RECE~VED

CLERK’S OFFICE

AUG

23

2004

STATE OF ILLINOIS

BEFORE THE ILLINOIS POLLUTION CONTROL~&

~j~0ntro

Board

Janis Rosauer, and

Batavia Illinois Residents Opposed

To Siting ofWaste Transfer Station,

)

)

)

)

PCB No.: 05-1

)

(Pollution Control Facility

NOTICE OF FILING

TO:

John S. Noble,

Esq.

Weiler & Noble, P.C.

425 Williamsburg Avenue

Geneva, Illinois 60134

Gerald P. Callaghan

Freeborn & Peters

311

South Wacker Drive, Suite 3000

Chicago, Illinois 60606-6677

Please take notice that

on this 23rd day of August, 2004, we have filed with

the

Illinois

Pollution

Control

Board,

PETITIONERS’

APPEAL

OF

SITING

APPROVAL,

the original and nine (9) copies ofwhich are hereby served upon you.

Respectfully submitted,

Matthew M. Klein, Esq.

JANIS ROSAUER and

322 West Burlington

LaGrange, Illinois 60525

BATAVIA ILLINOI

ESIDENTS

Ph: (708) 354-8840

OPPOSED TO

ING

F WASTE

Fax:

(708) 354-8850

TRANS

R

ATION

By:

/

‘One of T

eir

Services Midwest, Inc.,

)

)

)

)

---

PROOF OF SERVICE

I, Matthew M.

Klein, an attorney, certify that I served the original and nine

(9) copies of the attached PETITIONERS’ APPEAL

OF SITING

APPROVAL

by

First Class Mail to the parties mentioned above on this 23rd day of August, 2004.

Matthew M. Klein

Matthew M. Klein,

Esq.

322 West Burlington

LaGrange, Illinois 60525

Ph: (708) 354-8840

Fax:

(708) 354-8850

---

CLERK’S OFFICE

AUG

23200k

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARTh-,crE OF

ILUNOISd

poltution contro’ Boar

Janis Rosauer and

Batavia Illinois Residents Opposed

)

To Siting of Waste Transfer

Station,

)

)

V.

)

PCB No.:

05-1

)

)

City of Batavia and Onyx Waste

)

(Pollution Control Facility

Services

Midwest,

Inc.,

)

Siting Appeal)

)

APPEAL

OF SITING APPROVAL

NOW

COME

the

Petitioners,

JANIS

ROSAUER

(“Rosauer”)

and

BATAVIA

ILLINOIS

RESIDENTS

OPPOSED

TO

SITING

OF

WASTE

TRANSFER

STATION

(“Batavia Residents”) by

their attorney,

and

hereby appeal

the

decision of the

City

of

Batavia,

Illinois

granting

site

location

approval

under

Section

39.2

of

the

Illinois

Environmental Protection Act to

Onyx Waste Services Midwest, Inc.

(“Onyx”)

for a solid

waste transfer station.

I.

JURISDICTION

OF THE BOARD

The City

of Batavia granted

site

location approval to

Onyx for

its

solid

waste

transfer

station

on

June

7,

2004.

This

appeal

was

originally

filed before

this

Board

pursuant to

Section

40.1

of the Illinois

Environmental

Protection

Act

on

July

12,

2004,

within thirty-five

(35) days after the date on which

the

local siting authority approved

siting.

On

July

22,

2004,

the

Pollution

Control

Board

granted

the

Petitioners

until

August 23, 2004 to

file an amendment to the appeal.

II.

STATUS OF PETITIONERS

A.

Rosaner.

Rosauer

is

an individual residing within the City

of Batavia.

Rosauer

resides

at

1301

Violet

Lane,

Batavia,

approximately

one

block west

of Kirk

Road,

within the

Woodland Hills

area of

Batavia and

within the

service

area

of the

proposed transfer station.

Rosauer participated in the public hearing conducted by the

City of Batavia by

submitting

a written comment after the

close of the public hearing

within the time period allowed for submission ofwritten comments.

B.

Batavia

Residents.

Batavia

Residents

is

an

unincorporated

citizens’

group

of

at least

200

residents,

various

members

of which

participated

in

the

siting

proceeding.

At

least

sixty

(60)

members

of

Batavia

Residents

submitted

written

---

comments opposed to the siting approval

after the

close of the public hearing but within

the

time period

allowed for the submission of written comments.

Eleven (11)

members

of

Batavia Residents appeared

personally at the

public hearings

and offered questions

and! or comments.

Each of the members of Batavia Residents is a resident of the City of

Batavia within the service

area for the

proposed transfer

station.

At least one hundred

(100)

members

of

Batavia

Residents

reside in

the

Woodland

Hills

area

of

the

City

of

Batavia.

Woodland

Hills

Road

is

a

north-south

running

residential

street

located

approximately one

(1) block west of Kirk Road, between Wilson Street and Giese

Road

in

the

City

of

Batavia.

Many

of

the other

members

of Batavia

Residents reside in

the

Breton Manor, Cherry Park, and

Johnson’s Woods subdivisions

in Batavia, within four

(4) blocks west of Kirk Road.

Kirk Road is a major north-south arterial that runs in part

within

City

of

Batavia

limits

and

will

provide

the

main

access

road

for the

proposed

transfer

station.

Members

of

Batavia

Residents regularly use

Kirk

Road

as

a primary

means of access to or from Wilson Street or Pine Street.

Kirk Road has a full interchange

with the

Ronald Reagan Memorial Tollway

(1-88) south of the

City of Batavia limits

and

provides

access

to

major

east-west

arterials

north

of

the

City

of

Batavia,

including

regional

shopping

services.

Between

Fabyan

Parkway

and

the

1-88

interchange,

Kirk

Road

has

a

documented

history

of

serious

automobile

accidents

and

high

traffic

volumes.

The

traffic conditions on

Kirk Road

and other

City

of

Batavia streets will be

exacerbated by the truck traffic proposed

to serve the transfer station.

Residing just west

of the main

access

road for the transfer station,

members

of Batavia Residents will

also

be

subjected

to the

visual

blight

of

litter being released from the

garbage and transfer

trucks

serving

the

transfer

station,

and regularly

be

subjected

to

the

odors, noise

and

leaking liquid from the

garbage trucks

serving the

proposed

transfer facility as

well

as

the same

impacts from the

facility itself.

As such, Batavia Residents is a citizens’

group

that is so located as to be affected by the proposed facility.

III.

BASES FOR APPEAL

A.

Fundamental

Fairness.

The

siting approval process is not fundamentally

fair.

Prior

to

entertaining

the

siting

approval

application,

the

City

of

Batavia

took

certain

steps

which created

a conflict

of

interest and rendered

the

City one-sided

and

biased

in

favor

of

the

siting

application.

Beginning

in approximately

1999,

the

City

initiated

the

idea

and

began

to

explore

the

possibility

of

creating

and

siting

its own

waste transfer station.

In that examination process, the

City entertained proposals from

independent waste companies to

create and operate a transfer station for the City.

On

March

25,

2003,

the

City

of

Batavia

entered

into

a

contract

with

Onyx

pursuant

to

which

Batavia

would

receive

approximately

Five

Hundred

Thousand

Dollars

($500,000.00)

annually

if the

Onyx

siting

application

were

approved

and

the

transfer

station

constructed.

The

prospect

of

a

multiple

six-figure

income

from

the

transfer

station

impermissibly

altered

the

objectivity

of

the

Batavia

City

Council

members,

who

act in

a quasi-judicial

capacity

in reviewing

siting

requests.

The

host

agreement

created

an

impermissible

pecuniary

interest

in the

City of

Batavia,

which

impermissibly

impaired

its

objectivity.

The City

of Batavia Pollution Control

Facilities

Siting

Ordinance

requires

that a Host Agreement be

executed

prior

to any application

for

site

location

approval,

thereby

assuring

the

financial

incentive

to

the

City

be

---

guaranteed

before an application is

submitted.

Such Host Agreements

are not required

by any provision of Illinois statute or administrative rule.

The

lack

of

objectivity

on

the

part

of

the

City

of

Batavia

was

manifested

throughout the

siting application process,

during

which time the

City took little or

no

additional

steps

to

notify

affected

and/or

interested

members

of

the

public

of

the

pendancy of the

public hearings and their rights to comment

and

participate in the siting

approval

process.

On

some

occasions,

City

Staff

provided

inaccurate

information

regarding

public

participation

which

impaired

the

public’s

access

to information

and

ability

to

meaningfully

participate

in

the

siting

process.

For

example,

one

of

Batavia

Residents’

members, Yvonne Dinwiddie

(who is also a member

of the Batavia

Citizens’

Advisory

Board, which was

appointed by the

City Council to evaluate

siting a transfer

station within the

City), was told by Assistant City Administrator Randall Recklaus that

she

would

need

to

engage

an

attorney

to

participate

in

the

public

hearing,

that

an

appearance

for

her

would

need

to

be

filed

by

March

31,

2004,

and

any

written

documents she might rely upon at the hearing would also need to be filed with the

City.

Ms. Dinwiddie interpreted that conversation

as meaning that she would have to have an

attorney

both file an appearance

for her and submit all of her written documentation by

March 31, 2004.

When Ms. Dinwiddie told

Mr.

Recklaus that she would not be able

to

meet the March 31

deadline,

he suggested

that she submit written questions to the

City

Attorney,

Mr.

John

Noble,

who

could

then

ask

those

questions

during

the

public

hearing.

Ms. Dinwiddie did in fact submit a list of questions to Attorney

Noble, most of

which went unasked

by him at the hearing.

The hearing date

of April

16, 2004

ultimately was

reserved

for public

comment

without advising

all interested residents

that no participation or responses to residents’

questions

by

Onyx

would

occur.

Members

of

Batavia

Residents,

including

Yvonne

Dinwiddie,

attended

the

April

16,

2004

hearing

with

the

expectation

of

receiving

answers to their questions, which answers were not provided.

The lack of objectivity by the City of Batavia was further manifested

by the City’s

prohibiting

its

Staff

from

communicating

with

City

residents,

including

members

of

Batavia Residents,

on

any substantive

issue

regarding

the

siting

application.

See, for

example, the April 27, 2004 letter from Assistant City Administrator Recklaus to Mr. and

Ms. Voreis, a copy of which is attached as Exhibit A.

The

notices

required

under

Section

39.2

of

the Act

during

the

siting

approval

process are inadequate

to

apprise

members

of

the

public regarding

the

pending

siting

process and their

rights

of participation

in

same.

Specifically,

under

Section

39.2,

the

only notices

required

for the

public

are

two

(2)

legal

publications

in

a newspaper

of

general circulation published in the county in which the site is located.

These notices are

insufficient to comport with procedural

due process and fundamental fairness.

B.

Failure to Satisfy Criteria for Siting Approval. The application of Onxy was

substantively

deficient

in

that

the

record

will

demonstrate

that

Onyx

failed

to

demonstrate

compliance

with

the

following site

location

criteria

under

Section

39.2

of

the

Act, and the

City’s finding

of

compliance

was

against the

manifest weight

of the

---

evidence.

Specifically:

1.

The

Onyx

facility

is

not necessary

to

accommodate

the

waste

needs

of the

area it is intended to serve.

(Siting Criterion

(i)).

2.

The

Onyx

facility

is

not

so

designed,

located and proposed

to be

operated

that the public

health, safety and welfare will be protected.

(Siting Criterion

(ii)).

3.

The

Onyx facility

is

not

located

so

as

to

minimize

incompatibility

with

the

character of

the surrounding

area

and

to

minimize

the

effect on the value

of

the surrounding property.

(Siting Criterion

(iii)).

4.

The traffic patterns

to and from the

Onyx

facility

are

not so

designed

as

to

minimize the impact on existing traffic flow. (Siting Criterion (vi)).

C.

Compliance

With

the

Notice

Requirements

Under

Section

39.2.

At

this

time

Petitioners

have not identified

specific failures of Onyx

to comply with

the notice

requirements

under

Section

39.2.

However,

as

such

notice

requirements

are

jurisdictional, Petitioners will continue to investigate these issues prior to the hearing in

this cause.

RELIEF REQUESTED

Petitioners

respectfully request

that

the

Pollution

Control

Board find that

this

Petition

is

not

duplicative

or

frivolous,

that

the

Petitioners

are

located

so

as

to

be

affected

by

the

proposed

facility

and

set

this

matter

for

hearing

in

accordance

with

Section

40.1

of

the Act and other

applicable provisions

of Illinois

Compiled Statutes

as

well

as

this Board’s

procedural

rules.

After

such

hearing,

the

Petitioners

respectfully

request that this Board invalidate the

siting approval for the Onyx facility granted by the

City of Batavia and grant such other relief as may be appropriate.

Respectfully submitted,

JAN15

ROSAUER and BATAVIA

ILLINOIS

RESIDENTS

O~OSED

TO

SITING

OF

WASTE T

A~FF)R

STATION

~

“

ttorney

Date:____________________

Matthew

M. Klein, Esq.

322 West Burlington

LaGrange, Illinois 60525

Ph: (708) 354-8840

Fax: (708) 354-8850

---

Date:

JANIS

ROSAUI

---

CITY OF BATAVIA

100

North

Island Avenue, Batavia,

Illinois 60510

Phone:

(630) 879-1424

Fax:

(630)

879-0710

WILLIAM

R.

McGRATH

City Administrator

JEFFERY D. SCHIELKE

Mayor

RANDALL R.

REC

KLAUS

Assistant City Administrator

M. HANNAH VOLK

City Clerk

JOHN S.

NOBLE

City Attorney

RECEIVED

April 27, 2004

Cfl~W~

W~mv

DATE

&t~~i/~.-,

Mr. and Ms. Voreis

628 Sylvan Place~

Batavia, IL

60510

Dear Mr.

and Ms.

Voreis,

I

am

writing

in

response

to

your

April

21,

2004

letter

regarding

the

Proposed

Onyx

Waste

Transfer

Station. Unfortunately, the CityAttorney

has informed me that

I cannot response directly

to

the questions

you have

raised at this time. Until

the

City Council approves or denies the siting application, and until

the

subsequent appeal period

has

passed,

myselfand other members of the City’s Staff are unable to engage

in one-on-one discussions

on

the application and the

project

in

general.

The

City

is

legally

required

by

statute

to

limit discussion

and questions

and answers

to the

public

hearing process that occurred

during

the week

of April

12th

and

before.

As

was

stated

at

each of the Public

Hearings,

and

in

the

Public

Input

Process

Guidelines

made public

prior to

the hearings,

questions

had to

be

made

in

the

presence of

the

entire

Pollution Facilities Committee,

all of the interested

parties, and at the designated

time and place of

the public

hearing as

published

in

the

local

newspapers.

Once

the

City Council has

approved or denied

the siting application, and

the

appeal

period

has passed,

City staff will

be able to

engage

in

discussions

with individual

members of

the public and the press as we have for the past four years.

I anticipate at

this

time, the

appeal period

will pass sometime

in July of this year.

I would be

happy to discuss each

of your

questions as well as

any other issues with you at that time.

However,

I

will

make

your

letter

and

this response

part

of

the

public

record

of the

siting

application

proceedings.

I

appreciate

and

understand

that

you

are

concerned

about

the

rigidity

of

this

process.

Indeed,

this

process

is very different than the

City’s normal

manner of doing business.

However, we are

limited to the processes and procedures allowable under

law.

Thank you for your interest in this project.

Sincerely,

;~J~(

~

Randall

R. Recklaus

Assistant City Administrator

CC: John Noble