RECE~VE~
CLERK’S OFF!~
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD NOV
2 62003
BYRON SANDBERG,
)
STATE OF IWNOIS
)
Pollution Control Board
Petitioner,
)
)
vs.
)
)
CITY OF KANKAKEE, ILLINOIS, THE CITY) Case No. PCB 04-33
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWNAND COUNTRY UTILITIES, INC.,
)
and KANKAKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Petitioner,
)
vs.
)
)
Case No. PCB 04-34
THE CITY OF KANKAKEE, ILLiNOIS CITY)
COUNCIL, TOWN AN) COUNTRY
)
UTILITIES, INC., and KANRAKEE
.
)
REGIONAL LANDFILL, L.L.C.,
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE COUNTY)
STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
. )
)
Case No. PCB 04-35
CITY OF KANKAKEE, ILLINOIS, THE CITY).
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KAINKAXEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
.
)
70385680v1 827167
RESPONSE AND
OBJECTIONS TO ATTORNEY MANNING’S REQUEST
CONCERNING APPEARANCE
NOW COME, Respondents, COUNTY OF KANKAKEE, ILLINOIS and EDWARD D.
SMITH, KANKAKEE COUNTY STATE’S ATTORNEY, and for their Response to Attorney
Manning’s Request Concerning Appearance, state as follows:
1.
Pursuant to this Board’s Procedural Rule 101.112
(35
Il1.Adm. Code 101.112) and
this Board’s recent decision in
People v. Skokie Valley Asphalt, Co., Inc.,
PCB 96-98 (Oct. 16,
2003), this Board must find that Attorney Claire Manning is disqualified from appearing in this
proceeding.
2.
As set forth in Rule 101.112(b):
No former Board Member or Board employee may represent any
other person in any board proceeding in which he or she
participated personally and substantially as a Board Member or
Board employee, unless the Board and, as applicable, all parties or
proponents in the proceeding consent in writing after disclosure of
the participation.
35111. Adm. Code 101.112(b).
3.
For purposes of Rule 101.112(b), “representation includes consulting on legal or
technical matters.” 35 Ill. Adm. Code 101.112(b).
4.
There is no question that Attorney Manning is a former Board Member, as she
admittedly served as Chairman of the Board from 1993 to 2002. (See Request Concerning
Appearance, ¶1).
5.
Additionally, there is no question that Attorney Manning is attempting to
“represent” a party in a board proceeding because she is both attempting to appear as counsel for
Town and Country Utilities, Inc. and is consulting on legal and technical issues in this case
before the Illinois Pollution Control Board. (See Attorney Maiming’s Request Concerning
Appearance, ¶4).
2
70385680v1 827167
6.
Furthermore, it is clear that Attorney Manning has participated personally and
substantially as a Board Member in this proceeding, and is therefore disqualified from acting as
an attorney in this proceeding, because Attorney Manning served as Chairman of the Illinois
Pollution Control Board while cases PCB 03-31, 03-33 and 03-35 were pending before the
Board, and she issued substantive rulings in those cases.
7.
Attorney Manning’s position as a Board member and participation in the decision
of cases PCB 03-31, 03-33 and 03-3
5
should disqualify her from the present proceeding because
the parties involved in PCB 03-31, 03-33 and 03-35 and this case are identical. Furthermore, the
pollution control facility at issue in PCB 03-3 1, 03-33, and 03-35 is identical to the pollution
control facility at issue in this case. Finally, the issues presented in PCB 03-31, 03-33 and 03-35
are identical to the issues presented in this case, namely the fundamental fairness of the
proceeding, the sufficiency of notice and the applicant’s compliance with the statutory criteria set
forth in 415 ILCS
5/39.2(a)(ii)
and (viii).
8.
Attorney Manning contends that her participation in PCB 03-31, 03-33 and 03-35
was not “substantial.” (Request Concerning Appearance, ¶8). However, it is clear based on this
Board’s holding in
People v. Skokie Valley Asphalt Co., Inc.,
PCB 96-98 (Oct. 16, 2003) that
Attorney Manning did personally and substantially participate in those cases because Attorney
Manning served as Chairman ofthe Board during the pendency ofthose cases and even drafted
orders in those cases, including an order denying County of Kankakee and Edward D. Smith’s
Motion for Summary Judgment.
See County ofKankakee v. City of Kankakee,
PCB 03-31, 03-
33, 03-35 (Oct. 3, 2002);
County of Kankakee v. City of Kankakee,
PCB 03-31, 03-33, 03-35
(Nov. 7, 2002) (attached hereto as Exhibits A and B, respectively).
3
70385680v1 827167
9.
While Attorney Manning contends that the neither of these orders was
“substantive” (See Attachment B to Request Concerning Appearance), it is clear that a decision
on a summary judgment motion is clearly substantive and “substantial” because it requires the
Board to examine the factual and legal issues in the case to determine whether the case should
continue.
10.
Tn
Skokie Valley,
this Board was called upon to determine whether a former
attorney assistant of a Board Member Melas was disqualified from representing a party based on
his previous employment with the Board.
11.
This Board found that the attorney assistant, Mr. Sternstein, was disqualified
from representing the party at issue because he had personally and substantially participated in
the case before the Board even though neither he nor Board Member Melas drafted any orders or
opinions in the proceeding at issue.
12.
In that case, Mr. Sternstein submitted an affidavit indicating that he never drafted
any opinions or orders or had any involvement in the proceeding; however, this Board found that
Mr. Sternstein did personally and substantially participate in the proceeding because the record
showed that Board Member Melas had voted on two orders that were made in the proceeding
while Mr. Sternstein was employed by the Board.
13.
This Board concluded that because all Board Members are presumed to make
well-reasoned decision on each case they vote on and are adequately prepared to make such
decisions, the attorney assistants, such as Mr. Sternstein, play an integral role in preparing board
members for such decisions and are, therefore, personally and substantially p~trticipatingin the
proceeding.
4
70385680v1 827167
14.
Consequently, this Board found Mr. Sternstein’s prior Board employment rose to
the level ofpersonal and substantial participation that disqualified him from appearing for the
party in question.
15.
This Board’s decision in
Skokie Valley
makes clear that Attorney Manning’s
participation in PCB 03-31, 03-33 and 03-3
5
was personal and substantial, requiring her to be
disqualified in this case, as Attorney Manning’s involvement in this case was much more direct
than Mr. Sternstein’s involvement in
Skokie Valley.
16.
Unlike Mr. Sternstein, who may have merely advised Board Member Melas on
how to vote on a particular issue, Attorney Manning not only voted on orders in PCB 03-31, 03-
33 and 03-35, but she actually drafted those orders, including at least one substantive order. As
such, it is clear that she was personally and substantially involved in cases PCB 03-3 1, 03-33 and
03-35 and must, therefore, be disqualified from acting as counsel in this case.
17.
Attorney Manning attempts to draw this Board’s attention away from her conflict
of interest in this case by insinuating that some other attorney who has entered an appearance in
this proceeding also has a conflict of interest. She alleges that an attorney is “engaged by the
county” and was “an attorney as~istantat the Board during the late 80’s and early 90’s who,
during her tenure, provided considerable input into the landfill siting decisions that today serve
as the precedent for other landfill siting issues, some of which are relevant to the legal issues in
this very proceeding.” (Request Concerning Appearance, ¶18).
18.
.
Attorney Manning’s statement is totally incorrect because Elizabeth Harvey, the
attorney that Attorney Manning is alluding to in her statements, has not filed an appearance in
the present case and has not been retained by the County to represent its interests. (See Affidavit
ofElizabeth Harvey, attached hereto as Exhibit C). Furthermore, Attorney Harvey’s employment
5
70385680v1 827167
.
by the Board almost nine years ago has absolutely nothing to do with the issues involved in the
present case because, unlike Attorney Manning, Attorney Harvey did not participate in making
any decisions regarding the proceeding at issue or the parties involved in the proceeding at issue.
(See Exhibit C). In fact, Attorney Harvey’s employment with the Board ended many years
before PCB cases 03-31, 03-33 and 03-3
5
were ever filed. (See Exhibit C). Therefore, this
Board should totally disregard Attorney Manning’s attempt to insinuate that anyone other than
she has a conflict ofinterest in this case.
19.
This Board should also disregard Attorney Manning’s attempt to dissuade this
Board from strictly applying the provisions of Procedural Rule 101.112. Attorney Manning
argues that application of Rule 101.112(b) will “unduly restrict” her in “the practice of law.”
(Request Concerning Appearance, ¶18). However, the Rule does no such thing, as it does not
prevent her from practicing as an attorney before the Board, but it only prohibits her from
representing clients in proceedings in which she has previously participated as a Board member.
See 35 Ill.Adm. Code 101.112(b). Such a rule is clearly not unduly restrictive, but is necessary
to avoid the appearance of impropriety and to uphold the integrity ofourjudicial system.
20.
Moreover, it is clear that disqualifying Attorney Manning will have no negative or
prejudicial effect on Town and Country Utilities, Inc., the party Attorney Manning is attempting
to represent in this case, because Town and Country Utilities, Inc. will still be represented by its
able, experienced and knowledgeable counsel, Attorney Mueller, who is more than capable of
representing Town and Country Utilities, Inc. and addressing the issues presented in this
proceeding.
21.
In fact, Attorney Manning’s role in this case appears improper, as she had been
hired to “provide input and advise on two discrete legal issues that are involved in this appeal.”
6
70385680v1 827167
(Request Concerning Appearance, ¶4). It is clearly inappropriate for an attorney to provide
additional evidence and testimony, as Attorney Manning will apparently attempt to offer as
counsel in this matter, because this Board is allowed only to review the testimony and evidence
provided at the County Board hearing on the issues that Attorney Manning attempts to address.
See 415 ILCS
5/41(b).
As such, Attorney Manning’s role in this case, to offer new evidence and
arguments on various issues, is clearly improper and should not be allowed by this Board.
22.
Lastly, and in conclusion, Attorney Manning even expressly concedes that she has
both personally and substantially participated in this proceeding as a Board member (thus
requiring the consent of all parties or proponents in the proceeding after disclosure of the
proposed participation). In this regard, Attorney Manning’s letter of October 23, 2003 to
Attorney Moran (Exhibit B to Attorney Manning’s “Request Concerning Appearance”) is an
admission by conduct in this regard. More specifically, in the last paragraph of this letter,
Attorney Manning states: “Nonetheless, so that the question ofmy participation will not in any
way unnecessarily jeopardize the current Board proceeding, and to avoid the appearance and
impropriety, I will agree to participate only with the written consent of the parties and the
Board”. (Emphasis added). This sentiment was reiterated in a letter of that same date~to the
other participants in this matter (including the County of Kankakee and the Kankakee State’s
Attorney). Accordingly, and again, by these very words, Attorney Manning realizes the very real
and express conflict that her appearance in this matter poses.
. ..
. .
WHEREFORE,
,
Respondents, COUNTY OF KANKAKEE, ILLINOIS and EDWARD
D. SMITH, KANKAKEE COUNTY STATE’S ATTORNEY, respectfully requests that Court
find that Attorney Claire Manning is disqualified from representing Town and Country Utilities,
Inc. in this proceeding before the Illinois Pollution Control Board.
7
70385680v1 827167
Dated:
‘\ k~os
HINSHAW AND
100 Park Avenue
P.O. Box 1389
ROckford, IL 61105-1389
815-490-4900
Respectfully Submitted,
On behalfof the COUNTY OF KANKAKEE,
ILLINOIS, and EDWARD D. SMITH,
KANKAKEE COUNTY STATE’S
ATTORNEY,
This document utilized 100
recycled paper products
By:
CULBERTS ON
Attorneys
7O38568Ov1 827167
ILLINOIS POLLUTION CONTROL BOARD
October 3, 2002
COUNTY OF KANKAKEE and EDWARD D.)
SMITH, STATES ATTORNEY OF
)
KANKAKEE COUNTY,
)
)
Petitioners,
)
)
v.
)
PCB03-31
)
(Third-Party Pollution Control Facility
THE CITY OF KANKAKEE, ILLINOIS,
)
Siting Appeal)
CITY COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
. .
)
BYRON SANDBERG,
)
)
Petitioner,
)
)
v.
)
)
PCB 03-33
THE CITY OF KANKAKEE, ILLINOIS,
)
(Third-Party Pollution Control Facility
CITY COUNCIL, TOWN AND COUNTRY
)
Siting Appeal).
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
.
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
)
Petitioner,
)
)
v.
)
PCB03-35
)
(Third-Party Pollution Control Facility
THE CITY OF KANKAKEE, ILLINOIS,
)
Siting Appeal)
CITY COUNCIL, TOWN AND COUNTRY
)
(Consolidated)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
ORDER OF THE BOARD (by C.A. Manning):
The Board has received three separate petitions requesting the Board to review an
August 19, 2002, decision ofthe City Council ofthe City ofKankakee (City). In its decision, the
City granted the application ofTown & Country Utilities, Inc. and Kankakee Regional Landfill,
L.L.C. (Town & Country) to site a pollution control facility. The proposed facility, a landfill,
consists ofapproximately 400 acres located in Otto Township within the municipal boundaries
ofthe City ofKankakee.
The County ofKankakee and Edward D. Smith, States Attorney ofKankakee County
(the County); Byron Sandberg (Sandberg); and Waste Management ofIllinois, Inc. (Waste
Management), in case numbers PCB 03-31, PCB 03-33, and PCB 03-35 respectively, appeal on
common grounds. All three petitioners argue 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. Eachpetitioner contends, for
cxamnple, that the manifest weight of the evidence does not show that the proposed landfill is
designed, located, andproposed to be operated so as to protect public health, safety, and welfare.
See
415 ILCS 5/39.2(a)(ii) (2000)
as amended byP.A.
92-0574, eff. June 26, 2002.
Additionally, the County argues that the City lacked jurisdiction over Town & Country’s
application.
For the reasons set forth below, the Board accepts all three petitions and consolidates
them for hearing. The Board addresses procedural issues before turning to the petitions.
PROCEDURAL
ISSUES
Concurrent with his petition for review of the City’s decision, Sandberg requested that
the Board waive the filing fee. The Environmental Protection Act (Act) (415 ILCS
5/1 et seq.
(2000)) states that “any person who files a petition to contest a decision of the.
. .
governing
body of the iñunicipality shall pay a filing fee.” 415 ILCS 5/40.1(c) (2000
as amended by
P.A.
92-05
74, eff. June 26, 2002. The Act requires a $75 filing fee to contest a local siting decision.
See
415 ILCS
5/7.5
(2000). The Board cannot waive the mandatory filing fee and consequently
denies Sandberg’s request for waiver.
..
Also, the Board notes that Sandberg is. the only named petitioner in docket PCB 03-33.
Seven other citizens signed Sandberg’s petition; however, those citizens are not parties to this
siting appeal. The remaining signatories may participate in this proceeding through public
comment and any other means prescribed in the Board’s procedural rules.
See
35 Ill. Adm. Code
107.404.
Finally, nothing in Sandberg’s petition indicates that he is an attorney, yet he refers to
himself as the “contact person” for the signatories. Sandberg Petition at 2. To be clear,
because Sandberg is not an attorney, he is allowed to represent on1y himself Under Illinois law,
an individual who is not an attorney, may not represent any other individuals or entities before
the Board.
See
35 Ill. Adm. Code 10 1.400(a);
see also
Sierra Club v. City of Wood River, PCB
9 8-43, slip op. at 2 (Oct. 2, 1997).
.
3
THIRD-PARTY APPEALS
Section 40.1(b) of the Act (415 ILCS
5/40.1(b)
(2000)
as amended by
P.A.
92-0574,
eff
June 26, 2002) allows certain third parties to appeal a local government decision granting
approval to site apollution control facility. Third parties who participated in the local
government’s public hearing and who are so located as to be affected by the proposed facility
may appeal the siting decision to the Board. 415 ILCS
5/40.1(b)
(2000)
as amended by
P.A. 92-
0574, eff. June 26, 2002; 35 Ill. Adm. Code 107.200(b). The petition for review must, among
other things, specify the grounds for appeal and include a copy of the local govermnent’s siting
decision. 35 Ill. Adm. Code 107.208. The third party must file the petition within 35 days after
the local government approves siting. 415 ILCS 5/40.1(b) (2000)
as amended by
P.A. 92-0574,
eff. June 26, 2002; 35 Iii. Adm. Code 107.204. Unless the Board detennines that the third
party’s petition is “duplicative or frivolous,” the Board will hear the petition. 415 ILCS
5/40.1(b) (2000)
as amended
byP.A. 92-0574, eff. June 26, 2002; 35111. Adrn. Code 107.200(b).
All three petitioners state that they appeared and participated in the City’s public hearing.
The petitioners specify the grounds for the appeal and include a copy of the City’s siting
decision. Each petition meets the content requirements of 35 Ill. Adm. Code 107.208. In
addition, the County filed its petition on September 20, 2002, while Sandberg and Waste
Management filed their petitions on September 23, 2002. Therefore, each petitioner filed its
petition within 35 days after the City’s August 19, 2002 decision.
HEARING AND
DECISION DEADLINE
An action before the Board is duplicative if it is “identical or substantially similar to one
brought before the Board or another forum.” 35 Ill. Adm. Code 10 1.202. An action before the
Board is frivolous if it is “a request for relief that the Board does not have the authority to grant”
or “fails to state a cause of action upon which the Board can grant relief.”
Id.
No evidence
before the Board indicates that any of the three actions are duplicative or frivolous. The Board
accepts the third-patty petitions for hearing.
On its own motion, the Board consolidates all three appeals for hearing. Each petition
involves the same burden ofproof and addresses common issues and respondents. Thus, for
reasons of administrative economy, consolidation is appropriate.
See
Sierra Club v. Will County
Bd., PCB 99-136, 99-139, 99-140, 99-141 (consol.), slip op. at 3 (Apr. 15, 1999).
Petitioners have the burden ofproof 415 ILCS 5/40.1(b) (2000)
as amended by
P.A. 92-
0574, eff. June 26, 2002;
see also
35 Ill. Adm. Code 107.506. The record before the City will be
the exclusive basis for all hearings except when considering issues of fundamental fairness or
jurisdiction. 415 ILCS
5/40.1(b)
(2000)
as amended by
P.A. 92-0574, eff. June 26, 2002.
Hearings will be scheduled and completed in a timely manner, consistent with the decision
deadline
(see
415 ILCS 5/40.1(a), (b) (2000)
as amended by
P.A. 92-0574, eff June 26, 2002),
which only Town & Country may extend by waiver (35 Iii. Adm. Code 107.504;
see also
35 Ill.
Adm. Code 101.308). If the Board fails to take final action by the decision deadline, Town &
Country “may deem the site location approved.” 415 ILCS 5/40.1(a) (2000)
as amended by
P.A.
4
92-0574,
eff. June 26, 2003. Currently, the decision deadline is January 18, 2003, for the
County’s petition (the 120th day after September 20, 2002) and January 21, 2003, for Sandberg’s
and Waste Management’s petitions (the 120th day after September 23, 2003).
See
35 Ill. Adm.
Code 107.504. The Board meeting immediately before either decision deadline is currently
scheduled for January 9, 2003.
THE CITY’S
RECORD
The City must file the entire record of its proceedings within 21 days after the date of this
order. The record must comply with the content and certification requirements of 35 Ill. Adm.
Code 107.304, 107.308. Because Sandberg is an individual citizen, he is “exempt from paying
the costs of preparing and certifying the record.” 415 ILCS 5/39.2(n) (2000); 35 Ill. Adm. Code
107.306. However, the County and Waste Management must pay to the City the cost of
preparing and certifying the record. 415 ILCS 5/39.2(n) (2000)
as amended by
P.A. 92-05 74,
eff. June 26, 2002; 35 Ill. Adm. Code 107.306..
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 3, 2002, by a vote of 5-0.
A~
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
.ILLINOIS POLLUTION CONTROL BOARD
November 7, 2002
COUNTY OF KANKAKEE and EDWARD D.)
SMITH, STATES ATTORNEY OF
)
KANKAKEE COUNTY,
)
)
Petitioner,
)
)
v.
)
PCB03-31
)
(Third-Party Pollution Control Facility
THE CITY OF KANKAKEE, ILLINOIS,
)
Siting Appeal)
CITY COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
BRYAN SANDBERG,
.
)
)
Petitioner,
.
)
)
v.
.
).
PCBO3-33
)
(Third-Party Pollution Control Facility
THE CITY OF KANKAKEE, ILLINOIS,
)
Siting Appeal)
CITY COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
.
.
.
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
.
)
)
Petitioner,
.
)
)
v.
.
.
)
PCB 03-35
)
(Third-Party Pollution Control Facility
THE CITY OF KANKAKEE, ILLINOIS,
)
Siting Appeal)
CITY COUNCIL, TOWN AND COUNTRY
)
(Consolidated)
UTILITIES, INC. and KANKAKEE
.
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
ORDER
OF THE BOARD (by C.A.
Manning):
2
On October 23, 2002, the petitioners County ofKankakee and Edward D. Smith, State’s
Attorney ofKankakee County (County) filed a motion for expedited decision on its
accompanying motion for summary judgment and memorandum of law in support ofthe motion
for summaryjudgment. The County argued that the City of Kankakee’s (City) decision to
approve Town and County Utilities, Inc. andKankakee 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 Cit~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 03-3 1 (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 aresponse 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 101.5 12(b). As apractical 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 govermuent. Town & Country has not waived the
~tatutory decision deadline in this case; therefore, the Board is statutorily required to issue a
decision on the County’s petition by January 18, 2003.
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 rneitiorandum of law in support of
motion for summaryjudgment 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 hearingbegan 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 mayraise 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 summaryjudgment only ifthere 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, 181111.
2d 460, 483, 693 N.E.2d 358, 370 (1998); 35 Ill. Adm. Code 101.5 16(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 ofthe 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
‘~perse”
rule indicating that the
approval of apollution 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 ofFairmont 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 ofthe Illinois Pollution Control Board, certify that the Board
adopted the above order on November 7, 2002, by a vote of 6-0.
~L
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
NOU 25 ‘03 15:01 FR SWANSON MARTIN BELL
312 321 0990 TO 18154904901
AFFIDAVIT OF ELIZABETH HARVEY
I, Elizabeth
Harvey,
being first duly
sworn
on oath, depose and staiC as follows:
1.
1
am an attorney
licensed to practice law
in
the Stale of
Illinois.
2.
1
was employed by the ~linoiSPollution Control Board as
an
attorney assistant
from August 1987 to
January
1995.
3.
1 am
currcntly employed,
by the law firm of Swanson, Martin & Befl, One IBM.
Plaza, 330
North Wabash,
Suite 3300, Chicago,
ruinois
60611.
4.
1
have iiot
filed an
appearance
in
Sandberg
~‘.
C’iEy
of
Kankakee.
Illinois,
PCB
04-
33, 04-34. 04-35, now pending before the Illinois Pollution Control Board.
5.
1 have Dot been retained by the County of Kankakee to represent its interests in
PCB cases 04-33, 04-34 or 04-35.
6.
During my employment at the Illinois Pollution
Control
Board, PCB cases 04-33,
04-34 and 04-35 were not pending before the Board nor were th.e predecessor to
those cases, PCB 03-31, 03-3 5, as those cases were filed with the Illinois
Pollution Control Board many years after
my
employment with the Illinois
Pollution Control Board ended.
7.
As an employee
of~the
Illinois Pollution Control Board, I did not participate in
making any decisions ~égarding the precise issues or parties involved in PCB
cases 04-33, 04-34 and
(14-35..
Further
affi
ant sayeth not.
S
orn
to before me this
A
day
ofNovember, 2003
?(i.~8~749~1827L67
**
TOTAL PAGE.02
**
AFFIDAVIT
OF SERVICE
The
undersigned, pursuant
to the provisions of Section 1-109 of the
Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United
States of
America,
certifies that on November 25, 2003, a copy ofthe foregoing was served upon:
DorothyM. Guim,
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
BradleyP. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By faxing and by UPS overnightmail.
~n
HNSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
(815) 490-4900
70377853v1 827167
