R~Ec~vE
D
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG
23
2004
BATAVIA,
ILLINOIS RESIDENTS
)
STATE
OF
ILLINOIS
OPPOSED TO SITING
OF WASTE
)
Pollution
Control Board
TRANSFER STATION
)
)
Petitioner,
)
)
v.
)
PCB
05-1
)
(Third-Party Pollution Control
)
Siting Appeal)
APPLICATION OF ONYX WASTE
)
SERVICES MIDWEST, INC. FOR
)
LOCAL SITING APPROVAL FOR
)
A SOLID WASTE TRANSFER
)
STATION
)
)
and
)
)
CITY OF BATAVIA, ILLINOIS
)
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that we have today filed with the Office ofthe Clerk of
the
Pollution
Control
Board
ONYX
WASTE
SERVICES
MIDWEST,
INC.’S
MOTION
FOR
SUMMARY
JUDGMENT;
OR
IN
THE
ALTERNATIVE
ITS
MOTION
TO
RECONSIDER
THE
BOARD’S
JULY
22
2004
ORD
and
APPEARANCE,
copies ofwhich are attached and ~
~
Gerald P. Callaghan
Paul A. Duffy
Freeborn & Peters LLP
311
South Wacker Drive,
Suite 3000
Chicago, IL 60606
312-360-6000
Dated:
August 23, 2004
THIS FILING IS SUBMIUED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
The
undersigned
attorney
hereby
certifies
that
he
has
caused
a
copy
of Respondent
ONYX
WASTE
SERVICES MIDWEST, INC.’S
MOTION
FOR SUMMARY JUDGMENT;
OR
IN
THE ALTERNATIVE
ITS
MOTION
TO
RECONSIDER
THE
BOARD’S
JULY
22
2004 ORDER and APPEARANCE
to be delivered by hand delivery to:
DorothyM. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
on August 23, 2004.
The Petition did not identify an address or location to allow for service on
the Petitioner.
R E
C E
~1’
ED
CLERK’S OFFICE
AUG
232004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
BATAVIA, ILLINOIS RESIDENTS
)
Pollution
Control
Board
OPPOSED TO SITING
OF WASTE
)
TRANSFER STATION
)
)
Petitioner,
)
)
v.
)
PCB 05-1
)
(Third-Party Pollution Control Facility
)
Siting Appeal)
APPLICATION OF ONYX WASTE
)
SERVICES MIDWEST, INC. FOR
)
LOCAL SITING APPROVAL FOR
)
A SOLID WASTE TRANSFER
)
STATION
)
)
and
)
)
CITY OF BATAVIA, ILLINOIS
)
)
)
Respondents.
)
APPEARANCE
The
undersigned
attorney
hereby
enters
the
appearance
of
the
Respondent,
ONYX
WASTE SERVICES MIDWEST, NC.
Respectfully submitted,
ONYX WASTE SERVICES MIDWEST,
INC.
By:_____
One ofIts Attorneys
Gerald P. Callaghan
Paul A. Duffy
FREEBORN & PETERS LLP
311
South Wacker Drive, Suite 3000
Chicago, Illinois 60606
(3 12) 360-6000
Date:
August
23,
2004
#627627
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BATAVIA, ILLINOIS RESIDENTS
)
OPPOSED
TO SITING OF WASTE
)
TRANSFER STATION
)
)
Petitioner,
)
)
V.
)
)
APPLICATION OF ONYX WASTE
)
SERVICES MIDWEST, INC. FOR LOCAL)
SITING APPROVAL FOR A SOLID
)
WASTE TRANSFER STATION
)
)
)
)
CITY OF BATAVIA, ILLiNOIS
)
)
)
Respondents.
)
~ECE~IVE~
CLERK’S
OFFICE
AUG
232004
STATE OF
ILLINOIS
Pollution Control
board
)
PCBO5-1
(Third-Party Pollution Control Facility
Siting Appeal)
and
ONYX
WASTE
SERVICES MIDWEST, INC.’S
MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE
ITS
MOTION TO RECONSIDER THE BOARD’S JULY 222004 ORDER
Respondent
Onyx
Waste
Services
Midwest,
Inc.
(“Onyx”),
by
its
undersigned
attorneys and
pursuant
to
35
Ill.
Adm.
Code
§
101.516,
hereby moves the Illinois
Pollution
Control
Board
(“Board”)
for
summary
judgment
as
to
the
July
10,
2004
“Petition
For
Review/Appeal To
Contest Siting
Of Waste Transfer
Station
In Batavia,
Illinois”
(“Petition”)
filed by “Batavia, Illinois Residents Opposed To Siting OF Waste Transfer Station.”
There is no
genuine issue as to
the fact that the Petitioner failed to
participate in the public hearing on siting
approval for Onyx.
The Board
lacks
subject-matter jurisdiction over the Petition
and
Onyx
is
entitled to judgment as a matter oflaw as to the entire Petition.
In the
alternative,
Onyx
moves
the
Board
pursuant
to
35
Ill.
Adm.
Code
§~
101.520
and
101.904,
to reconsider and modify its July 22,
2004
Order (“Order”)
to
strike the
extension it purports to give
to the Board’s 120-day statutory decision deadline, and to
strike the
permission it purports
to
give
an
individual
to
file a
petition
to
review Batavia’s
local
siting
approval beyond the 35-day statutory deadline.
In support ofits Motions,
Onyx states as follows:
INTRODUCTION
AND
BACKGROUND
1.
Onyx
filed a
request (the
“Application”)
with
the
City
of Batavia (“City”)
on
December
19,
2003
for local
siting approval
to
construct
a
solid
waste
transfer station
at
766
Hunter
Drive, Batavia,
Illinois,
in
accordance
with
the
Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS
5/39.2
and
the
City’s
Siting
Ordinance
for
Pollution
Control
Facilities,
Ordinance No.
02-10 (the “Ordinance”).
See
Recklaus Affidavit (“Aff.,” Tab A hereto) at
¶
3.
2.
The City established a Pollution Control Facility Committee
(“PCF Committee”)
comprised of seven City Council members,
which held a public
hearing from April
12
through
16, 2004 regarding the Application.
Id.
at
¶11
3-4.
3.
After
the public
hearing and
subsequent
public
comment period required under
the Act and
the Ordinance, the PCF Committee recommended approval of the Request.
Id.
at
¶
6.
The
City
Council
followed
the
PCF
Committee’s
recommendations
and
approved
the
Application
on
June
7,
2004.
Id.
The
PCF
Committee
and
City
Council
each
specifically
concluded that Onyx and the PCF
Committee complied with all
applicable requirements of both
the Act and the Ordinance.
Id
4.
The Petitioner did not participate in the public hearing on the Application that the
City held
from
April
12
through
16,
2004.
Id.
at
¶~J
8,
10.
Additionally,
the
individual who
signed a notice offiling for the Petition did not participate in the public hearing.
Id.
at
¶~f
9-10.
ARGUMENT
ONYX
IS
ENTITLED TO SUMMARY JUDGMENT BECAUSE THE BOARD
LACKS SUBJECT-MATTER JURISDICTION OVER THE PETITION
5.
The Petitioner’s failure to participate in the April
12-16, 2004 public hearing bars
the Board
from exercising
subject-matter jurisdiction over the Petition
under
415
ILCS
5/40.1,
and Onyx is
entitled to
summary judgment.
6.
A
party
may
move
the
Board
for
summary judgment
at
any
time
after
the
opposing party has appeared (or after the expiration oftime
within which any party was required
to appear) for all or any part ofthe relief sought.
35 Iii.
Adm. Code
§
101.5 16.
The Board must
enter summary judgment if the record, including pleadings, depositions and admissions
on
file,
together with
any
affidavits,
shows
that there is
no
genuine issue ofmaterial
fact, and
that the
moving party is
entitled to judgment
as a matter of law.
Id.; see also Dowd v.
Dowd,
Ltd.
v.
Gleason,
181
Ill.
2d 460,
483,
693 N.E.2d
358,
370 (1998).
In ruling on a motion for summary
judgment,
the Board must consider the pleadings, depositions, and affidavits
strictly against the
movant
and in
favor of the
opposing party,
and
grant summary judgment
when the movant’s
right to
it
is
free and clear
from doubt.
Additionally,
a party opposing a motion
for summary
judgment may not rest on
its pleadings, but must
present a factual basis
which would
arguably
entitle it to judgment.
Gauthier
v.
Westfall,
266 Ill. App.
3d 213,
219,
639 N.E.2d 994,
999 (2d
Dist.
1994);
see also
UnitedDisposal ofBradley, Inc.
v.
IEPA,
PCB No. 03-235, 2004 Ill. ENY
LEXIS 337 (Jun.
17, 2004).
7.
The Board
is
a creation of statute
and
as
such any
power or authority it claims
must be expressly stated in the Act.
Granite City
Steel v. IPCB,
155
Ill.2d
149,
613 N.E.2d 719
(1993);
Shepard et al v. IPCB,
272 Ill.App.3d 764,
651
N.E.2d
555
(2nd Dist.
1995).
The Board
has no greater powers than those the legislature confers upon it.
Village ofLombard v. Poillution
Control
Board,
66
Ill.2d
503,
506,
363
N.E.2d
814
(1977).
The Board
lacks
subject-matter
jurisdiction
to
act
outside of the express
grant
of authority.
Ogle
County Board
v.
Pollution
Control Bd.,
272
Ill. App. 3d
184,
649 N.E.2d
545
(2d Dist.
1995); Business
and Professional
Peoplefor the Public Interest v.
Illinois
Commerce Comm ‘n.,
136
Ill. 2d
192,
243,
555
N.E.2d
693 (1989).
8.
Section 40.1(b) only allows
a third party to
challenge a local siting decisions if it
“participated in the public hearing conducted by the
...
governing body...”
415
ILCS
5/40.1(b).
The Act
does not
confer subject-matter jurisdiction for the Board to
evaluate a petition from
a
anyone who failed to participate in the public hearing. 415 ILCS
5/40.1(b).
9.
The Petitioner did not participate in any phase the public hearing.
See
Aff.
at
¶~f
8,
10.
In particular, the Petitioner did not file an appearance for the hearing; did not question or
cross-examine any witness; and did not offer any comment during
the public hearing.
Id.
There
was also
no
attorney or other entity representing the Petitioner that participated in
any aspect of
the public hearing.
Id.
The public hearing transcripts confirm that neither the Petitioner nor any
entity representing it participated in any aspect ofthepublic hearing.
Id.
at
¶
10.
10.
The
Petition
lacks
any
allegation
that
the
Petitioner participated
in
the public
hearing, and
furthermore
lacks any
allegation
that contradicts
any of the
facts set
forth
in this
Motion for Summary Judgment.
11.
The Petitioner’s
failure to
participate in
the public
hearing is
a
complete bar
to
challenging the City’s siting approval under 415
ILCS
5/40.1(b).
12.
The
Act
thus
does
not
grant
the
Board
subject-matter
jurisdiction
over
the
Petition.
13.
There
is
no
genuine
issue
of
material
fact
as
to
the
Petitioner’s
failure
to
participate in the public hearing, and Onyx is entitled to summaryjudgment as a matter oflaw.
WHEREFORE,
Onyx
requests
the
Board
to
enter an
Order
granting
Onyx’s
Motion
for
Summary Judgment
and
entering judgment
on
Onyx’s
behalf with
respect to
the
entire Petition, and for such other relief as the Board deems to be reasonable and appropriate.
IN
THE ALTERNATIVE,
ONYX
REQUESTS
THE
BOARD
TO RECONSIDER ITS JULY
22, 2004
ORDER
14.
In the alternative, Onyx requests that the Board reconsider its July 22, 2004 Order
and modify it to
(a)
strike the Order’s extension of the 120-day decision deadline regarding the
Petition, (b) strike the Order’s references to
Janis Rosauer as the “petitioner” in
this action,
and
(c)
strike the Order’s authorization
for Janis Rosauer to file a petition in this
action beyond the
35-day statutory deadline.
15.
A
motion
for
reconsideration
brings
to
the
Board’s
attention
“errors
in
the
Board’s
application ofthe law,” among other things.
Continental Casualty Co.
v. Security Ins.
Co.,
665
N.E.2d 374,
377 (1st Dist.
1996);
see also Korogluyan
v.
Chicago
Title
&
Trust
Co.,
572 N.E.2d 1154,
1158
(1st Dist.
1991);
Citizens Against Regional Landfill v.
County Board of
Whiteside
County,
PCB
93-156,
1993
Ill.
ENV
LEXIS
235
(Ill.
Pol.
Control
Bd.,
March
11,
1993).
In
ruling on
a
motion
for reconsideration,
the
Board may correct
errors
arising from
oversight or omission.
35
111.
Adm.
Code
§
101.904.
The
Board
must
also
consider
factors
including new evidence
to
conclude that the Board’s decision was in error.
35 Ill.
Adm.
Code
§
101.902.
THE BOARD HAS NO AUTHORITY TO UNILATERALLY EXTEND THE
STATUTORY 120-DAY DECISION DEADLINE
16.
The Board should revise
its
Order and strike the extension it purports
to
give to
the 120-day deadline it has to
decide challenges to
the City’s siting approval.
17.
The Act requires the Board to
render any decision on a
challenge to
local
siting
approval within
120 days after the petition is
filed.
415 ILCS
5/40.1(a),(b).
The Act does not
grant the Board authority to ignore or unilaterally extend the deadline.
18.
The Board’s own regulations
acknowledge
that in accordance with Section
40.1,
“only the applicant for siting may waive the
decision deadline,”
and
that
unless
the
applicant
does so “the Board will issue its
decision within 120 days after the proper filing and service of a
petition for review.”
35
Ill. Adm.
Code
§
107.504;
see,
e.g.
Alliancefor
a Safe Environment v.
Akron Land Corp.,
No. PCB 80-184,
1980 Ill. ENV LEXIS 237
(Oct. 30,
1980)
19.
Onyx, the applicant in
this
matter, has not agreed to
waive the Board’s decision
deadline and there is no support in the record for an extension ofthe 120-day deadline.
20.
The Board exceeded its statutory authority when it agreed to “restart”
a
120-day
decision deadline period once an amended petition to review the City’s siting approval is filed.
21.
The
Board
should
reconsider
its
Order
and
strike
the
provision
purporting
to
“restart” the 120-day decision period.
THE
BOARD
CANNOT ALLOW A BATAVIA RESIDENT
TO FILE A PETITION AVI’ERTHE STATUTORY FILING DEADLINE
22.
The
Order’s mistaken identification of “one Batavia resident, Janis
Rosauer” as
the
Petitioner
lacks
support,
and
the Board
should
strike
from
the
Order both
any
reference
identifying
Ms.
Rosauer
as
the petitioner, and
the Order’s
allowance
of time
for her
to
file a
petition beyond the 35-day time limit in the Act.
23.
The
Act
requires eligible
third-party petitioners to
file
a
challenge
to
any
local
siting approval no later than 35 days after a final decision.
415 ILCS
5/40.1(b).
24.
The Petitioner clearly identifies itself as “Batavia, Illinois
Residents Opposed To
Siting OfWaste Transfer Station” in the Petition.
While Ms. Rosauer signed the notice offiling,
she did not sign the Petition and her name does not appear anywhere in
it.
There is no
support
for
a
conclusion that
a
person
who merely
signs a
notice of filing
may
be
deemed
to
be
a
petitioner for purposes ofcleaning up defects in a petition.
25.
There is no
evidence in
the record that Ms.
Rosauer,
in her
individual capacity,
brought any petition to review the City’s decision withinthe 35-day time limit.
Aff. at
¶~J
9-10.
26.
Ms.
Rosauer did not
participate in the public
hearing held from April
12
through
16, 2004.
Id.
at
¶~J
9-10.
Section 40.1(b) thus bars her from filing
a petition at any time, and the
Board lacksjurisdiction over any petitionMs. Rosauer files in the future.
27.
Additionally, since Ms. Rosauer did not file a petition within 35 days ofthe City’s
June 7,
2004 decision,
Section
40.1(b) bars her from
filing one
now.
Section 40.1(b)
likewise
fails to
authorize the Board to review a petition filed more than
35
days after the decision,
and
the Board will therefore lack subject-matter
jurisdiction over
any petition Ms.
Rosauer files
in
the future.
28.
It
would
therefore
be
futile
for the
Board
to
authorize
Ms.
Rosauer
to
file
a
petition to
review the
City’s siting approval at
any time,
because
once filed the Board
would
have no subject matterjurisdiction over it.
29.
The Board should reconsider its Order and strike any reference to Ms. Rosauer as
the petitioner, and
the permission it purports to give Ms.
Rosauer to
file an untimely petition to
review the City’s decision.
WHEREFORE,
Respondent
Onyx
Waste
Services
Midwest,
Inc.
respectfully
requests
that
the Board
grant
Onyx’s
Motion
For
Summary Judgment,
and
enter judgment
in
Onyx’s
favor as
to
the entire Petition.
In the
alternative, Respondent respectfully requests the
Board to reconsider its July 22,
2004 Order and (a)
strike its purported extension ofits
statutory
120-day decision deadline; (b)
strike any reference identifying Janis
Rosauer
as the Petitioner;
(c)
strike the permission it seeks to
give Janis Rosauer to
file a petition following expiration of
the 35-day deadline to challenge local siting decisions;
and (d) for such other relief as the Board
deems to be reasonable and appropriate.
Respectfully submitted,
ONYX WASTE SERVICES MIDWEST,
INC.
By:______
One of its attorneys
Gerald P. Callaghan
Paul A. Duffy
Freeborn & Peters LLP
311 5.
Wacker Drive
Chicago, IL
60611
Date: August 23, 2004
625075.3
1-Ti
ci
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BATAVIA, ILLINOIS RESIDENTS
)
OPPOSED TO
SITING OF WASTE
)
TRANSFER STATION
)
)
Petitioner,
)
)
v.
)
PCB 05-1
)
(Third-Party Pollution Control Facility
)
Siting Appeal)
APPLICATION OF ONYX WASTE
)
SERVICES MIDWEST,
INC. FOR
)
LOCAL
SITING APPROVAL
)
FOR A SOLID WASTE
)
TRANSFER STATION
)
)
and
)
)
CITY OF BATAVIA, ILLINOIS
)
)
)
Respondents.
)
AFFIDAVIT OF RANDY RECKLAUS
1.
My
name
is
Randy
Recklaus.
I
am Assistant
City Administrator
of the
City of
Batavia (“Batavia” or the “City”).
I have personal knowledge ofthe matters set forth herein.
2.
In connection with my position as Assistant City Administrator, I was involved in
the
City’s
handling of Onyx Waste
Services
Midwest,
Inc.’s (“Onyx”)
“Application for Local
Siting Approval”
(“Application”)
seeking approval
to
construct
a
solid
waste
transfer
station
(“Site”) in Batavia.
3.
Onyx filed its
Application
on
December
19, 2003.
Pursuant
to
Section 6(A) of
the City’s
Siting Ordinance for Pollution Control Facilities,
Ordinance No.
02-10, as amended
(“Siting
Ordinance”),
the Mayor of Batavia appointed
a
Pollution
Control Facility Committee
(“PCF Committee”) to conduct a public hearing (the “Public Hearing”) for the Application.
The
PCF Committee consisted ofseven City Council members.
4.
The
PCF
Committee
held
the
Public
Hearing
regarding
the
Application
from
April
12 through April
16, 2004.
5.
I attended the entire Public Hearing
from beginning to
end and on each day from
April
12
through April
16,
2004,
with
the exception of a brief
15-
to
20-minute
period during
which an individual named Greg Popovich was commenting.
6.
After
the
Public
Hearing
and
subsequent
public
comment
period,
the
PCF
Committee
recommended
approval
of
the
Request.
The
City
Council
followed
the
PCF
Committee’s
recommendations
and approved the Application with conditions
on
June 7,
2004.
The
PCF
Committee
and
City
Council
each
specifically
concluded
that
Onyx
and
the
PCF
Committee complied with all applicable requirements ofboth the Act and the Siting Ordinance.
7.
With
the
exception
of a
portion of the remarks of Greg Popovich,
I
saw
and
listened to each member of the public who made any statement during the Public Hearing.
8.
No individual who participated in the Public Hearing identified him- or herselfas
a member or representative of an entity called “Batavia, Illinois Residents Opposed To Siting Of
Waste Transfer Station.”
9.
No individual who participated
in the Public Hearing
identified herself as Janis
Rosauer or as a representative ofJanis Rosauer.
10.
In connection with
my preparation
of this
affidavit, I
reviewed the
transcript of
the
Public
Hearing.
The
transcript
confirms
the
fact
that
no
member
or
representative
of
“Batavia, Illinois
Residents Opposed
To
Siting Of Waste Transfer
Station” participated in
the
Public Hearing.
The transcript also
confirms the fact that neither Janis Rosauer nor any person
2
identifying
him-
or
herself as
a
representative
of Janis
Rosauer
participated
in
the
Public
Hearing.
AFFIANT SAYS NOTHING FURTHER.
By:
YL~(~/4IL
Randy Recklaus,
Assistant City Administrator
Date:__________
SUBSCRIBED
and SWORN to
before me this
/
~
day of August, 2004.
..
* *
*
,.
~
MOFHCIAL SEAL”
~
JEANETTE ARM~RuST
Notary
PubHc, State
of
JIlinois~
My
Oomm~eion
vxp~raa
09/05/04 ~
*
*
*
~0
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00
0 *
0
0
*-dILI~
623956
3
