BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
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PCB No. PCB 07.146
NOTICE OF FILING
TO:
All counsel of Record (see attached Service List)
Please take notice that on April 28, 2009, the undersigned filed with the Illinois Pollution
Control
Board, 100 West Randolph Street, Chicago, Illinois 60601, Emergency Motion for
Leave to Check Out the Record of Proceedings of the Underlying Landfill Siting Application.
Dated:
April
28, 2009
Charles
F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford,IL
61105.1389
815-490.4900
Respectfully submitted,
On behalf of FOX MORAINE, LLC
Is!
Charles F. HeIsler!
One
ofIls Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 28, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
v.
Petitioner,
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PCB No. 07-146
UNITED
COUNCIL,
CITY OF YORKVILLE, CITY
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Respondent.
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EMERGENCY MOTION FOR LEAVE TO CHECK OUT THE RECORD OF
PROCEEDINGS OF THE UNDERLYING LANDFILL SITING APPLICATION
NOW COMES the Petitioner, Fox Moraine Landfill, LLC hereinafter ("Petitioner" or
"Fox Moraine"), by its attorneys, George Mueller and Charles Helsten, and for its Emergency
Motion
for Leave to Check Out the Record of Proceedings of the Underlying Landfill Siting
Application, states as follows:
1.
The Petitioner, Fox Moraine, filed the instant appeal in the aftermath of the
Respondent's denial
of the Petitioner's application for landfill siting approval.
2.
In this action, the Petitioner appeals the Respondent's denial of siting approval
based on the lack
of fimdamental fairness in the proceedings below, and further, based on the
faet that the denial
of siting appmval was .gainst the manifest weight of the evidence in the
proceedings below.
3.
Doting the hearing in the instant appeal, the Petitioner offered
to
waive
presentment
of argwnent eoncerning the sufficiency of evidence in the proceedings below to
establish
that the Section 39.2 siting criteria had been met, with the wtderstanding that the
Petitioner would make all such argwnents in its Post-Hearing brief, by citing to the proceedings
below. The
Hearing Officer expressed his approval for the Petitioner's proposal to defer
consideration
of such argwnents until the Post-Hearing briefs.
70S9798Svl 863858 62168
Electronic Filing - Received, Clerk's Office, April 28, 2009
4.
The Respondent, City of Yorkville, has filed a copy of the Record of the
underlying proceedings with the Board, consisting
of approximately 19,897 consecutively
paginated pages, and at all relevant times the Respondent
has had access to a copy of the
paginated Record.
5.
However, when the Petitioner contacted the Clerk of the Pollution Control Board
to inquire about checking out the Record of proceedings below for us:e
in
the preparation of
Petitioner's Post-Hearing Brief, the Clerk explained that he is not authorized to allow a litigant to
check out the Record. The Clerk did, however, advise the Petitioner that the Record could be
copied at a charge of$ .75 per page.
6.
Because the Petitioner, unlike the Respondent, does not have access to a copy of
the Record as paginated, the Petitioner is prevented, in its Post-Hearing brief, from stating its
case with citations to the paginated Record unless it expend. $14,922.75 for copying charges,
and causes an additional 19,897 sheets
of paper to be used to make duplicates of existing
documents currently stored with the Board.
7.
Inasmuch as it is a routine matter
in
the appellate
eoorts
for a litigant to check out
a copy
of the paginated Record for use
in
the preparation of the litigant's brief
(see. e.g.,
Fed. R.
App. P. 11(e); Ill. S. Ct. R. 324, 325), and inasmuch as the Petitioner's attorneys are ofllcers of
the court, the Petitioner respectfully requests that the Board grant Petitioner leave to cheek out
the Record, with the understanding that the entire Record
of proceedings below will be returned
to the Clerk upon Petitioner's completion of the briefing process.
8.
The deadline to file Petitioner's
Post~Hearing
brief is June 12, 2009, therefore it is
critical that the Petitioner begin review of the voluminous Record of Proceedings as soon as
possible, Accordingly, Petitioner requests that the Board act on this motion at the earliest
70597985vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 28, 2009
possible opportunity.
WHEREFORE,
Petitioner Fox Moraine respectfully requests that Ibe Board enter an
order authorizing
Ibe Clerk to allow Ibe Petitioner to check out Ibe Record, upon a pledge by
Petitioner's counsel Ibat Ibe
full
and complete Record will be returned to Ibe Clerk at Ibe
conclusion of the briefmg period.
Dated:
April 28, 2009
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park
Avenue
P.O. Box 1389
Rockford,
IL
61105-1389
815-490-4900
George Mueller
MUELLER ANDERSON,
p.e.
609 East Etu. Road
Ottawa,
IL
61350
815-431-1500
Respectfully submitted,
On behalf
of FOX MORAINE, LLC
Is!
Charles F. Helsten
One
ofIts Attorneys
70S97985vl 863858 62168
8AFFIDA VIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1" 1 09 of the Illinois Code of Civil
Procedure, hereby under penalty of peIjury under the laws of the United States of America,
certifies that on April
24, 2009, she served a copy of the foregoing upon:
Via E-Mail- hallorab@ipcb.state.il.usl
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center
1000 W. Randolph St., Ste. 11-500
Chicago, IL 60601
Via E-Mail- jharkness@momlaw.com
James S. Harkness
Momkns McCluskey,
LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
Via E-mail.
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
Via E-Mail dombrowski@wildman.com
Leo P. Dombrowski
Wildman, Harrold, Allen
&
Dixon
225 West Wacker Dr.
Suite 3000
Chicago, IL 60606-1229
Via E-Mail- eweis@co.kendalLil.us
Eric
C. Weiss
Kendall County
State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, IL 60560
7053S408vl 863858 6216&
Electronic Filing - Received, Clerk's Office, April 28, 2009
