

affected by the proposed facility, the Board shall hear the

petition in accordance with the terms of subsection (a) of this

Section and its procedural rules governing denial appeals,

ENVIRONMENTAL SAFETY

.

1996

---

415 ILCS 5/41

5uch hearing to be based exclusively on the record before

county board or the governing body of the municipality. The

burden of proof shall be on the petitioner; The county board

or the governing body, of the municipality and the applicant

shall be named as co-respondents.

The Board shall transmit a copy of its decision to the office

of” the county board or governing body of the municipality

where it shall be available for public inspection and may be

copied upon payment of the actual cost of reproduction.

(c) Any person who files a petition to contest a decision of

the county board or governing body of the municipality shall

pay a filing fee.

PA. 76—2429, § 40.1, added by PA. 82—682, § 1, eff. Nov. 12,

1981. Amended by PA. 82-783, Art. IV,

‘~

34, eff. July 13,

1982; P.A. 83—1355, eff. Sept. 9, 1984; PA. 83—1522, § 1, eff.

July 1, 1985; P_A. 84—832, Art. II, § 13, efl~Sept. 23, 1985;

P.A. 85—1331, § 1, eff. Jan. 1, 1989; PA. 92—574, § 5, eff.

June 26, 2002.

Formerly Ill.Rev.Stat.1991, ch. 111Y~,1! 1040.1.

5/40.2.

Application of

review process

§ 40.2. Application of review process.

(a) Subsection (a) of Section 40 does not apply to any

permit which is subject to Section 39.5. If the Agency

refuses to grant or grants with conditions a CAAPP permit,

makes a determination of incompleteness regarding a sub-

mitted CAAPP application, or fails to act on an application

for a CAAPP permit, permit renewal, or permit revision

within the time specified in paragraph 5(j) of Section 39.5 of

this Act, the applicant, any person who participated in, the

public comment process pursuant to subsection 8 of Section

39.5 of this Act, or any other person who could obtain judicial

review pursuant to Section 41(a) of this ,Act, may, within 35

days after final permit action, petition for a hearing before

the Board to contest the decision of the Agency. However,

the 35-day period for petitioning for a hearing may be

extended by the applicant for an additional period of time’ not

to exceed 90 days by written notice provided to the Board

from the applicant and the Agency within the initial appeal

period. If another person with standing to appeal wishes to

obtain an extension, there must be a written notice provided

to the Board by that person, the Agency,- and the applicant,

within the initial appeal period. Notwithstanding the preced-

ing requirements, petitiOns for a hearing before the Board

under this subsection may be filed after the 35-day period,

only if such~petitionsare based solely on grounds arising

after the 35-day period expires. Such petitions shall be filed

within 35 days after the new grounds for review arise. If the

~nal permit action being challenged is the Agency’s failure to

tale final action, a petition foi a hearing before the Board

shall be filed before the Agency denies or issues the final

permit.

The Agency shall appear as respondent in such hearing.

At such hearing the rules prescribed in Sections 32 and 33(a)

of this.Act shall apply, and the burden of proof shall be on

the petitioner.

(b) The Agency’s failure to take final action within 90. days

of receipt of an application requesting minor permit modifica-

~tion procedures (or 180 days for modifications subject to

group processing requirements), pursuant to subsection 14 of

Section 39.5, will he subject to this Section and Section 41 of

this Act.

(c) If there is no final action by the Board within 120 days

after the date on which it received the petition, the permit

shall not ‘be deemed issued; rather, the petitioner shall be

entitled to an Appellate Court order pursuant to Section

41(d) of this Act. The period of 120 days shall not run for

any period of time, not to exceed 30 days, during which the

~o~rd is without sufficient ‘~fi’ieinbership to constitute the

quorum required by ‘subsection (a) of Section 5 of this Act;

the 120 day period shall not be stayed. for lack of quorum

beyond 30 days, ‘regardless of whether the lack of quorum

exists at the beginning of the 120 day period or occurs during

the running of the 120 day period.

(d) Any person who files a petition to contest the’ final

permit action by the Agency under this Section shall pay a

filing fee.

,

(e) The Agency shall notify USEPA, in writing, of any

petition for hearing brought under this Section involving a

provision or denial of a Phase II acid rain permit within 30

days of the filing of the petition. USEPA may intervene ~s a

matter of right in any such hearing. The Agency shall notify

JSEPA, in writing, of any determination or order in’ a

hearing brought under this Section that interprets, voids, or

otherwise relates to any portion of a Phase II acid rain

permit.

PA. 76—2429, § 40.2,’added ‘by PA. 87—1213, § 50, eff. Sept.

26, 1992. Amended by P.A. 88—464, § 5, eff. Aug. 20, 1993;

PA.’88—690, § 10, eff. Jan. 24, 1995; P.A. 91—357, § 199, eff.

July 29, 1999; P.A. 92—574, § 5, eff. June 26, 2002.

Formerly Ill.Rev.Stat., ch. 111~.l,1! 1040.2.

TITLE XI: JUDICIAL REVI~W

Section

5/41. Judicial review.

5/41.

Judicial review

§ 41. Judicial ‘review.

(a) Any party to a Board hearing, any person who filed a

complaint on which a hearing

was

denied, any person who

has been denied a variance or permit under this Act, any

party adversely affected by a final order or determination of

the Board, and any person who participated in the public

comment process under subsection (8) of Section 39.5 of this

Act may obtain judicial review, by filing a petition for review

within 35 days from the date that a copy of the order or

other final action sought to be reviewed was served upon the

party affected by the order or other final Board action

complained of, under the provisions of the Administrative

Review Law, as amended and the rules adopted pursuant

thereto,’ except that review shall be afforded directly in the

Appellate Court for the District in which the cause ‘of action

arose and not in the Circuit Court. Review of any rule or

regulation promulgated by the Board shall not ‘be iinited by

this section but may also be had as provided in Section 29 of

this Act.

(b) Any final order of the Board under this Act shall be

based solely on tl~eevidence in ~he record of the particular

proceeding involved, and any such final order for permit

appeals, enforcement actions and variance proceedings, shall

be invalid if it is against the manifest weight of the evidence.

Notwithstanding this subsection, the Board may include such

conditions in granting a variance and may adopt such rules

and regulations as the policies of this Act may require~ If an

objection is made to a variance condition, the board shall

reconsider the condition within not more than 75 days from

the date of the objection.

(c) No challenge to the validity of a Board order shall be

made in any enforcement proceeding under Title XII of this

Act2 as to any issue that could have been raised in a timely

petition for review under this Section.

1907

ENVIRONMENTAL SAFETY

---

NATURE

OF THE CASE

This case began when Waste Management ofIllinois, Inc. (hereinafter “WMII”) filed an

application with the Kankakee County Board for siting approval for a new regional pollution

control facility (hereinafter ~‘Landfihl”).actually for expansion of their existing facility in

Kankakee County. After a lengthy and contested public Hearing before the County Board, the

County Board voted to deny the application. WMII subsequently appealed this denial to the

Pollution Control Board and, on July 1. 2004, Merlin Karlock. an adjacent property owner who

had actively participated as an objector in the Hearings before the County Board. filed with the

Pollution Control Board a Petition for Leave to Intervene or, alternatively, for Leave to File ‘an

Amicus Curiae Brief. Both WMII and Kankakee County filed Responses, objecting to the

Petition and, on July 22, 2004, the Pollution Control Board entered its’ Order. denying the

Petition to Intervene, but granting Merlin Karlock leave to file an Amicus Brief This appeai

followed and was, subsequently, consolidated with the appeal of Michael Watson. another

adjacent property owner who had, likewise, petitioned for leave to intervene in the Pollution

Control Board proceedings and whose Petition was denied in the same Order that denied the

Petition of Merlin Karlock.

ISSUES PRESENTED FOR REVIEW

I.

‘

WHETHER THE AUTHORITY RELIED UPON BY THE POLLUTION

CONTROL BOARD IN DENYING KARLOCK’S PETITION TO

II.

ABSURD AND UNJUST RESULTS AND MAY BE INCONSISTENT

III. WHETHER THE INCONSISTENT POSITIONS TAKEN BY KANKAKEE

COUNTY’S ATTORNEYS REQUIRE ALLOWING INTERVENTION

BY

A PARTY WHOSE ONLY INTEREST iS THAT THE LOCAL DENIAL

OF SITING BE AFFIRMED.

---

JURISDICTIONAL STATEMENT

This is an appeal as of right, pursuant to 415 ILCS 5/41(a) as construed in

Citizens

Against the Randolph Co. Lan4fihi v. Pollution Control Board,

178111. App. 3d 686, 533 N.E.2d

401

(4thl

Dist. 1988). This Court’s jurisdiction to entertain a direct appeal from a denial of a

Petition to Intervene was the subject of previous Motions to Dismiss this appeal, filed by the

Pollution Control Board on November 9, 2004, and by WMII on November 18. 2004. This

Court denied said motions and directed the parties to further address the issue in their Briefs. On

that issue Petitioner Karlock adopts and reiterates as if fully set forth herein, the arguments of

Co-Petitioner. Michael Watson, in Watson’s Brief

STATEMENT OF FACTS

This is the fourth, and hopefully the last, in a series of related cases before this Court. all

dealing with landfill siting in Kankakee County. Illinois. They are related in that WMII,

Kankakee County, and the Pollution Control Board are parties to all four cases. A brief review

of those cases is essential to set the background for the arguments made in this appeal. In the

first ofthose cases (3-03-0025) Town & Country Utilities, Inc., and Kankakee Regional Landfill.

LLC, (hereinafter “Town & Country”) sought siting approval for a new landfill from the City of

Kankakee. After a lengthy public hearing, the Kankakee City Council unanimously approved

the siting application. WMII and Kankakee County, who both appeared as objectors at the siting

hearing, appealed the decision to the Pollution Control Board and the PCB reversed, finding that

the City Council’s deëision that the proposed facility was so-designed, located, and proposed to

be operated as to protect the public health, safety and welfare was against the manifest weight of

the evidence. Town & Country appealed to this Court, from that reversal, and both WIvill and

---

Kankakee County cross-appealed, arguing among other issues, that the PCB erred in finding that

the Town & Country application was consistent with the Kankakee County solid waste

management plan, since that plan allowed for no landfills, other than the expansion of the

existing WMII landfill. That case has been fully briefed and argued and i’s pending decision.

The second in the series of cases is 3-03-924. In this case. WMII applied to the

Kankakee County Board for expansion of their existing landfill in Kankakee County. After

another lengthy public hearing, at which both Petitioners herein, Merlin ICarlock and Michael

Watson, as well as the City of Kankakee appeared and participated actively as objectors, the

County Board granted the application. The objectors, including Karlock and Watson, appealed

this decision to the Pollution Control Board, which, once again, reversed the underlying local

decision, finding in this case that the County Board lacked jurisdiction due to WMII’s failure to

comply with the statutory pre-filing notice requirements. WMII appealed that reversal to this

Court, which, in an Order dated February 4, 2005, affirmed the decision ofthe Pollution Control

Board. In that case, Kankakee County argued that its original decision, granting siting approval.

should be reinstated. That case is now pending before the Illinois Supreme Court on WMII‘s

Petition for Leave to Appeal.

After the Pollution Control Board’s reversal of the City of Kankakee’s decision granting

it siting approval, Town & Country, concurrently with its appeal to this Court. filed a second

application for local siting approval with the City of Kankakee. Once again, Kankakee County

and WMII appeared and participated as objectors and, once again, the City Council approved the

application of Town & Country, this time on August 19. 2003. Kankakee County and WM1I

both appealed this decision to the Pollution Control Board. which affirmed the City Council in an

opinion of March 18, 2004. WMII and Kankakee County both appealed that decision to this

.3

---

Court. as Case No. 3-04-0271, which is partially briefed and remains pending. In its Brief

recently filed, Kankakee County argued, among other things, that the City of Kankakee’s siting

decision was inconsistent with the County’s solid waste management plan, which intended that

no new landfills be sited, other than expansion of the existing WMI facility. (County of

Kankakee Brief at Page

33

in Case No. 3-04-0271).

After the Pollution Control Board reversed Kankakee County’s initial grant of siting

approval, WMII, concurrent with its appeal of that reversal to this Court, filed a new application

for siting approval with Kankakee County on September 26, 2003. (C3). Public hearings on this

application occurred from January 12 to January 21, 2004. Merlin Karlock is the owner of one

hundred sixty (160) acres of land immediately adjacent and contiguous to the proposed WMII

site. (C71). He participated actively as an objector during the local public hearings, cross-

examining witnesses, calling witnesses of his own, offering exhibits into evidence, and making

arguments against the application. (C7 I).

On March 17, 2004, the County Board, by majority vote, denied WMII’s application for

siting approval on the basis .that statutory siting criteria i

*

iii and vi had not been satisfied (C 16.

415

ILCS

5/39.2(a)).

The three criteria which the County Board found to be unsatisfied are

generally referred to as need, land use compatibility/property values and traffic. The County

Board did find, however, subject to certain conditions, that the facility was so-designed. located

and proposed to he operated that the public health, safety and welfare would he protected (C7-

C 14).

WMIJ subsequently filed a Motion to Renew Consideration with the County Board and

the County Board was deadlocked 1 3-13 on the motion on April 13. 2004. (C4).

---

WMII then appealed the County Board’s denial of its siting application to the Pollution

Control Board, alleging that the decision was fundamentally unfair, unsupported by the record.

and against the manifest weight of the evidence. WMII noted in its Petition that the County

Regional Planning Commission, which physically conducted the siting hearing. had

recommended approval of the siting application. That appeal remains pending before the

Pollution Control Board, and is the case in which Petitioners seek to intervene.

In all four of the related appellate cases listed herein, as well as the remaining pending

case before the Pollution Control Board, the Kankakee County Board has been represented by

Charles Heisten of the law turn of Hinshaw & Culbertson.

On July 1, 2004, Merlin Karlock petitioned the Pollution Control Board for Leave to

Intervene or. in the Alternative, to file’ an Amicus Curiae Brief in the WMII appeal. Karlock

alleged that he wished to contest the Board’s finding of March 17,2004 that the proposed facility

was so-designed, located and proposed to he operated that the public health, safety and welfare

would be protected and that this finding by the County Board was, in fact, against the manifest

weight of the evidence. (C72). Karlock also alleged here that the County Board and its

attorneys would not zealously advocate in defense of the County Board’s denial of siting

approval. In addition to the 13-13 vote on the reconsideration. Karlock expressed concern about

the nature of the relationship between the County Board’s attorneys and WMIL based upon

WMII’s previous offer to financially support the County’s defense of its solid waste management

plan in opposing the City of Kankakee’s siting decisions. He additionally pointed out that, for a

long period of time, the County Board’s attorneys, Hinshaw & Culbertson, had addressed their

invoices for legal services to the “Kankakee County Landfill.” (C73-76-79). Lastly. Karlock

pointed out that the attorneys who represented the County Board in WMIT’s Pollution Control

---

Board case. had represented the County “staff’ during the siting hearings and, as such, had co-

authored a report’recomrnending approval of the siting application. (C73-74).

Michael Watson, another adjoining property owner who participated as an objector in the

underlying local siting hearings, also filed a Petition to Intervene in the Pollution Control Board

case. The County Board filed a response in opposition to that Petition and it also opposed

Watson’s alternative Motion for Leave to File an Amicus Curiae Brief. In opposing Watson~s

participation as an Arnicus, Kankakee County noted that “Mr. Watson will not simply he

advising this Board regarding the law, but he will be advocating a point-of-view and urging this

Board to find in favor of the County Board and against WMII.” (SRi-b). The County Board of

Kankakee County also opposed Karlock’s Petition to Intervene or, alternatively, for Leave to

File an Arnicus Curiae Brief. The twelve (12) page objection, filed by the County and signed by

Charles Heiston, is largely a vitriolic, name calling, personal attack on the attorney for Merlin

Karlock, where Karlock’s arguments are characterized in various places therein as “standard

mantra.

.

.tired arguments.. .nonsense.

.

.mean-spirited sensationalism.. .time-worn.

.

.hide bound

.and generic.”

(C113-1

15).

The County’s response also urged rejection of Karlock’s

alternative prayer that he be allowed to file an Amicus Brief, stating that such Brief would he

“advocating a self-interested, biased, and highly subjective point ofview.” (C 121, 122). Finally.

the County argued,

“Mr. Karlock should also be denied the right to become an Amicus Curiae

because he is not a “friend” of the Board as is made clear through Mr. Karlock’s

Petition, which presents untruths to this Court in a hostile and unprofessional

manner. The County respectfully submits that Mr. Karlock’s Petition is only a

small harbinger ofthe biased intemperate rhetoric that would follow if he and his

attorney were allowed to proceed.” (C 121).

---

Without commenting on the substantive arguments raised by Merlin Karlock. and on

vei

narrow legal grounds, mainly relying on it’s own past decisions, the Pollution Control Board

denied the Petition for Leave to Intervene. (C 128-129).

Introduction

In order to avoid repetition and duplication, Petitioner Karlock hereby adopts in their

entirety. as if fully set forth herein, the arguments raised by Petitioner Michael Watson in his

Brief. However, Karlock asserts as additional grounds for reversal of the Pollution Control

Board’s decision, the following:

‘I.

THE AUTHORITY RELIED UPON BY THE POLLUTION CONTROL

BOARD IN DENYING KARLOCK’S PETITION TO INTERVENE IS

MINIMAL AND EASILY DISTINGUISHED.

The opposing parties in this case all appear to operate under the conception that it is well-

settled and established that a third-party does not have the right to intervene in Pollution Control

Board appeals brought by an unsuccessful siting applicant. This is a misconception. Certainly.

the Pollution Control Board has consistently denied every Petition to Intervene by a third-party

brought in similar circumstances, but reiterating a precedent that is, at best, thinly supported by

case law, does not add to the weight which should he given to the Pollution Control Board’s

position. As pointed out correctly in Michael Watson’s brief, this Court’s review is in fact de

novo. In denying Karlock and Watson’s Petitions to Intervene, the Pollution Control Board

relies on a number of its own previous decisions, all of which are best understood as prior

consistent statements. Only two appellate decisions are cited by the Pollution Control Board.

both 1 987 decisions from the Second District. One of these.

Waste Management of Illinois, Inc.

v. PC’B,

160 III. App. 3d 434, 513 N.E.2d 592 (2h1(~Dist. 1987) simply defers to the precedent

---

announced by that same Court in the other decision,

McHenry County LandfIll, Inc. v. JEPA.

154

Ill. App. 3d 89

506

N.E.2d 372 (2’~Dist. 1987). The decision in

McI-Jenry C’ow7I

is the sole and

entire basis for the denial of the Pollution Control Board of intervention by a third-party. A

careful reading of

McHeniy County

shows that that decision is based on two simple principles.

that due process does not necessarily include the right to appeal administrative decisions and that

landfill siting is statutory so that one cannot create rights not explicitly granted by the legislature.

As expressed, those principles are, however, so general that they lack real meaning. unless the

context is known. In

McHenry County,

the Pollution Control Board did allow third-parties to

intervene and, when the issue was addressed to the Appellate Court, the Pollution Control Board

had already affirmed the underlying local decision denying siting approval. It is, therefore, with

perfect hindsight, that the Appellate Court was able to note that objectors that opposed the

landfill did not need to be granted leave to intervene because they would not he adversely

affected by the Pollution Control Board’s decision affirming the local denial. The

Mcl-Ieni-v

County

Court relied in this regard on

Do/nick v. Redmond,

4 Ill. App. 3d 1037.

283

N.E.2d 113

(First Dist. 1972). In

Dolnick,

Plaintiffs were denied the right to intervene because the Court

correctly pointed out that they were asserting rights held by others and not by themselves.

It becomes clear then, in reviewing the legal analysis supporting the denial of

intervention by a third-party in Pollution Control Board appeals that we quickly get away from

the factual situation presented by Petitioners Watson and Karlock. In

McHenrv

C

‘ounty

the party

intervening was Landfill Emergency Action Committee, a citizens group of objectors, and it was

easy for the Appellate Court to find that their rights had not been adversely affected when the

Pollution Control Board had already ruled in their favor. The Court relied on another case where

intervention was properly denied because the would-be interveners were not asserting their own

rights, but rather the rights of others. In this case, both Watson and Karlock are adjacent.

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contiguous real estate owners whose property rights stand to be immediately impacted by the

final outcome. It is often said that good facts make bad law and, one cannot help hut wonder

whether the

McHeniy County

Court would have made the same decision, if it had contemplated

that the precedent it announced would one day be applied against the property rights of an

adjacent contiguous landowner.

II.

DENYING INTERVENTION

IN THIS CASE LEADS TO ABSURD AND

UNJUST RESULTS AND

LEGISLATIVE INTENT

The legislative scheme for appealing local siting decisions is set out in 415 1.LCS 5/40.1

which. in subpart (a) describes the procedures for an applicant appealing from a denial ofa siting

application and in subpart (b) the procedures for third-parties, other than the applicant, appealing

from local approval of a siting application. These two subparts are best viewed as mirror images

of each other in that they lay out what happens in the event of denial and what happens in the

event of approval. In the event that a siting application is approved, all parties to the local siting

hearing are automatically parties in the Pollution Control Board review. It only makes sense

then that the legislature would have intended that all participants at the local siting hearing be

parties in an applicant’s review of a denial. It makes no sense that the legislature would

determine that a third-party’s interests can be adequately represented by the local decision

maker, when an applicant appeals from denial, but that an applicant’s interests cannot he

adequately represented by the local decision maker when a third-party appeals from approval.

In construing a statute, the first and most fundamental principle of construction is to

ascertain and to give affect to the intention of the legislature.

In re Application of County

C.~oiiecior

of DuPage County fbr Judgment for Delinquent Ta~e.sfor the Year 1

992, 1 8 1 Ill.2d

237, 692 N.E.2d 264 (1998). Seemingly inconsistent statutory pronouncements should he

---

construed harmoniously whenever possible, so as to give them both affect.

Lii)’ Lake Road

Defenders v. County qf McHenry, 156

I11.2d 1, 619 N.E.2d 137 (1993).

§40.1(a) of the

Environmental Protection Act does not expressly grant standing to third-party objectors when an

applicant appeals from a local denial of siting. However, it does not, either expressly or by

implication, deny standing to such third-party objectors. When that subsection is read in

conjunction with subsection (b) which deals with appellate procedures when siting approval is

granted, the most harmonious reading of the entire statute is that the legislature intended all

participants at the local siting hearing to have standing in subsequent Pollution Control Board

appeals, regardless of which party initiates the appeal.

To find a different legislative intent would lead to absurd and unjust results. If the Board

had granted siting approval, Karlock and Watson clearly could have appealed to the Pollution

Control Board and, if the Pollution Control Board had affirmed the local decision, Karlock and

Watson would have standing to appeal before this Court. However, if the Pollution Control

Board reverses the local siting denial in this case. Karlock and Watson, by virtue of their not

being participants in the Pollution Control Board case, would not have standing to appeal that

reversal to this Court. Accordingly, we could have a scenario where, despite siting approval

granted by the Pollution Control.Board (through reversal ofthe local siting decision), the third-

parties who are directly affected have no standing for further appeal solely because. they did not

initiate the appeal. Moreover, Karlock has indicated in his Petition to Intervene that he wished to

contest the Board’s decision that the proposed facility was so-designed, located, and proposed to

he operated as to protect the public health, safety and welfare. Had the’ Board found in favor of

WMI on all of the other statutory siting criteria, Karlock would clearly have been able to raise

this issue in a Pollution Control Board appeal. Now. however, Karlock is faced with a situation

where his potentially meritorious argument may never be raised. If the Pollution Control Board

---

reverses the City Council’s denial on the other criteria, the correctness of the City Councis

decision on the public health, safety and welfare criterion becomes paramount.

There is clearly no legal or logical reason to foreclose arguments based solely upon

which party initiates an appeal in the first instance. Accordingly, to avoid unjust and absurd

results, §40.1 of the Environmental Protection Act must be read to allow all participants at the

local siting hearing to participate in appeals, regardless ofthe outcome at the local siting hearing.

III.

THE INCONSISTENT POSITIONS TAKEN BY KANKAKEE COUNTY’S

ATTORNEYS REQUIRE ALLOWING INTERVENTION BY A PARTY

WHOSE ONLY INTEREST IS THAT THE LOCAL DENIAL OF SITING

BE AFFIRMED.

The facts as recited earlier point to a long litigious history where Kankakee County

opposed the siting ofa landfill by the City of Kankakee in favor of expanding the existing Waste

Management landfill which was subject to the jurisdiction of the County.

Accordingly.

Kankakee County opposed, and continues to oppose, the affirmative siting decisions by the City

of Kankakee and the decision by the Pollution Control Board affirming the City of Kankakee.

Karlock has alleged and, for purposes of this appeal, it niust be deemed as true, that WMII

offered to and did financially support those efforts on the part ofKankakee County.

Everything was consistent and everyone knew their roles throughout two siting hearings

by the City of Kankakee and two siting hearings by the County of Kankakee until Kankakee

County, on March 18, 2004, denied WMII’s second application for siting approval. At the time

of that denial, WMII was appealing the Pollution Control Board’s reversal ofthe County Board’s

approval ofits initial siting application. Petitioner Karlock, who was also a party to that appeal.

filed a Motion to Dismiss that appeal (Case No. 3-03-0924) on the grounds that the Kankakee

County Board’s denial of the Request for Siting Approval in March of2004, acted as a repeal h~

---

implication of its previous approval of an essentially identical siting application. Kankakee

County’s attorneys objected to that motion and actually argued, in a pleading filed September 14.

2004, that the initial grant of siting approval and subsequent denial, are not inconsistent and can

be reconciled.

Petitioner Karlock is troubled that Kankakee County’s attorneys would, after the County

had denied WMII’s second application for siting approval, continue to argue in favor of

reinstating the original approval. Case No. 3-03-0924 is now concluded by this Court affirming

the Pollution Control Board, hut had Kankakee County, which was in that appeal aligned with

WMII, prevailed; it would have rendered the County Board’s later denial of siting approval

moot. Petitioner Karlock is further concerned that the County attorneys would continue to argue,

as they have in Case No. 3-04-0271, that the City of Kankakee’s approval of the Town &

Country siting application is inconsistent with the County’s solid waste management plan

because that plan contemplates expansion of the Waste Management facility as the only

acceptable landfill alternative.

Mostly, however, Petitioner Karlock is concerned that Kankakee County would oppose

intervention in a case by parties who support the County’s denial of siting. The vitriol with

which the County opposed, those Petitions only adds to the concern. If the County’s attorneys

were interested in supporting the County’s decision, they should welcome new ideas. another

point of view and arguments on their behalf which they might not have thought of. Instead the

County’s attorneys come right out and state that they oppose Watson’.s participation. even as an

Arnicus. because “he will be advocating a point ofview and urging this Board to find in favor of

the County Board and against WMII.” Given the previous history (inadvertent, or not) of these

same attorneys, addressing their invoices for legal services rendered on behalf o’f Kankakee

---

County to the “Karikakee County Landfill,” a reasonable person would have reason for concern

about the quality and zealousness with which the County Board’s denial of siting will he

defended.

Kankakee County, in its objection to Watson’s Petition to Intervene, points out that the

attorney general has a duty to represent the interests of “the people” and that a state’s attorney’s

rights and duties are analogous to those of the attorney general. Petitioners Karlock and Watson

are part of“the people” and, if anything is clear from the pleadings filed in this case, it is that the

Kankakee County State’s Attorney has no interest, whatsoever, in representing their rights.

Similarly, Kankakee County’s Response points out that it is presumed that elected officials

would adequately represent the interest of the public. That presumption, however, is thoroughly

rebutted by the fact that the attorneys for these same elected officials would oppose intervention

by members ofthe public who support the decision ofthe elected officials.

CONCLUSION

For the foregoing reasons, Petitioner Merlin Karlock respectfully prays that the decision

of the Pollution Control Board, denying his Petition for Leave to Intervene be reversed and this

matter be remanded to the Pollution Control Board with direction for further proceedings

consistent with the Order ofthe Court.

Respectfully submitted,

,~.

-‘

MER~ KARLOCK

/

‘y

BY:

_________________

G~O~OE~MUELLER

Adorney for Petitioner. Merlin Karlock

Ottawa, Illinois 61350

(815) 433-4705

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TABLE OF CONTENTS OF APPENDIX

Merlin Karlock’s Petition for Leave to Intervene or, Alternatively, for Leave to File an Amicus

Curiae Brief

A3-A13

Order ofthe Illinois Pollution Control Board

A14-AlS

Merlin Karlock’s Petition for Review

Al o

Certification of Record of The Illinois Pollution Control Board

Al

7-A20

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(i7j

BEFORE

TIlE ILLINOIS

POLLUTION CONTROL BOARD R

CLERK’S

E

c

~

OFFICE

~‘

v ~

JUL

012004

WASTE

MANAGEMENT

OF

)

ILLINOIS, INC.,

A Delaware Corporation,

)

.

PoIIut

Control Doard

Petitioner,

)

)

(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 ~402requests this Board~sleave to’

intervene as a party in. this matter. In the alternative, and without waiving any rights including

rights on appe~l,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 of an existing municipal solid waste landfill in. Kankakee County, Illinois. The

application was filedpursuant to Section 39.2 ofthe Environmental Protection Act. The

Kankakee’County 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 WIVIl had not properly served all adjoining landowners with pre-filing

1

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UOtJO7

I

notice as required by the Act. WIvilthen filed a second application for site location approval,

which application was denied by the Kankakee County Board on March 17, 2004.

2. Karlock participated 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. Inaddition, Karlock was a successful third-party petitioner in case PCB 2003-

133 in which the siting approval gratited by the Kankakee County Board on WIvil’s fir~t

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 of his 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 adjacentproperty

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 argmnents made by Watson and

all ofthe authorities cited by Watson in support of those arguments.

5.

That not allowing adjoining landowners to participate as interveners in landfill siting

appealsbrought by unsuccessful applicants for local siting approval leads to both absurd and

ur~justresults. 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 of the local

2

.

L

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~)1iD/

decision-maker. At that point, however, none ofthe 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 hôaring will have standing to appeal said reversal to the Appellate

Court even though WMI will then have final siting approvaljust as ifthe 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 Cntenon

ii

had been met and that the facility was so designed, located, and

proposed to be operated that the public health, safety, and welfarewould be protected was

against the manifest weight ofthe evidence. This argument is moot only if the PCB affirms the

County Board’s denial of siting, 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 ofWME in this case and, absent intervention, adjoining

landowners who participated at the local siting hearing and made this argument at the local siting

hearingwill forever be barred from having the issue fully adjudicated or reviewed.

7. Karlock fears that neither the County, nor its attorneys, will advocate as zealously or

thoroughly as possible in. defending the Kaiikakee County 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 dut in Paragraph 6 ofits ~PelitionFor Hearing to this Board that at a

3

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reconsideration on April 13, 2004 prompted by Wt~vfi’sMotion for same, the County Board was

deadlocke4 in a 13-13 vote. The inclination ofthe County Board to. continue to defend its denial

of siting is, therefore, not at all clear to Karlock. Moreover, the nature of the relationship

between the County Board’s attorneys, Hinshaw & Culbertson, and WMI was, itself, a

fundamental fairness issue argued by Karlock in PCB case 2003-133. Because the PCB found a

lack ofjurisdiction in that case, this issue was never reached. Attached.to 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 & Counliy 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, thereby profiting from Wivil’s

direct orindirect 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 closelyrelated County opposition to

the applications ofTown & Country.

8. During the local siting hearings on WivEl’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

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—

f_,

~‘1

UULiU

I ~

granted. The County Board’s denial ofMarch 17, 2004 was, therefore, a rejection of its

attorney’s recommendation.

9. That Hinshaw & Culbertson, as the legal representative ofKankakee County, is

advocating positions in at least tWo other cases which are legallyinconsistent with the position

which they are now required to advocate ofi behalfofKankakee County. This’Board’s reversal

oflocal siting approval in PCB case 2003-131 has been appea1~dto 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 of siting approval. Additionally, Hinshaw &

Culbertson has argued in its Appellate Brief in case number3-03-0025, wherein Tov~rn& Country

Utilities, Inc. and Kankakee Regional Landfill, LLC seek reversal of the PCB’s decision in PCB

2003-31 thaI Town & Country’s Petition for local siting approval’was inconsistent with the

County Solid Waste Managem~ntPlan in that the County’s preferred planning alternative was

expansion ofthe existing Wivil facility.

10. Precedent for the proposition that an attorney’s inconsistent positior~sin different

cases undermines the strength of his arguments is actually found in abrief submitted to the PCB

by Kankakee County in. which its authors assert that Karlock’s arguments in casePCB 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 apart

hereof as Exhibit “B”, and this Board is asked to review footnote 9 on that page. The law firm of

5

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flft~ii75

Hinshaw & Culbertson, ofcourse, authored the County’s Brief andadvanced the creative

argument about attorneys’ positions being undermined by prior inconsistent positions in other

cases.

WBEREFORE, Merlin Karlock praysthat this Board grant h~mleave to intervene as an

additional Respondent forthe purpose ofdefending the decision ofthe Kankakee County Board

denying WMI’s request for siting approval and forthe further purpose offiling 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 of WMI and which are against

the manifest weight ofthe evidence. Alternatively arid without waiving the aforesaid prayer,

Merlin Karlock seeks leave to file an

amicus curiae

brief herein.

Respectfully Submitted,

Merlin Karlock, Intervener

BY:

QQ~,

His ktorney

~

.

GEORGE MUELLER, P.C

501 State Street

Ottawa, IL 61350

Phone: (815) 433-4705

6

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ufluCib

requirements ofthe local siting ordinance and the decisionmaker’s refusal to enforce that siting

ordinance demonstrate collusion between th~Coirnty and WMI and rendered the proceedings

fundamentally unfair.

V. The Countv~AndWMI’s Actions4 Both Before And After The Filing Of The

Siting Application~DemonstratedCollusion And

Pre-Determination Of The

Issues.

Before the Application for siting approvalwas ever filed, WMI and Kankakee County

had ajoint plan of action to grant siting approval fora W~i1Iexpansion and to oppose any

facility sited by the City ofKankakee. This collusive jointplan 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 of the co-conspirators The first

amendment of the 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 of the present landfill would meet the needs of the residents of

the County forwaste disposal generated within the County formany years.” (C-70 I). Worst of

all, the County Board in this Resolution went on to find, without having heard any evidence

regarding the merits ofth~proposed expansion that, “the expansion ofth~current landfill would

have positive impacts on the County

...“

This is nothing short ofan unequivocal legislative

finding about the merits ofasiting application not yet tiled. 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

IT-

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• 0

00007/

City of Kankakee 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 Coputy, in other words, committed itself Iegislative~yto oppose any new landfill other

than expansion of the existing WMI facility. How did the County Board know before reviewing

biting 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

proviae a fill and complete defense for the County in the event

its

Solid Waste Management

Plan

is

legally challenged, and furthermore, a legal challenge of this 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 of

its

Solid Waste.Managernent Plan, Hoekstra once again wrote to

eveiy 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 for these services were in excess of$100,000 as of

14

---

_t

F

~ Li

November 18, 2002, well before the bulk ofthe work in the Town & Country appeal was

00

performed. (C~698,699; Also

C-717-795).

At some point, WMIand 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 tC-699)

0

Ed Smith is the

State’s

Attorney ofKankakee County. The invoices of Hinshaw & 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 Hinshaw & 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

S~uthwestEnergy 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

---

UU’-iU

I

not find that the bearing officer was, in fact, biased, but was critical because the extensive

contacts between the applicant and the hearing officer showed a “continued disregard on the part

ofthe applicant and the City ofHavana foradjudicatory due process.” (94-44 at page 12),

Common sense in this case dictates that neither Kankak~eCounty nor WMI had any real

concern about adjudicatory process, nor that theymade any real attempt to hide their collusive

behavior. The amendments of the Solid Waste Plan, finding even before an application was filed

that the WMIexpansion would be beneficial, the parties’ m~utualdisregard 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 Count’s Decision That The Proposed Facility Is So Located~,Designed,

And Propo~edTo Be OperatedAs To Protect The Public Health,

Safety And

A~Statementof Facts

Joan Underwood, a licensed professional geologist employed by WMI’s consultant,

Earthtech, testified regardingthe geologic and hydro-geologic investigation at the site. (Cy. Hrg.

Volume 19, Pages 81, 82). She described threegeologic 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 thana 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. In 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 criteriontwo. Mr. Norris simply

believed that the information was insufficient to make a determination on compliance with

criterion two. C1268 at

51-52.

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 ofthe Droposed facility.

Finally, Karlock asserts that the location of the proposed facility is “functionally the

same”

as

the location found unsafe by the IPCB in

County

of

Kaiilcakee v. City of Kankakee,

First,

PCB 03-31

the IPCB’s(January

reversal

9, 2003).

of sitingLike

the

in the

other

City

argumentscase

wasregardingbased on

criterion

fairly narrow

two, this

grounds.

claim fails.

The

9

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 Siluria.n

dolomite (upon which the proposed landfill would r~st)is an aquifer. Under 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

Ct~’

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 WMII facility

is unsafe.

This

is

especially ironic ‘because Mr. Karlock’s attorney continues

to

represent

Town

and Country in its refiLIçd application, currently pending before the City ofKaukakee after

the IPCB’s reversal of the prior siting. In that refilled application before the City of Kankakee, Karlocks

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 agiven day.

50

7Q3~t’tl6vI8~3)33

~

EXHlBlt~.

iL~~

I

---

fl~1l i

LLINOIS POLLUTION CONTROL BOARD

July 22, 2004

WASTE MANAGEMENT OF ILLINOIS,

)

INC.,

)

)

Petitioner,

)

)

v.

)

PCBO4-186

)

(Pollution Control Facility

COUNTY BOARD

OF

KANKAXEE

)

Siting Appeal)

COUNTY,

•.

)

)

Respondent.

ORDER OF THE BOARD (by G.T. Girard):

On June 22, 2004, Michael Watson (Watson) filed a motion to intervene in the

proceeding. On July 1, 2004, Merlin Karlock (Karlock) also filed a motion to intervene. On

July 1, 2004, and July 9, 2004, Waste Management ofIllinois, Inc. filed responses to the.

motions. On July 7, 2004, County Board of Kankakee County (Kankakee County) filed a

response to Watson’s motion. On July 12, 2004, Watson filed a motion to strike portions of

Kankakee County’s response. On July

15,

2004, Kankakee County filed a response to Karlock’s

motion and Karlock filed a “reply” to Watson’s motion. For the reasons expressed below, the

Board denies both motions to intervene. The Board also denies Watson’s motion to strike.

The Board and the courts have addressed the issue of third-party appeals and third-party

intervention in proceedings where the applicant is appealing the denial ofsiting. Both the courts

and the Board have consistently held that a third party cannot appeal or intervene in such a

proceeding.

See

Lowe Transfer, Inc. v.

County Board ofMcHenry County, PCB 03-221(July

10, 2003); Waste Management v. County Board ofKane County, PCB 03-104, slip op. at 3 (Feb.

20, 2003); Land and Lakes Co.,

et

a!. v. Village ofRomeoville, PCB 94-195, slip op. at 4 (Sept.

1, 1994); citing Waste Management of Illinois, Inc. v. PCB, 160 Ill. App. 3d 434, 513 N.E.2d

592

(2nd Dist. 1987); McHenry County Landfill,

Inc.

v. IEPA, 154 Ill. App. 3d 89, 506 N.E.2d

372 (2nd Dist. 1987). A third party may intervene only when the third party is 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.

The plain language of Section 40.1(a) of the Act provides that if the county board denies

siting “the applicant may” appeal the decision. 415 ILCS

5/40.1(a)

(2002). The Board has also

adopted procedural rules that reiterate that the applicant is the only party that may appeal a denial

of siting approval.

See

35 Ill. Adm. Code 107.200(a). As stated by the court, the Board “is

powerless to expand its authority beyond that which the legislature has expressly granted” to the

Board. McHenry Landfill 154 Ill. App. 3d 89, 506 N.E.2d 372, 376. The Board has also stated

“that allowing a third-party to intervene would be granting party status to someone who does not

---

OoO12~

have party status under Section 40.1 ofthe Act.” Land and Lakes Co. v. Randolph County

Board, PCB 99-69 (Mar. 18, 1999).

The parties have presented the Board with no new arguments which convince the Board

to alter the long-standing precedent that at third party may not intervene in a siting denial appeal.

Accordingly, the motions to intervene are denied. Watson and Karlock may, however,

contribute oral or written statements at hearing in this matter in accordance with Sections

101.628 and 107.404 of the Board’s procedural rules, but may not examine or cross-examine

witnesses. 35 Ill. Adm. Code 101.628(a), (b); 35 111. Adm. Code 107.404. Watson and Karlock

may also participate through public comments or

amicus curiae

briefs pursuant to Section

101.110(c), and in accordance with Section 101.628(c). 35111. Adm. Code 101.110(c); 35 III.

Adm. Code 10 1.628(c).

IT

IS SO ORDERED.

Chairman J.P. Novak abstained.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on July 22, 2004, by a vote of4-0.

Dorothy.M. Gunn, Clerk

Illinois Pollution Control Board

---

FOR THE THIRD DISTRICT

MERLIN KARLOCK,

)

Petitioner,

)

Petition for Review

)

of Order of the Illinois

Pollution

v.

)

ControlBoard

Docket number: PCB 04-186

WASTE MANAGEMENT OF ILLINOIS,

)

COUNTY

BOARD

OF

KANKAKEE

COUNTY,)

and THE ILLINOIS POLLUTION CONTROL )

BOARD,

)

)

Respondent.

•

PETITION FOR REVIEW

MERLIN KARLOCK, pursuant to

415

ILCS

5/41(a)

and Illinois Supreme Court Rule

335, hereby petitions the Court for review ofthat part of the July 22, 2004 Order of the Illinois

Pollution Control Board which denies the Motion To Intervene filed by Merlin Karlock on July

1,2004.

Respectfully.submitted,

MERLIN KARLOCK,

BY:

____________

His Attorney

GEORGE MUELLER, P. C.

501 State Street

Ottawa, IL 61350

Phone: (815) 433-4705

---

ILLINOIS POLLUTION CONTROL BOARD

.

Lii

MICHAEL

WATSON

)

.

.

-

7

2oos

)

~

(~uur(r

.- .

v.

)

PCB 04-186

)

WASTE

MANAGEMENT

OF

)

APPELLATE COURT

ILLINOIS, INC., COUNTY

BOARD

)

NO.

03-04-0655

OF

KANKAKEE

COUNTY,

)

ILLINOIS and the ILLINOIS

.

)

POLLUTION CONTROL

BOARD

)

CERTIRECATION OF

RECORD

I, Dorothy M. Gunn, Clerk ofthe Illinois Pollution Control Board, do hereby certify

thatI have the custody and control of

all Board files and the records of the said Pollution

Control Board;

that the following listed items constitute the entire record ofthe Pollution

Control Board on the

above-captioned matter; and that the listed items transmitted

herewith are either the

true originals from the files of the Pollution Control Board

or

are

1.

Waste Management of Illinois’ Petition for Hearing to Contest Site

Location Denial (pp. 1

-

16)

2.

County Board of Kankakee County, Illinois’

Answer

to Waste

Management’s Petition for Hearing to Contest Site Location Denial (pp. 17

—

3.

Appearance of Charles F. Heisten on behalf of the County Board of

Kankakee County, Illinois (pp. 21

—

22)

4.

Order of the Board by G.T. Girard dated May 20, 2004 (pp.

23

—

24)

5.

Revised Appearance of Charles F. Heisten

on behalf of the County Board

of Kankakee County, Illinois (pp.

25

-

26)

---

6.

7.

8.

Respondent County Board ofKankakee’s Appearance by Elizabeth S.

Harvey

and Motion for Extension of Time and for Leave to File Reduced

Number of Copies (pp. 29

—

36)

9.

(p. 36)

10.

Waiver of Statutory

Decision Deadline until October 4, 2004 (p. 37)

11. Subpoena Duces Tecum to Robert Keller (pp. 38

-

40)

12. Subpoena Duces Tecum

to Ronald Thompsen (pp. 41

-

13.

Michael Watson’s Motion to Intervene and in the Alternative Motion

For Leave to File an Amicus Curiae Brief (pp. 44

-

54)

14.

Subpoena Duces Tecum to Michael Watson (pp. 55

-

57)

15.

Hearing Officer Order dated June 28, 2004 (p.

16.

County ofKankakee’s Certification of Record on Appeal and County of

Kankakee’s Motion for Leave to File a Single Copy of Portions of the Record

(pp.

59—69)

17.

Merlin Karlock’s Petition for Leave to Intervene or Alternatively for

Leave to File an Amicus Curiae Brief (pp. 70

-

18.

Waste Management ofIllinois, Inc.’s Objection to Michael Watson’s

Motion to Intervene (pp. 81

-

86)

19.

Subpoena Duces Tecum to Michael Watson (pp. 87

-

20.

21.

Waste Management of Illinois, Inc.’s Objection to Merlin Karlock’s

Petition for Leave to Intervene (pp. 91.

—

22.

Michael Watson’s Motion to Strike Portions of the County Board’s Response

To His Motion to Intervene/File Amicus Brief (pp. 98

—

23.

Waiver of Statutory Decision Deadline to November 18, 2004 (p. 105)

---

24.

Merlin Karlock’s Reply to Kankakee County’s Response to Michael

Watson’s Motion to Intervene or in the Alternative to File an Amicus Brief

(pp.106—109)

25.

County Board of Kankakee County, Illinois’ Objection to Merlin Karlock’s

Petition to Intervene or Alternatively for Leave to File an Amicus Curiae

Brief (pp. 110— 127)

26.

Order of the Board by G.T. Girard dated July 22, 2004 (pp. 128

—

27.

Keith Runyon’s Motion to Intervene and in the Alternative Motion for Leave

to File an Amicus Curiae Brief (pp. 130

—

28.

Waste Management of Illinois, Inc.’s Objection to Keith Runyon’s Motion

to Intervene (pp. 135

—

139)

29.

Subpoena Duces Tecum to Robert Keller (pp. 140

—

145)

30.

Robert Keller and Brenda Keller’s Motioti to Quash Subpoena (pp. 146

—

31.

Subpoena Duces Tecum to Kurt Stevens (pp. 161 —163)

32.

Hearing Officer Order dated August 3, 2004 (pp. 164

—

33.

34.

Scope and Duration of Subpoenaed Deposition (pp. 172 —201)

35.

Hearing Officer Order dated August 9, 2004 (pp. 202

—

36.

37.

Order of the Board by G.T. Girard dated August 19, 2004 (pp. 208—209)

38.

Hearing Officer Order dated September 9, 2004

(p.

210)

---

39.

Waiver ofStatutory Decision Deadline to January 20, 2005

(p.

211)

/

~

~i,

.

Dorothy M. GuSu

SUBSCRIBED

AND

Notary

Public

,~ ~

U

~OFF1CIALSEAL~

SANDRA 1. WILEY

COMMISSg:JN

EXPI1~S

01/02/05

V~V~!~YVYYY