BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
I
)
l
PCB No. PCB 07-146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on June 12,2009, the undersigned filed with the lllinois Pollution Control
Board,
100 West Randolph Street, Chicago, lllinois 60601, Petitioner's Motion for Leave to File
Brief in Excess of 50 Pages
Instanter ..
Dated:
June 12, 2009
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf of FOX MORAINE, LLC
lsi
Charles F. Helsten
One
ofIts Attorneys
70S35423v) 863858 62168
Electronic Filing - Received, Clerk's Office, June 12, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
Petitioner,
v.
l
l
PCB No. 07.146
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL,
)l
Respondent.
PETITIONER'S MOTION FOR LEAVE
TO
FILE BRIEF
IN EXCESS OF 50 PAGES
INSTANTER
NOW COMES the Petitioner, Fox Moraine Landfill, LLC (hereinafier "Petitioner" or
"Fox Moraine"), by its attorneys, George Mueller and Charles Helsten. and for its Motion for
Leave to File Briefin Excess of 50 Pages
Instanter
t
states as follows:
1.
In
this action, the Petitioner appeals Respondent's denial of siting approval; the
Petitioner's appeal is based on a lack of fundamental fairoess in the proceedings below, as weIl
as the fact that the Respondent's denial
of siting approval was against the manifest weight of the
evidence.
2.
The proceedings below concerning the Petitioner's application for siting were
particularly lengthy, aod took place over the course of six weeks in the spring of 2007,
constituting one of the longest siting hearings in illinois in
the
last twenty years.
3.
The Record of the underlying proceedings is accordingly voluminous, consisting
of approximately 19,897 consecutively paginated pages, aod includes 24 traoscripts of the siting
application hearings themselves, as well
as two (2) traoscripts of the Respondent City Council's
meetings
to deliberate.
4.
The Record of the proceedings in the instaot appeal adds an additional three (3)
transcripts
of hearings (April 21, 22, and 23, 2009), as well as (9) traoscripts that were admitted
70602443vl 863858 62168
Electronic Filing - Received, Clerk's Office, June 12, 2009
as Petitioner's Exhibits 1-9 during the beatings.
5.
In
the instant appeal, the Petitioner offered to waive presentment of argument
concerning the sufficiency of evidence concetning the Section 39.2 siting criteria presented
during the siting approval heatings below, with the understanding that the Petitioner would make
all such argmnents in its Post-Heating brief. The Heating Officer expressed his approval for
the
proposal to defer consideration of such argmnents until the Post-Heating briefs.
6.
In
addition to the necessity of detailing the evidence to show that all of the
Section 39.2 siting critetia were met, and the need to refute the materials and testimony proffered
by the objector groups, Petitioner's Post-Heating brief must also set forth the evidence to show
the denial of fundamental fairness in the proceedings below through a discussion of the
conspixatorial activities that took place from the fall
of 2006 through the spring of 2007, as well
as the credibility issues that became apparent during the testimony by representatives of
Respondent during the heatings in this appeal.
7.
Although the Petitioner
has
strongly endeavored to be as concise as possible in
prepating its brief, neverOleless, the necessity of fully presenting the evidence, argmncnts and
authorities, so as not to result in a waiver of issues or arguments that might prejudice any future
action for judicial review, Petitioner has, regrettably, found itself unable to fully brief the issues
within the general
50 page limit under the Board's Rules.
8.
In
other siting hearings involving extremely voluminous records and a plethora of
issnes, the Board has granted the parties leave to file briefs exceeding 50 pages in length.
See,
e.g., County of Kankakee, Illinois and Edward D. Smith. Kankakee County State's Attorney v.
City of Kankakee, Illinois, The City of Kankakee, nIinois City Council, Town and Country
Utilities, Inc. and Kankakee Regional Landfill, L.L.C.,
PCB 04-33 (March 18, 2004);
Peoria
70602443vl
863858
62168
Electronic Filing - Received, Clerk's Office, June 12, 2009
Disposal Company v. Peoria County Board,
PCB 06-184 (March
I,
2007). Notably, the briefs
filed
in
these cases were approximately 100 pages.
9.
The Petitioner has been willing in the past, and remains willing, to extend the
decision deadline so as to give the Board as much time as it needs to work through briefs
exceeding the page limit, and is also willing to allow additional time to opposing counsel to
respond to Petitioner's brief.
10.
Petitioner accordingly requests leave to file the attached brief, which is in excess
of 50 pages.
WHEREFORE, Petitioner Fox Moraine respectfully requests that the Board enter an
order granting Petitioner leave
to file the attached Post-Heating Brief, which exceeds the Board's
50 page limit.
Dated:
Jone
12, 2009
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
George Mueller
MUELLER ANDERSON, P.C.
609
East
Blna
Road
Ottawa.
IL 61350
815-431-1500
Respectfully submitted,
On behalf of FOX MORAINE, LLC
Is!
Charles F. Helsten
One of Its Attorneys
10602443v\ 863858 62168
Electronic Filing - Received, Clerk's Office, June 12, 2009
AFF!DA VIT OF SERVICE
The undersigned, pursuant to the provisions ofSeetion 1-109 of the Illinois Code of Civil
Procedure, hereby
under penalty of peJjury under the laws of the United States of America,
certifies that on June
12, 2009, she served a copy of the foregoing upon:
Via E-Mail- hallorab@ipcb.state.il.usl
Bradley
p,
Halloran
Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center
1000 W. Randolph St., Ste. 11-500
Chicago,IL 60601
Via E-Mail- jharkness@momlaw.com
James S. Harkness
Momkns McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, lL 60532
Via E-rnail.
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, lL 61105-1389
(815)
490-4900
Via E-Mail- dombrowski@wildman.com
Leo P. Dombrowski
Wildman, Harrold, Allen
&
Dixon
225 West Wacker
Dr,
Suite 3000
Clricago, lL 60606-1229
Via E-Mail- eweis@co.kendall.il.us
Eric
C. Weiss
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yarkville. lL 60560
7053S408vl 863858 62168
Electronic Filing - Received, Clerk's Office, June 12, 2009
