BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Notice of Filing PCB092308
First Amended Petition for Review
1. First Amended Petition for Review
2. Resolution 2007-36

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE,

See Attached Service List

PLEASE TAKE NOTICE that on this 23rd day of September, 2008,

George Mueller, one of the attorneys for Petitioner, Fox Moraine, LLC, filed via

electronic filing of the attached

First Amended Petition For Review

with the Clerk

of the Illinois Pollution Control Board, a copy of which is herewith served upon

you.

Respectfully submitted,

FOX MORAINE, LLC

By:__/s/ George Mueller__________

One of its Attorneys

Electronic Filing - Received, Clerk's Office, September 23, 2008

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

Fox Moraine, LLC v. United City of Yorkville

Illinois Pollution Control Board

James R. Thompson Center

1000 West Randolph Street

Ancel, Glink, Diamond, Bush & Krafthefer

P.C.

140 South Dearborn Street

Rockford, IL 61105-1389

PCB 2007-146

Jeffrey D. Jeep

Jeep & Blazer, LLC

24 North Hillside Avenue

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Anthony Hopp

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Thomas I. Matyas

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

James B. Harvey

Buck, Hutchison & Ruttle

2455 Glenwood Avenue

Joliet, IL 60435

PCB 2007-146

Ms Valerie Burd, Mayor

Michael Roth, Interim City Attorney

Kendall County State’s Attorney

Kendall county Courthouse

Walsh Knippen Knight & Pollick

2150 Manchester Road

Suite 200

Wheaton, IL 60187-2476

Electronic Filing - Received, Clerk's Office, September 23, 2008

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw & Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

CERTIFICATE OF SERVICE

I, Sharon Twardowski, a non-attorney, certify that I served a copy of the

foregoing

Notice of Filing

and

First Amended Petition For Review

to the Hearing

Officer and all Counsel of Record listed on the attached Service list, by sending it

via Electronic Mail on September 23, 2008, before 5:00 p.m.

__/s/ Sharon Twardowski______________

[x]

Under penalties as provides by law pursuant to ILL. REV. STAT.

CHAP. 110-SEC 1-109, I certify that the statements set forth

Herein are true and correct

Electronic Filing - Received, Clerk's Office, September 23, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

(Pollution Control Facility Siting Appeal)

UNITED CITY OF YORKVILLE,

FIRST AMENDED PETITION FOR REVIEW

NOW COMES Fox Moraine, LLC (‘Petitioner”) by its attorneys, Charles F.

Helsten and George Mueller, pursuant to §40.1(a) of the Environmental Protection Act

(“the Act”) (415 ILCS 5/40.1(a)) and petitions for review of the decision of the United

City of Yorkville City Council on May 24, 2007, in which it denied the Application of Fox

Moraine, LLC for Site Location Approval of a new pollution control facility, namely a

municipal solid waste landfill located in Yorkville, Illinois. In support of its Petition, Fox

Moraine, LLC states and alleges as follows:

That on December 1, 2006, Petitioner filed an Application with the United

City of Yorkville for site location approval pursuant to §39.2 of the Act of a new pollution

control facility, namely a solid

waste

landfill located in Yorkville, Illinois (the

“Application”).

That a public hearing was held on the Application commencing on March

7, 2007, during which Petitioner proved that the Application satisfied all nine statutory

siting criteria.

That on May 24, 2007, the United City of Yorkville City Council held a

special meeting to consider the Application, and the City Council at that time passed a

Electronic Filing - Received, Clerk's Office, September 23, 2008

resolution to deny the Application with conditions. A copy of said resolution #2007-36 is

attached hereto as required by 35 IAC 107.208(a).

The Hearing on the Petition for Site Location approval was not conducted

in accordance with the requirements of §39.2 of the Act and the action of the Yorkville

City Council was not taken in accordance with the requirements of §39.2 of the Act.

The proceedings of the Yorkville City Council, including the public hearing,

post-hearing procedures and the decision making process, as well as the action of the

Yorkville City Council taken on May 24, 2007, were not fundamentally fair for the

following reasons:

The Yorkville City Council failed to comply with its local pollution

control facility siting ordinance and said non-compliance rendered the proceedings

fundamentally fair.

The Hearing procedures employed by the Yorkville City Council

were not fundamentally fair.

The post-hearing proceedings employed by the Yorkville City

Council were not fundamentally fair.

The decision making procedures employed by the Yorkville City

Council were not fundamentally fair.

Multiple members of the Yorkville City Council were biased against

Fox Moraine, LLC and prejudged the Application.

Multiple members of the Yorkville City council had disqualifying

conflicts of interest.

Electronic Filing - Received, Clerk's Office, September 23, 2008

The action of the Yorkville City Council was not based upon the

evidence.

The action of the Yorkville City Council was based on matters

outside the record, including ex parte contacts by siting opponents and so called

“independent research” by several council members

The Yorkville City Council disregarded the recommendation for

approval of the Hearing Officer and its own technical staff and adopted findings which

were in direct conflict with the findings of its technical and professional staff.

Objectors to the Application including, but not limited to,

participants Kendall County and Friends of Greater Yorkville engaged in prejudicial ex

parté contacts with the members of the Yorkville City Council.

The Yorkville City Council applied a fundamentally unfair and

incorrect burden of proof

The Mayor of Yorkville, although not voting on the Application,

campaigned for office on the basis of opposing the Application and spear headed a

movement to defeat the Application. Her opposition to the Application was for political

gain and not related to the evidence.

The decision of the City Council was based upon promises made

and political considerations related to the municipal election, which took place while the

public hearings on the Application were in progress.

The public hearing on the Application, the hearing procedures and

the decision making process were otherwise fundamentally unfair.

Electronic Filing - Received, Clerk's Office, September 23, 2008

The finding of the Yorkville City Council that Fox Moraine, LLC had not

proven siting criteria 1, ii, iii, v, vi, viii and ix was against the manifest weight of the

evidence as to each criterion. Additionally, the purported finding by the Yorkville City

Council that numerous conditions should be imposed if siting is achieved by reversal or

remand from the IPCB was not supported by the evidence, and is contrary to law.

The Yorkville City Council made findings which are inconsistent with

denial of the application.

On May 24, 2007, the Yorkville City Council passed a Resolution which

stated in pertinent part that its action was based upon “the reasons stated at the Special

Meetings of the Yorkville City Council held on May 23 and May 24, 2007.”

Attached to the Resolution was a transcript of the proceedings of May 23

and May 24, 2007. Those proceedings are in the nature of public deliberations where

individual council members expressing opinions about the evidence. Theses opinions

varied from council member to council member. No single opinion or group of opinions

was ever adopted as a Finding of the Council, and in fact no vote was ever taken to

adopt any particular opinion. Accordingly, there are no “reasons”, within the meaning of

that term as used in 415 ILCS 5/39.2(e) which were ever adopted. Additionally, the

reference in the city resolution to “reasons” is entirely illusory.

10.

The aforesaid resolution also states affirmatively that the City Council

reviewed a report from counsel for the city staff and the hearing officer’s report and

recommendations when the record affirmatively demonstrates that these documents

were not reviewed by a number of city council members.

Electronic Filing - Received, Clerk's Office, September 23, 2008

11.

The Resolution submitted as the alleged decision of the City Council does

not reflect the actual intent of council members and is not their decision.

WHEREFORE, Fox Moraine, LLC prays that the action of the Yorkville City

Council denying Fox Moraine, LLC’s Application for Site Location Approval be reversed

or, alternatively, that he same be remanded with instructions to correct fundamental

fairness errors including, but not limited to, removal of those Yorkville City Council

members who had conflicts of interest, were biased or otherwise prejudged the

Application from further consideration of the matter.

Respectfully submitted,

FOX MORAINE, LLC

BY:__/s/George Mueller______

GEORGE MUELLER

One of Its attorneys

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw & Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

Electronic Filing - Received, Clerk's Office, September 23, 2008