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DOWNING&UHL

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LAWYERS

295

N,

FRANKLIN STREET

P. 0. BOX 77

JAMES A.

UI-IL

DECATUR,

ILLINOIS 62525-0077

POYNTELLE

DOWNING (1915-1969)

(217)

429-2391

ELBERT S. SMITR (1936-1 983)

WILLIAM

1. DOWNING, Of Counsel

FAX

NO.

(217)

429-2394

ROBERT

R.

UHL

(1950-1985)

Dec

ember

8,

2004

DEC

15

2004

Mr.

J.

Philip Novak,

Chairman

STATE OF ft.L~NOIS

Illinois Pollution Control Board

POIIUt~OnContro’

Board

James

R. Thompson Center

Suite 11-500

Chicago,

IL 60601

Re:

Log No. 2003-366

Sutter Transfer Station

Sutter v.

IEPA

Dear

Chairman Novak:

As

a

lawyer who is interested in the property rights of real

c~tate

owners,

the

decision

of

the

Illinois

Pollution

Control

Board

on’

September

16,

2004,

in

the

above

captioned

case

is

highly

troubling.

I

urge

you

to

affirm,

the

IEPA’s

position

at

the

appropriate

time

(basedupon

the

IPCB’s

review

of

the

two

remaining

issues.)

The arguments

of the Environmental Protection Agency

as set

forth

in

the

decision

of

the

IPOB

are

entirely

logical

and

reasonable.

They

greatly

outweigh

the

presentation

of

the

petitioner,

Sutter

Sanitation,

Inc.,

in

its

discussion

of

the

issues.

The

rights

of

surrounding

property

owners

to

a

garbage

facility

are

negated

far

earlier

than

the

applicable

Statutory

provisions

require

and

are

sufficient

to

cease

all

residential

development within the stated area

of 1,000 feet prior to

a time

when a State permit is issued to operate the facility. As you are

well aware, such time may consume years of hearings and litigation.

This is certainly unfortunate for the surrounding property owners.’

Until

the

legislature

clarifies

when

the

so—called

establishment” of the facility begins,

it

is inappropriate in my

judgment

fo~‘the•

Board

to

usurp

the

IEPA’s

decision—making

;~uthority.

---

It

is difficult to understand how rights under Section 22.14

of the EPA

(415

ILCS

5) may be

“established” at

a

time when not

only is no application pending before

IEPA, but

no application

ha.s

even been filed.

This type of interpretation defies

logic.

Further,

I question the propriety of you being involved in the

appeals process in sudh

a case

as Sutter when the issue

concerns

establishment

rights,

particularly in view of the

fact that you

sponsored legislation

in the House

(HB

1729)

which would define

“establish”

in

Section

22.14

retroactively

to

mean the

date

a

sitting application is filed. This is certainly a case in which, to

avoid the appearance of impropriety,

you, especially as Chairman of

IPCB,

should recuse yourself from consideration of such matter.

For the above

reasons,

I ‘strongly urge

you to reaffirm the

IEPA’s position on the two remaining denial points.

Very truly yours,

DOWNING & UHL

JAU:kt

cc:

Mr. Frank C. Watson

State Senator

51st

Senate District

101

South

Main

Street

Suite LL2

Decatur,

IL 62523