1. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      2. NOTICE OF FILING
      3. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      4. ENTRY OF APPEARANCE
      5. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      6. PETITION FOR REVIEW
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CONCERNED CITIZENS OF OGLE
)
COUNTY,
)
)
Petitioner,
)
)
PCB
v.
)
)
(Pollution Control Facility Siting Appeal)
THE CITY OF ROCHELLE, by its City
)
Manager, as Applicant, the CITY COUNCIL)
OF THE CITY OF ROCHELLE, ILLINOIS,)
as the decision making unit of local
)
government, and ROCHELLE WASTE
)
DISPOSAL, L.L.C., as Applicant as defined )
under the Rochelle City Code,
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE THAT
on the 16th day of May, 2007, HASSELBERG,
WILLIAMS, GREBE, SNODGRASS & BIRDSALL, attorneys for Petitioner, CONCERNED
CITIZENS OF OGLE COUNTY, filed a Petition for Review and Entry of Appearance, via
electronic filing as authorized by the Clerk of the Illinois Pollution Control Board.
Respectfully submitted,
CONCERNED CITIZENS OF OGLE
COUNTY
By: __/s/ David L. Wentworth II
David L. Wentworth II
One of Their Attorneys
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams, Suite 360
Peoria, IL 61602
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing, Received, Clerk's Office, May 16, 2007
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STATE OF ILLINOIS
)
)
SS
COUNTY OF PEORIA
)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the Petition for Review and Entry of
Appearance of Petitioner, Concerned Citizens of Ogle County, was served upon the following
persons by enclosing such documents in separate envelopes, addressed as follows, and depositing
said envelopes in a U.S. Postal Service mail box on the 16
th
day of May, 2007, before 5:00 p.m.,
with all fees thereon fully prepaid and addressed as follows:
Mr. Bruce McKinney
Mr. Donald J. Moran
City Clerk
Pedersen & Houpt
420 N. 6
th
Street
161 North Clark Street
Rochelle, IL 61068
Suite 3100
Chicago, IL 60601
Mr. Alan Cooper
City Attorney
Mr. David Tess
233 East Route 38, Suite 202
Tess & Redington
P.O. Box 194
1090 North 7
th
Street
Rochelle, IL 61068
Rochelle, IL 61068
Mr. Glenn Sechen
Mr. Charles F. Helsten
Schain, Burney, Ross & Citron, Ltd.
Hinshaw & Culbertson
Suite 1910
100 Park Avenue
222 North LaSalle Street
Rockford, IL 61101
Chicago, IL 60601-1102
Hon. John J. McCarthy
Hearing Officer
45 East Side Square
Suite 301
Canton, IL 61520
__/s/ David L. Wentworth II
David L. Wentworth II
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams, Suite 360
Peoria, IL 61602
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing, Received, Clerk's Office, May 16, 2007
* * * * * * PCB 2007-116 * * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CONCERNED CITIZENS OF OGLE
)
COUNTY,
)
)
Petitioner,
)
)
PCB
v.
)
)
(Pollution Control Facility Siting Appeal)
THE CITY OF ROCHELLE, by its City
)
Manager, as Applicant, the CITY COUNCIL)
OF THE CITY OF ROCHELLE, ILLINOIS,)
as the decision making unit of local
)
government, and ROCHELLE WASTE
)
DISPOSAL, L.L.C., as Applicant as defined )
under the Rochelle City Code,
)
)
Respondents.
)
ENTRY OF APPEARANCE
TO:
Clerk of the Illinois Pollution Control Board and All Parties of Record
Please enter our appearance as counsel of record in this case for the following:
CONCERNED CITIZENS OF OGLE COUNTY
Dated: May 16, 2007.
Respectfully submitted,
CONCERNED CITIZENS OF OGLE
COUNTY
By: __/s/ David L. Wentworth II
David L. Wentworth II
By: __/s/ Emily R. Vivian
Emily R. Vivian
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams, Suite 360
Peoria, IL 61602
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
Electronic Filing, Received, Clerk's Office, May 16, 2007
* * * * * * PCB 2007-116 * * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CONCERNED CITIZENS OF OGLE
)
COUNTY,
)
)
Petitioner,
)
)
PCB
v.
)
)
(Pollution Control Facility Siting Appeal)
THE CITY OF ROCHELLE, by its City
)
Manager, as Applicant, the CITY COUNCIL)
OF THE CITY OF ROCHELLE, ILLINOIS,)
as the decision making unit of local
)
government, and ROCHELLE WASTE
)
DISPOSAL, L.L.C., as Applicant as defined )
under the Rochelle City Code,
)
)
Respondents.
)
PETITION FOR REVIEW
NOW COMES Concerned Citizens of Ogle County (“CCOC” or “Petitioner”), by and
through its attorneys, David L. Wentworth II and Emily R. Vivian of Hasselberg, Williams,
Grebe, Snodgrass & Birdsall, pursuant to § 40.1(b) of the Environmental Protection Act (the
“Act”) (415 ILCS 4/40.1(b)) and petitions for review of the action of the Rochelle City Council
(the “City Council”) on April 11, 2007, in which it passed a Resolution approving the City of
Rochelle’s (the “City”) Application for Local Siting Approval of a vertical and horizontal
expansion of its existing municipal landfill located in Ogle County, Illinois with special
conditions. In support of its Petition, CCOC respectfully states and submits as follows:
1.
That on October 16, 2006, the City of Rochelle, by its City Manager, as
Applicant, filed an Application with the City Council for site location approval pursuant to §
39.2 of the Act of a pollution control facility (the “Application”), specifically, a vertical and
horizontal expansion of the City’s existing municipal landfill located in Ogle County, Illinois.
Electronic Filing, Received, Clerk's Office, May 16, 2007
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2
2.
That public hearings were held on the Application on January 22, 23, 24, 25 and
26, and February 8, 2007, at which hearings, the Applicant, interested parties, concerned citizens
and members of the public were afforded opportunity to present testimony and evidence, cross
examine witnesses, present motions and arguments and provide oral and written comments.
Specifically, in addition to the Applicant, the Village of Creston, Rochelle Waste Disposal,
L.L.C. (“RWD” or the “Operator”), and CCOC took part in and were represented by counsel at
the public hearings.
3.
Section 40.1(b) of the Act states, in part, as follows:
If the county board or the governing body of the municipality as determined by
paragraph (c) of Section 39 of this Act, grants approval under Section 39.2 of this
Act, a third party other than the applicant who participated in the public hearing
conducted by the county board or governing body of the municipality may, within
35 days after the date on which the local siting authority granted siting approval,
petition the Board for a hearing to contest the approval of the county board or the
governing body of the municipality. Unless the Board determines that such
petition is duplicative or frivolous, or that the petitioner is so located as to not be
affected by the proposed facility, the Board shall hear the petition in accordance
with the terms of subsection (a) of this Section and its procedural rules governing
denial appeals, such hearing to be based exclusively on the record before county
board or the governing body of the municipality. The burden of proof shall be on
the petitioner. The county board or the governing body of the municipality and the
applicant shall be named as co-respondents.
415 ILCS 4/40.1(b).
Electronic Filing, Received, Clerk's Office, May 16, 2007
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3
4.
Pursuant to § 40.1(b) of the Act, a decision of a unit of local government to site or
deny siting of a new pollution control facility is reviewable by the Board. 35 Ill. Adm. Code
107.106 (2007).
5.
Pursuant to § 107.200(b) of Title 35 of the Illinois Administrative Code, “Any
person who has participated in the public hearing conducted by the unit of local government and
is so located as to be affected by the proposed facility may file a petition for review of the
decision to grant siting.” 35 Ill. Adm. Code 107.200(b) (2007).
6.
That Petitioner participated actively as a Party Objector in the local pollution
control facility hearings. CCOC was the only Objector at said proceedings represented by
counsel, CCOC cross-examined witnesses, and CCOC presented affirmative evidence in
opposition to the Application for siting approval.
7.
That Petitioner is a voluntary association of citizens in and compromised from the
community of Rochelle, and they have been adversely affected by the finding of the City
Council.
8.
That on April 11, 2007, the City Council held a special meeting to consider the
Application, and at that time, the City Council passed a motion to approve the Application with
thirty-seven (37) special conditions. Attached hereto and made a part hereof as Exhibit A is a
true and correct copy of the “City of Rochelle Resolution R07-10.”
9.
On April 20, 2007, the Operator filed a Motion for Reconsideration requesting
reconsideration of the special conditions imposed by the City Council. Both the City and CCOC
filed Responses to such Motion.
10.
On May 8, 2007, the City Council held a special meeting to consider the Motion
for Reconsideration. At this meeting, the City Council affirmed thirty-six (36) of the thirty-
Electronic Filing, Received, Clerk's Office, May 16, 2007
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4
seven (37) special conditions and amended one of the special conditions. At the time of filing
this Petition, Petitioner had not yet received the City of Rochelle Resolution adopting this action.
Upon receipt, Petitioner will promptly supplement this Petition with said Resolution.
11.
The proceedings of the City Council, including the public hearings, post-hearing
procedures and the decision-making process were not fundamentally fair for the following
reasons:
A.
Improper and Prejudicial Testimony of Applicant
. Near the end of the
public hearings on February 8, 2007, the Applicant called the City Manager, Ken Alberts
(the “City Manager”), as and for its last witness. The sole purpose of the City Manager’s
testimony was to assure the City Council that any deficiencies in the record of the
Operator would be subject to action by the City Manager by implementing the policies of
the City Council regarding the landfill. The City Manager is the sole employee of the
City Council. As such, the testimony served to dramatically downplay the effect of
having an Operator with a bad record.
B.
The post-hearing proceedings employed by the City Council were not
fundamentally fair. On April 3, 2007, only eight days before the City Council was
scheduled to make its decision on the Application, the City Manager went on radio
station WRHL (1060 AM) and stated, in part, as follows:
“I believe the recommendations that were made to consider as
conditions to the approval by the City Council … uh, there are a
number of them that likely have merit.
There are some that, uh,
maybe we, uh, need to revisit and re-evaluate
.”
Electronic Filing, Received, Clerk's Office, May 16, 2007
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5
These comments were broadcast at least two times. Such comments at least give
the appearance that the City Manager, as Applicant, was attempting to persuade City
Council members, and such comments give the appearance that the City Council
prejudged the decision whether to grant or deny the Applicant.
A disinterested person, who listened to the City Manager’s radio broadcast after
the City Council’s vote, would think that the City Manager actually influenced some of
the City Council members or that other communications were happening between the
Applicant and the decision-makers. The fact that the City Council failed to fully
incorporate all thirty-seven (37) recommended special conditions leads us to believe that
the City Manager, as Applicant, was attempting to, and did in fact, compel the City
Council to loosen the restrictions. Such conduct made the post-hearing proceedings
fundamentally unfair.
C.
Counsel for the Operator had an inherent disqualifying conflict of interest
.
The fundamental unfairness of the proceedings was compounded by the fact that in 2003,
the City Council was represented by the law firm of Hinshaw & Culbertson, LLP.
Charles Helsten, Esq. is a partner in said firm and currently represents the Operator. In
the 2003 proceeding, an attorney/client relationship was formed between the attorneys of
Hinshaw & Culbertson, LLP and the City Council. Under the rules of professional
conduct, when an attorney formerly represented a client in substantially the same or
similar matter in which the attorney now represents a new client, the former client is
required to waive any potential or actual conflict of interest regarding that representation
in the former matter.
Electronic Filing, Received, Clerk's Office, May 16, 2007
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6
The Application did not contain an express reference to waiving this conflict of
interest, nor was there a waiver presented throughout the hearings. Even though the City
is identified as the Applicant, under the Ordinance, the “Applicant” includes the fee
owner of the site, the proposed operator and any other party with an interest. Thus, the
Operator is included as the Applicant.
In the prior case, Mr. Helsten may have recommended findings or given advice to
the City Council, and he certainly represented that party in the prior proceeding. To the
public as a whole, this situation is indicative of, or at least gives the appearance of
prejudgment and implicates fundamental fairness.
D.
The Application submitted was incomplete
. Under § 78-109, 5E of the
Rochelle Ordinance (the “Ordinance”), the Application must be complete with answers
provided for each question on the application form. The form was correctly used except
for Item 1E. Item 1E of the Application required both the Applicant and the proposed
Operator to provide the following information:
(i)
If a partnership, submit names and addresses of all
partners. If a corporation, submit names and addresses of all
Officers and Directors, and the names and addresses of all
shareholders owning ten percent (10%) or more of the capital
stock of said corporation.
(ii)
If a corporation, submit a copy of the Articles of
Incorporation as an exhibit. If the corporation is more than fifty
percent (50%) owned by another corporation, the requirements of
this part shall be applicable to said corporation.
(iii)
Submit audited financial statements of the applicant and
operator for the five (5) preceding years. If new corporation,
provide statements for years available.
In response, the Applicant stated “See Appendix U in Volume VI for applicable
information.” However, Volume VI, Appendix U does not include any financial
Electronic Filing, Received, Clerk's Office, May 16, 2007
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7
statements of the Applicant or the Operator. In fact, the Application did not even
disclose the names of the entities that own the Operator, a limited liability company.
Thus, we do not have the financial statements for anyone who may own ten percent
(10%) or fifty percent (50%) of the Operator. This omission becomes highly relevant in
the context of Criterion ii, which addresses the public health, safety and welfare, and in
consideration of the numerous violations of the Operator. There are apparent guarantees
referenced throughout the Application that substantially relate to whether the health,
safety and welfare are protected and all of that information is severely lacking. A
guarantee is only worth as much as the financial integrity of the guarantor. Consciously
omitting this relevant information dictates that the Application is incomplete and the
decision makers cannot fairly determine whether the criteria have been met without this
information. During the hearings, the Operator submitted audited financial statements for
2001 and 2002, and stated that no other audited financial statements exist for the most
recent years. However, the Application does not specify, “Submit audited financial
statements, if available.” Thus, the Application is incomplete as the Operator failed to
submit audited financial statements for 2003, 2004, 2005 and 2006, and as such, the
proceedings were fundamentally unfair.
E.
The Hearing procedures employed by the City Council were not
fundamentally fair.
F.
The decision making procedures employed by the City Council were not
fundamentally fair.
12.
In addition to or in the alternative to the aforementioned arguments, and without
waiving any of the allegations set forth above, the purported findings of the City Council that the
Electronic Filing, Received, Clerk's Office, May 16, 2007
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8
Applicant had proven siting criteria i, ii, iii and vi were against the manifest weight of the
evidence.
WHEREFORE, Concerned Citizens of Ogle County prays that the City of Rochelle’s
Application for Site Location Approval be denied pursuant to 415 ILCS 5/39.2(e).
Respectfully submitted,
CONCERNED CITIZENS OF OGLE
COUNTY
By: __/s/ David L. Wentworth II
David L. Wentworth II
One of Their Attorneys
By: __/s/ Emily R. Vivian
Emily R. Vivian
One of Their Attorneys
David L. Wentworth II
Emily R. Vivian
Hasselberg, Williams, Grebe,
Snodgrass & Birdsall
124 SW Adams Street, Suite 360
Peoria, IL 61602-1320
Telephone: (309) 637-1400
Facsimile: (309) 637-1500
W:\DLW\Land Use-Zoning\Ogle\IPCB Appeal\
Petition for Review.Revised.doc
Electronic Filing, Received, Clerk's Office, May 16, 2007
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