December 13, 2005
Michael J. Waller
State's Attorney of Lake County
Daniel L. Jasica #06237373
Assistant State's Attorney
18 North County Street, 3`d Floor
Waukegan, IL 60085
(847)377-3050
PLEASE TAKE NOTICE that I have today, December 13, 2005, filed by FedEx Next Day Air
with the Office of the Clerk of the Pollution Control Board, ten copies of the Respondent County
of Lake's Motion for Joinder of Village of Lake Villa and Village of Fox Lake, copies of which
are herewith served upon you .
DANIEL L. JASICA
Assistant State's Attorney
Victor P . Filippini
Holland & Knight
131 S. Dearborn St .
30' Floor
Chicago, IL 60603
(312) 263-3600
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
DEC 1 4 2005
C & F PACKING COMPANY, INC
.,
STATE OF ILLINOIS
Pollution Control Board
Petitioner,
vs .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and
COUNTY OF LAKE,
PCB 2006-053
(Variance Request)
Respondents .
NOTICE OF FILING
Charles Gunnerson
Bradley P . Halloran
Division of Legal Counsel
Hearing Officer
Illinois Environmental Protection Agency
Illinois Pollution Control Board
1021 North Grand Avenue East
James R. Thompson Center, Suite 11-500
P. 0. Box 19276
100 W. Randolph Street
Springfield, IL 62794-9276
Chicago, IL 60601
Brett Heinrich
James P. Bateman
Howard Teegan
Meckler, Bulger & Tilson
Law Offices
Soffietti, Johnson, Teegan,
123 North Wacker Drive
600 Hart Road
Phillips & Morozin, Ltd .
Suite 1800
Suite 260
74 E Grand Avenue
Chicago, IL 60606
Barrington, IL 60010
P. O. Box 86
Fox Lake, IL 60020
Charles Gunnerson
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P. 0. Box
19276
Springfield, IL 62794-9276
Brett Heinrich
Meckler, Bulger & Tilson LLP
123 North Wacker Drive
Suite 1800
Chicago, IL 60606
Howard Teegan
Soffietti, Johnson, Teegan, Phillips
and Morozin, Ltd
.
74 E Grand Avenue
P. O. Box 86
Fox Lake, IL 60020
Subscribed and Swo
o before me this
1"day of
, 200
PROOF OF SERVICE
I, the undersigned, on oath state that I have served on December 13, 2005, the attached
Respondent County of Lake's Motion for Joinder of Village of Lake Villa and Village of Fox
Lake, by U.S. Mail, postage prepaid, upon the following persons
:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
James P. Bateman
Law Offices of James P. Bateman, Ltd
.
600 Hart Road
Suite 260
Barrington, IL 60010
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ELIZABETH BAILEY PAVELICK
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Notary Public, State of Illinois
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECEIVED
CLERK'S OFFICE
C & F PACKING COMPANY, INC .,
)
DEC 1 4 2005
Petitioner,
)
STATE OF
ILLINOIS
Pollution Control Board
vs .
)
PCB 2006-053
ILLINOIS ENVIRONMENTAL
)
(Variance Request)
PROTECTION AGENCY and
)
COUNTY OF LAKE,
)
Respondents .
)
RESPONDENT COUNTY OF LAKE'S MOTION
FOR JOINDER OF VILLAGE OF LAKE VILLA
AND VILLAGE OF FOX LAKE
Respondent County of Lake (the "County"), by and through its attorneys, Lake County
State's Attorney Michael J. Waller and Assistant State's Attorney Daniel L . Jasica and Victor
Filippini, Holland & Knight LLP, files this its motion for joinder of parties pursuant to 35 Ill .
Admin Code 104.403(a) and moves to add the Village of Lake Villa ("Lake Villa") and the
Village of Fox Lake ("Fox Lake") as respondents in this proceeding . In support thereof, the
County would show the Board as follows
:
I
.
INTRODUCTION
Petitioner C & F Packing has filed its Petition for Variance (the "Petition"), seeking an
exemption from the requirement of obtaining intermediate sewer owner certification as set forth
at 35 Ill. Admin Code §309 .222(b). Such variance would facilitate C & F Packing's expanded
sewage discharges into the County's Northwest Interceptor and, ultimately, the Fox Lake
Wastewater Treatment Plant. As the County established in its Combined Motion to Dismiss and
Objection to the Petition (the "County's Objection"), C & F Packing's right to use the County's
Northwest Interceptor is derived from a series of intergovernmental agreements, specifically
: 1)
the 1977 Fox Lake/County Agreement, pursuant to which Fox Lake agreed, subject to the terms
and conditions of the Agreement, to accept and treat sewage delivered to it via the County's
Northwest Interceptor (see Fox Lake/County Agreement attached as Exhibit 2 to the County's
Objection), and 2) the County/Lake Villa Agreement which, subject to the conditions and
limitation stated therein, makes specific capacity in the County's Northwest Interceptor available
to certain Lake Villa customers (see County/Lake Villa Agreement attached as Exhibit 3 to the
County's Objection)
.
As set forth in great detail in the County's Objection, one explicit condition and
limitation on Lake Villa's (and therefore its customers') rights to connect to and discharge into
the Northwest Interceptor is the payment of specified connection fees to pay for the cost of the
construction, operation, and replacement of the Northwest Interceptor and the Fox Lake
Wastewater Treatment Plant. To date, Lake Villa and C & F Packing remain nearly half a
million dollars in arrears in the payment of the mandated connection fees relating to C & F
Packing's existing operations
. See County Objection, pp.5-6 .
Through its Petition, C & F Packing seeks to skirt the outstanding connections fees issue
and to obtain authorization to discharge even greater amounts of sewage into the County's
Northwest Interceptor and the Fox Lake Wastewater Treatment Plant in derogation of the
governing County/Lake Villa and Fox Lake/County Agreements . Therefore, in the event that the
Petition is not dismissed pursuant to the County's and the IEPA's respective pending motions to
dismiss pursuant to 35 Ill. Admin. Code §104.230(a), Lake Villa and Fox Lake should properly
be joined as respondents to this proceeding in order to provide a complete adjudication of the
matters raised by the Petition and the County's Objection
.
II .
JOINDER IS PROPER
Either the Board or a party may move at any time to add parties to a pending proceeding
when :
2
1) A complete determination of a controversy cannot be had without the presence of the
person who is not already a party to a proceeding
;
2) The person who is not already a party to the proceeding has an interest that the Board's
order may affect; or
3) It may be necessary for the Board to impose a condition on the person who is not
already a party to the proceeding
.
35 Ill. Admin. Code §101 .403(a) .
As discussed further below, both Lake Villa and Fox Lake must properly be added as
parties for a full adjudication of the issues confronting the Board
.
A .
Joinder of Lake Villa is Proper
Obviously, C & F Packing's entitlement to utilize the County's Northwest Interceptor is
entirely derivative of the County/Lake Villa Agreement and Lake Villa's compliance with the
terms of that Agreement .
See
County's Objection, pp .3-4. The issue of outstanding connection
fees is as much a matter of concern to Lake Villa as it is to C & F Packing because under the
County/Lake Villa Agreement, Lake Villa, is responsible for collecting and remitting such fees
to the County
.
See
County/Lake Villa Agreement, §§3(e), 6, and 7
.
Moreover, in the event the connection fees are not paid and the Board allows C & F
Packing to obtain a permit without the County's certification as the intermediate sewer owner,
Lake Villa faces the prospect that the County will declare the County/Lake Villa Agreement
breached and exercise its rights thereunder to the detriment of Lake Villa's interests
.
Of course, Lake Villa also serves as the local sewer provider for C & F Packing and, as
the local interceptor owner, any increased discharge facilitated by the granting of a variance
directly impacts Lake Villa's local collection system
.
Perhaps more fundamentally, although no variance is appropriate in this case, if the Board
attempts to resolve the current impasse, no variance should be granted unless appropriately
3
conditioned. Such conditions should expressly provide for payment of required connection fees,
and any condition that implicates the payment of connection fees or touches upon the
County/Lake Villa Agreement necessarily directly impacts Lake Villa as a party to that contract .
In fact, any ruling on the merits will presumably have to take the County/Lake Villa Agreement
into account and, of course, Lake Villa proves a necessary party to any Board adjudication
addressing, interpreting, or analyzing the County/Lake Villa Agreement
. See City of Evanston v .
Regional Transportation Authority, 568 N.E.2d 244, 209 Ill . App. 3d 447, 456 (1" Dist. 1991)
.
Thus, Lake Villa has a direct interest in the outcome of the proceeding. And, in order for any
Board ruling to have a controlling or preclusive effect with respect to the core underlying issues,
all necessary parties, including Lake Villa, must be joined . Therefore, for any number of legal as
well as practical reasons, Lake Villa proves a necessary and appropriate party to be joined in the
instant proceeding .
B
.
Joinder of Fox Lake is Proper
Fox Lake serves as the treatment authority for the additional discharge that C & F
Packing seeks through their pending permit . Therefore, Fox Lake certainly has an interest and
also stands to lose if, because of any variance granted by the Board, additional flows are sent to
the Fox Lake Wastewater Treatment Plant without commensurate connection fees being paid
.
Moreover, because the County/Lake Villa Agreement was negotiated in accordance with,
and in furtherance of and as contemplated by, the Fox Lake/County Agreement, see County's
Objection, pp. 2-3, Fox Lake also has an interest in any Board adjudication addressing,
interpreting, or analyzing the County/Lake Villa Agreement as well as any connection fees
payable thereunder .
In addition, any condition that the Board may wish to impose upon any variance-whether
relating to discharge amounts, discharge flow qualities or other characteristics, as well as the
4
payment of connection fees--will impact Fox Lake both as the treatment authority and also as the
recipient of almost 90% of the connection fees paid to the County under the County/Lake Villa
Agreement . See Affidavit of Peter Kolb, attached to the County's Objection as Exhibit 1, ¶4
.
To provide a complete and proper adjudication of the matters raised in the Petition and
the County's Objection, and in order for the Board's ruling to have a preclusive effect over all
those effected by its ruling, Fox Lake should also be joined .
III. CONCLUSION
For the foregoing reasons, Respondent County of Lake moves the Board to join the
Village of Lake Villa and the Village of Fox Lake as parties in the pending proceeding pursuant
to 35 111. Admin. Code §101 .403
.
Respectfully submitted,
RESPONDENT COUNTY OF LAKE
MICHAEL J. WALLER
State's Attorney of Lake County
DANIEL L. JASICA
Assistant State's Attorney
Michael J. Waller
State's Attorney of Lake County
Daniel L. Jasica (#06237373)
Assistant State's Attorney
18 North County Street, 3rd Floor
Waukegan, IL 60085
(847) 377-3050
Of Counsel :
Victor Filippini
Holland & Knight LLC
131 S. Dearborn, 30th Floor
Chicago, IL 60603
U:\WPDATA\CIVIL\LSdlj\Public Works\C&F PoIConBd Joinder.wpd
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