ILLINOIS POLLUTION CONTROL BOARD
    July 12, 2007
    FOX MORAINE, LLC,
    Petitioner,
    v.
    UNITED CITY OF YORKVILLE, CITY
    COUNCIL
    Respondent.
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    PCB 07-146
    (Pollution Control Facility
    Siting Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On June 27, 2007, Fox Moraine, LLC (petitioner) timely filed a petition asking the Board
    to review a May 24, 2007 decision of United City of Yorkville City Council (Yorkville).
    Yorkville’s decision concerns petitioner’s proposed siting of a pollution control facility in
    Yorkville, Kendall County. For the reasons below, the Board accepts petitioner’s petition for
    hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq.
    (2006)), before the
    Illinois Environmental Protection Agency can issue a permit to develop or construct a new or
    expanding pollution control facility, the permit applicant must obtain siting approval for the
    proposed facility from the local government (
    i.e.
    , the county board if in an unincorporated area
    or the governing body of the municipality if in an incorporated area). If the local government
    denies siting or approves siting with conditions, the siting applicant may appeal the local
    government’s decision to the Board.
    See
    415 ILCS 5/39(c), 40.1(a) (2006); 35 Ill. Adm. Code
    107.
    In this case, Yorkville denied petitioner’s application to site a pollution control facility in
    Yorkville. Petitioner appeals on the grounds that Yorkville’s decision was fundamentally unfair
    and the findings on criteria i, ii, iii, v, vi, vii, and ix (
    see
    415 ILCS 5/39.2 (2006)) were against
    the manifest weight of the evidence. Petitioner’s petition meets the content requirements of 35
    Ill. Adm. Code 107.208.
    The Board accepts the petition for hearing. Petitioner has the burden of proof. 415 ILCS
    5/40.1(a) (2006);
    see also
    35 Ill. Adm. Code 105.506. Hearings will be based exclusively on the
    record before Yorkville. Accordingly, though the Board hearing affords petitioner the
    opportunity to challenge the local government’s reasons for its decision, information developed
    after the local government’s decision typically is not admitted at hearing or considered by the
    Board. However, if relevant, evidence may be introduced on (1) the local government’s
    jurisdiction over the siting application and (2) the fundamental fairness of the procedures used by
    the local government in reaching its decision.
    See
    415 ILCS 5/40.1(a) (2006); Land & Lakes v.
    PCB, 319 Ill. App. 3d 41, 48, 743 N.E.2d 188, 194 (3d Dist. 2000).
    2
    Hearings will be scheduled and completed in a timely manner, consistent with the
    decision deadline (
    see
    415 ILCS 5/40.1(a) (2006)), which only petitioner may extend by waiver
    (
    see
    35 Ill. Adm. Code 107.504; 35 Ill. Adm. Code 101.308). If the Board fails to take final
    action by the decision deadline, the petitioner “may deem the site location approved.” 415 ILCS
    5/40.1(a) (2006). Currently, the decision deadline is October 25, 2007 (the 120th day after June
    27, 2007).
    See
    35 Ill. Adm. Code 107.504. The Board meeting immediately before the decision
    deadline is scheduled for October 18, 2007.
    Yorkville must file the entire record of its proceedings within 21 days after the date of
    this order.
    See
    35 Ill. Adm. Code 107.302. The record must comply with the content and
    certification requirements of 35 Ill. Adm. Code 107.304, 107.308. Petitioner must pay to
    Yorkville the cost of preparing and certifying the record.
    See
    415 ILCS 5/39.2(n) (2006); 35 Ill.
    Adm. Code 107.306, 107.502(b).
    IT IS SO ORDERED.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on July 12, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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