~CEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

E~KS OFFICE

OF THE STATE OF ILLINOIS

AUG

25 21JjJ~

SUTTER SANITATION, INC. and

)

STATE

OF

ILLINOIS

LAVONNE HAKER,

)

~Iution Control Board

)

Petitioners,

)

)

v.

)

Case No. PCB 04-187

)

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal

-

land)

PROTECTION AGENCY,

)

)

Respondent.

)

RESPONSE

TO ILLINOIS

EPA’S

MOTION TO

STRIKE

NOW COMES Petitioners Sutter Sanitation, Inc. and Lavonne Haker (collectively“Sutter”)

and hereby responds to Respondent Illinois Environmental Protection Agency’s (Illinois EPA”)

“Motion to Strike Portions ofthe Petitioners’ Motion for Partial Summary Judgment” in the above

captioned matter. In support of this Response, Sutter states:

1.

As noted in the Illinois EPA’s Motion to Strike, on August 2, 2004 Sutter filed its

Motion for Partial Summary Judgment. Attached to Sutter’s Motion were 10 exhibits. These

exhibits included: exhibits 1, 2 and 7, portions ofthe transcript ofthe siting hearing held before the

Effingham County Board and included as part ofthe record in Pollution Control Board case 03-43

and

03-52

(consolidated); exhibit 3, portions of the hearing transcript held before the Pollution

Control Board in Pollution Control Board case 03-43 and

03-52

(consolidated); exhibits 4,

5,

6, and

7 portions of the administrative record of the Effingham County Board siting proceedings and

included as part of the record in Pollution Control Board case 03-43 and 03-52 (consolidated);

exhibit 8, the Pollution Control Board Order in Pollution Control Board case 03-42 and

03-52

(consolidated); exhibit 9, the unpublished Order of the Illinois Supreme Court affirming the

Pollution Control Board Order in case 03-42 and 03-52 (consolidated); and, exhibit 10, a Merriam-

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Webster internet definition of “establish.” By its Motion to Strike, the Illinois EPA seeks to strike

exhibits 1 through 9.

2.

As an initial matter, even if the referenced exhibits were stricken, the facts central to

the issue before the Pollution Control Board in the parties summary judgment motions are not

disputed norwould their absence detract from that issue. Those central facts which are not disputed,

nor called into question by the Illinois EPA’s Motion to Strike, are that subsequent to Sutters filing

ofan application for local siting approval for a solid waste transfer station with Effingham County,

and Effingham County’s approval of that siting application, a neighboring landowner placed a

mobile home on property within the 1000 foot setback requirements ofSection 22.14 ofthe Illinois

Environmental Protection Act.

3.

Sutter is mindful ofthe court and Pollution Control Board precedent the Illinois EPA

sets out in its Motion to Strike. However, and notwithstanding the matter raised in paragraph two

above, the exhibits attachedto Sutters Motion forPartial Summary Judgment should not be stricken.

The Pollution Control Board is allowed to take “official notice” ofall facts ofwhich judicial notice

can be taken (35 Ill.Adm. Code 101.630). Judicial notice allows a tribunal to consider public

documents, that are readily verifiable. Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk and

Western RR Co., 195 Ill.2d 356, 254 Ill.Dec. 707 (Ill. 2001). This rule has been specifically applied

to the Pollution Control Board. ESG Watts, Inc. v. Pollution Control Board, 282 Ill.App.3d 43, 218

Ill.Dec. 183(4th Dist. 1 996)(An administrative tribunal may takejudicial notice ofmatters ofrecord

in another administrative order, determination, orjudgment, especially where these proceedings are

related and involve the same parties.) In this case, all the facts cited by Sutter fall within this rule.

First, under the cited authority there should be no reasonable dispute that the Orders ofthe

Pollution Control Board and Appellate Court referenced in exhibits 8 and 9 are improper, shouldbe

stricken, or otherwise not considered by the Pollution Control Board. Second, the facts referenced

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by exhibits 1,2 and 3 concerning the agricultural nature ofthe surroundingareaand thepre-existing

useofthe Sutter site as a recycling drop offpoint are identified in-thePdllutionControl Board Order

(exhibit 8) itself. (In addition, the fact referenced and supported by exhibit 2 is supported by a

specific reference to the administrative record in this permit appeal and thus should not be stricken

in any event.) Third, the facts referenced in exhibits 4,

5,

6 and 7 relating to public notice ofSutter’ s

initial siting application are also contained in the public record ofthe siting appeal filed, heard and

decided (as reflected in exhibit 8) by the Pollution Control Board. In addition, these facts, as a

necessary precursor of obtaining siting approval, can be at least generally referenced in this case

because Sutter noted in its permit application with the Illinois EPA that it had obtained local siting

approval thereby evidencing compliance with the Act’s requirements with respect to proper notice

to neighboring landowners and the public. Finally, Sutter notes that the Illinois EPA did not object

to exhibit 10, a dictionary definition of the term “establish.”

WHEREFORE, for the reasons cited above, Petitioners respectfully requestthat the Pollution

Control Board deny the Illinois EPA’s Motion to Strike.

Respectfully submitted,

SUTTER SANITATION, INC., and

LAVONNE HAKER, Petitioners

By:

—

One 0 Their Attorneys

Sorling, Northrup, Harma

Cullen & Cochran, Ltd.

Charles J. Northrup, of Counsel

Suite 800 Illinois Building

P.O. Box 5131

Springfield, IL

62705

Telephone:

217.544.1144

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PROOF OF SERVICE

The undersigned hereby certifies that an original and ten copies ofthe foregoing document

was served by placing same in a sealed envelope addressed:

Dorothy M Guim, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Ii. 60601

and copies to:

John J. Kim, Attorney

Renee Cipriano, Director

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 N. Grand Avenue, East

Springfield, Il. 62794-9276

Ms. Carol Sudman

Hearing Office

Illinois Pollution Control Board

1021 North Grand Ave. East

Post Office Box 19276

Springfield, IL 62794-9274

and by depositing same in the United States mail in Springfield, Illinois, on the

~

day ofAugust,

2004, with postage fully prepaid.

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