ILLINOIS POLLUTION CONTROL BOARD
LOWE TRANSFER, INC. and MARSHALL
)
LOWE,
)
Petitioners,
vs.
COUNTY BOARD OF MCHENRY COUNTY
ILLINOIS
Respondent.
)
)
)
,)
)
)
CL~~SO~P”r
I\IJG 22 2003
STATE OF ILLINOIS
)
Case No. PCB
°32~ollutjon
Control
Board
)
)
TO:
See Attached
NOTICE OF FILING
PLEASE TAKE NOTICE that on August
,
2003, we mailed for filing with the
Illinois Pollution Control Board, the attached Response
to Co-Petitioners’ Motion Requesting
Site Visit, a copy ofwhich is attached hereto.
zi
,2003
Respectfully Submitted,
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
815/490-4900
On behalfofthe County Board ofMcHenry
County, Illinois
Dated:
By:
70371855v1 830017
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~~C~W~
LOWE TRANSFER,
INC.
and MARSHALL
)
C~~ ~~FFICE
LOWE,
)
AUL~~~ 2003
Petitioners,
))
Pollution
STATE OF
Control
ILLINOIS
Board
vs.
)
CaseNo. PCB 03-221
)
Pollution Control Facility Siting Appeal
COUNTY BOARD OF MCHENRY COUNTY,
)
ILLINOIS
)
)
Respondent.
)
RESPONSE
TO CO-PETITIONERS’ MOTION REQUESTING SITE VISIT
Now Comes the County Board of McHenry County, Illinois by and through undersigned
counsel ofrecord poses this objection to Co-Petitioners’ Motion Requesting Site Visit and, in support
hereof, states as follows:
1.
That on or about the 14th day of August, 2003, the Co-Petitioners herein filed their
Motion requesting a site visit, and in support thereof, cited the provisions of Section 10 1.632 of the
rules and regulations of this Board as support for said Motion.
2.
That this Honorable Board should over rule such Motion Requesting a Site Visit for
the following reasons:
a.
Any such site visit would constitute an improper denovo review of the
decision made by the Respondent herein concerning the statutory criteria, as Section
40.1 of the Act specifically provides that no new or additional evidence in support of
or in opposition to any finding, order, determination or decision of the appropriate
county board shall be heard by this Board, and that such determination on appeal
shall be based exclusively on the record before the county board in the underlying
proceeding. (See generally CDT Landfill Corporation v. City of Joliet, PCB 98-60
(3-5-98).
b.
In addition, upon information and belief, the Respondent asserts that while
the provisions of Section 101.632 pertaining to site visits are designed to allow the
Board (in the appropriate case and under the appropriate circumstances) “to establish
a more comprehensive record”; any such site visit by this Board is not appropriate
(and is expressly prohibited) in a “manifest weight of the evidence” review
proceeding. In addition, the site visit as proposed by the Co-Petitioners herein
affords no opportunity for members of the interested public or other amicus
participants herein to participate, and, as such, would be fundamentally unfair under
Southwest Energy Corp. v. Pollution Control Board,
275
Ill.App. 3d 84, 93-95,
655
NE 2d 304, 310-311 (4th Dist.
1995),
Landfill 33 Ltd. v. Effingham County, PCB 03-
52(2-20-03), and Spill v. City ofMadison, PCB 96-91 (3-21-96).
3.
Moreover, based upon the decision deadline that exists in the present case, and the
scheduling constraints that this Honorable Board in under in issuing its opinion and ruling herein,
Co-Petitioners post Section 40.1 appeal hearing request for site visit is untimely, and any such
request for a site visit should be deemed waived as not having been made in a timely fashion.
4.
In addition, it should be noted that a review ofthe underlying record will demonstrate
that the Co-Petitioners were generally opposed to the concept of site visits of any type, or sort being
conducted in the underlying proceeding.
WHEREFORE, and for all the reasons stated above, the Respondent County Board of
McI-Ienry County, Illinois, respectfully request that this Honorable Board overrule Co-Petitioners’
Motion Requesting a Site Visit, and for such other and further relief as this Honorable Board deems
appropriate.
Dated:
~
2F,~
Respectfully Submitted,
On behalfofthe COUNTY BOARD OF
MCHENRY COUNTY, ILLINOIS
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This Document is Printed on Recycled Paper
aries F. He1p’~
~
~
Attorneys
7~373885v1830017
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code ofCivil
Procedure, here~under ~enalty of perjury under the laws of the United States of America,
certifies that on
~
I
,
2003, a copy ofthe Response to Co-Petitioners’ Motion
Requesting Site Visit s~vedupon:
David McArdle
Zukowski, rogers, Flood & McArdle
50 Virginia Street
Crystal Lake, IL 60014
Dorothy M. Gunn (via Federal Express)
Bradley Halloran (via facsimilie)
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph St., Ste. 11-500
Chicago, IL 60601
Percy L. Agelo
Patricia F. Sharkey
Kevin G. Desharnais
Attorney for Village ofCary
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, IL 60603
By depositing a copy thereof, enclosed in an envelope in the United States Mail at Chicago,
Illinois, proper postage
prepaid, before the hour of 5:00 P.M., addressed as above.
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1369
Rockford, IL 61101
(815)
490-4900
70367018v1 830017