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LAWYERS

295 N. FRANKLIN STREET

P. 0. BOX 77

JAMES A. UHL

DECATUR, ILLINOIS 62525-0077

POYNTELLE DOWNING (1915-1 969)

(217) 429-2391

ELBERT S. SMITH (1936-1983)

WILLIAM T. DOWNING, Of Counsel

FAX NO. (217) 429-2394

December 8, 2004

DEC 15 2004

Mr. J. Philip Novak, Chairman

STATEOFILLINOIS

Illinois Pollution Control Board

PoIIut~on

Control Board

James R. Thompson Center

Suite 11—500

Chicago, IL 60601

Re: Log No. 2003-366

Sutter Transfer Station

Sutter v. IEPA

Dear Chairman Novak:

As a lawyer who is interested in the property rights of real

estate owners, the decision of the Illinois Pollution Control Board

on September 16, 2004, in the above captioned case is highly

troubling. I urge you to affirm the IEPA’s position at the

appropriate time (basedupon the IPCB’s review of the two remaining

issues)

The arguments of the Environmental Protection Agency as set

forth in the decision of the IPCB are entirely logical and

reasonable. They greatly outweigh the presentation of the

petitioner, Sutter Sanitation, Inc., in its discussion of the

issues.

The rights of surrounding property owners to a garbage

facility are negated far earlier than the applicable Statutory

provisions require and are sufficient to cease all residential

development within the stated area of 1,000 feet prior to a time

when a State permit is issued to operate the facility. As you are

well aware, such time may consume years of hearings and litigation.

This is certainly unfortunate for the surrounding property owners.

Until the legislature clarifies when the so—called

“establishment” of the facility begins, it is inappropriate in my

judgment for the Board to usurp the IEPA’s decision-making

authority.

---

It is difficult to understand how rights under Section 22.14

of the EPA (415 ILCS 5) may be “established” at a time when not

only is no application pending before IEPA, but

no application has

even been filed.

This type of interpretation defies logic.

Further, I question the propriety of you being involved in the

appeals process in such a case as Sutter when the issue concerns

establishment rights, particularly in view of the fact that you

sponsored legislation in the House (RB 1729) which would define

“establish” in Section 22.14 retroactively to mean the date a

sitting application is filed. This is certainly a case in which, to

avoid the appearance of impropriety, you, especially as Chairman of

IPCB, should recuse yourself from consideration of such matter.

For the above reasons, I strongly urge you to reaffirm the

IEPA’s position on the two remaining denial points.

Very truly yours,

DOWNING & UHL

JAU:kt

cc: Mr. Frank C. Watson

State Senator

51St

Senate District

101 South Main Street

Suite LL2

Decatur, IL 62523

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