BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner.
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE OTICE that on October 7, 2008. Leo P. Dombrowski, one of
the attorneys for Respondent, United City of Yorkville, filed via electronic filing the
attached United City of Yorkville's Reply in Support of Its Motion in Limine
II
t.
with the Clerk
of the
Illinois Pollution Control Board, a copy
of which
is herewith served
upon you.
Respectfully submitted.
UNITED CITY OF YORKVILLE
By:
lsi
Leo
P.
Dombrowski
One of their Attorneys
Anthony G. Hopp
Thomas
I.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone:
(3 12) 201-2000
Fax: (312) 201-2555
hnpp
a
wllJllldll.COlll
Illal
~
,15 1/ \\ iIJIll.nu.:111ll
dtllllhr\)\A'iki
II \\iIJllldll,\.'tUll
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
Petitioner,
Respondent.
v.
UNITED CITY OF
COUNCIL
)
)
)
)
)
)
YORKVILLE. CITY )
)
)
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
YORKVILLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE # I
Fox Moraine claims Yorkville would have the Board establish "a bright line test whereby
failure to move for disqualification
of a local decision maker is deemed a conclusive waiver"' of
bias "even
if
knowledge of such bias did not exist at the time of the local public hearing."
(Resp., 6.) Fox Moraine erects this straw man because
it knows that it waived issues of bias
and prejudgment as to every Council Member other than Surd and Spears and
it now seeks to do
anything
it can to avoid the consequences of its inaction.
I.
FOX MORAINE BELIEVED DURING THE LANDFILL SITING
HEARINGS
THAT THE CITY COUNCIL MEMBERS WERE BIASED
AND HAD
PREJUDGED ITS SITING APPLICATION.
As Yorkville noted in its motion in limine, it is well-settled that a pany waives its ability
to chaJlenge issues related to bias
or prejudgment by failing to raise them at the earliest
opportunity.
Peoria Disposal
Co.
v. Peoria County Bd..
PCB No. 06-184, 2007 III. ENV LEXIS
250, m.S8 (June 21, 2007). lrthe party learns of an issue related to bias during the hearings on
a siting application, the party must raise the issue during those hearings or waive it.
Id.
at .60
(noting that petitioner waived issue of potential bias from a statement ..quoted in a local
newspaper.'by failing to raise
it during initial hearing on siting application). The Supreme Court
has held that it would be unfair to allow a party to sit on its belief of bias without asserting it at
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
the earliest opportunity: 'To allow a party to first seek a ruling in a maHer and, upon obtaining
an unfavorable one, permit him to assert a claim of bias would be improper."
E
&
E Hauling,
Inc.
v.
Pollulion Conlrol Rd.,
107 III. 2d 33, 38-39 (1985).
Fox Moraine now argues that
it did not know in April or May 2007 that some Yorkville
City Council members might
be biased or prejudiced against granting its landfill siting
application. But its claims are belied
by its principal's admissions in his recent deposition. Don
Hamman, one
of the owners of Fox Moraine, testified that he saw on April 15, 2007 an Aurora
BeaconNews article
of the same date in which Walter Werderich, Arden Plocher, and Robyn
Sutcliff were quoted regarding the landfill issue. (Hamman Dep. 12:18-13:17, attached
as Exh.
A). Upon reading the article on April 15,2007. Hamman believed that Werderich, Plocher and
Sutcliff were biased against the landfill. He also believed they were biased because he allegedly
saw them wearing anti-landfill buttons or posting anti-landfill signs
at various times during the
landfill siting hearings. (Exh. A at 15:9-16:
1; 16:22-17: 19; 17:24-19:9). Moreover, Hamman
further testified that as
of April 17,2007, he had seen "numerous" articles that he felt established
that Council Members were biased against the landfill. (Exh. A
at 19:18-20:11).
In its Response, Fox Moraine downplays the role of Jim Burnham, one of the main
members
of Hamman's and Fox Moraine's landfill team. Burnham acted as Fox Moraine's
spokesperson on landfill issues during the hearings, helped prepare Fox Moraine's landfill siting
application. engaged expert witnesses
for the application and hearings, met with attorneys, and
attended the hearings. (Burnham Dep. 12:7-15:4, 16:13-17:15, attached as Exh.
B). As shown
in York--yille's Motion, Burnham, and therefore Fox Moraine, believed at the time of the landfill
hearings that every Council Member who ended up voting against the application was biased
against
Fox Moraine. (Motion,
~~
8-9).
See, e.g., Lease Resolution Corp. v. Lamey,
308 III.
-2-
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
App. 3d 80, 86 (1
st
Dist. 1999) (noting that unless an agent's interests are adverse to the
principal's, his knowledge
is imputed to the principal).
II.
FOX
MORAINE HAD A "MEANINGFUL OPPORTUNITY" TO MOVE
TO DISQUALIFY ANY COUNCIL MEMBERS IT FELT WERE BIASED
BEFORE THE MAY 2007 VOTE.
Fox Moraine disingenuously suggests that
it did not have a "meaningful opportunity"' to
move to disqualify the Council members it felt were biased. Without citing to any authority, it
suggests that it needed some minimum amount of time to move to disqualify the Council
members. But Fox Moraine moved at the beginning
of the hearing to disqualify then-Council
Member Valerie Surd and Council Member Rose Spears, without arguing that
it needed more
time to compose the motion. Fox Moraine knew both how to
v.Tite and file such a motion but
also knew
of all the infonnation it would need to put in the motion days before the close of the
April 2007 hearings.
As noted above, Hamman believed as
of April 15,2007, that Werderich, Plocher, and
SutclilTwere biased and had prejudged the application. These three candidates were elected two
days later on April 17, 2007, and Fox Moraine knew that they would be voting on the
application. As Hamman agrees, Fox Moraine could have moved to disqualify those Council
members before the landfill hearings closed on April 20, 2007, and
it also could have filed a
motion during the post-hearing comment period, which ran until May 21, 2007. (Exh. A at 66:5-
24).1 Fox Moraine knew that the City Council would be ruling on its motion to disqualify Surd
and Spears
at the public meetings to discuss the application, which were held on May 23 and
May 24, 2007. (May 23, 2007 Tr.
of City Council Meeting, 8:3-11; 13:5-14:2, attached as Exh.
I
Moreon:r. Fox Mornine knew at the time it filed its landfill siting application that several Council members were
up for reelection in April 2007. (Exh. A al 7:24.10:15. Moose Dep. 31:1-9. anached as Exhibit C). Fox Moraine
could have filed its application either earlier or laler than the December 2006. (Exh. A. at 7:24.10:I
5).
By choosing
to file
before the election, any heated concern by the public with the landfill during the election resulted entirely
from Fox Moraine's choice 10 file just before thai election.
-3-
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
D}. Fox Moraine does not explain, because it cannot explain, why it could not have moved to
disqualify additional Council Members.
III.
CONCLUSION.
The Hearing Officer should grant Yorkville's
mOl ion
in limine to exclude any and all
arguments. statements. questions, testimony. or evidence of any kind from any party that refer to,
directly or indirectly, the alleged bias, predisposition
or unfairness of any City Council Member
other
than Mayor Surd or Member Spears.
Respectfully submined,
U ITED CITY OF YORKVILLE, CITY
COUNCIL
By:
--:/':'s/'---"L"'e~o-'Pc..
",D",owm!!b"ro"-w"""sk,,i
One of Its Attorneys
Dated: October 7, 2008
Anthony
G. Hopp
Thomas
I.
Matyas
Leo
P. Dombrowski
WILDMAN. HARROLD. ALLE & DIXON LLP
225 West Wacker Drive
Chicago, Illinois 60606
Telephone:
(312) 201-2000
Facsimile:
(312) 201-2555
hopp@wildrnan.com
matyas@wildman.com
dombrowski@wildman.com
-4-
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
EXHIBIT A
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
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EXHIBITS
NUMBER
MARKED FOR 10
Yorkvl11e Deposlhon EKhlbf!
No.1-2
P.5
(Retained by Mr Dombrowski,)
p•
P 42
EXAMINATION
IN DEX
WITNESS
DON
HAMMAN
By
Mr Dombrowski
By
Mr. Blazer
1
2
3
4
5
•
7
8
9
•
1
2
3
4
5
6
7
6
9
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,
APPEARANCES
,
,
MUELLER ANDERSON, P C ..
by
,
J
MR. GEORGE MUEllER
J
,
•
Ottawa,110Jis61350
609 EIN Road
,
•
•
7
(815)Representing431-1500
the
PetlllOner;
•
7
•
8
9
WILDMAN HARROLD ALLEN & DIXON, LLP,
by
9
"
MR LEO P DOMBROWSKI
"
"
225 Wesl Wacker Drive
"
"
Chicago.
lPinois 60606
"
"
(312)201-2562
..
Reptesentlng
the
Respondent;
..
"
"
18
JEEP & BlAZER,
by
"
18
>7
MR. MICHAEL S. BlAZER
>7
18
24 North Hiltside Avenue
"
"
Sullo A
,.
HillSIde,Illinois60162
,.
"
"
Represeotlng the Kendall
Cowtty
22
AlSO PRESENT'
~
"
2J
Mr
Char1es J
Mt.phy, Fox Valley
2J
•
ConstJting SeMces. Inc.
2
"
(W.ln8$$ duly sworn)
MR. DOMBROWSKI
Mr
HarT'll'Oan.my name.s leo
Dombrowski
I repreHt'lt
the
etyof YorkVIlle in
this
~
appeal rm gooog to be aslung you
some questions today You ooderstand
that _
have
• court reponer here to record everythang thai you
a~
I
say?
THE WITNESS I do
MR. DOMBROWSKI And that II you'd lel me
finish my question belore you start your answer.
and
I
won't step on your
answer.
so
lhat
we
get
a
dear record AM
nght'
THE WITNESS Oby
OON HAMMAN•
called as a IM!neSS
tletetn,
I\aVlt'lg been first duly
sworn, was eJ<amu'\Iild and testified as
fo/Iows
EXAMINATION
BY MR
DOMBROWSKI
a
Are you on any dl'1Jgs or medications or
anytrung that you think might interfere IMth)'OUr
ability
10
answer my questiors today?
A No
Q.
let me
show
you
Yotlal
we
have
mlIl'lIed as
YoronRe OepoiSl\JOn EI<hIbd No 6.
4
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
In December With
elecllons
fow monlhs or
SO
in
the
2
offing?
3
A I howe
no
idea v.tJy I have a managing
4
partner gmup Ihat chose to
go
forward
I
don'l
5
micromanage my projects.
6
a
BUI
you
"""'1'9
undef- no deadline or
7
anyuung. I
~nd,
thai made you file it
by
8
December 1st, W, correct?
9
A Whal
do
you mean a deadhne?
10
a
Any legal deadline?
11
A NOllo my knov.4edge.
12
a
So you could have filed the application
13
before December 2006; correct?
14
A. I'm flO( aware of the eoVlroomenlallaws
15
a
I'm saYIng,
apart
from any
erMfOl'Vllefllal
16
laws,
you could
have lied
the
applicalJon With
the
17
City belore December of - before December of
2006,
18
COlTel;.t?
19
A
I'm
nol
sure
o
a
Whal would have prevented you from filing
1
it any earlier, if anythIng?
22
A.
0001 know
3
a
So
as you SIl. here,
noItW\g that
you know
4
01 thaI 0I0Uld
have prevented Fox MoraD:!,
llC
from
9
1
filing its landfill application earlier than
2
December of 2006: 1;()I'T'eGt?
3
A Repeat
the
questioo
4
MR DOMBROWSKI Read
that
back if
you "'OUld.
5
please
6
(Record
read
as requested )
7
MR MUELLER If you know
8
THE WITNESS I don't know
9
l3Y MR DOMBROWSKI:
10
a
Nothing
that
you knowef, COITect?
11
A. Not that I know
12
a
Anythong
that YoOUld
have prevented Fox
13
Moraloe,llC
from fiting
the
applicabon later-
than
14
December
2006?
15
A
~ogthatlk~el
t6
a, Old you assist In preparing Fox Moraine's
17
Interrogatory answers?
18
A No,I did not
19
a Did
you assist In
preparing
Fox Moraine's
Izo
responses to
the
document requests?
1
A
No,fdidnot
~
a
Were
they
ever shl:Mn to you?
3
A. No
4
a
You've never reaclthem?
10
1
A.
1have neVel" read !he<n.
2
I have complete fa'!h
10
my managemeot
3
team
<l
Q.
Are
you aware, Mr, Hamman, that part of
5
this landfill appeal - strike thaI.
6
In !his landfill appeal, you're aware thai
7
Fox Moraine is daiming !hat the
City
Council was
8
blased agaInst
'l You
understand that?
g
A. Repeat Ihe quesbon again.
10
MR, DOMBROWSKI: Read that back, please,
1
(Record read as requested,)
12
THE WITNESS: Yes,l do.
13
BY MR. DOMBROWSKI:
14
a.
And
who
on the
City
CounCil are you
15
dalmlflg was blased against Fox Moraine?
16
A.
Valerie BUrd,
Rose
Spea~.
17
a. Anyone else?
18
A.
No,
19
a, You're nOI daimlng that Mr. Werderich was
o
biased?
1
MR. MUELLER: IVe you asking for his personal
2
knowledge or personal dalms? Because, in that
3
case, they're llTelevaot.
4
MR. DOMBROWSKI: I'm asklOg h'm as a
11
1
representallve of Fox Moraine
2
MR MUEllER: He's already testified that as a
3
representatIve of Fox Moraine
he
doesn't
4
mocromanage
and
defegates
those
calls
10
his
5
managemerd
learn You're welcome
to
ask
twn aboul
6
his pef'S(lnal knowledge or beliefs
7
THE WITNESS
Could I
ask a quesbOn?
8
MA. DOMBROWSKI Sure
g
MR MUELLER. Sure.
10
THE WITNESS: When you said Wally Werderich.
11
are you talklllQ aboutlhe newly board or
the
old
12
board?
13
BY,.1R DOMBRQlNSKI
14
a
rm talking about
the eight
aldermen
who
15
voled on
the
applicabon in May 2007
16
A. Well, In that case, Mr Wally Werderich,
17
he was biased as well.
18
a
AIInghl Let me
show
you
what
we've
19
rnar1Ied
as
[)eposibon ExhtbIl No.7, which is Fox
20
Moratne's
second amended
petJllOfI
fOf" fevMlW, and
21
allacheclto that
IS the
City's
lesolubon
denying
22
the
1ar1clfi1 appkabon whlch has a list of
the
23
aldermen
who
voled
00 't'QU
see
that
there?
24
A.
Yes
12
3 (Pages 9 to 12)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
0
All nghL
So
you've menboned three of
1
Po.
Burd is not on here
2
the rune people?
2
0
Well,
she SIgned It?
3
Po.
Wei, in
looking
at this. It refreshes my
3
Po. Well, but you
pointed
10 thIS
She's not
4
S
memory.
Plocher. as
Robyn
I recall
Sutcl'ff.
there was
Wally
a
Werdericil.
news artlde
Joe
two
S
4
""'.
0
II
J
mlsspol(e or if 1dldn't mentIOn
it,
I
6
Of three days pnor
to
thelr - the election, and
6
misspoke.
I
meant to say the
eight
aldermen plus
7
both
01 them based the landfill as part of their
7
the mayor.
8
election platform, they were against it I believe
8
Po.
Okay. It would
be
the mayor as well.
9
it was In the Aurora Beacon News, III recall
9
0
All right. When did you first think that
10
correctly.
10
Mr. Werderlch was biased against FOl( Moraine?
11
O.
And you saw thai article when it appeared
11
A.
In seeIng him around lown, at functions,
2
lhe $undCly before the elections?
12
he had the no-landfill buttOflS on him
3
A.
We gel the Beacon News delivered daily.
13
0
And when did you see him weanng
14
y'"
14
no-landfill
bot1ons?
S
0
Okay_
So
you would have read thaI article
15
Po.
At the meellngs that I attended, the
6
lhatday?
6
heanngs I attended some of the hearings at the
7
Po.
Oh, most defimtely.
17
,
0 Did
you tell anyooe on )'QUr management
,
......
0
-
Now, wereHe
hadthesethethe
buttonsannexationon.
hearings
19
leam or landfilileam what you thought 01 the
9
)'QU're talking about?
0
article?
0
A.
No. No-landfill.
1
A
I would have probably called, but I don't
1
O. So
these were the landfill heanngs that
2
recall I! I did or not Every lime there was a
2
look place in March and April 01
20071
3
news article In either the Aurora Beacon News, I
3
A.
y"
4
would cal( Charles Murphy or Jim Burnham and lell
4
0
Something else thai Indicated to you
13
15
1
them about these ar1ldes I don't recaH if I did
1
Mr Werderich was blased agaIflSI Fox Moraone?
2
on lhal particular one, because they
don't
get the
2
A
Thal's
It
3
subscnpbon, the daily one, lIke t
do.
3
0 So whetl
you
saw him weanng
these buttons
4
0
You recal caUiog 8I1her Mr Murphy or
4
In
March and
A4lril
d
2007, I assume you shared
S
Burnham about this April 15th artide?
5
that WIth
yow
lanc:tfilileam?
6
Po.
I would have alerted them
to
it.
•
Po.
No Everybody could see it I didn't
,
7
0
A
Take
And
what
a lookwould
al this,youwhal
have
theirtoldplatformthem?
8
7
shareO. ItWell,
WIth
did
anybodyyou
point out 10 Mr Murphy or
9
is. It was anll-Iandfill.
9
Mr. Burnham or anyone else \hal Mr, Werderich was
10
0
And you say that you also called them
10
wearing these buttons?
1
regarding other articles thal- in which you
II
Po.
I did not
2
thought indlcaled some bias by the City againSI Fox
12
0
But
you say you, yourself,
certatnIy
were
3
Moraine?
13
01
the
bebef IrI March
and
April 012007 that
4
Po.
y"
14
" Werdeoctl
was biased agam:l the
landfdl,
S
0
Can)OW recall how many other articles
15
correct?
16
lhere would have been?
16
Po.
Repe.;l1
the quesUon_
,
7
editor,
Po.
There
at cetet'"a.wouldyou
have
know,
been
by lhe
lettersvarious
to the
people,
City
1817
...
MR
~
DClMBROWSKI Read lhall»l;j(, If you
would
9
urn-hum
19
(Record read as requested )
0
0
Anyone else on that lis! who you claim was
20
THE WITNESS Yes.
1
biased against the City?
21
BY MR DOMBROWSKI:
2
A
Just those four,
22
O.
How about Robyn Sutcliff,
vmy
do you
say
3
0
Okay. Well, you mentioned five, Burd,
23
she was biased against
the
landfill?
4
Spears. Werderich, SUlcllff, and Plocher?
24
Po.
She was weanng
the
billions as well
14
16
4 (Pages 13 to 16)
McCORKLE COURT REPORTERS. INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
,
Q.
Was ttws one bulton. was it different
1
A.
I don't know
that
lor a
raa. but
if he
2
buttons?
2
dkln't wanl them there. yoIid
tel'lalnly
lake them
3
A.
No. They all had
the
same
logo.
3
daMl.
you
'MXIIdnl condone them belng
there
4
Q.
And what
was - what was on
the
button?
4
Q
So you
don't know...oo
put
up
those
s;gns?
5
A.
II was a oM\Ile bulton with a orda,
5
A.
I
do ....
,
~andfill,
With a slash across it.
,
Q
Anything
else that $UppOft$
'fOUl belief,
7
Q.
And when
did you see
Robyn
Sutcliff
7
other
than the buttons and SIQ/1$. that
Mr Plocher
8
wearing lhese buttons?
,
was biased
aga.nst the
landfia'
9
A.
At these landfin hearings.
9
I.
Q.
In March and April of 20071
10
Q
A
No
And.
again, !his was your
belief
in March
1
A.
If thaI's
the
correct bme
when
they
were
11
and April of 2007
that
Mr PIochef was
biased,
12
golflg
on. yes.
12
"'""",
13
Q
Did you point thai out to anyone on your
13
A
Yes.
14
landfilileam?
14
Q
Did
your landfill learn have a or subscribe
15
A.
I did
not.
15
to a clipping service oMlere they received artldes
16
Q.
Bul. again,
it
was your opinion at
that
16
regarding the landfill?
17
time thai she was biased against the landfill;
17
A
I don't have any Idea
9
correct?
18
Q
So
by the time the yale was laken in
the
"
A. YM.
19
Yorl<.ville eleclJons on April 17th, how many
•
Q .
How about Mr, - anything else
thai
1>0
articles
do
you lhink you
woold
have - how many
1
supports your belief Robyn Sutditr was biased
21
articles
do
you thonk you
had
seen that indICated
2
against the landfill?
2
someone on
the
City Counol or someone rurvung for
3
A.
No.
3
office v.as biased against
the
landfill?
4
Q.
How
about Mr. Plocher. 'Nhat
supportS
Y'Ot'
4
A.
Num~,
17
19
1
belief that
he
was biased agarnst
the
landfill?
1
Q
Meaning 15
10
2O?
2
A He
had the
buttons on as welt, and
he had
2
A.
Numerous.
3
the
no-Iandfitl s'9ns in fronl of his residence.
3
Q
More than 20?
4
Q.
Let's lake
the
buttons first When did
4
A.
Numerous
5
you see him weanng the buttons?
5
Q
Give me an estimate
6
A At the landfill hearings.
,
MR MUELLER: He's told us numerous, If
he
7
Q.
And
you say he had anti-landfill s'9ns in
7
didn't put a number on it, lhen he's not gOing to
6
front of his residence?
6
put a number on it
9
A.
ThaI's correct.
9
BY MR, DOMBROWSKI:
•
Q.
What did these signs
say?
•
Q .
Can you put a number on it?
1
A.
No landfill,
1
A.
No, I cannot.
2
Q.
How
did you come to see these signs?
2
Q
Can you give me a range?
3
A
Couldn't miss it, It's on the comer of
3
A.
Numerous.
4
Route 47 and Main
Street
4
Q
So
it could have been a hundred; correct?
,
5
Q.
A Because
How did you
it was
know
wherethat
he
was
daimedhis
residence?
to
lIVe.
,
5
Q
A.
If
No.youI'm
saynot
so.saying
so. fm asking you a
7
Q.
How did you
know
that
he
claimed to live
7
quesbon.
8
there?
8
MR. MUEllER He's
told
you
he
can't
put
a
9
A.
Maner of public kflOYlledge. His parents
9
number 0011.. let's move 00_
20
lived there.
!Io
BY MR. DOMBROWSKI-
1
Q.
So he
was living with his parents?
1
Q
He
can
pot
a number on It
22
A Yes.
22
Could it have been mof'e than a hundred
3
Q.
How do
you know they were
his
signs and
3
articles?
4
not someone else's S'9ns?
4
A.
No.
18
20
5 (Pages 17 to 20)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
EXHIBITB
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
EXHIBITS
NUMBER
MARKED FOR 10
YorkVille DepoSitIOn
Exhlbll
No 5
P 5
(Retained by Mr Dombrowski)
BEFORE mE
ILLINOIS POLLUTION CONrROlBOARD
rO/l; MORAINE
,-
ltC.
)
I
VI
I No
PCB 07 1"6
UNITEO CITY
Of
YOAKVIll£. CITY )
COUNCll.
,he
"-
~
<MpotIIlCn)
I
OIl JAMES0 BURNHMI
........ IIW __calM, __ .EHNIFER
CAMPBEll • flOW)' ...- III
~
ea.nv
1IIrIooI.... 1he 1211I
~
<II
~_
200lI ..
2
_.
tOpm
P<6...-oI
.. aooGamef
IeI __
.... _
ycrt_
1
2
,
3
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
20
1
2
,
3
1
1N OEX
WITNESS
JAMES D BURNHAM
By
Mr DombrowskI
EXAMINATION
P4
3
1
2
3
4
5
,
7
5
9
10
J1
12
13
14
15
"
17
18
19
o
I
2
3
APPEARANCES
MUELLER ANDERSON,
PC.. by
MR. GEORGE MUELLER
609 Elna Road
Ol1awa,lIhnOIS 61350
(815) 431.1500
RepresenUng lhe Petitioner,
WILDMAN HARROLD ALLEN
& DIXON,llP. by
MR. lEO P DOMBROWSKI
225 West Wacker Drive
ChICago. IllinOIS 60606
(312) 201-2562
Representing
the
Respondent
1
(Witness duly sworn )
2
MR DOMBROWSKI lellhe record reflect thai
3
(hIS IS the depoSlllOn of JIm Burnham taken
4
pursuanl '0 notice and agreement
5
JAMES 0 BURNHAM,
6
called as a WItness herein, haVing been first duly
7
sworn. was examined and leslified as follows
8
EXAMINATION
9
BY MR DOMBROWSKI
10
Q
Would you Slale your full name for the
11
record, please, Sir
12
A James 0 Burnham
13
MR
DOMBROWSKI Mr Burnham, I inlroduced
14
myself eartier
10
you My name ,s leo Dombrowski
15
I'm an attorney
lor
the e,lr olYor1\vllle In thlS
16
appeat l'Il be asking you some questIOns today
17
You understand lhal there's a COUI1
18
reporter- here
10
record everv1hw'Ig, and that
we
19
shouldn'llalk over each other, 's Ihal aM righl?
Iw
THE WITNESS I do Yes
1
MR DOMBROWSKI
And
what WIll you do If you
2
don't
undersland a quesllOO Of are COIlfused
by
It?
J
THE WITNESS say as
such
44
24
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS, INC
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
commenls that
wefC
made during those meetlngs by
2
some
ollhe people Ihal were mlhe pub!IC-eommeot
3
portIOn of those meetlngs
4
BY MR DOMBROWSKI
5
Q
DIll you ask someone for copieS of these
6
transcripts
or
were they grverl
10
you?
7
A I
asked George
lor the
transmpt for
8
the - the
final vote by Yor1\VlIIe And
the
other
9
1wO. one
I
fot.nd
Ifl some lI1voices for
the protect
o
one
of
them
I found III
the
lI1VO!CeS for
the
11
protect.
and
the
other
one
I think It was forwarded
12
10
me by George. although
I
didn't request rt
13
a
Have you talked to anyone 111 preparalJon
14
fl)l" your deposillon today?
15
A I spoke with George. and that's it
16
Q
No OTle else other lhan Mr Mueller?
17
A
Nolin preparallon lor this
I
know thaI
18
Charlie Murphy was deposed, but thaI's all that -
19
a
Have you lalked to him Since hiS
o
depositIOn?
1
A Ihave
Iu
Q
And whal dtd you
two
talk about?
3
A A vanety of thWlgs but nothing III regard
4
10 thIS
9
1
Q
N()(h!ng
Ifl regard
10
lhe land'" appeal?
2
A.
Correct
3
Q
NothlO9 In regard to tllS deposlllon?
4
A
No
5
a
He didn't mention anytlllng about hiS
6
deposllJon?
7
A. I asked how It wenl but that was JUSI
a
general conversation
9
Q.
And what dld he say?
10
A He said It wenl - II wenlline. It was
11
what it was
12
a
INhere do you work?
13
A. I don't undersland PhySICally v.flere do t
14
woOl?
15
a
Yeah
\'\'ho
do you work lor?
16
A
Myself
17
a
What
do
you do?
t8
A I'm a coosultant for a vanely of clients
19
thall
have
o
Q
Whatlond of consultant are you?
1
A. I don't really know
how
to describe it.
2
I
do wolk for acql.lSlllOllS. so
companies
3
that are Iookm9 to buy olher comp3nteS
need
people
4
to do due diligence I do some of that I do
'0
1
buSiness modelmg I do some project development
2
wor1I
Similar to
the
role thaI
I
fUOClJOned
Wllh
the
3
fox
~1ofame
Landfill I do some valualJon reports
..
for comparues,
and
I partJeipale Il"I brokenng of
5
eompallleS for sale to othef' lI"IIeresled buyers
6
Q
What
IS the
name
01
your business?
7
A JOB
CoosuIbng
5eMces. Inc
8
a ArwJ
where
IS
yOlIf busineSS located?
9
A 4532
~y
Avenue,
S~+e-y,
Downers
10
Grove,IIliOOlS
11
a How
long have you had the business?
12
A
FIVe years In OCtober
13
a
And what's your relatlonshlp and lhe
14
relationship
01
your busmess
10
Fox MoraIne, LLC?
15
A They're a cllenl of mine
16
a
When were they lirst
a
client?
17
A. Seplember
012004
Maybe around that lime
16
Irame
19
a And what did you start domg for them In
o
September
012004?
1
A Pardon me tlTMsspoke
tn
Could you repeat
the
Ques\JoO OIl Fox
3
Morane?
4
a
Yes
Wlerl did
you first start
dOlO9 woO:
11
1
for Fox Morall1e?
2
A I
guess Fox MoralOe was -
became
an
3
entlly ... 2006 maybe arotni March. so that's when
4
I slarled dolO!l
~
for Fox Morallle
5
a
In March
01 2006?
6
A. Yes
7
a
And what did you slart dOing lor Fox
a
Moraine In March
0120061
9
A I was working on the Fox Moraine landfill
10
project forlhem
11
a
And tell
me
everylhlng you've done for Fox
12
Morame on IhlS landfill
protect
13
A. Could you
be
more speCIfic?
14
MR MUELLER.
Knd 01 a
broad QuestIon
15
BY MR DOMBROWSKI
16
a
Welt justtel me generally
for
slarlers
17
what you've
done lor
Fox Moraine
on thr.;
Iandfil
16
prated?
19
A
PartJeipated ... negotla\JoOs and
the
Iw
relallOn$hlp
WIth
Fox Moralfle and Groot.
1
Partlapated ... negohatloflS for the oper-a\Joo
~
2
the proposed
operator
of
the
Iandfll, Peona
3
Disposal I panlClpated in engagtng lhe vatlOUS
4
consultants that were expert Witnesses And, as we
12
3 (Pages 9 10 12)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
proceeded to file an application, I participated
2
In, you know, attending various county meetingS,
3
attending the various meetings in regard to
2000
4
Of, you know, Fox Moraine's application of, you
5
know, petition for annexation, the - the
6
application for - the forma! application for -
7
for the landfill
8
Q
So you helped pultogelher the formal
9
application for the landfill?
o
A I participated In -- I didn't put the
11
thing physically together, but, yes, I under - I
2
was Involved in preparing that application for
3
submittal
4
Q
And that application was submitted to the
5
City of YorkVille on December
1, 2006,
correct?
6
A Yes
7
Q
Ok! you have anything to do with the
8
landfill prOject after the applicabon had been
9
submllted?
o
A. Yes
1
Q
And what was that?
2
A. t was Involved In the hearing process I
3
sat lhrough all, If not most of the heanng itself
4
Met with the expert witnesses, the attorneys, was
13
1
Involved In the - you know, the project managemenl
2
of that project in conjunclton With Charlie Murphy
3
a
So you went to alilhe landfill hearings;
4
correct?
5
A I believe so,
6
a
And those were
23
or
24
In number?
7
A
Something in that regard, yes
8
a
W'hy did you go to all or most of all of
9
the landfill heanngs?
10
A
Because I was involved in the projecl and
11
that was part of my scope of partiCipation
12
a
Old you testify at
any
of those hearings?
13
A Idldnol
14
a
So was il lair to say that you showed up
15
fo baSically see what was going on and who was
16
testifying as to wha17
17
A
Yes
18
Q
Old you have
any
Involvement With the
19
landfill project once lhe landfill hearings had
o
ended?
1
A
Yes
2
a
And what was thaI?
3
A Dealing With vanous ISSueS t processed
4
Ihe invOices to have people paid From time to
14
1
tnne I intertaced With the attorneys thOlt represent
2
Fox Moraine and represent or particlpate In various
3
discussions with the management and owners of Fox
4
Moraine
5
Q
If Itle landfill Is eventually approved,
6
Will you have any role In lhe landfill afler Ihal
7
pOint?
8
A Can you be more specific?
9
Q
Weli. we're going through an appeal
10
process Should the landfill be 3pproved and CIted
11
and become an operating landfill, Will you have any
12
role in the landfill?
13
A Nol that-
14
MR MUELLER Go ahead.
15
THE WITNESS Nol th31 -- nol that I've been
16
told that I would
1?
BY MR DOMBRO'NSK1:
18
Q
So as far as you know, you wouldn't have
19
any role?
o
A I
don't think thaI determination has been
21
made by the owners of Fox Moraine. that once lhe
2
landfill would be started, what my participation
3
would be, if any, or not. I don't know
4
Q
Do
you have any financial inlerest in the
15
1
landfill projecl?
2
A. Beyond consuUing fees and a success fee,
3
00
4
a
So if it does get approved, you get some
5
type
01
bonus or confingency?
6
A ThaI'S correcl.
7
a
How long have you known Don Hamman?
8
A Probably - I've mel him Irom time to time
9
starting in, you know, probably around 1995 range
10
a
Do you have anything to do with hiS
11
composting faCility?
12
A. Idonol.
13
Q
Now, I have seen you identified In
14
newspaper articles as the spokesman for Fox.
15
MOf3lne, lLC; is Ihat a lair characterization?
16
A.
There was a time when
~
when I was
17
mterfaClng with the reporters, and Ihal was, I
18
guess, known lhatlf they wanted 10 ask questions,
19
that I would
be
available, so, yes, I was a
o
spokesman for the Fox Moraine
landfill, but not for
1
everything
2
a
Well, what then were you a spokesman for?
3
A like I said, the Fox Moraine landfill, but
4
there
was other Issues that people reached out that
16
4 (Pages 13 to 16)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
didn't mvolve me, so I wasn't the spokesman lor
1
2
issues
that I wasn't a spokesman fOI
2
3
Q
And whal other issues are you ta!kmg
3
4
about?
4
5
A
Well, I guess if - if you're -- if you
5
6
look al
a company spokesman, a company spokesman,
6
7
largely,
you know, they deal with - with all
7
8
extemal
and
somehmes internal discussions in
8
9
regard
to the company
9
10
I didn't
~
r dealt with some of the
10
11
repolters specifically In regard to the application
11
t2
or the hearing process Irom time to time, bUI nol
12
t3
always. So there could be other issues that people
13
14
needed to speak with Fox Moraine, the entity,
14
15
aboul, but it didn't go through me.
15
16
Q
Okay How many times do you think you
16
17
spoke With reporters beginning In March 01'06
17
18
thfough, let's say, the filing of this appeal,
18
19
which
was In July of '071
19
20
A 25 limes
20
21
Q
LeI's go back to the three transcripts
21
22
that you menlloned earlier You said thaI you
22
23
looked at lhose to see what members of the pUblIC
23
24
had said althose public meetings: IS that right?
24
17
particular exchange basically said that Don Hamman
and, in con/unction, Fox Morame had his hand In
the back pocket of Mayor Prochaska, which, m my
opil'llon was, you know, jusl an example of fustthe
tactics Ihat some of
the people that were agamst
the - against the pfoject, you know, presented
their arguments
ami intimidated in some regafds the
various
city council people
Q
How do you lhink Mr Milliron Intimidated
the city
counCil members?
A Well, I trllnk It was an example of
somebody would lake a photograph out of the
newspapel, WhiCh could have been anybody, ami that
photograph was taken out of
context and baskally
defamed In some regard, at least in the way I look
at thmgs, not only Mr Hamman, but also the
m~yor
Q.
And as a mailer of fact, Mr Hamman sued
Mr Milliron for defamation:
right?
A I beheve so, yes
Q
And that case was dismissed; correct?
A
I'm not - I don't exactly recall the
outcome.
Q
Do you know anything aboullhe outcome?
A
J
can't recall
19
1
A. Not all, all the transcripts, no.
2
Q.
But the three or so transcripts you
3
mentioned earlier is
what I'm talking about
4
A Yeah But all those didn't have publlc
5
comments in
it
6
Q
But some of them did?
7
A One
01 them did
8
Q. V\II1ich one did?
9
A
The re-annexatlon hearing or meeting
10
transcript
,
Q
And did you find any comments In there by
12
anyone from the public to be significant or
3
relevant to thiS appeal?
4
A
Ilhought that Todd Milliron's comments
5
were a good example of how the public was
6
interfacing With lhe
~
With the COUnCI[, and, you
7
know, how they
were presenting their side of the
8
story and lheir
~
theIr bellet, I guess And I
9
thought that
that -- a couple of the people that
o
spoke
in that regard was reflective of, you know,
1
the level
of Just how nasty lhe process at the lime
2
had been gOing.
3
Q
Well, what did Mr Milliron say?
4
A. Well, he - at that panicu!ar
~
at thiS
18
1
Q.
Do you have any idea If the SUit IS stili
2
ongoing?
3
A
I do not know
4
Q
Any other comments from thai transcript
5
that you find
relevant?
6
A I think George Gilson was another person
7
that was oUlspoken
!n hiS oppOSitIon to the
8
landflll
project And t thought thai his comments
9
were also caustic I thought thaI that was lhe -
10
the reason that
t was looking at that panicular
11
transcript is I thought that that was the one where
2
he baSically slood up and said to lhe city council
13
people that if you move forward on thiS landfill
14
projeclthat you're - nobody is going to want to
15
sil by you in church, and, you know, the
16
neighborhood
IS watching And I also thought It
17
was one of the times when he said that, you know,
18
volers are
gOing to vote you out 01 office jf you,
19
you know,
gO forward with this So I thought
o
that -- I thought that
IS where he made some of
1
those comments. And the one about the people
2
slttlng neKt to them In church wasn't in thai
3
transcript I can't recall which one II is in, but
4
It'S In one of the transcnpls. So I thought,
20
5 (Pages 17 to 20)
McCORKLE COURT REPORTERS, INC.
CHICAGO. ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
EXHIBITC
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
,,_~<od
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P4
P 76
MARKED FOR ID
EXAMINATION
IN DE X
WITNESS
DEVIN MOOSE
ByMr
Dom~ki
By
Mr
Blazer
EXHIBITS
NUMBER
Yorkville DepositIon Exhib,t
No.6
P. 5
NO.7
P. 34
NO.8
P.
55
(Retained by Mr. Dombrowski.)
,
2
3
4
5
6
7
8
9
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2
3
4
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6
7
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APPEAAANCE5
2
MUEllER ANDERSON.
P C.. by
MR GEORGE MUELLER
3
609 Etna Road
0Uawa.
Jlbnois 61350
4
(815) 431-1500
Representing
the
Pellbooer;
5
WILDMAN HARROLD AlLEN & DIXON, LLP,
by
6
MR LEO
P
DOMBROWSKI
225 West
Wacker Dnve
7
Chicago.
illinois
60606
(312) 201-2562
8
Represenhng Ihe Respondenl,
9
JEEP & BLAZER, by
MR. MICHAEL S BlAZER
10
24 Nor1h Hllistde Aveoue
SodeA
11
Hillslde.lllinois60162
Represenllrlg
!he
Kendall County
12
13
ALSO
PRESENT
14
Mr
Char1es J
Murphy. FOIl Valley
15
CMsuItong 5ervlces.
Irw;; •
and
16
Mr
Don
Hammao
17
18
19
~
22
3
24
2
1
(WitneSS
duly
sYoOm.)
2
MR DOMBROWSKI Mr
Moose.
my name IS Leo
3
Oombrow.;ki
1
re~t
the City
of Yorllville In
4
lhis
landfill
appeal
11 be
asking you some
5
questions today
6
Is it okay jf I call you Devin?
7
THE WITNESS It is And Leo ol<ay >Mtn you?
8
MR. DOMBROWSKI Fine
9
You understand that 'Ml have a court
10
reporter
here
to reoJfd everything that you and I
11
say. And
please Jet me
finiSh
my
question befOf"e
12
you start your ans....er.
and
1v.QIl1 step on your
13
answer, as
best
I can
do;
ralr enough
14
THEWrTNESS; Farenoogn
15
MR DOMBROWSKI U you don1 understand a
16
queslton, please let me know Qtherv.;se. 11
17
assume
that
you've uodefslood
i1_
Okay?
18
ll-lE WITNESS' Yes
19
DEVIN MOOSE
F
called as a .....!ness
herein.
haVlOg been first duly
I
S\OOm.
was examined
and
testified as folows
2
EXAMINATION
3
BY MR DOMBROWSKI
4
a
Are
you on any
medication
Of anything
that
4
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS. INC.
CHICAGO. ILLINOIS
(3,2) 263-0052
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
1
We've heard about him over and over and over again
2
No matter how
many
limes _ had 10 hear about it,
l
v.e had
to hear abol.lt it again
4
a
aut the
city
(XlUocil did
nol
pemllt people
5
to teslJfy, that was
the
hearing officer's
role;
6
righl?
1
A, I
dorl't thlllk any of
them
test,foed
A
8
lew of them
dod I
think Stao
Le'Mflsll.i or
g
LevMSki, 1may have pronoonced!hat v.rong,
10
teslJroed But very few of tnem subjected
11
themselves to testimony Most
01 them got up and
12
provided public comment.
13
a
And
11
was
the
heanng offK;er's
role
to
14
say - to recogni.l:e
people ....no
'MlUld
be
providing
15
public
comment,
COlTect?
16
A Yes
11
a
Did
you !\ave any input ....
~
...nan EO
18
file
the
tanCf.
appkabon?
19
A.
Just had
to
get the
appl"lCation
done by
Fe
the
date Other!han...nether
or
not
v.e v.ere
able
1
to
complete
the
technICal
w::ri: by the
d(lte,
but
2
other than that,
no
3
a
When
you say
"by the
dale:
v.O<tl do
you
4
mean?
29
1
A.
several d<Ites
~
discussed, and t don't
2
remember
the
precise d<Ite.
And
the questions 'MIre,
3
"Can you have it ready by this timer And
we
said
,
y<.
s
a
Okay Who asked you
10
get it ready
by
a
6
certaIn date?
7
A Mr. Murphy
8
a
And ....nat date was he shooling lor?
9
A.
I doo't recall. It was the d(lte that
we
10
filed Whenever, ....nenever that was
11
a
ThalwasOecemberl,2006?
12
A It was a snowy day,l fecallthal. Yeah,
13
It WilS
the
lsi of December Yeah
14
a That WilS no legal deadline, though; was
lS
il?
16
A. Well, In
the
fact that
v.e had
already
11
noticed,
I
think
we
had
some
legal obligation EO
18
file
on
!hat date
19
a
What
do
you mean you had already notICed?
po
A. We had
published
a notice in the
paper
1
thaI
v.e were 90WlQ 10 file on
thai day.
~
a
8lJt
you
could
have - there was no legal
3
deadline
to
publish
that notice;
am I right?
4
A Not that I'm aware of
30
1
a
So
the landfill application
00IJ1d
have
2
been filed earlier, it also (XlU1d have been filed
3
laler, correa?
4
A_
Yes
5
a
And
~
you filed
the
appllCallOO
on
6
December I, 2006.
you
knew thai
the
CIty of
1
Yorkville v.ouId
be
holding elections In Aprit of
8
2001. COlTect?
9
A I
was
aware,
yes
10
a Let me show you
v.hat has
been marted as
11
Yorkville
Oeposltion
Extvbl1 No 3,
~
15 Fox
12
Ml;nme's IIlterT'093tory answers to this landfill
13
appeal And you have seen
these belOf1l;
l;:OITed?
14
A Yes
15
a And
in
the
response EO Interrogatory
16
No.1,you'rellsteclasoneofltlelourpeoplev.ho
11
supplied
inlormalJorl
or
documents used in p-ep3rwJg
18
~an~.~?
19
A. Yes
~
a
What
did
you
do
to
help
prepare
FOll
121
Moraine's interrogatory ansY«'S?
In
A. I discussed
them on the phone
WIth
3
Mr Helsterl
4
a
Anyth.-.g else?
31
I
A. Not
to my recollection, no
2
a
DId you supply
any
documents?
3
A
Not
to my recollection,
no
4
a
Throughout the anneJ(3t\on and landfill
S
process beginning In leI's
say
September -let's
6
say beginning of september 2006, did yOll or anyone
1
at Shaw Environmental subscribe to a newspaper
8
clIpping servIce
10
9ather articles
thaI
y,cre
g
appearing In the Pfess regardin9 the landftll?
10
A I
subscribed to four or five different
11
electronic
and
COfIvenl,onal press clipping
12
services
13
a
And oMIat are those?
14
A Illinois Press Association,
the
lI~nois
1
S
Recycling Association. NSWMA
16
a
Whalisthalone?
11
A National
Solid
Waste Mal'\3gement
18
Association I think that's
probably....nere
I get
19
most
01
them.
120
a And
during 2006, 2007, _re
you
receiving
~
1
arllcles regardlng the
proposed Fox
Moraine
122
landfiK?
123
A Yes
~4
a
And
v.here
y,cre
those
artICles appearing?
32
8 (Pages 29 to 32)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263.()()S2
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
EXHIBITD
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
_andfill Hearing
May 23,
2007
1
"
HR. PAUL J1,MES, Alden:.a.n,
3
•
MS. PICKSRIJ.I(j:
Lethe.
ALDE?J.IAN USL IE:
Here.
MS. PICKEP.ING: Werderich.
ALl.l&?l1AN WERD£IUOI: H!re.
MS. PICYLflIHG: Golinsl:i.
ALlk,7JIAN OOLIN5KI:
H<!re.
MS. PICKERING:
Plocher.
ALlJER."IAN £-LOCHER:
Here.
[oIS. PICKERING:
Hunns.
Ufo
Res~nsel
KS. PIQlERING: SUtcliff.
Al!lf.P.IoVlN S1nCLH?:
Ikre.
loIS. PICYJ:RING:
oeseo.
~JI
BESCO: Here.
t{').
PICKEPJIfG: Spears.
j
j
order,
,
,
,
please.
"
IJ
J)
IJ
II
"
"
J)
"
"
"
11
"
1J
"
I
1
J
[N:lEFElJpr~"
elY
pr~fedln9s
~er!
resllJlOO
dS
tol!O\ro's;)
r~YOR
BURD:
Callin~
the
m~eting
to
~Jld
you please rise for the
pledge~
(Pledqe
of
,/I.11eqiancel
MAYOR B1J:.IJ: Roll call by
tM
derk,
~PJolJ.N
S?F.ARS:
!Iere.
HS. PlcrIRING: Burd.
HAYOP.
BU?D:
Sele.
(£.neef AldcD'dn
j
Munr.sl
f
W.YOR BURO:
We have a Q'JorW1\.
1
A1D~llJ-tw
HJNNS:
Here.
&
M.~YOR
BUPO: Would the city attorney
J plene introduce
thi~
case?
lQ
~.
PWH: This is a specidl lleetlnq
II of
the
City Council of the United City of
11 Yorkville, Illinois, called for the sole purpose
13 of consideration of an application filed by rox
Jf Moraine, LLC, for a landfill siting approvdl
Jj pursuant to 415 Illinois CO/I?iled Statutes
Ii
Chapter 39.2 of the City of Yorkville.
11
t~lice
of tOnlght's aefting has
J&
been given as required by law. By ....ly of
JJ backgrollnd. on Decerter 1st of 2006, fox Moraine,
20
LLC, filed an application with the City for
11 siting approval of a so:id waste landfill Llpon d
22 H3-acIe parcel of property 1000ted generally at
23 Route 71, four lliles west of the intersection of
11
!toote 71 and 47.
2
SPEcrAL MEf:THlG Of'
'mE CITY COOtlCl!.
UNITED ern
(of
YOPY'I"JI,LE, ILl.UIOJ5
)
,
J
J
,
j
,
HR. WALLY IlERDERICH, AldeCINn,
MR. ARDEN
",1"0<;"
f'LOCIf<;R. AlderlUn,
11R. GARY G:l1,JtlSK1, ....
lderm~n,
MR. HARTY I-JJlrNS, Aldennan,
MS. ROBYK SU'J'CL!Ff'. Alden',,",
l'Vt,
JOSEPtl BESCO. Aldec.!ln.
"'.s. JtOSE SP£AJtS, ... ld.....
n;
I.e;. LIE/\ PlCI':ERIIIG, City Chrk,
KR • .,JOHl1
C~Or5.
City Admi"isLUlQr,
11
"
1J
"
B
REroJ<r or PROCEWIN:iS
hoKI
and testirooy
, uken at the hearing laken on Hay
Z3,
~001.
at
10 the hocr of 7;00 p.•. , befoa Christine M.
)J
Vito~h,
C,S.R,. al the Gr,mde Reserve
~lementary
J2 School, Yorkville, l11inois.
JJ
"
Jj
"
"
J8
"
WIlLf(,\N, IIkPJWL.:I,
Al.LDf i
OIX~
/I
2300 c.bct Onv•• S.ule
.~5
Lisle, lll.!nou 60532
n
\6301 955-6534
8Y,
~.
HlctiAEL H. kO'Ml,
lY
appured on behalf of the United
City of Yorkville.
21
1J
"
Depa
Court Reporting SOlVice (630) 983-0030
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
.8"dfil/ Heari"g May
23,
2007
,
,
I
Th! CIty app..1jnlro d he"rinq
1 ctiice! to c[ll'lducl P\lolic nE-arill9s
O:'l
the
J application tn
accord~nce
"'ith t."le standHds and
proceI'iJres set out :'n section 39.2, rule :JPC'1l
5 evidentiary issues and IIOtions, and to !tIi!t.e
i
substar.tiv~ ri~inqs
and reeolntndations to the
1 City Coullcil as to the application.
~
Public hearill9s were then held
9 Oll 23 days from March 7th, Z007, through
10
.~ril
20th of 2001, at which testillOny and other
IJ
evidence ....as given.
11
11le
hearing )fficer then clused
IJ
the pOOHc hearirlljs on "pril 20th of 2007 and,
H P"lIsU3nt to statute, a period for recelpt of
H additio:lal written ctmItnl vas open
rna
Ii
April 21st, 2001 through Hay 21st of 2007.
11
The applicant, the public, ,,00
11 representatives of any public aqencies and
a organizations IlIilde connent and introduced
10 evidence. Many wrl tten cOfI1ll(lnts, including a
2/
report, recommendation from the City Staff and
ZZ ils attorney, were received, and all of this,
21 including a filing dated Kay 21st frOlll the
Zt applicant, has been included in the public record
,
I
:'he CilY c.:.unciJ is
u.~.d~r
flo'
2
le93~
ctligatio.1 to satisfy the SlUng standard!
J for the applicarot
by
fuir.q conditions ci
4 appro-lell,
5
Before deliberaticn begins,
, there
are two prdirainar)'
Ill3tten
that need to be
1 attended
to, 'l"he
hearing officer aid rr-.t rule
(In
8 two pending lTQtions, but left them for the City
, Council to decide, so the first ordet o[ business
10 is to do that.
11
The
first pending mtion is
J2 IItlether to diSll'iss
th-:
&:Iller based on an
11 assertion LMt the property is lhe sltlject --
Jf
tha~
the property that
is
the
sub)e~t
of the
H local
sitin~
applicati:m ..as not properl)' annexed
J' to the United City of
Yor~ville
and that,
17 thereiore, these proceedlJ1gs are not ",flder t:-ae
18 jl:r1sdiction of the City.
"
Consistent with the
10 retonmendation of the hearing officer,
we
11 reconmend that the Council deny the motion. The
12
question of the propriety of the annexation is
13 not subject to an indirect legal challenge to
14 lhes'! proceedings, ar,nexation is presUllE!d by law
,
•
to be valid aocl ve, therefore,
r~nd
thit
Z this .tien be denied.
1
The second
~tion
is that "lyor
Burd ard Aldeman Spears be disqualified from
participation in the local sitin<j process. fox
5 Moraine has alleged that those tWO officials ndve
7
engaged
in conduct that show bias. 1'his request
,
is contrary to Section 39.2, !lnd no evidence was
, introduced as to this contention
by
the
19 applicant. for these reasons, we recOff'lleoo
th~t
II this ootion also be sl.IlIMrily denied.
J1
So, first, 1 rec:ca:end that a
lJ
lOtion be IMde to deny Kend.tll County's
~tiOl'l
to
"
disaiss for lad
oi
jurisdiclion.
15
.a.LlDWIN SPE:MS: So lklved,
H
,..LD€W,N LESLIE: Second.
17
MAYOR BURD: Could I have roll call,
1&
ple~se~
jj
ALOE:RW.N MUNNS: Any discussion on
16 that?
21
KAYOil.
WHO:
Any
discussion? Any
11 lJUI'-stions, any discussion?
13
ALOEPy.\."1 )IJ}fflS: Just one questior,
1f
why the hearing officer
~
attend'!d every
•
1 in this eatter.
,
)
The hearing officer has
slilrUtted his findings and recOlfllendalions and
those have been forwarded to the City D:luncil.
S
These findings and rCc:DINN!n-jations are advisory
~
to the City Council.
7
Ill.' are now in a stage of this
8 proceeding where the City Coum:il shall consider
, and deliberate over the application. 110 further
10 evidence or input fre-l the
~pplicant
or the
11 plblic is to be laten.
11
Tbe City Council', general
11 rules ao::l procedure as set forth
ill
the City's
H Code reqarding Council debate qoverns tonight's
15 proceedings.
1~
The issue tonight is whetl-ter or
J1 not the a!lPlicant has mel his Durden of proving
JP
tha.t the proposed lilMfi1l1llet:ts the statutory
19 sili09 criteria under the Illinois EnvirOl'llrenlal
10 Protection
Ad
0
21
The City Council has three
11 options:
It
Iflly approve the application,
it
my
23 deny the applicatiOfl
I
or it my approve the
U
application on certain cooctitiol\!.
Depo
Court Reporting
Service
(630) 983-0030
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
_Bndftl/ Hearing May
23,
2007
----------
----------------"'----_.
"
-
been provid:!d to us at It.is point.
~:R,
P.CfTH: iI'ell--
3
I\I.D£RHI,N
~IERI)ERICIl:
P,nd I gue5s the
~
twnq of it, too, is the other thing.
W~J~t's
5 concerning to me is the fact that'll(: ,",'ere given
~
these voluminous amounts right before the period
7 of tine thot we were supposed to make the
8 deliberations and dedsionS.
J
tIJ\. ROTH:
I can only tell you
"
M.Il,YOR
BURD:
If
anybody would like
/I
III that --
II
I!
ALOEPJ'~~l ~,'ERDERICH:
Is that --
HR, ROTH: -- this binder -- this
13
binder of information --
~LDERHAll
-:EROERICH:
And that's
n
double-sided, right?
J6
MR. ROTH: It's double-sided,
17
-- appeared toniqhl to hJve
J8 been filed -- received by the City on the 22nd,
J9 it was post-marked on the 21st, and according to
20
your ordinance, that is sufficient within the
21 31-day -- the 30-day period, excuse
~p
for
21 post-hearing
~nt,
so it is before you and
it
23
is in the record.
"
!
HS. PICI<ERING:
Gohnski.
2
AI,rn:~MhU
GOLINSKJ:
Aye..
J
HS. PICKERING:
W~rderich.
ALOERM.~.N
WERVf.RICH:
!lye.
5
MR. ROTH: Next r cecorrrnend that a
6 !OCItion be rnade to deny Fox Moraine, LLC's mtion
to disquillify Mayor Bucd and Alderman Spears from
8 participating in the!)e proceedings.
9
AI,DERWIN GOLINSKI:
So moved.
10
ALDERM/\N Ir.'ERDERICH:
Second.
11
HAYQR SlJRD:
We have
-~
Any
12 discussion on this?
.~ny
questions?
13
(No Response)
If
ALDERMAN SPEARS:
I want to vote
15
~gainst
any
rul~s
or any landfill -- their rules,
16
am
I allowed to vote on this to remove myself?
/7 Okay.
ThJn~
you.
18
MAYOR BURD: Any other questions?
J
9
(No Responsel
20
I'lJ\YOR BURO:
Roll Cdll vote
j
please.
21
¥.3. PICKERING:
Plocher.
2]
~.LOEfIMAN
I'LOCHf.!\:
Aye,
21
MS. PICKERING: Spears.
24
ALlF.i<WIN SPE'J\RS:
Aye,
J
115. PICKERING: Sutcliff.
2
;lj,DEPJ{AJ'i SUTCLlI'F: Aye,
3
tIS. PICKERING: Besco,
ALDERMAN
BESCO:
Aye.
S
MS, PICKERmG: Leslie.
6
JlLDEPJ{6J1 LESLIE:
Aye.
1
MS. PICKE!UNG: Golinski.
8
ltLrt:RMAN GOLlilSKI:
Aye.
9
1£. PICKERING: Werderich.
10
l<.LDERHAN
WERDERICH:
Aye.
II
MS. PICKERING: Munns,
12
ALDElllolAN IMINS:
Aye.
13
MA~O!l
HURD:
Now 'oil' move into the
If
debate section.
1S
ALOCRWIIl WERDERICH:
Actually,
H actually,
if I
could ooke a point here before we
n
move in, one of the things that we did receive
18 tOOaY in regards to things that we're supposed to
19 take into consideration was post-public hearing
20 "rittert cocrrnents by the applicant, rOK Moraine.
21
I
would like to ask the
22 attorney, one, whether this is something that can
t3
be
clone ,md can be
taken into consideration
2f
especially in the voluminous illOOunts that has
"
to move to adjourn until tororrow --
2
/U,DERIWI BESCO:
Ye.s.
3
/ill.YOR BURD:
-- so that
you
c~n
reild
this through and you feel that you need flJ)fe time
5 fOf consideration --
6
lILDER¥,AH I,ESLlE:
I am concerned
7 aboot the
li~,
8
M.~YOR
BURD:
We have to vote
by
the
J
29th of Hay. That means that would move os back
10
aoother day, so you need to consider that. lie
II can't do all of this in one night.
~)e
need to
12 have discussions --
13
ALDERNhN l'1l::RDERICH:
I
14
MAYOR BURD:
Excuse me, please.
~'1e
IS
need La have discussions and then we will have to
16 give our attorneys tine to prepare a resolution
17
based on the consensus of the City Council arK!
1B
they will come back the next day with that
U resolution and then v€ will \late, so 'ole need at
2Q
least one night of debate, and then the n,o:xt
21 night >Ie will have the resolution that
'He
will
21
vote on and you can debati! that res<llution al
23 that time, So that's the outline of what we're
U
going to do.
Depo Court Reporting SelVice (630) 983-0030
"
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
CERTIFICATE OF SERVICE
I, Patti Racky, a non-attorney. certify that I caused a copy of the foregoing Notice
of Filing and United City of York\'ille'sReply in Support of Its Motion in Limine #
I
to be served upon the Hearing Officer and all Counsel of Record listed on the attached
Service list
by sending it via Electronic Mail on October 7. 2008.
lsi
Patti Racki
[x]
Under penalties as provided 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, Octoaber 7, 2008
SERVICE LIST
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.st8te.il.lIs
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helsten
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford. Illinois 61105-1389
chelsten@hinshawlaw.com
Michael S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside,
IL 60162
rnblazer@enviroatty.com
Eric C. Weiss
Kendall County
State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James J. Knippen, II
Walsh, Knippen, Knight
&
Pollock
21 SO Manchester Road
Suite 200
Wheaton.IL 60187
jim@wkkplaw.com
h~i.Hh\.'r
a
\\ \.J. pla\\ 1.:0111
James B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison
&
Runle
24255 Glenwood Avenue
Joliel.
IL 60435
jirn@mckeownlawfinn.com
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008