BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY, and

SIERRA CLUB,

Co-Petitioners,

V .

CITY OF MADISON, ILLINOIS, and

WASTE MANAGEMENT OF ILLINOIS, INC .,

Respondents.

To:

Donald J. Moran

Pedersen & Houpt

161 North Clark Street

Suite 3100

Chicago, IL 60601-3224

dmoran @pedersenhoupt. com

Bruce A . Morrison

Kathleen G. Henry

Great Rivers Environmental Law Center

705 Olive Street, Suite 614

St. Louis, MO 63101-2208

bamorrison@ accessus .net

NOTICE OF FILING

Please take notice that on the 9th 

day of October, 2007, I have electronically filed with the

Office of the Clerk of the Pollution Control Board the City of Madison's Response Brief in

Support of the City of Madison's Grant of Site Location Approval for the North Milam Facility,

a copy of which is herewith served upon you .

/s/

John 

John 

T .

TPapa, 

. Papa02140780	

City Attorney, City of Madison, Illinois

1326 Niedringhaus Avenue

Granite City, Illinois 62040

618-452-1323/618-452-8024 Fax

jtp@callislaw.com

1

PCB 07-84

(Third-Party Pollution Control

Facility Siting Appeal)

Penni S . Livingston

Livingston Law Firm

5701 Perrin Road

Fairview Heights, IL 62208

penni@livingstonlaw .biz

Carol Webb

Illinois Pollution Control Board

webbc@ipcb .state .il.us

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY, and

)

SIERRA CLUB,

)

Co-Petitioners,

)

v.

) PCB 07-84

(Third-Party Pollution Control

Facility Siting Appeal)

CITY OF MADISON, ILLINOIS, and

)

WASTE MANAGEMENT OF ILLINOIS, INC .,

)

Respondents .

)

RESPONSE BRIEF OF CITY OF MADISON, ILLINOIS IN SUPPORT OF THE CITY

OF MADISON'S GRANT OF SITE LOCATION APPROVAL FOR THE NORTH

MILAM FACILITY

Introduction

The City of Madison ("City") is a municipal corporation and body politic organized

pursuant to the Constitution and Laws of the State of Illinois located in the County of Madison .

It is governed by an Aldermanic Board of seven (7) members and a Mayor.

Having reviewed a copy of the Response Brief of Waste Management of Illinois, Inc 

.

being filed herein, and finding the Introduction and Facts set forth therein to be accurate, the City

joins in the statements and information contained in said Introduction and Facts sections 

.

In addition thereto the City submits that it made particular efforts to provide all interested

parties an opportunity to participate in and be heard during the siting application and hearing

process, thereby adhering to the principle of fundamental fairness .

The City adopted Ordinance No 

. 1670 on or about June 13, 2006 .      It clearly

established the procedures which all interested parties (including the Applicant) would be

2

required to follow during the siting process . The procedures provided numerous opportunities to

participate in various ways, so that the City Council would be able to consider multiple view

points .

All interested parties were encouraged to : (1) submit documents prior to the hearings on

December 21 and 22, 2006 ; (2) provide testimony, make statements or submit relevant

documents during the hearing; (3) cross-examine witnesses appearing for the Applicant or in

opposition

; and (4) submit comments as to any issue deemed significant or critical to the

decision making process for a period of thirty (30) days subsequent to the hearing .

The City Council also directed that the conduct of the hearing include morning, afternoon

and evening hours to accommodate any and all who wished to participate in the process .

The record clearly reveals which interested parties submitted evidence or comments on

the statutory issues to be considered by the City Council, as well as the quality, credibility and

sufficiency of such evidence or comments .

Argument

Having reviewed the Argument set forth in the Response Brief of Waste Management of

Illinois, Inc 

. being filed herein, the City joins in same 

.

In addition, the City submits that there was overwhelming, competent evidence submitted

by the Applicant to support the findings made by the Hearing Officer and City Council in

approving the siting application . In fact, the record is virtually devoid of competent evidence or

comments submitted by American Bottom Conservancy or the Sierra Club that challenges or

questions the evidence submitted by the Applicant . Although Ordinance 1670 provided many

ways for objectors to submit testimony, documents or exhibits before, during and after the

3

hearing, Petitioners herein failed to offer any evidence or information of substance on the

pertinent siting issues for the Hearing Officer or City Council to consider

.

Both proponents and opponents to a siting application have an equal responsibility to the

siting authority to present relevant, competent evidence and information to allow the siting

authority to make an informed decision .      

In this case the record clearly demonstrates Waste

Management of Illinois satisfied this responsibility.      The Petitioners herein did not .      By not

taking advantage of the thirty day post hearing comment period to submit evidence or comment

concerning issues they felt they were prohibited from introducing during the hearing, Petitioners

effectively waived any fundamental fairness issue on those subjects .       

To the extent they

submitted materials, their objections to not being able to do so during the hearing are moot 

.

The proceedings satisfied the recognized principle of fundamental fairness .    T.O.T.A.L

.

v. City of Salem, 288 Ill. App . 3d 565, 680 N .E

. 2d 810 (5th Dist., 1997).

The action taken by the City Council reflected in its written minutes of February 6, 2007

is also sufficient to comply with the statutory requirement of a written decision with reasons

given

. See Peoria Disposal Co . v. Peoria County Board, PCB 06-184 slip op. at 33-34 (June 21,

2007). At that meeting the City Council cited the written findings of the Hearing Officer as the

basis for its unanimous vote to approve the Application .   Given the paucity of competent

information submitted by Petitioners during the lengthy siting process, there was no basis for the

City Council to have voted otherwise .

CONCLUSION

When looking at the record of this Application in total, the Board will find no basis to

reverse the actions of the City of Madison and deny this Application 

. The Petitioners have failed

to satisfy their responsibility to provide relevant, competent evidence, comment or materials

4

upon which a decision to deny this Application could have been based 

. The City of Madison

provided ample safeguards to protect the principle of fundamental fairness, and no interested

party was prejudiced by its actions 

. The action of the City Council granting siting approval for

North Milam should be approved .

Respectfully submitted,

/s/

John 

John 

T

.

TPapa, 

. Papa#02140780	

City Attorney, City of Madison, Illinois

1326 Niedringhaus Avenue

Granite City, Illinois 62040

618-452-1323/618-452-8024 Fax

j tp@callislaw .com

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the

9th

day of October, 2007, a complete copy

of this instrument was served upon counsel for defendants by e-mail to the addresses below 

.

Donald J. Moran

Penni S . Livingston

Pedersen & Houpt

Livingston Law Firm

161 North Clark Street

5701 Perrin Road

Suite 3100

Fairview Heights, IL 62208

Chicago, IL 60601-3224

penni @ livingstonlaw.biz

dmoran@pedersenhoupt 

.com

Bruce A . Morrison

Kathleen G. Henry

Great Rivers Environmental Law Center

705 Olive Street, Suite 614

St. Louis, MO 63101-2208

bamorrison@ accessus .net

Carol Webb

Illinois Pollution Control Board

and by regular mail

webbc@ipcb.state .il.us

/s/ Veronica L . Pyatt

5