2

 

On October 23, 2002, the petitioners County of Kankakee and Edward D. Smith, State’s

Attorney of Kankakee County (County) filed a motion for expedited decision on its

accompanying motion for summary judgment and memorandum of law in support of the motion

for summary judgment. The County argued that the City of Kankakee’s (City) decision to

approve Town and County Utilities, Inc. and Kankakee Regional Landfill, L.L.C.’s (Town &

Country) application for siting of a pollution control facility should be reversed because the

public hearing held to address the siting application was fundamentally unfair.

1

Mot. for S.J. at

6-9. The Board denies both of the County’s motions.

 

PROCEDURAL HISTORY

 

On September 20 and 23, 2002, three separate petitions were filed requesting the Board

to review an August 19, 2002 decision of the City Council of the City. In its decision, the City

granted Town & Country’s application to site a pollution control facility. The proposed landfill

consists of approximately 400 acres located in Otto Township within the municipal boundaries

of the City. All three petitioners raised common arguments including, but not limited to, that the

procedures the City used to reach its siting decision were fundamentally unfair, and that the

City’s findings on several statutory siting criteria were not supported by the manifest weight of

the evidence.

 

The Board accepted all three petitions for hearing and consolidated the petitions in its

October 3, 2002 order. County of Kankakee v. The City of Kankakee, PCB 03-31 (Oct. 3,

2002). Subsequently, the hearing officer scheduled a hearing for November 4, 6, 7, and 8, 2002.

County of Kankakee v. The City of Kankakee, PCB 03-31 (hearing officer order Oct. 11, 2002).

The parties have since engaged in discovery.

 

On October 23, 2002, the County filed its motion for expedited decision on its motion for

summary judgment and memorandum of law in support of the motion for summary judgment.

As of that date, the Board’s next regularly scheduled meeting was November 7, 2002, three days

after the first day of the scheduled hearing. Town & Country filed a response on October 31,

2002.

2

   

 

THE COUNTY’S MOTIONS

 

In acting on a motion for expedited review, the Board considers all statutory requirements

and whether material prejudice will result from the motion being granted or denied. 35 Ill. Adm.

Code 101.512(b). As a practical matter, the Board must reach a decision within 120 days after

the petition’s filing under Section 40.1 of the Act, or the applicant may deem the siting approved

regardless of the actual decision of local government. Town & Country has not waived the

statutory decision deadline in this case; therefore, the Board is statutorily required to issue a

decision on the County’s petition by January 18, 2003.

1

The Board cites the County’s motion for expedited decision on motion for summary judgment

as “Mot. to expedite at _.” The Board cites the County’s memorandum of law in support of

motion for summary judgment as “Mot. for S.J. at _.”

 

2

The Board cites Town & Country’s response as “Resp. at _.”

---

 

3

 

In order to meet the statutory decision deadline schedule, the hearing officer had to

coordinate a very tight schedule. Since the hearing began on November 4, 2002, the County’s

motion for expedited decision on its motion for summary judgment is moot. Consequently, the

Board denies the County’s motion. The County will suffer no material prejudice as a result of

the Board’s decision to deny the motion for expedited decision since the County may raise the

same issues at hearing and argue them in a future filing.

 

Although the Board need not address the merits of the County’s argument on summary

judgment since the motion is moot, the Board finds summary judgment unwarranted. The

County is entitled to summary judgment only if there is no genuine issue of material fact and the

County is entitled to judgment as a matter of law.

See

Dowd & Dowd, Ltd. v. Gleason, 181 Ill.

2d 460, 483, 693 N.E.2d 358, 370 (1998); 35 Ill. Adm. Code 101.516(b). In this circumstance,

questions of material fact remain and the County is not entitled to judgment as a matter of law.

 

The County alleges that on the first day of the hearing before the City, at least 75 people

were unable to access the hearing room because of overcrowding. Mot. for S.J. at 5. However,

the County and Town & Country disagree about whether any individual was denied the

opportunity to participate during the first day of the hearing.

Compare

Mot. for S.J. at 7

with

Resp. at 3. This genuine issue of material fact alone bars summary judgment. Furthermore, the

County has provided no persuasive legal authority indicating that it is entitled to judgment as a

matter of law. Contrary to the County’s contention, there is no “

per se

” rule indicating that the

approval of a pollution control facility siting application must be reversed if a citizen is unable to

participate in the hearing.

See

City of Columbia v. County of St. Clair, PCB 85-177, slip op. at

14 (Apr. 3, 1986). Furthermore, the Board’s opinion in American Bottoms Conservancy v.

Village of Fairmont City, PCB 00-200 (Oct. 19, 2000), is inapposite to the facts of this case and

does not require a different result. Summary judgment is denied.

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on November 7, 2002, by a vote of 6-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board