ILLINOIS POLLUTION CONTROL BOARD
December 6, 2007
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent,
KENDALL COUNTY,
Intervenor.
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PCB 07-146
(Pollution Control Facility
Siting Appeal)
ORDER OF THE BOARD (by G.T. Girard):
On November 16, 2007, the Friends of Greater Yorkville (FGY) filed a motion (Mot.) to
intervene in this proceeding. On November 20, 2007, Fox Moraine, LLC (Fox Moraine) filed an
objection (Obj.) to the motion to intervene. Also pending before the Board is a November 2,
2007 motion filed by the Village of Plainfield (Village) seeking leave to file an
amicus curiae
brief. The Board will first address the motion to intervene and then the motion for leave to file
an
amicus curiae
brief.
MOTION TO INTERVENE
FGY argues that because Fox Moraine is alleging that actions taken by FGY during the
siting process lead to a fundamentally unfair proceeding, FGY will be materially prejudiced if
not allowed to intervene. Mot. at 3. FGY argues that if not allowed to intervene FGY would
have to rely on the arguments of the “impartial government body” FGY petitioned for relief.
Id
.
Fox Moraine points out that the Board and the courts have consistently precluded third-
party intervention in appeals of siting decisions. Obj. at 1. The only exception the Board and
courts have allowed is for a State’s Attorney or the Attorney General to intervene. Fox Moraine
argues that FGY may participate through public comments and the filing of an
amicus curiae
brief.
The law is well established that third-party objectors are generally precluded from
intervention in an appeal from a denial of siting approval.
See
Lowe Transfer, Inc. v. County
Board of McHenry County, PCB 03-221 (July 10, 2003); Waste Management v. County Board
of Kane County, PCB 03-104, slip op. at 3 (Feb. 20, 2003); Land and Lakes Co. v. Village of
Romeoville, 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.
2
v. IEPA, 154 Ill. App. 3d 89, 506 N.E.2d 372 (2nd Dist. 1987). However, when the third party is
a state’s attorney or the Attorney General’s Office intervening to represent the public interest, a
third party may intervene.
See, e.g.,
Land and Lakes, PCB 94-195, slip op. at 3.
On August 23, 2007, the Board granted Kendall County’s motion to intervene brought by
the Kendall County State’s Attorney. However, FGY has presented the Board with no new
arguments that would convince the Board to alter the Board’s long-standing practice to deny
motions to intervene in siting denial appeals except as to a State’s Attorney or the Attorney
General. Therefore, the Board denies the motion to intervene. The Board will allow FGY to file
an
amicus curiae
brief with the Board consistent with the briefing schedule established by the
hearing officer.
MOTION FOR LEAVE TO FILE AN
AMICUS CURIAE
BRIEF
The Village participated in the landfill siting proceeding before the City of Yorkville and
provided expert testimony on the impact of truck traffic traveling through the downtown of the
Village heading to the landfill.
Section 101.500(d) of the Board’s procedural rules provides that “[w]ithin 14 days after
service of a motion, a party may file a response to the motion. If no response is filed, the party
will be deemed to have waived objection to the granting of the motion, but the waiver of
objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.
Adm. Code 101.500(d). The Board has not received a response to the motion; therefore, the
Board deems the parties to have waived any objection to granting the motion. The Board grants
the motion to file an
amicus curiae
brief with the Board consistent with the briefing schedule
established by the hearing officer.
IT IS SO ORDERED.
I,
John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on December 6, 2007, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
