BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
OCT 1 6 2006
PEORIA DISPOSAL COMPANY,
)
Pollution
STATE OF
Control
ILLINOIS
Board
Petitioner,
)
PCB 06-184
v.
)
(Pollution Control Facility Siting Appeal)
PEORIA COUNTY BOARD,
)
Respondent .
)
MOTION FOR LEAVE TO FILE
REPLY TO RESPONSE TO MOTION FOR
PARTIAL SUMMARY JUDGMENT (Criterion vj
NOW COMES
Petitioner, Peoria Disposal Company, (hereinafter "PDC") by its
attorneys, Brian J
. Meginnes and George Mueller, and as and for its Motion for Leave to
File the attached Reply to the Response to Motion for Partial Summary Judgment and
Memorandum of Facts and Law in Support of Response to Motion for Partial Summary
Judgment (Criterion v), and in support of its Motion for Partial Summary Judgment on
siting criterion v, states as follows:
1 .
PDC filed its Motion for Partial Summary Judgment on the "Fee Condition"
(as defined therein) on approval on Criterion v (415 ILCS 5/39
.2(a)(v)) of PDC's
Application for siting approval on September 8, 2006
.
2 .
On or about October 5, 2006, the Peoria County Board (the "County
Board") filed its Response to PDC's Motion
.
3 .
In its Response, the County Board misrepresented the Record and the law
concerning Criterion v, as more fully set forth in the attached Reply
.
4.
PDC respectfully requests leave to file the attached Reply with the
Pollution Control Board for consideration
.
WHEREFORE, Petitioner, Peoria Disposal Company, prays that this Board grant
PDC leave to file the attached Reply, instanter
.
Respectfully submitted,
PEORIA DISPOSAL COMPANY
George Mueller
GEORGE MUELLER, P.C .
Attorney at Law
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
2
orneys
BY:
BRIAN MEG
One of its
I
Mr. Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P .C.
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
637-6000 - Telephone
637-8514 - Facsimile
(815) 431-1500 - Telephone
(309)
(815) 431-1501 - Facsimile
(309)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
)
Petitioner,
)
v.
)
)
PEORIA COUNTY BOARD,
)
Respondent.
)
PCB 06-184
(Pollution Control Facility Siting Appeal)
REPLY TO RESPONSE TO MOTION FOR
PARTIAL SUMMARY JUDGMENT (Criterion v)
NOW COMES Petitioner, Peoria Disposal Company, (hereinafter "PDC") by its
attorneys, Brian J . Meginnes and George Mueller, and as and for its Reply to the
Response to Motion for Partial Summary Judgment and Memorandum of Facts and Law
in Support of Response to Motion for Partial Summary Judgment (Criterion v) (together,
the "Response"), and in support of its Motion for Partial Summary Judgment on siting
criterion v, states as follows
:
INTRODUCTION
PDC filed its Motion for Partial Summary Judgment on the "Fee Condition" (as
defined therein), which was placed on approval of Criterion v (415 ILCS 5/39
.2(a)(v)) of
PDC's Application for siting approval on September 8, 2006
. 1 On or about October 5,
1
Although no final written decision was made by the Peoria County Board within one hundred
eighty (180) days from the date of the filing of PDC's Application for Siting Approval, as stated in
the Motion for Summary Judgment on Criterion v, PDC acknowledges, for purposes of this
Reply, that the County believes that it may have adopted certain findings of fact and special
conditions with regard to Criterion v
. In ¶10 of its Petition for Review before this Board, PDC
has alleged that the purported finding of the Peoria County Board that PDC has only proven
siting Criterion v if certain special conditions were imposed was against the manifest weight of
the evidence and was not supported by the evidence
. This Reply assumes, arguendo, that the
County's incorrect belief that it imposed conditions on approval of Criterion v is accurate .
2006, the Peoria
County Board (the "County Board") filed its Response to PDC's
Motion .
The County Board does not contest the procedural availability of partial
summary judgment at this point in the appeal process
. However, in its Response, the
County Board misrepresented the Record and the law concerning Criterion v
. For that
reason, PDC submits this Reply to the Pollution Control Board .
ARGUMENT
1 . The
County Board admits that it lacks the power to impose the Fee
Condition .
PDC's primary argument in its Motion for Partial Summary Judgment is that the
County Board simply lacks the power to impose fees during the siting process, except
as expressly permitted by statute
. In support of this argument, PDC quoted and cited
Lake County v. Illinois Pollution Control Bd .,
120 III .App.3d 89, 101 (2 Dist . 1983).
In its Response, the County Board does not contest (1) that the Fee Condition
actually imposes a fee on PDC, or (2) that the County Board lacks the power to impose
such a fee . The County Board does not contest that
Lake County v . Illinois Pollution
Control Bd ., is good and controlling law
. Instead, the County Board seeks to distinguish
the Lake County v. Illinois Pollution Control Bd .
case on the grounds that "it did not deal
with special conditions voluntarily imposed by the applicant
." (Response Memorandum,
pg . 7)
. Respectfully, this distinction is irrelevant
. (Moreover, as discussed below, the
County Board does not dispute that PDC never itself proposed or agreed to a $5
.00 per
ton additional fee) .
Therefore, the County Board has
admitted that under the law, the County Board
lacked the power to impose the Fee Condition .
2
2. PDC
did not waive its argument that the Fee Condition is illegal
.
Given that the County Board
admitted in its Response that, under the law, the
County Board lacked the power to impose the Fee Condition, the County Board's only
remaining legal argument is that PDC somehow waived its right to dispute the
imposition of the Fee Condition on appeal to the Pollution Control Board
. (See
Argument Sections A and B of the Response Memorandum)
.
The only case cited by the County Board in support of its waiver argument is
Fairview Area Citizens Taskforce v
. Illinois Pollution Control Bd
., 198 III.App.3d 541, 555
N .E.2d 1178, 144 III .Dec
. 659 (3 Dist . 1990), appeal denied,
133 111 .2d 554, 561 N .E.2d
689, 149 III .Dec. 319 (1990). In Fairview,
the Illinois Appellate Court found that claims of
bias and conflicts of interest on the part of county board members must be made at the
hearing level, or such claims were waived
: "In order for the question of bias to be
reviewed on appeal, the issue must be raised prior to or during the local hearings
.
(A.R.F.
Landfill, Inc. v. Pollution Control Board
(1988), 174 III .App .3d 82, 123 III
.Dec.
845, 528 N .E.2d 390 .)" Id
. at 545, 1180-81, 661-62 . The Fairview
case says nothing
whatsoever regarding waiver of an objection to a special condition
.
The County Board's assertion that PDC "waived" its right to object to the Fee
Condition by failing to object to same during
the hearing process is fundamentally
flawed, as the Fee Condition was not actually imposed or ordered until the May 3, 2006
meeting .2
An applicant has no obligation in the siting process to object to proposed or
recommended special conditions prior to enactment of same
. The "Fee Condition" did
2See footnote 1, supra.
3
not exist until the May 3, 2006 meeting, 3 and therefore, could not be objected to until
after May 3, 2006 .
Finally, the County Board's theory that PDC "promised" to accept some version
of the Fee Condition is a gross misstatement of the truth . In fact, it is patently obvious
that PDC's representations and statements regarding the perpetual care fund were all
contingent on approval of the Application for siting . The amount of the Fee Condition
($5
.00 per ton) was never suggested or approved by PDC . The figure literally came
from a County Board member's imagination, without justification or explanation of any
kind . (See Memorandum in Support of Motion for Partial Summary Judgment,
Argument §D).
Had the expansion of the landfill been approved pursuant to the
Application, PDC might conceivably have been bound under a quasi-contract theory to
accept some much lower version of the Fee Condition . However, the County Board's
position that the County Board can (purportedly) deny the Application4 and still impose a
fee for a perpetual care fund is an attempt by the County Board to "have its cake and
eat it too
."
The County Board has admitted
that under the law, the County Board lacked the
power to impose the Fee Condition . Having denied the Application, 5 the County Board
cannot claim waiver under any recognized legal or equitable theory in this case .
3 . There
are no material issues of fact reqarding satisfaction of Criterion v .
The County Board failed to cite to a single piece of evidence contradicting PDC's
proof on Criterion v, namely, PDC's proof that PDC's "plan of operations for the facility
is designed to minimize the danger to the surrounding area from fire, spills, or other
3 See footnote 1, supra.
s
4
See
See
footnotefootnote
1,
1, suprasupra
.
.
4
operational accidents." (415 ILCS 5/39 .2(a)(v)) . In fact, the County Board failed to
address its own purported finding of fact on this point : "There was no evidence
presented which demonstrated Applicant's [PDC'sl plans for fires, spills or accidents
were insufficient . . . ." (C13744; emphasis added)
.6
The concerns raised by opponents of
the Application regarding the purported need for a perpetual care fund are not the same
as proof that PDC's plan of operations was insufficient . No such evidence was offered
into the Record, or cited by the County Board in its Response . Such concerns, if they
even rise to the level of evidence which the County Board can properly consider, more
appropriately relate to siting Criterion ii .
4 . There is no relationship between Criterion v and the Fee Condition .
The only permissible inquiry under Criterion v is whether PDC's "plan of
operations for the facility is designed to minimize the danger to the surrounding area
from fire, spills, or other operational accidents ." (415 ILCS 5/39 .2(a)(v)
; emphasis
added).
The post-closure funding demanded by the County Board has nothing
whatsoever to do with operations of the facility . By definition, at the point the post-
closure fund would be implicated, no further operations would be occurring at the
facility.
In addition, the County Board does not even attempt to argue that the actual
calculation of the Fee Condition was not totally arbitrary
. The County Board clearly had
no basis in the Record for the calculation of the Fee Condition, and admitted as much
6
See footnote 1, supra .
The County Board summarizes Criterion v as follows : "PDC was required to demonstrate to
the County Board that it had plans for operating the facility to minimize the danger to surround
[sic] area from fire, spills and other operational accidents
so as to protect the public."
(Response Memorandum, pg
. 13; emphasis added) . The underlined portion of the quotation is
not part of Criterion v, and is a misstatement of the requirements of Criterion v .
5
during the April 6, 2006 Board meeting . (See April 6, 2006 Tr . pg. 36, line 15 - pg. 37,
line 10; C13419, Exhibit A to the Memorandum in Support of Motion for Summary
Judgment) .
There is no reasonable argument to be made that the Fee Condition relates to
Criterion v or that the Fee Condition itself is based on the Record .
CONCLUSION
For all the foregoing reasons, and the reasons recited in the Memorandum of
Law in Support of PDC's Motion for Partial Summary Judgment, the County's decision
to impose the Fee Condition on approval of Criterion v of PDC's application for siting
approval should be overturned .
WHEREFORE, Petitioner, Peoria Disposal Company, prays that this Board issue
a partial Summary Judgment as set forth hereinabove .
Respectfully submitted,
PEORIA DISPOSAL COMPANY
George Mueller
GEORGE MUELLER, P.C.
Attorney at Law
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500- Telephone
(815) 431-1501 - Facsimile
6
Mr. Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P .C.
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(309) 637-6000 - Telephone
(309) 637-8514 -Facsimile
STATE OF ILLINOIS
)
SS
COUNTY OF PEORIA
)
AFFIDAVIT OF SERVICE & FILING
The undersigned being first duly sworn on oath, states that the foregoing
MOTION FOR LEAVE TO FILE REPLY TO THE RESPONSE TO MOTION FOR
PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF FACTS AND LAW IN
SUPPORT OF RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT
(CRITERION V) was served upon the following persons as set forth below on the 12th
day of October, 2006:
Illinois Pollution Control Board
100 W
. Randolph, Suite 11-500
Chicago, Illinois 60601
via U.S. Mail
from Peoria, IL
[ORIGINAL and FOUR (4) Copies]
Mr. David A
. Brown
Black, Black & Brown
101 South Main Street
P.O . Box 381
Morton, Illinois 61550
via U.S. Mail from Peoria, IL
Mr. Kevin Lyons
Peoria County State's Attorney
324 Main Street, Room #111
Peoria, Illinois 61602
via hand delivery
Ms
. Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P .O. Box 19274
Springfield, Illinois 62794-9274
via U.S. Mail from Peoria, IL
Subscribed and sworn to before me this 12th day of October, 2006
.
Notary Public
George Mueller
GEORGE MUELLER, P.C.
Attorney at Law
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500-Telephone
(815) 431-1501-Facsimile
OFFICIAL SEAL
JESSICAM ROCMEY
NOTARY PUBLIC-STATE OF LLUM
MY COMLMBSCN EXPRES
: Sb1341
Mr. Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P .C .
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(309) 637-6000 - Telephone
(309) 637-8514 - Facsimile
